C2007/3007, Transcript of Proceedings [2007] AIRCTrans 416 (24 August 2007)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 17250-1

COMMISSIONER TOLLEY

C2007/3007

s.496(1) - Appl’n for order against industrial action (federal system).
Parmalat Australia Ltd
and
National Union of Workers Transport Workers’ Union of Australia
(C2007/3007)

MELBOURNE

10.24AM, WEDNESDAY, 08 AUGUST 2007

PN1

MR S WOOD: I seek leave to appear on behalf of Parmalat Australia Ltd, who is the applicant.

PN2

MR A PORTELLI: I appear on behalf of the National Union of Workers. We have no objection to Mr Wood seeking leave.

PN3

THE COMMISSIONER: I didn't ask you about that. I run this Commission, not you.

PN4

MR PORTELLI: Yes, Commissioner.

PN5

MR M FAWKNER: I appear on behalf of the Transport Workers Union of Australia Vic/Tas Branch.

PN6

THE COMMISSIONER: Thank you. I note, Mr Fawkner, that the TWU Vic/Tas Branch were not initially a notified party in these proceedings.

PN7

MR FAWKNER: That's right, Commissioner. We couldn't understand why because we were involved in the fact that they were asking our drivers to load the trucks in the event of the NUW - - -

PN8

THE COMMISSIONER: So the amendment to the application was sought on the request of the TWU?

PN9

MR FAWKNER: It was, Commissioner.

PN10

THE COMMISSIONER: Thank you. Mr Portelli, have you got any comments about leave?

PN11

MR PORTELLI: No, Commissioner, other than to say that we have no objection. If the Commission pleases.

PN12

THE COMMISSIONER: Thank you. Mr Fawkner?

PN13

MR FAWKNER: No objection, Commissioner.

PN14

THE COMMISSIONER: Leave is granted, Mr Wood. Yes?

PN15

MR WOOD: Commissioner, this is an application under section 496 seeking orders against certain named employees. I note from Mr Portelli's appearance that he doesn't appear for the employees and appears only for the NUW. We seek orders against the employees as well as the NUW, but we don't seek any orders against the TWU notwithstanding the appearance today of the representative of the TWU. Commissioner, before we develop our application we are content for the matter to go into conciliation if that's convenient.

PN16

THE COMMISSIONER: Well, why are you here to conciliate? You could have done it somewhere else instead of getting me out of bed.

PN17

MR WOOD: We don't want to conciliate, Commissioner, we're just content to if that was a course that the Commission was minded to adopt.

PN18

THE COMMISSIONER: The Commission wants to hear the reasons and the facts behind the application, otherwise the Commission will decide it's frivolous and you can all go away.

PN19

MR WOOD: Commissioner, the application is based on industrial action which occurred on the 8th, 11th and, most relevantly, 28 July, that is Saturday 28 July, last Saturday week.

PN20

THE COMMISSIONER: Does industrial action cover all of those dates?

PN21

MR WOOD: Yes, Commissioner. But the industrial action which occurred on the 8th and the 11th is the subject of a dispute notification, that is a dispute under the terms of the agreement which is scheduled to be heard by Commissioner Lewin. That's an application that involves both the TWU and the NUW. It was an application that was adjourned at the request of the TWU to 17 August.

PN22

THE COMMISSIONER: Was it an application lodged by the unions or what?

PN23

MR WOOD: By the employer, Commissioner. It was due to be heard on
27 July, that is the day before the wildcat five hour stop work meeting and industrial action, and after that application was adjourned, that is a day after, the industrial action which has precipitated this application occurred on the Saturday the 28th.

PN24

THE COMMISSIONER: So you're saying the matter before the Commission is the action that took place on the 28th?

PN25

MR WOOD: Yes. And what we say, Commissioner, is that fact plus other facts which I'll come to make it clear in our view, Commissioner, that industrial action is probable. And we say that really for seven reasons. The first reason is that there is a history of resort to industrial action at this site. The second is that there is a high degree of antagonism displayed by the employees who work in the cool room towards management, and I'll take you in due course to a couple of newsletters which make that very clear.

PN26

The third, the industrial action which occurred on Saturday the 28th from 12.50 till just after 5 am was wildcat industrial action of which there was no warning. Fourth, the reason that was given for that industrial action, that is that the employees wanted information, could not possibly have been provided between 12.30 and 5 am on a Saturday morning. Fifth, there were in fact meetings scheduled for the next Monday the 30th and 31st, Monday and Tuesday, 30 and 31 July, to provide information. And I'll come back to what the information was provided about, Commissioner.

PN27

Sixth, at those meetings the employees who engaged in the industrial action did not accept that they had done anything wrong. There were four meetings on the Monday and Tuesday, Commissioner, that is at 12 noon and 8 pm on both days. The general tone of those meetings was not one of contrition or apology for what was done in terms of the wildcat industrial action, but a suggestion that nothing that had been done was wrong. And this leads to the last point, Commissioner.

PN28

The CEO and others, following the meetings on the 30th and 31st - - -

PN29

THE COMMISSIONER: Go on, Mr Wood.

PN30

MR WOOD: Commissioner, the CEO on Friday the 3rd, that is last Friday, sent letters, or actually personally hand delivered letters to some of the employees who were engaged in the wildcat industrial action on Saturday the 28th, and those letters were provided by the CEO and then during the weekend and continuing till this morning to one employee asking each employee to give a commitment that they understood what had occurred on Saturday the 28th was wrong and that they wouldn't in future take unprotected industrial action.

PN31

Out of the 23 employees who participated in industrial action on Saturday the 28th three of them provided an answer to that request and said yes, they'd give a commitment they wouldn't engage in further unprotected industrial action, and no orders are sought against them. One of the 23 is sick, Mr Brown. I should identify the three employees who have said that they give the undertaking that they won't engage in further unprotected industrial action. That's Mr Getlinger, Vlado Getlinger, Mr Daniels, Mr Keith Daniels, and Mr Fairhurst, Mr Steven Fairhurst. Mr Tony Brown is sick and hasn't been asked to provide such an undertaking, and Mr Murray Webb was asked a couple of days ago to come to a meeting to be provided with the letter, he refused. He was then presented with the letter yesterday. It took about an hour and 20 minutes to provide it to him, and the response by him is not due till 8 o'clock tonight, so his position as yet is unclear, but we anticipate, Commissioner, that he will do what the other remaining 19 employees will do, and that is simply refuse to respond.

PN32

Commissioner, in those circumstances having regard to those seven factors that I've just identified for the benefit of the Commission and for Mr Portelli and Mr Fawkner, we say that industrial action is impending or probable because of those factors, that is, there's a history of resort to industrial action, there is a high degree of the relationship between management and cool room employees exhibits a degree of hostility, that it was wildcat industrial action without any warning, that there wasn't any plausible reason for that wildcat industrial action, that there has been no contrition or acceptance in meetings after the wildcat industrial action that what was done was wrong, and then when asked to give an undertaking that they won't do it again 19 of the employees have simply refused to do so.

PN33

THE COMMISSIONER: Mr Wood, in the certified agreement that governs the site, in clause 40, disputes prevention and settlement, hasn't in effect each employee covered by that agreement given that type of commitment?

PN34

MR WOOD: Well, they have, but they don't abide by it.

PN35

THE COMMISSIONER: I didn't ask you that.

PN36

MR WOOD: I'm sorry, Commissioner. But the point is of course, Commissioner, that we would have been happy to have dealt with the underlying industrial issue by the dispute resolution procedure. Indeed, in relation to the issues that occurred on 8 and 11 July that's exactly what we have done. Now, the underlying industrial issue, Commissioner, which might be clear from the application, is that earlier this year a highly offensive newsletter was published.

PN37

THE COMMISSIONER: Yes, it's mentioned in the application, but there's no copy of it.

PN38

MR WOOD: Yes. I'm going to hand up a couple of copies, Commissioner. It really goes to what I said is ground two of our application, that is, why it is that you should find that industrial action is probable. I'll hand up - I think we can hand them all up, Commissioner, but I was just going to take you to two of them. This is issue number seven dated May 2007. I'm sorry, I don't have a copy for Mr Fawkner. We might try and - - -

PN39

MR FAWKNER: Yes, I think I can share it.

PN40

MR WOOD: And this is the latest version, Commissioner. I've got two copies of this one.

EXHIBIT #1 NEWSLETTER 7 DATED MAY 2007
EXHIBIT #2 DOCUMENT, THE MAD COW!!!!

PN41

MR WOOD: I can say in relation to exhibit 2, Commissioner, that is the one that followed from issue number seven, so although it's not marked issue eight, it is the next one in time. Commissioner, you can see from - do you want me to give you a chance to have a look at those documents, Commissioner?

PN42

THE COMMISSIONER: Yes, thank you. Who do you say is the originator of these, what I'll call newsletters, Mr Wood?

PN43

MR WOOD: As yet we don't know, Commissioner. What happened was that an investigation was conducted during this year and that investigation revealed that a number of employees distributed the newsletter. As to who actually produced the newsletter we don't know at this stage. We have our suspicions but we don't know. A direction was provided that the newsletter was not to be distributed, and that direction was breached, and on 3 July five employees were suspended pending further investigation. Four of them were members of the NUW who worked in the cool room. Their names are marked, Desavoury, Bradley Mason, David Bitton and Fred Nash.

PN44

The industrial action which occurred on 8 and 11 July was as a result of that suspension and, as I say, the industrial action on 8 and 11 July will be dealt with by Commissioner Lewin having regard to the dispute notification that has been issued and adjourned. By the end of that month, that is on the 25th, so that is the Wednesday, 25 July, and the 30th and 31st, four employees, those four plus a TWU employee plus a Brisbane manager were terminated, and the industrial action - and they were terminated as a result of the investigations that were conducted between 3 July and 25 July.

PN45

And the industrial action that happened on 28 July, on Saturday morning, was a result of the terminations which had occurred on 25 July, that is, the cool room employees were protesting about the fact that fellow cool room employees, four of them had been terminated three days earlier. It's clear from the evidence, and if we need to, Commissioner, we'll call some witness evidence from Mr Atef Frieh who is the senior coordinator of the cool room, but it seems to be uncontested that the industrial action which occurred on the Saturday was connected to and a result of the terminations on 25 July, which of course flowed from the distribution, you might say publication, but at least the distribution of the Holy Cow and Mad Cow newsletters.

PN46

There had been discussions with all of the cool room employees during July as to the process that had been undertaken to investigate the distribution of the newsletter. And what had occurred was that there were meetings conducted by HR and management officials from Brisbane who had come down to Melbourne to conduct those meetings during early July. And the dates of those meetings, Commissioner, were 14 June and the following couple of days, and 5 July and 6 July.

PN47

So by the time we got to 30 and 31 July, that is Monday and Tuesday last week, there had been three sets of information sessions dealing with the investigation into the distribution of the Mad Cow and Holy Cow newsletter and into the suspension of four employees as a result of that investigation, and the 30th and 31st meetings dealt with that issue and of course the issue of the termination of six of those employees, and relevantly for Melbourne, four employees from the cool room.

PN48

Now, Commissioner, if one looks at the application, in schedule 1 of the application there are 22 names. There were in fact 23 employees who engaged in industrial action in the cool room. Mr Paul Kovac also engaged in industrial action that day, and that takes the number to 23. There were four shifts - - -

PN49

THE COMMISSIONER: You might spell that surname again for me.

PN50

MR WOOD: K-o-v-a-c, Commissioner.

PN51

THE COMMISSIONER: Kovac?

PN52

MR WOOD: Yes.

PN53

THE COMMISSIONER: Thank you. Paul was the Christian name was it?

PN54

MR WOOD: Yes, Commissioner. In schedule 1 there were employees who worked four different shifts. Four of the employees, that is Mr Peter Blow, Mr Steven Fairhurst, Mr Daniel Portelli and Mr Roger Yap all worked from 6 pm till 2.30, so they engaged in industrial action from about 12.30 till 2.30. And of course we don't proceed against Mr Fairhurst because Mr Fairhurst has given an undertaking that he won't engage in unprotected industrial action in the future. There were six employees who worked from 8 pm to 4.30, or I should say were rostered to work from 8 pm to 4.30 but didn't work from 12.30 till 4.30 because of the industrial action, and they were Mr Backman, Mr Brotchie, Kym Brotchie, Mr Wayne Gillot, Mr Andrew Grant, Mr Murray Webb and Mr Paul Zammit.

PN55

There were another 11 employees that didn't work for approximately an hour and a half from 4 am till about 5.30 who were rostered to work on the 4 am to 12.30 shift, the so called day shift, and they were Tony Brown, again we don't proceed against Mr Brown because he's sick, Fernando Coelho, I'll come back to him in a moment, Keith Daniels, and we don't proceed against Mr Daniels because he's given an undertaking that he won't engage in further unprotected industrial action, Vlado Getlinger, and we don't proceed against him either because he's given an undertaking that he won't engage in further unprotected industrial action, Bryce Houston, Michael Jarvie, Kon Plattis, Adam Sawrey - - -

PN56

THE COMMISSIONER: What was the name after Mr Plattis?

PN57

MR WOOD: Adam Sawrey, Mark Smith, Jamie White and Kevin Zanella. Now, all those employees were scheduled to work from 4 am till 12.30 and didn't commence work until 5.30 apart from Mr Fernando Coelho who in fact commenced work at 4 am, then saw everyone else was in the canteen, and stopped work at 4.30, went to join the in the canteen till about 5.30, and then when the other, when the group of 11 came back to work he came back to work with them.

PN58

The fourth shift, Commissioner, was a special shift that only had one person in it, Rodney Pawsey. He was due to come in to work at 2 am. He was asked to come in and work overtime before his 4 am normal start, and he came in to work for that overtime shift and immediately engaged in industrial action with the other employees, so he sat in the canteen until 5.30, that is he sat in the canteen with the six to 8 pm shifts, when they left at 4.30 he continued in the canteen till 5.30 and he went back to work with the other 11 employees who were scheduled to work from 4 am till 12.30.

PN59

That leaves Mr Kovac, who is not identified on schedule 1. He was one of the employees who was on the 6 pm to 2.30 shift, so like the other four on that shift, Mr Blow, Mr Fairhurst, Mr Portelli, Mr Yap, he worked from six till 12.30 and then engaged in industrial action from 12.30 to 2.30. Commissioner, we would accept that in relation to that industrial action there is no evidence that the TWU was involved. Although Mr Pawsey was a forklift driver, there is nothing, there is no evidence we could produce to suggest the TWU had anything to do with his decision to engage in industrial action. And although Mr Brown, who is sick, is a member of the TWU, again there is simply no evidence that we could ask you to rely upon to suggest that the TWU was behind what Mr Brown and Mr Pawsey did.

PN60

Similarly, Commissioner, we would have to accept that although of the 21 remaining employees on our instructions every one of them is a member of the NUW, the involvement of the NUW on this day is hard for us to identify. At best we can say that Mr Zammit as the local NUW job delegate, was involved in organising the industrial action. But it may be, and it depends on the evidence you ultimately hear, Commissioner, that Mr Zammit didn't organise industrial action, though he engaged in it and he spoke for all the employees when he dealt with management. It may be that Mr Simon Backman was the person who organised the industrial action.

PN61

So we would accept at the outset that it may be the position, Commissioner, that you find it's not probable that the NUW will organise industrial action in the future. But that says nothing about the probability of these individuals engaging in industrial action in the future and, indeed, the fact that we can't point to any involvement of the union in this action makes it more likely that these individuals are doing it themselves and are thus more likely to do so in the future irrespective of what the NUW and the TWU might say.

PN62

Commissioner, in relation to service we service this application on the NUW, not on the TWU obviously, because each of the employees apart from Brown and Pawsey - I'm sorry, apart from Brown and White are members of the NUW. The cases, including the Tenix case, say that service on the union is sufficient for purposes of natural justice to give these employees fair notice that an order is sought against them. And to an extent, Commissioner, unless Mr Portelli changes the basis upon which he appears and says that he now appears for each of these individuals, the application is in effect uncontested except against the NUW. And I think we accept that the evidence against the NUW is somewhat weak, but the evidence against these individuals is very strong.

PN63

Commissioner, that's all I was proposing to say by way of opening. We have at least one witness, Mr Frieh, who is the relevant senior coordinator of the cool rooms and who was present on 28 July and witnessed this industrial action, and has been involved in attempts afterwards to try to encourage a return to more normal modes of industrial action discourse. Unless there's anything you want to ask me in particular about the way in which I've opened the case, Commissioner, I'd propose to call Mr Frieh.

PN64

THE COMMISSIONER: Yes, call him.

<ATEF FRIEH, SWORN [10.59AM]
<EXAMINATION-IN-CHIEF BY MR WOOD

PN65

THE COMMISSIONER: If you don't understand a question ask to repeat it. When you answer your question use a loud clear voice, I notice you've got a soft voice, because those microphones don't amplify your voice?---Okay.

PN66

MR PORTELLI: Commissioner, before we start can I ask if there are any other witnesses being called? Because if that's the case I'd like them to be sitting outside the courtroom. If the Commission pleases.

PN67

THE COMMISSIONER: Yes. Well, Mr Wood knows they'll be sitting outside the courtroom if they're going to be called. Mr Wood indicated he had one witness.

PN68

MR WOOD: At least one, Commissioner.

PN69

THE COMMISSIONER: Well, if you've changed your mind get the others out.

PN70

MR WOOD: Yes, Commissioner. I might just get some instructions, Commissioner. The other witness is going to give very short evidence and it might not be needed.

PN71

THE COMMISSIONER: Yes, Mr Wood?

PN72

MR WOOD: Thank you, Commissioner.

PN73

Mr Frieh, you've given your name, and the Commission will record in due course your business address. Are you employed by Parmalat Australia Ltd?---Yes, I am.

PN74

And have you been so employed by Parmalat for 19 years?---Correct.

PN75

And have you been employed by Parmalat in the role of senior coordinator of the cool rooms for the last four and a half years?---Approximately, yes.

PN76

And in that position as senior coordinator of the cool room have you prepared a witness statement for this case?---What do you mean?

PN77

Have you got together with the solicitors for Parmalat and produced a witness statement?---Yes.

**** ATEF FRIEH XN MR WOOD
PN78

Do you have that in front of you?---Yes, I have.

PN79

I hand a copy to the Commission. Does that witness statement you have in front of you run to some nine pages and does it have five exhibits?---Yes.

PN80

And I know this witness statement has been prepared in some haste, Mr Frieh. Have you had a chance to look at this witness statement before coming into the witness box here this morning?---Yes, I have, yes.

PN81

And is the witness statement true and correct?---Correct.

PN82

I tender the witness statement.

EXHIBIT #3 STATEMENT OF ATEF FRIEH

PN83

MR WOOD: In your witness statement, Mr Frieh, you refer to a number of things including the operation of the cool rooms and the importance of just in time delivery having regard to the nature of the products that Parmalat provides and the nature of the customers to whom they provide those products. You refer to paragraphs 19 through to 27 to certain newsletters that were distributed at Parmalat's Rowville, Bendigo and South Brisbane sites.

PN84

THE COMMISSIONER: Mr Wood, can I just interrupt you for a moment? Can you ascertain from your instructors if the company that's before the Commission in this matter has always been known as Parmalat, or had another name at that site.

PN85

MR WOOD: It's had another name at that site, Commissioner.

PN86

THE COMMISSIONER: And what was the name?

PN87

MR WOOD: Paul's I think. Paul's, yes.

PN88

THE COMMISSIONER: Thank you. I was just making sure because in one of my other lives I gave some advice to a company in a similar area, but I was just making sure it wasn't the same company.

PN89

MR WOOD: You referred to in paragraph 19 - I think some of the products still trade under the Paul's brand.

**** ATEF FRIEH XN MR WOOD
PN90

THE COMMISSIONER: No, different site, it's okay, I've cleared my conscience.

PN91

MR WOOD: At paragraph 19 you refer to an unauthorised newsletter titled Holy Cow or Mad Cow. I'll just hand you exhibits 1 and 2 in this proceeding, Mr Frieh, if you just have a look at those. Are they examples of the eight editions of the unauthorised newsletters you refer to in paragraph 19?---Yes.

PN92

THE COMMISSIONER: I couldn't hear you?---Yes.

PN93

MR WOOD: You refer in paragraphs 20 through to 27 of investigations into the unauthorised distribution of the newsletter. You refer to the fact that certain employees were suspended and then terminated, and you give some evidence about industrial action which occurred on 8 and 11 July. You then give some evidence about what occurred on Saturday morning, 28 July, and I'd just like you to explain to the Commission in your own words what happened that morning?
---Yes, Commissioner, early on the morning Saturday 28th due to start work at 5 o'clock am, but that night I felt something is not quite right so I decide to go earlier than normal. So I wake up about midnight, by 20 to one in the morning I was already in the car, and that time I receive a call from Tom Vincero, which is acting team leader, because the salary coordinator that night, he was having to be ill and he couldn't make it. So I got a call from Tom saying we have a big issue in the cool room, the guys walked out. And I said to him what do you mean? He say they all stopped working and they waiting in the canteen. I said okay, I'm on my way. So I'm not - I don't live far away from work actually, it took me only six minutes to be at work because only 6K from home to work, and I arrived at work about 12.55 am. As soon as I start work or I walked in the cool room I requested a meeting with Tom, which is acting team leader. I said what's happening exactly. He said I'm not quite sure, they all walked out and they decide we're not going to work until - I don't know what's the story exactly. That's what he said, he wasn't sure exactly what's the issue. I said how would you know they walked out? He said I was looking for Paul, I can't find him, and he rang the girls in the office, Karen.

PN94

THE COMMISSIONER: Who is Paul?---Paul Zammit, sorry, Paul Zammit, which his Paul Zammit having to be a driver of the forklift that day because we got two cool room at 842 Wellington Rd and another one at 830, and we're shipping product from one site to the others, and Tom was asking for some product to be moved from 842 to 830 and he couldn't get in touch with Paul, he went to see Karen, Karen Sharpe, which she's the clerk in the cool room office, and she said to him I can't find Paul, so he said well, I'll look for him. And when he was looking for Paul Zammit he find all the guys sitting in the smoko area in the back of the canteen in 842 and they decide they're not going to work until we get some answers why these four guys been stood aside, or been dismissed actually. Once I had finished my meeting with Tom I did talk to him, I said look, let's go and see the guys and we'll see what the issue is at this stage. I went to address the guys with Tom and I did ask Karen to come along as well to take some notes for us from the meeting.

**** ATEF FRIEH XN MR WOOD
PN95

MR WOOD: Who is Karen?---Karen Sharpe, which is the cool room clerk, she works night shift. Sort of the first question I asked Paul Zammit, what's the story guys, what's happening? They said speak to the guys, the guys not happy. I said not happy about what? He said they need some answers why these four guys been sacked. I said, well, at this time of the day, or this time through the night we can't get any answer and we already having a meeting on Monday and Tuesday with Laura and George to address us and update us about this whole situation. They said no, but this is not good enough, when Simon actually start as well asking
this - - -

PN96

Simon who?---Simon Backman, who is a cool room picker, he start asking some questions as well why these guys been stood aside, it's not fair, it's damaging a lot of lives and damaging a lot of families. I said okay, so I can understand where you're coming from, but the whole Holy Cow issue and the investigation is being done by private investigation and is being long time since they start the investigation, which is we sort of - when they make a decision to dismiss these guys, there sort of must be a reason. We're not sure what it is and we're not really involved with the evidence of the investigation, and that's why George and Laura will schedule a meeting for update and we all know and share the same information they're going to tell us on Monday or Tuesday. And they all say that's not good enough, we need an answer now. I said look guys, it's now - we can't get anyone at this stage and we need to go back to work. And they say no, we're not very happy, we're not going to work. And then I said okay, that means you refuse to go back to work so I'm going to go and try to make some calls and get back to you, but really I urge you, all of you to go back to work because really we're now stopping picking, we're affecting our customer, affecting our production as well because if we're not moving the milk that means the production will stop and that's going to hurt the business and hurt the individual as well, which sort of our job and risk as a whole group, so please just let's go back to work and then we'll decide what we're going to do. We'll discuss this issue later. And that's always the way we do things in Parmalat, so that they know if you're not happy we'll sit down at a table and we'll discuss the issue amongst the management or whatever, but we cannot stop work just like that, you're hurting the business. They said that's okay, no, we're not going to go back. So I did actually ask every individual by names are you going back to work or are you staying, and all the guys actually refused to go back to work except one person, which is his name Shane Dibble.

PN97

D-i-b-b-l-e?---Correct. He's the only one who said look, I can understand the situation we're in but I'm just going to have to go back to work because I feel for my job security and my family. And I said well done, Shane, that's the way to go, so let's look after our families, that's the best way to do it, sort of, you know, let's discuss the issue later. And some of them are saying well, if we go back, sort of we'll get paid because we stopped work? I said I'm not quite sure, let's go back now and we'll discuss if we get paid or not later on. And Paul Zammit actually make a statement, we already in the dispute and we took industrial action so by law they should dock us four hours pay. I said I'm not quite sure about that Paul, but let's go back and we'll discuss that issue later on. And after I call everyone's names and try to get them to go back to work they refuse. I went back to my office, called my manager which is Bob Booth.

**** ATEF FRIEH XN MR WOOD
PN98

B-o-o-t-h?---Yes. And I couldn't get hold of him, left a message, and my next contact was Bruce, Bruce Venables, the site manager. I couldn't get hold of him a well, I left a message, and a few other senior managers I left a message to let them know the situation. In the meantime I went back about half an hour, 40 minutes after that and said look guys, I tried to contact a manager, I can't get hold of anyone, let's go back to work, and they say no as well. At that time Rodney Pawsey was due to start at 2 o'clock in the morning.

PN99

Sorry, Rodney Pawsey was, P-a-w-s-e-y?---Correct. He start due to work at 2 o'clock in the morning because we organised from the day before to start early to help us out as overtime, and I did ask Rod are you staying, and he say no, I will stay with the guys here until we sort these things out. I said that's okay. At 3.30 am Bruce and Carol Wallace arrived on the site and they sort of had a discussion, explained exactly the situation, and at 4 o'clock in the morning we start meeting with the guys, try to convince them to go back to work, but they were really sort of - they really want some answers why these guys been dismissed. And Bruce and Carol, we haven't got any answer to give them, like, because we really don't know at that stage why, what's the reason, because we were waiting for the update from George and Laura on Monday and Tuesday, and sort of, you know, the morning shift as well start coming to work from 3 o'clock in the morning until 4 o'clock in the morning, so and they decide to join the guys as well in the smoko area not to start work.

PN100

In your statement at paragraph 44 it says around 3.30 pm?---Am.

PN101

Yes, it should be am?---Yes, am, sorry.

PN102

Sorry, go on.

PN103

THE COMMISSIONER: Don't worry about that, don't start trying to refresh your memory from that, you'll only get confused, okay? You just keep on answering the questions?---With the meeting with Carol and Bruce, Bruce was start, you know, talking to the guys about what we're doing, it's against the law, that stop work meeting shouldn't take place at that time of the day, and regard what they need as answer why these guys being sacked he said he really hasn't got the information the guys was asking at the time, and he was asking everyone to go back to work because really he's talking about as well there we're hurting the business, we're hurting the customer and we're hurting ourself as individual by losing our job. Carol is exactly the same thing, sort of trying - she took over a bit talking about, look, we've got nothing to tell you at this stage because we're having update in Monday and Tuesday, let's wait and see, but we'll try to get some answer to your questions. And at the time when sort of the guys said okay, give us a few minutes, we'll discuss it among ourselves, and they decide after that, so we left it for a while and we get back to the room and they decide we'll go back to work but on the condition you give us some answers to our questions. Carol said, well, we'll go back and ask George and Laura, whatever we can give you as information we'll get back to you this afternoon or tonight and talk to you about it.

**** ATEF FRIEH XN MR WOOD
PN104

MR WOOD: And you referred to George and Laura a couple of times, two or three times in your answer to my question, Mr Frieh?---Yes.

PN105

Who is George and who is Laura?---George is GM in Parmalat based in Brisbane, and Laura the senior manager in the HR in Brisbane as well.

PN106

Do you know their second names? Michalakellis?---Michalakellis, yes. Sorry I can't pronounce it. Laura Lesley.

PN107

Laura Lesley?---Yes.

PN108

And what happened then after the employees met and talked about going back to work?---What happened after they gone back to work, sort of we - what do you mean by that, what do you want to know exactly?

PN109

I just want to know if there's anything else you want to tell us about that morning. There might not be?---No, not really, no. There's sort of - the guys went back to work and really it was sort of - we stopped production actually for five and a half hours that day because the 842 cool room was chockablock actually and there's no space at all sort of to accommodate any product coming through the production, so we stopped for five and a half hours production that morning, so tried to move some stock from 842 to 830 cool room to make space for production to keep running again.

PN110

This might not be a question that you can answer, Mr Atef, and I know that Mr George Michalakellis has been asked to leave the body of the Commission because he might give evidence about this, but can you give any evidence about the effect of this five and a half hour stop work on the production or the damage that was suffered, or the impact that it had on the customers of Parmalat?

PN111

THE COMMISSIONER: Just before you answer that question, that can be said to be a loaded question in some ways. And I'm not criticising Mr Wood, but be very careful how you answer it, because if you haven't got personal knowledge you can't guess at what may be in effect. Do you understand what I'm saying?
---Yes, I do understand.

PN112

Yes, thank you. Yes, Mr Wood? You shouldn't worry about him, you worry about me?---No. I was really involved in that sort of stopping the production for five and a half hours that day because I did talk to Bruce, which he's the site manager, and he attend that morning to meet with the guys. I said, Bruce, 842 there is no product there at all, the cool room just empty - 830, sorry, which is - that's the main picking area for us. At 842, which is production attached to that cool room, that cool room was full, there's no room to put any crates of milk in that room because we did not move any product from half past 12 in the morning until when we go back to work again at about 5 o'clock, 5.15 exactly when the guys decide, yes, we're going to go back to work. So we make that decision to run only one fork because we had forklifts at that operation, we had one forklift down that morning, so we make a decision to take the other forklifts from the 842 to 830, which is two forklift 830 cool room, and tried to shift the stock from 842 to cool room to 830 cool room to sort of to try to free a space for production as well as to try to pick orders. Because if the product is not there we cannot pick an order, that order will sit on the floor waiting until we fulfil the order because we got the stock, but the stock was in the wrong location. It need to move from 842 cool room to 830 cool room. So if we cannot get that stock across, so two things. We will stop production because of the space limit in the 842 cool room, the second thing, sort of 830 cool room all the orders won't be fulfilled completely, which is it's part picked and you cannot go without filling the full order to the customer, because if we go without product the customer will demand their product and we have to go back to the customer and run back with the product, which is double cost for us.

**** ATEF FRIEH XN MR WOOD
PN113

MR WOOD: You were involved in at least one meeting that occurred on 30 July, that is Monday 30 July, that was a meeting that was conducted by Mr George Michalakellis and Ms Laura Lesley. I think the meeting you were at was one that took place at 12 noon on Monday 30 July, is that right?---Yes, correct. They scheduled, George and Laura actually scheduled for meeting date of the investigation and the dismissal of the four guys, or the three guys actually in the cool room which is David Bitton and Brad Mason and Marcus Avery. The way they sort of they scheduled the four meetings to try to get every shift in the actual these two days, because we work on a rotation roster and we try to communicate to all the guys we have to schedule this sort of meeting in a different time to try to get everyone as much as we can. We're not saying we're getting everyone, but we'll get as much as we can to attend this, for the work through these two days.

PN114

You say that these meetings were scheduled by George and Laura. When do you say they were scheduled?---There was a memo, and actually put in they do not support from, I think from Friday, from Friday night, or maybe Thursday actually, Thursday afternoon or Thursday night. I'm not quite sure exactly of the time, but there's a memo up on the board, it's been on the noticeboard for the cool room in regard - - -

PN115

THE COMMISSIONER: Is that contained in A of 3, Mr Wood?

PN116

MR WOOD: I beg your pardon, Commissioner?

PN117

THE COMMISSIONER: It's contained in attachment A of 3.

PN118

MR WOOD: I don't think that is the memorandum that he's talking about, Commissioner.

PN119

THE COMMISSIONER: It's not?

PN120

MR WOOD: No. That's the letter that was provided to each of the individuals.

PN121

THE COMMISSIONER: This was sent to each individual as a letter?

PN122

MR WOOD: Yes.

PN123

THE COMMISSIONER: Not as a memorandum to be placed on the board?

**** ATEF FRIEH XN MR WOOD
PN124

MR WOOD: No, Commissioner.

PN125

THE COMMISSIONER: Right, thank you. Yes, Mr Frieh?---Yes, that memo sort of been - was on the noticeboard regarding this update meeting with George and Laura, regarding the investigation and update with the investigation, which is that's one of the actual few meeting will be Laura and George have been having with the guys since before even we start the investigation. So I remember with the last meeting Laura was starting doing that sort of investigation, she was asking everyone sort of, you know, to help us or to help with the investigation, and we're trying to get to the bottom of the whole issue with the - the issue with the Holy Cow.

PN126

MR WOOD: Well, I'll hand you a document. Is this the memorandum that you're talking about, Mr Atef? I'm sorry, Commissioner, I've only got one copy of this, but I think the NUW has got a copy of it.

PN127

THE COMMISSIONER: Has the witness got a copy of that?

PN128

MR WOOD: No.

PN129

THE COMMISSIONER: Well, you'd better show it to him?---Yes, that's correct, that's the one.

PN130

Yes, we'll get some copies of that, Mr Wood.

PN131

MR WOOD: I might come back and tender that once we get the copies, Commissioner.

PN132

THE COMMISSIONER: Yes.

PN133

MR WOOD: That memorandum was dated 26 July, that is the Thursday. When do you think it went up on the noticeboard?---I'm not quite sure actually when it went on the noticeboard, because really I had Thursday, Friday, those my two days off that week. But when I came in sort of Saturday morning at 1 am that memo it was actually on the noticeboard, and as well to add to that one, usually I read the emails sometimes from home because I've got access to the system. I did saw that memo, and Bob was telling me about it, this update meeting being - Bob Booth, which is my manager, so he talked to me about it the day before this update meeting with Laura and George being scheduled for Monday and Tuesday to update with the whole investigation.

**** ATEF FRIEH XN MR WOOD
PN134

In paragraph 24 of your statement, Mr Frieh, you talk about the earlier information sessions which occurred in June 2007 and early July 2007, and you say the first information session was held on 14 June and was repeated on a number of occasions over the next two days, and the second information session was held on 5 July and repeated on 6 July, and 5 July being two days after the suspensions. Were you at any of these information sessions, either the ones on
14 June and a couple of days following or the ones on 5 and 6 July?---Yes, I did attend the information session from Laura and George, I did attend both meeting actually, and the third one which is the Monday the 30th, that is after the event of 28 July.

PN135

What was discussed - actually I might just tender this exhibit, Commissioner.

EXHIBIT #4 SCHEDULE

PN136

MR WOOD: What was discussed at the first information session on 14 June and the days following by George and Laura?---What was discussed, the newsletter had been sort of distributed around the site, it's not appropriate, and the company had taken some advice and they appointed a private investigation team to investigate the whole matter. And Laura was asking, actually was urging everyone to try to sort of try to help us with the investigation, because Laura wasn't involved and none of the Parmalat staff was involved in the discussion because HR usually, they the one running the investigation, but at this stage because the names, the HR names been mentioned in the Holy Cow issues, one of the issues of the Holy Cows, so that's why they couldn't be the one to do the investigation for the situation. And actually Laura wasn't very happy about getting a private investigation to do that but she was stating that she couldn't do anything about it because really we have to be independent investigation because the HR has been mentioned in some of that newsletters.

PN137

And what about what occurred at the second information sessions after the suspensions, that is the sessions on 5 July and 6 July?---The second information session which is a session the guys was trying to get some information about why the guys been stood aside, what evidence they've got against them, and about the security of the jobs, and sort of unpleasant sort of, you know, feeling from the guys about the whole thing, and Laura was trying to sort of - actually she did say when we complete the investigation we will get back to you and we'll update as we go.

PN138

And you said that when you arrived at work very early on the morning of Saturday the 28th you saw this memorandum, exhibit 4, on the noticeboard. Was it in a position, that is the noticeboard, where the employees who engaged in industrial action could see it?---I would say so, yes, because really the noticeboard got the roster which is the roster, sort of the schedule for the guys when they on, when they off, and everyone just look at this roster more than one time a day, sort of to make sure they are in the right days off and if they work overtime or not. So yes, it's visible for them all the time.

**** ATEF FRIEH XN MR WOOD
PN139

Now, I want to take you to the third information sessions, that is the ones that occurred on Monday and Tuesday, 30 and 31 July. What happened at those sessions?---I attend the Monday morning one - not morning, afternoon one, which his 12 pm, so that session was held in the training room at 842. That meeting was - all the guys in the cool room actually attend that meeting. The one that start from 4 am in the morning, actually some of them actually from 1 o'clock in the morning, which I remember more should stay back, and some guys from production as well, and happen to see the union representatives as well, John Glover and Daniel as well was there.

PN140

Commissioner, I think the witness has got his Portellis mixed up?---Sorry, we've got Daniel Portelli there, but we've got Adam, Adam Portelli as well.

PN141

And Mr Glover's in the - - -

PN142

THE COMMISSIONER: It's a common name, Mr Portelli.

PN143

MR WOOD: And Mr Glover's here today?---John Glover, yes, here today, yes. And that meeting sort of, you know, we did talk about the guys being dismissed and talked about the industrial action they took, unprotected industrial action they took on Saturday morning. That's about it actually, yes.

PN144

What attitude did the employees who were present at that meeting exhibit in terms of their attitude to the industrial action that they'd taken?---The men actually was a bit quiet in the afternoon so it's not much said actually from the guys, the information being shared between George and Laura to the guys, and there wasn't much question at the time.

PN145

Was there any apology offered by any of the employees who were at that meeting on the Monday 30 July?---Not at all, no.

PN146

Was there any suggestion that any of them accepted that what had occurred the previous Saturday was wrong?---Not in the meeting.

PN147

And I take it that you have spoken to other managers, and what have they told you about what happened in the other three meetings that occurred on the 30th and 31st?---Yes, we did discuss that with Bob actually, which he's my manager. He was saying the night shift meeting which is at 8 pm was heated up a bit, sort of it went for quite longer than the afternoon shift and was a bit of unhappy mood and people talked a lot and sort of, you know, was sort of they saying there's no respect whatsoever to - it's a company decision, and they just were really a bit heated argument I think, or get to that sort of discussion which is not really productive.

**** ATEF FRIEH XN MR WOOD
PN148

After those meetings on the 30th and 31st, Mr Lord the CEO came down from Brisbane, did he not, and handed out letters to employees who had engaged in the industrial action, or some of them, last Friday?---Yes. David Lord was in Melbourne so he - actually he's scheduled to do an information sessions with the guys. We do that one every six months, David and Laura sort of sharing all the information about how the company proceeding and how is things going as a business, and it happens sort of, you know, to have the issue which sort of he have to deal with, which is issuing that memo or the letters to every individual who has been engaged in that unprotected action for stop work at Saturday morning at 12 am, and just seeking their commitment for not taking any part of that sort of action again, because he explained exactly - I was in that meeting as well, sort of explaining how difficult it would make it for the business, we can't run a business relying - people can, you know, drop everything and just stop work because they demanding some answer for a whole issue that's been dealt with in a very, very professional manner like private investigation and, you know, all done in a fairly way, very fairly.

PN149

THE COMMISSIONER: Is that your assessment or the words used by Mr Lord?---No, that's what Lord was saying, exactly right, that's Mr Lord's words. And he was seeking actually the commitment. He said look, we need to make a commitment by signing that letter, to give us your commitment you're not going to do that again, because we cannot really risk our business. And Mr Lord actually was saying you don't have to sign the letter but it's really important for you guys to sign that letter to give us the commitment, you're going to sort of, you know, keep working with us and helping us to achieve our objective by customer service and keeping the business running all the time.

PN150

MR WOOD: And you say in your witness statement, Mr Frieh, that three of the 23 employees have provided the undertaking, that's Mr Vlado Getlinger, Mr Keith Daniels and Mr Steven Fairhurst?---Correct.

PN151

There's nothing further in examination-in-chief, Commissioner.

PN152

THE COMMISSIONER: Mr Portelli?

PN153

MR PORTELLI: Commissioner, we'd ask for five minutes, if the Commission is pleased with that, for myself and Mr Fawkner to review all the statements.

PN154

MR FAWKNER: Commissioner, I feel we need a bit of a break because I'm going to be sore on the tail like you probably are, and need a bit of a walk around. Not to have a smoke I might add too, Commissioner.

**** ATEF FRIEH XN MR WOOD
PN155

THE COMMISSIONER: Well, you shouldn't be out there smoking anyhow. You're not getting a break for that I'll tell you right now.

PN156

MR FAWKNER: I no longer smoke, Commissioner.

PN157

THE COMMISSIONER: Yes, good, okay. We'll resume at 12.

<SHORT ADJOURNMENT [11.41AM]
<RESUMED [11.56AM]

PN158

THE COMMISSIONER: Mr Portelli?

PN159

MR PORTELLI: Thank you, Commissioner.

PN160

THE COMMISSIONER: You understand that your oath still applies, Mr Frieh?
---Yes, Commissioner.

PN161

Yes, thank you.

<CROSS-EXAMINATION BY MR PORTELLI [11.57AM]

PN162

MR PORTELLI: Mr Frieh, do you know who is responsible for the Holy Cow newsletters that have been published and/or distributed on site in the first half of 2007?---No.

PN163

Have you seen any evidence pointing to cool room employees specifically being responsible or involved in this?---I'm not aware of that because I'm not part of the investigation actually.

PN164

Has the site as a whole been agitated and upset by the Holy Cow newsletter and the investigation?---Yes, there was a bit of upset from sort of everyone in the floor maybe, but really, yes.

PN165

So it's not just confined to the cool room then?---It's around the whole site.

PN166

Mr Frieh, are you aware of the custom and practice arrangements in terms of drivers, members of the TWU picking orders on occasion from the cool room?
---Yes, I am. From my experience with Parmalat it's been done, sort of asking driver casually when we're really behind so to get some help from them, and we always get - they respond yes. So the driver will load themselves sometimes, or we can ask certain driver to come work with us in the cool room.

**** ATEF FRIEH XXN MR PORTELLI
PN167

Are you aware of the long standing process which was confirmed by a meeting of management and the union officials early this year as to the processes by which the company was to follow so as to use drivers picking orders in the cool room?
---Yes, I am. The sort of arrangements, sort of we consult with union delegate, which is we always have been, and we get the sort of agreement, sort of to get the driver helping us in the cool room, and that's happening before any time we sort of we seek the help of the driver.

PN168

Mr Frieh, are you aware that part of that process is that all cool room employees first be asked if they want to perform that work in the cool room before drivers are brought in to do the order picking?---Correct. We'll - - -

PN169

THE COMMISSIONER: Just hand on for a minute, Mr Frieh. Mr Portelli, what's this got to do with examination by Mr Wood?

PN170

MR PORTELLI: Commissioner, the matter of these custom and practice arrangements have been included - - -

PN171

THE COMMISSIONER: Now listen to me. Don't think you're going to try there and show me and tell me it was custom and practice and that's why people stopped work in breach of the industrial agreement. Don't try it, don't try and pull it on, because it won't work. Do you understand what I'm saying.

PN172

MR PORTELLI: Yes, Commissioner.

PN173

THE COMMISSIONER: Right. Let's get to the guts of it then.

PN174

MR PORTELLI: Commissioner, can I say that's not my intention. Later on - - -

PN175

THE COMMISSIONER: It better not be, you've been fairly warned.

PN176

MR PORTELLI: Later on when it comes to my submissions, Commissioner, I want to certainly differentiate between two issues that we're talking about, one relating to custom and practice - - -

PN177

THE COMMISSIONER: All right. I've made my point, you've made yours.

PN178

MR PORTELLI: Thank you, Commissioner.

**** ATEF FRIEH XXN MR PORTELLI
PN179

Mr Frieh, are you aware that that component forms part of the procedure that the company needs to follow before drivers work in the cool room?---What do you mean by form?

PN180

Are you aware that all cool room full time employees and casual employees are to be asked to work in the cool room prior to drivers being brought in as part of the process that generally occurs?---We only ask driver to come and help us in the cool room when we run out of all the resources - - -

PN181

THE COMMISSIONER: Mr Frieh, what you're being asked is, are you aware that it is the custom and practice to ask all of the employees of the cool room about the drivers coming in the cool room?---Yes.

PN182

MR PORTELLI: Mr Frieh, on 8 July do you say that you met these obligations by asking all employees in the cool room to work in the cool room?---The 8th of July?

PN183

The 8th of July, which I believe, Commissioner, is the first incident regarding custom and practice referred to by the company.

PN184

THE COMMISSIONER: Isn't that a matter before Commissioner Lewin?

PN185

MR PORTELLI: Sorry, Commissioner?

PN186

THE COMMISSIONER: Isn't that part of the matter before Commissioner Lewin?

PN187

MR PORTELLI: It is, Commissioner. I notice though it is certainly part of the statement here, it's part of the application by the company.

PN188

THE COMMISSIONER: Yes. It's something that causes me concern for both sides.

PN189

MR PORTELLI: And, Commissioner, if we seek some clarification on this issue, the custom and practice arrangements, how they intersect with other issues today, we can either deal with it as part of the whole or as what I think my friend alluded to earlier but hasn't been confirmed, we set it aside and that matter be dealt with by Commissioner Lewin, and today we're only discussing and putting to witnesses in relation to - - -

**** ATEF FRIEH XXN MR PORTELLI
PN190

THE COMMISSIONER: Can I just try and assist you there?

PN191

MR PORTELLI: Yes, Commissioner.

PN192

THE COMMISSIONER: Not impede you. I asked Mr Wood if in effect what was before the Commission was the actions only on the 28th, and Mr Wood's answer was yes.

PN193

MR PORTELLI: Commissioner, I just - - -

PN194

THE COMMISSIONER: Now, I don't know if that helps you or not, but that's my understanding. Is that right, Mr Wood?

PN195

MR WOOD: Yes, Commissioner.

PN196

THE COMMISSIONER: Yes, thank you. Thank you, Mr Wood.

PN197

MR WOOD: In context - well, in context those seven other factors I mentioned, and none of those factors was what happened on the 8th or 11 July.

PN198

THE COMMISSIONER: Yes, thank you.

PN199

MR PORTELLI: I only make that point, Commissioner, because in the company's application certainly there is a reference to industrial action happening.

PN200

THE COMMISSIONER: Yes, there is, yes.

PN201

MR PORTELLI: There is also a very widely drawn order that arguably could take in some of those custom and practice arrangements. And if that's the case, Commissioner, and we put that to bed, we're happy about that and we then had the argument today about the more limited form of what the employees characterise as industrial action and whether that's - a repeat of that is more likely.

PN202

THE COMMISSIONER: Well, I think you've got your answer.

PN203

MR PORTELLI: Thank you, Commissioner, and I thank my friend.

PN204

THE COMMISSIONER: You can ignore all that exchange, Mr Frieh?---Thanks, Commissioner.

**** ATEF FRIEH XXN MR PORTELLI
PN205

MR PORTELLI: Mr Frieh, did you yourself hear Paul Zammit advise employees to attend the stand down meeting on 28 July?---Not direct.

PN206

How many employees were you aware of that were involved on the stand down meeting of 28 July?---It's all in the list actually. I can name them for you. There's guys starting from - - -

PN207

I don't think that will be necessary.

PN208

THE COMMISSIONER: Just give us an estimate of the numbers?---The number which is all up, 23 be all.

PN209

That's to the best of your knowledge?---That's the people that sort of engage in that stop work meeting.

PN210

Righto, you've answered the question, thank you.

PN211

MR PORTELLI: And could you estimate for us, or can you say, Mr Frieh, how many NUW members work on site approximately?---I haven't really - I haven't got a knowledge of any of them that work on the site, no.

PN212

I put it to you, Mr Frieh, that there's approximately 140 NUW employees on site give or take. You'd agree then that the individuals that engaged in the stand down meeting of 28 July are but a very small fraction of the total NUW members and employees in general on site?---Yes. But don't forget sort of - - -

PN213

THE COMMISSIONER: No. The answer is yes or no?---Yes. But I just say, just when I ask - - -

PN214

No, hang on, just hang on?---Okay.

PN215

I'll give you a little advice, free advice. Don't do anything I ask you another question about, you might hang yourself?---Thank you.

PN216

MR PORTELLI: Mr Frieh, has there been any industrial action since 28 July 2007?---Can you say that again please?

PN217

Sure. Has there been any industrial action on site since 28 July 2007 after 10 or 5.30 that morning?---No.

**** ATEF FRIEH XXN MR PORTELLI
PN218

Mr Frieh, you attended the briefings then on 30 and 31 July, did you?---No, just the 30th, Monday at 12 pm.

PN219

That's the one.

PN220

THE COMMISSIONER: Mr Portelli, you've got a soft voice and it's starting to drop off a bit, and I don't want people going to sleep in this poorly ventilated room or not, but just raise your voice.

PN221

MR PORTELLI: Thank you, Commissioner. I thought it might be my monotone putting people to sleep.

PN222

THE COMMISSIONER: No, I don't think so. It could be in relation to this joint.

PN223

MR PORTELLI: Mr Frieh, at the meeting you attended at 12 noon on 30 July did any employee threaten future industrial action during that meeting?---As I said, there's not much questions in that meeting at all.

PN224

So did any employee threaten industrial action in the future?---There wasn't even discussion about that one in that meeting.

PN225

So you didn't hear any threats of industrial action from any employees?---No.

PN226

Did any NUW official present, myself included, threaten to organise industrial action during that meeting?---No.

PN227

Do you know of any future industrial action that's being organised on site either by the union or the employees?---No.

PN228

Are you aware, Mr Frieh, that after the meeting of 30 July, in fact after all those four meetings, that NUW officials met with the members without management?
---Yes. After each meeting, it was about 45 minutes to an hour, a meeting with the union officials with the guys.

PN229

Are you aware of the content of those meetings?---I wasn't present, no.

PN230

Mr Frieh, regarding the memorandum, which I believe is exhibit 4, handed up to you earlier, do you have it in front of you?---Yes.

**** ATEF FRIEH XXN MR PORTELLI
PN231

Does it state anywhere on that notice what the update meeting is in regards to?
---In the actual memorandum maybe not, but it's only issue Laura and George will update us to the issue with the investigation of the Holy Cow situation.

PN232

Mr Frieh, does it mention terminations or Holy Cow?---It doesn't.

PN233

I notice in paragraph 24 of your statement, Mr Frieh, you've indicated that employees would have been well aware of the content of the meeting. With a memorandum that provides no insight as to the reason for the meeting why do you assume that all employees would have automatically known what the meeting was about?---The question had been asked around from the guys what's all that meeting about? And we sort of, we give the indication yes, that was about the update of the investigation. I'll give you an example. Alex, which is one of the guys, he did not participate in that stop work in the morning, he started at 3 o'clock that morning, and when I did ask him they stop because they want some answer, his reply to me straight, why do you want an answer now? There's a memo on the board saying they're going to give us some answer in Monday and Tuesday, why do you want it at 12.30 am, who is going to come and give them answer now? That's from one of the team member in the floor. So understanding everyone aware at that meeting regard the update of the investigation of the incident of the Holy Cow.

PN234

So, Mr Frieh, is your evidence then that all employees that undertook or engaged in the stand down meeting, all those employees were aware of what that memo meant and its contents?---I'm not quite sure.

PN235

THE COMMISSIONER: He didn't say they were aware, he said it was his opinion.

PN236

MR PORTELLI: Thank you for that.

PN237

Mr Frieh, putting aside the stop work meeting on 28 July which has been discussed today, or we're making no concessions about what happened on that day, but putting that to the side for a moment, has there been any industrial action on the site in the last 18 months?---Formal one, I wouldn't say yes, but sort of to lead to a sort of interruption of the business I would say yes.

PN238

THE COMMISSIONER: Now, are you saying, for my information, not necessarily their's, that there were no formal stoppages or industrial action but there was some disruption of the business which you regarded as being industrial action?---It's sort of interruption for the business.

**** ATEF FRIEH XXN MR PORTELLI
PN239

Well, would you say that's industrial action or not?---I wouldn't say no, not industrial action, no.

PN240

You wouldn't say yes either?---Yes.

PN241

All right.

PN242

MR PORTELLI: I was hoping that you could clarify - - -

PN243

THE COMMISSIONER: You were hoping he wasn't going to have a Saturday pun, that's what you were hoping.

PN244

MR PORTELLI: I was hoping that you may be able to clarify what if any industrial action there has been over the last 18 months, and by industrial action I think the question implied action that had been proven to be industrial action, not something after the fact, months after the fact had been considered industrial action. And seeing, Mr Frieh, that - - -

PN245

THE COMMISSIONER: Well, I think what you should do is stop there. You should think about the question you want to ask him and make it as short and clear as you can.

PN246

MR PORTELLI: You'll be happy to know, Commissioner, this is my last question.

PN247

THE COMMISSIONER: No, I'm interested in you asking that question again and asking it in a shortened more clear form so the witness can answer it properly, because I think you're confusing him.

PN248

MR PORTELLI: Mr Frieh, what exactly are you referring to in your statement when you describe the site as having a history of industrial action?---We had stopped work actually, or a stop work - the guys stopped work for a few hours, I'm not quite sure what the dates, but because of a dismissal of one of the production guys, and all the site's been engaged in a stop work for about eight and a half hours actually.

PN249

May I ask how long ago that was?---I can't recall but about two years maybe or a year and a half.

**** ATEF FRIEH XXN MR PORTELLI
PN250

Could I restate my question then, Mr Frieh. That in the last 18 months has there been any industrial action occurring on the site?---No.

PN251

Thank you. No other questions.

PN252

THE COMMISSIONER: Have you got anything, Mr Fawkner, that hasn't already been canvassed?

PN253

MR FAWKNER: Yes, Commissioner. I'll try and keep it as short as possible.

<CROSS-EXAMINATION BY MR FAWKNER [12.14PM]

PN254

MR FAWKNER: Before we go any further I'd like to ask, is it Mr Frieh or what, how is it pronounced?---Frieh.

PN255

Okay. I'd just like to reiterate, did you - I didn't hear anyone tell you, but everything you say you understand is being taped today during this hearing?---I did swear on the Bible, I understand that.

PN256

Yes, I understand that too.

PN257

THE COMMISSIONER: Why did you tell him that?

PN258

MR FAWKNER: Just in case anything came out that was untruthful later on.

PN259

THE COMMISSIONER: I'll worry about that.

PN260

MR FAWKNER: Okay, thank you, Commissioner. I just thought I'd ask that, that's all.

PN261

Mr Frieh, have you read all the editions of the Holy Cow? It is the Holy Cow isn't it?---It's a newsletter, they name it Holy Cow, yes.

PN262

THE COMMISSIONER: The question was, have you read all the copies of it?
---Just about, yes.

PN263

MR FAWKNER: Just about? Have you or haven't you?---I have.

PN264

You have read every one of them?---Not every one of them.

**** ATEF FRIEH XXN MR FAWKNER
PN265

You just said you did. Now, you're saying you didn't?---Not every one of them. So whatever issue, sort of, you know, it's been - - -

PN266

So you might have but you don't really know?---No. I did read whatever issue has been put on my desk.

PN267

Who gave you that issue?

PN268

THE COMMISSIONER: Let him answer the question?---Any issue, any of the newsletter been put on my desk sort of I did have a look around, have a look through it and read a few of them.

PN269

MR FAWKNER: So how put it on your desk, Mr Frieh?---No idea.

PN270

So it just appeared on your desk?---Yes. Usually the Holy Cow newsletter used to appear on the desk, in the lunchroom.

PN271

THE COMMISSIONER: It's a bit like the Commission list.

PN272

MR FAWKNER: Doesn't it, Commissioner, yes.

PN273

So when you've read these editions of the Holy Cow, I notice that they use initial of people like, you know, like - we'll give an example so that you understand what I'm saying. Like Mr Bruce Venables there would be BV, would it not be? What was the name of those initials, what did he get called in the Holy Cow?---What do you mean?

PN274

THE COMMISSIONER: Well, you've got to refer to which exhibit that's before him, and there's only two copies of the Holy Cow. I've got some problem with using that because that could be said to be, the words Holy Cow could be said to be denigrating the Sikh religion too. I'm a bit concerned about that. We'll refer to them as newsletters.

PN275

MR FAWKNER: Maybe it should be used under another name.

PN276

THE COMMISSIONER: We'll just say newsletters, all right?

PN277

MR FAWKNER: In exhibit 1 and 2, and I didn't have a look, and the Mad Cow being 2, but in exhibit 1 I just looked through it now and I'm looking to see - - -

**** ATEF FRIEH XXN MR FAWKNER
PN278

THE COMMISSIONER: You can have a look at that before he's asked the questions so you can answer them properly.

PN279

MR FAWKNER: I see we've got Wallace and Gromit on page, I think it's page - I'll just get the page, number 4.

PN280

THE COMMISSIONER: Who is Wallace and Gromit?

PN281

MR FAWKNER: I'm trying to work out.

PN282

Could you tell me who Wallace and Gromit is, Mr Frieh, could you tell me who Wallace and Gromit is?---Wallace, it's referring to Carol Wallace, which is the distribution manager of Victoria.

PN283

Right. And who would be Gromit?---I've got no idea about that one.

PN284

Okay. Also looking through this and I see different things. I notice in one of them there "A truer word was never spoken," which is on page - and I'll give you the page, Mr Frieh. On page 6, Mr Frieh "A truer word was never spoken."

PN285

THE COMMISSIONER: Where's that?

PN286

MR FAWKNER: On exhibit 1, Commissioner.

PN287

THE COMMISSIONER: Yes, but whereabouts on page 6?

PN288

MR FAWKNER: It's above "A boss is like a diver, always on" whatever, and then using all of this. And then underneath that - - -

PN289

THE COMMISSIONER: It's on page 7 of the email.

PN290

MR FAWKNER: And it's got underneath that "I love my manager at Yahoo.com.au." Do you see that one, Commissioner?

PN291

THE COMMISSIONER: Yes.

PN292

MR FAWKNER: And then at the top there it's "A truer word was never spoken."

PN293

THE COMMISSIONER: Yes.

**** ATEF FRIEH XXN MR FAWKNER
PN294

MR FAWKNER: I'll ask you, Mr Frieh, have you ever seen that joke before?
---Not really.

PN295

You haven't seen it on a noticeboard or anything like that?---No.

PN296

Mr Frieh, thank you very much, I appreciate your honest question. Thank you, Commissioner.

PN297

THE COMMISSIONER: I've got to admit to having seen something very similar on a noticeboard, Mr Fawkner.

PN298

MR FAWKNER: Sorry, Commissioner?

PN299

THE COMMISSIONER: I've got to admit to having seen something very similar as what appears under "A truer word is never spoken" on a noticeboard in another place.

PN300

MR FAWKNER: So, Commissioner, it could have gone around to any place?

PN301

THE COMMISSIONER: No, not on this form.

PN302

MR FAWKNER: But maybe under a different heading?

PN303

THE COMMISSIONER: Yes.

PN304

MR FAWKNER: Thank you, Commissioner.

PN305

THE COMMISSIONER: But anyhow I make nothing of it.

PN306

MR FAWKNER: Okay, thank you, Commissioner.

PN307

THE COMMISSIONER: Do you want more, Mr Wood? Are you going to let the man go?

PN308

MR WOOD: I've just got a few questions in re-examination, Commissioner, but very few.

<RE-EXAMINATION BY MR WOOD [12.19PM]

PN309

MR WOOD: You referred to speaking to an employee named Alex on the morning of 28 July, and Alex pointed you to the memorandum said words to the effect of, what do we need reasons now for, there's going to be a meeting on the 30th or 31st? What's Alex's first name?---Groger.

**** ATEF FRIEH RXN MR WOOD
PN310

Sorry?---Groger.

PN311

How do I spell that?---G-r-o-g-e-r, yes, Groger.

PN312

Groger?---Yes.

PN313

You were asked a question about whether there'd been any industrial action in the last 18 months, and you said that in the last two years, or one and a half years were your words, there had been some industrial action in the nature of an eight hour or eight and a half hour stoppage as a result of a termination of a production employee, is that right?---Correct.

PN314

I'll hand you a document, and you may not have seen this before, but tell me if you have. I'm just trying to get the date, Commissioner. It's a statement and recommendation of Commissioner Mansfield dated 21 July 2005. Is that statement and recommendation the product of the eight and a half hour stoppage?

PN315

THE COMMISSIONER: Mr Wood - - -

PN316

MR WOOD: I'm sorry, I only have one copy of it. I'll show it to - - -

PN317

MR FAWKNER: Excuse me, Commissioner. I would have thought if you come into the Commission you would have got other copies so everyone can see it, we could share it. Sorry, Commissioner.

PN318

THE COMMISSIONER: Yes. Just hang on for a moment. We'll adjourn, the witness will stay where he is, you'll all be quiet and Ms Weeding will bring back a couple of copies. Have you got anything else that's going to need copying, Mr Wood?

PN319

MR WOOD: I don't think so, Commissioner. I might just - - -

PN320

THE COMMISSIONER: No, sit down.

PN321

MR FAWKNER: Excuse me, Commissioner, he doesn't think so or doesn't - - -

PN322

THE COMMISSIONER: Sit down. This is going to put my blood pressure up, so you'd all better be careful. Yes, Mr Wood?

**** ATEF FRIEH RXN MR WOOD
PN323

MR WOOD: Thank you, Commissioner, and I thank the Commissioner's associate for assistance in that regard.

PN324

You gave some evidence about an eight and a half hour stoppage that occurred as a result of the termination of a production employee. This is a statement and recommendation of Commissioner Mansfield of approximately two years ago,
21 July 2005. Having this document in front of you now can you identify more accurately when the eight and a half hour stoppage as a result of the termination of the production employee was and whether it resulted in this Commission hearing and statement of recommendation?---So the dates are already in the actual statement there, so I'm not quite sure what exactly you need to now from me.

PN325

Is that date you're referring to 21 July 2005?---Yes, that's the one.

PN326

And is that the time which you say this eight and a half hour, approximately the time this eight and a half hour industrial action which was unprotected took place?---Correct.

PN327

I tender the document.

EXHIBIT #5 RECOMMENDATION OF COMMISSIONER MANSFIELD DATED 21/07/2005

PN328

MR WOOD: You were asked some questions about whether or not the 23 employees who took industrial action on Saturday 28 July were a small proportion of the NUW membership. Is it right to say, Mr Frieh, that apart from Mr White and Mr Brown that all the other 21 employees are members of the NUW?

PN329

THE COMMISSIONER: How does he know they're members of the NUW?

PN330

MR WOOD: Well, that might be the follow up question, Commissioner, but I thought he did given my instructions.

PN331

MR FAWKNER: Commissioner, I think that's a little bit leading there.

PN332

THE COMMISSIONER: Yes, for me.

PN333

MR WOOD: Can you give any evidence as to whether or not the other 21 employees are members of the NUW?---From that group it's only person who is not in actual - is not a union member, and the rest of them are NUW members.

**** ATEF FRIEH RXN MR WOOD
PN334

And who is not a union member?---Steve Fairhurst.

PN335

THE COMMISSIONER: Who was that?

PN336

MR WOOD: Steven Fairhurst.

PN337

THE COMMISSIONER: Yes, thank you.

PN338

MR WOOD: And how is it that you can say that all 20 of those employees, that is excluding Mr White, Mr Brown and Mr Fairhurst are members of the NUW?
---I've been with the company for quite some time, I've been dealing with these guys for a lot of years now so really I know who is in the union and who is not at this stage.

PN339

THE COMMISSIONER: So it's from your personal knowledge?---Yes.

PN340

MR WOOD: You were asked a question about the basis upon which, in your opinion, employees in the week of 24 to 28 - I beg your pardon, the week of 23rd to the 29th, Monday to Sunday, knew that there was a meeting to discuss the investigation into the newsletter. What can you say if anything about the fact that George and Laura had come down to Melbourne or were planning to come down to Melbourne on that day, Monday 30 July?---Sort of from the day one from the starting - before even the investigation Laura and George they give the commitment they will update us with every step of the investigation, and even until now they're saying as soon as the investigation finish or sort of the whole thing's finished we will talk to you about it and we will see what we can learn and what we can do so we can know, sort of, you know, to answer any questions you guys referring to.

PN341

To your knowledge was there any other issue current at the site at that time in relation to which an update from the Brisbane GM and HR, senior HR functionary was necessary?---I can't understand that question.

PN342

That's probably a bit - - -

PN343

THE COMMISSIONER: Is there any other reason to your knowledge why they would come to Melbourne?---No, actually no.

PN344

Thank you.

**** ATEF FRIEH RXN MR WOOD
PN345

MR WOOD: There's nothing further. Just excuse me, Commissioner. There's nothing further in re-examination, Commissioner.

PN346

THE COMMISSIONER: Yes, you're excused, Mr Frieh, thank you. You can leave all those bits of paper there.

<THE WITNESS WITHDREW [12.30PM]

PN347

MR WOOD: I call George Michalakellis.

<GEORGE MICHALAKELLIS, SWORN [12.31PM]
<EXAMINATION-IN-CHIEF BY MR WOOD

PN348

THE COMMISSIONER: Sir, when you are asked a question if you don't understand it ask for it to be repeated, and when you answer questions use a loud clear voice. Those microphones can't amplify your voice. Do you understand that?---Yes, I do, thank you, Commissioner.

PN349

I'm the only bloke that's got to hear what you're saying. Yes, Mr Wood?

PN350

MR WOOD: Thank you, Commissioner.

PN351

Mr Michalakellis, you've given your address and your name. Are you employed by Parmalat Australia Ltd?---Yes, I am.

PN352

And have you been so employed by Parmalat for two and a half years?---Yes, I have.

PN353

And are you employed in the position of Generation Manager National Operations?---Yes, I am.

PN354

And are you based in Brisbane?---Yes, I am.

PN355

Have you prepared a witness statement in this proceeding?---Yes, I have.

PN356

Do you have it in front of you?---Yes, I do.

PN357

And have you had a chance to - does the Commission have a copy of that statement?

PN358

THE COMMISSIONER: No.

PN359

MR WOOD: I'll hand it up to the Commission.

PN360

Is the statement true and accurate?---Yes, it is.

PN361

Apart from paragraph 11, Commissioner, I'll tender the statement. I'm not going to ask the Commission - - -

PN362

THE COMMISSIONER: Yes, good.

EXHIBIT #6 STATEMENT OF GEORGE MICHALAKELLIS

**** GEORGE MICHALAKELLIS XN MR WOOD
PN363

MR WOOD: Mr Michalakellis, I'd ask the Commission not to have regard to paragraph 11 of your statement because it's based on your estimate of what happened, of what sort of damage was suffered as a result of the events on the 8th of the 11th and 28 July. The events of 8 and 11 July will be discussed, perhaps resolved by Commissioner Lewin in other proceedings which are presently listed before the Commission. Can I ask you, and explain how you come to give this answer, what your estimate of the direct immediate loss sustained by Parmalat was as a consequence of the industrial action on 28 July 2007, and not including the damage suffered as a result of the events on the 8th and the 11th?---My estimate of the action on the 28th in direct costs would be $11,000 as a result of that direct action. What that does not take into account is the impact of late deliveries to customers. This is only product that has not been - wages costs, but it does not take into account the impact of late deliveries through the supply chain.

PN364

And what damage do you say is suffered by Parmalat or potential damage as a result of those late deliveries?---The impact of late deliveries can be of significance. It depends on the customer and on the day. Certain customers may impose fines on the company. Other customers basically may make a decision to go to another supplier. We do have contracts coming up for renewal. Coles is a major contract for the company, and certainly ongoing service issues may - they may consider that we're not a suitable supplier, along with other tender criteria. So that is why I draw the distinction between the immediate tangible versus the tangible things that do happen.

PN365

And what is the value of the Coles contract or Parmalat? It may be that that information is commercial and you wish to give that evidence in a way that's not in open court. But if it's not confidential can you answer the question?---If I may take the option of not allocating a value because it is commercial-in-confidence, but if I can explain it in terms of, it is between 30 and 35 per cent of the volume that we produce at the moment in Rowville, so the potential loss of that volume would have a significant impact on the business and also in Rowville.

PN366

And having regard to the position Coles finds itself in, in its market, what do you say if anything about the impact of a failure to deliver to Coles Supermarkets might have on the potential of the Coles contract with Parmalat?---It certainly will be - ongoing failures to deliver will certainly place a black mark against our name as one of the criteria for delivery to them.

PN367

THE COMMISSIONER: Do you have a contract for the delivery of the same sorts or similar products to Woolworths?---Some of the products, Commissioner.

**** GEORGE MICHALAKELLIS XN MR WOOD
PN368

Yes, thank you.

PN369

MR WOOD: But when you say some of the customers have the ability to fine you, and you say again that you might not wish to answer this question because of reasons of commercial-in-confidence - - -

PN370

THE COMMISSIONER: Can I assist you, Mr Wood and Mr Fawkner. The Commission is very much aware of the fact that contracts between commercial customers often and probably nine times out of 10 contain some sort of fine, whether it's a monetary thing or a re-look at a contract before it's up for renegotiation, I'm very much aware of that from my history before I came to this place.

PN371

MR WOOD: All right, I'll withdraw that question, Commissioner.

PN372

I want to ask you about the events that occurred on 30 and 31 July of which you can give direct evidence. I don't want to ask you about 28 July because we've already heard from Mr Frieh who was there at Rowville at the time. But I want to ask you about what happened in meetings that you conducted along with Ms Lesley on Monday the 30th and Tuesday the 31st at 12 noon and 8 pm, and then 12 noon and 8 pm the following day. Do you understand?---I do.

PN373

I might ask you in terms of the four meetings as a whole, and if it's necessary to ask you about each individual meeting?---Yes.

PN374

What can you say - I'll do it this way. Can you tell the Commission what happened in those meetings?---If I may I'll refer to my notes, my recollections of the meetings that we had. We invited the employees on site as per the schedule we had put out the week before to give them general information about the events that were going on in the business at that time.

PN375

When you say the schedule, can the witness be shown exhibit 4? Is that memorandum marked exhibit 4 the document you referred to as the schedule?
---Indeed it is.

PN376

Sorry, go on?---The purpose of the meeting, and this would be the third time within the last month or so that we got together with our employees, was to keep them informed to the best of our ability in terms of what was going on in relation to the investigation of the unauthorised newsletters. I opened all four meetings on both days by first of all thanking all employees on site, because not all the employees were involved in the actions and the reasons we are here today, I did thank them for their efforts and acknowledge that everyone is working under very difficult circumstances.

**** GEORGE MICHALAKELLIS XN MR WOOD
PN377

Can I just stop you there and hand you a document which is a list of persons who attended these meetings. I've gone through, or I think Mr Venables might have gone through and marked with yellow highlights the persons who are subject to this proceeding, and if a tick appears next to their name then those persons attended one of the four meetings that you have referred to in your evidence and that you conducted, is that correct?---I am aware of the process used. I cannot vouch that the ticks next to the individuals, because I didn't personally take roll call nor do I know the individuals themselves, I don't know all the people on the site.

PN378

But someone in the business kept this record?---Correct.

PN379

And as you understand it purports to show that?---Yes, correct.

PN380

I tender the document.

EXHIBIT #7 LIST OF EMPLOYEES ATTENDING MEETINGS

**** GEORGE MICHALAKELLIS XN MR WOOD
PN381

MR WOOD: I'm sorry, and you started each of the meetings thanking the employees, and go on?---Correct. We then told people we did not understand the reason for calling the illegal strike action at a time when no one was around to ask any potential questions they may have, particularly as my colleague Laura and I had made arrangements to come back from Brisbane on the 30th and 31st to discuss the situation with our employees. I did make the point, because I believe it is important that in the interests of transparency, that the company would pursue legal options and that there may be consequences for actions taken by people, one such example us being here today. So it's really about letting people know that the company is very serious about rectifying whatever issues are on site. In the sessions we were left with many questions that we could not answer, and those questions related to give us proof, give us the names of people who gave evidence, would employees who have been dismissed be reinstated, all of which of course at that point in time we could not answer. It is part of the investigation. And we tried to the best of our ability to explain to people present that that was the situation we found ourselves in. We did mention to people that we would give as much as information as we could and then we would allow them time with their union to discuss the matter further. There was concern expressed by the workforce about the pressure being felt by everyone in relation to having a private investigation on site, and we as a business are very conscious and aware of that. We did explain to the workforce as well that we were, I guess, equally unhappy but it was beyond our control not to have a private investigation, so we actually agreed with our people that we would need at a suitable time to call an end to the investigation, but we were not at that point during those meetings. There was agreement, I was very heartened, there was a lot of agreement by people on the floor who do understand the impact on the business of all this ongoing issue, and there was an agreement that as soon as possible we'd need to get together to draft a way forward, because I thought there was understanding on the floor that all this that was going on was not good for the business. What I did not get however is in relation to the issue relating to the unauthorised newsletters and/or the strike action that people understood that they had done anything wrong. So my perception was we need to look at how we go forward, but I was not left in any way satisfied that people understood the consequences of their actions or that there wouldn't be a repeat action.

PN382

Why do you say that?---I did ask or stress the point I could not understand why people held meetings on Friday when they knew we were going to come back next week to answer questions which could not be provided in the middle of the night, and I did not get a sensible, what I would consider sensible response or a response that made me believe that people understood that what they were doing was not something that should be done again.

**** GEORGE MICHALAKELLIS XN MR WOOD
PN383

Have you had any satisfactory response or sensible response at any time after
31 July from any of the people who are the subject of this proceeding to satisfy you in any way?---No, I have not. I am, I guess, further concerned because late last week, I don't have a date, but the managing director Mr David Lord happened to be on site and he too was concerned about the situation, and he handed out letters appealing to people not to do it again, and as I heard this morning there's only three responses, so that makes me concerned that the behaviour may be repeated.

PN384

You're General Manager Operations, do the operations of Parmalat extend beyond the Rowville site in Victoria?---Indeed they do. In my capacity as general manager we will look after 1000 people spread in just about every state. There's about nine manufacturing sites and up to 100 distribution points, so Rowville is one of those within that spectrum of activity.

PN385

And at any of those eight manufacturing sites and 100 distribution centres have you experienced anything like you've experience at the Rowville site over the last six weeks?---None at all. I have never had this experience.

PN386

There's nothing further in examination-in-chief, Commissioner.

PN387

THE COMMISSIONER: Just before you do, Mr Portelli. This exhibit 7, the copy that I've got has got a lot of ticks and crosses beside names. All those ticks and crosses do not correlate with schedule 1 in the application.

PN388

MR WOOD: No, that's true, Commissioner.

PN389

THE COMMISSIONER: Do I take it that only those marked with the blue - sorry, green highlighter pen are the ones that correlate?

PN390

MR WOOD: Yes, that's quite right. And some of the people may - - -

PN391

THE COMMISSIONER: The question you asked the witness was those with ticks.

PN392

MR WOOD: I'm sorry.

PN393

THE COMMISSIONER: I'd hate someone to say the witness was telling porky pies.

**** GEORGE MICHALAKELLIS XN MR WOOD
PN394

MR WOOD: No. The tick just means that they were at a meeting.

PN395

THE COMMISSIONER: Yes, okay. Good, thank you. Just wait there, Mr Michalakellis. Mr Portelli, any questions?

PN396

MR PORTELLI: Yes, thank you, Commissioner.

<CROSS-EXAMINATION BY MR PORTELLI [12.50AM]

PN397

MR PORTELLI: Mr Michalakellis, do you know who was responsible for the Holy Cow newsletter?---We today, up until today have not been able to establish the author, however through the private investigation I believe we have established certain people involved in the distribution.

PN398

I'll rephrase that, Mr Michalakellis. Do you know who is responsible for the publication of the Holy Cow newsletter in all its forms?

PN399

THE COMMISSIONER: If you don't know, sir, say so. Don't try and - - -?
---Commissioner, what I was trying to clarify in my mind, when we say publications, are people involved - - -

PN400

Just stop there. Do you want to answer the question another way? Like, do you know who wrote this dribble?---No, Commissioner, I do not.

PN401

MR PORTELLI: Do you believe that the Holy Cow newsletter issue provided the context of the stand down meeting of 28 July? In other words do you believe it was wholly or substantially responsible for the stand down meeting of 28 July 2007?---I believe that the issue on 28 July was related to the best of my knowledge to the company's decision to dismiss employees who through the investigation were found to be distributing, at least distributing those materials.

PN402

From your position, and I understand it's in Brisbane, not in Melbourne, were you aware of concern and angst overall at the site over the last couple of months in relation specifically to this issue of the Holy Cow?---Angst by whom, Mr Portelli?

PN403

By employees, Mr Michalakellis, by employees?---Mr Portelli, up until the time as we started the investigation the angst was certainly there amongst the people who are named in those publications. I was not aware of any angst in any people beyond those who were named in the newsletter.

**** GEORGE MICHALAKELLIS XXN MR PORTELLI
PN404

Mr Michalakellis, you weren't aware of any fears or concerns stemming from the employer bringing in an independent investigator, a formal policeman to interview people?---Mr Portelli, when we spoke to our people, I do not remember whether it was the first or second session, probably the first, we outlined in detail as to the reasons why the company was obliged to seek the services of a third party investigator, and the employees did express concern about the use of a third party, but we explained to them that it was unavoidable.

PN405

So the answer, Mr Michalakellis, is yes, you were aware of the concerns?---I was aware of anxiety, yes.

PN406

Okay. At the meeting on 30 and 31 July 2007, which you attended all four, is that correct?---Yes, I did.

PN407

Did you hear any employee during those meetings threaten future industrial action?---Directly, no, but I was not left with a satisfactory - - -

PN408

I'm not asking - - -

PN409

THE COMMISSIONER: Let him answer the question. If you don't like his answer ask it again.

PN410

You keep answering the question, witness?---Thank you, Commissioner. Directly no. But when you are engaging employees in a communication forum as we did, and we get no satisfactory response as to whether they would or would not do so again, we have to be left with a concern that that may happen again.

PN411

MR PORTELLI: Did any employee threaten future industrial action in your presence at any of those four meetings?---One of the employees said that they did not see that as industrial action, they merely decided to take time off work, and I felt that that lapse in understanding in the way they responded would lead me to understand that that was - - -

PN412

Mr Michalakellis, aside from your view of what people may or may not have meant - I'll rephrase the question. Did any employee state to you or in your presence - - -

PN413

THE COMMISSIONER: He's talking about used the exact words, Mr Michalakellis.

**** GEORGE MICHALAKELLIS XXN MR PORTELLI
PN414

MR PORTELLI: That they would take or were threatening to take future industrial action?---They did not use those words, no.

PN415

Thank you. Did you hear directly any NUW official threaten or attempt to organise future industrial action or allude in any way to future industrial action during the meetings that you attended?---No, I did not. But I have to say that we have received absolutely no feedback at all from yourselves to give us any assurance. We have absolutely no response or anything back whatsoever.

PN416

Mr Michalakellis, are you aware of a facsimile provided to your solicitors by the union on 6 August 2007 which was marked AF5 in Mr Frieh's statement?

PN417

THE COMMISSIONER: You might show that to the witness.

PN418

MR PORTELLI: Mr Michalakellis, in terms of your last statement about not receiving any feedback from the union, including myself, as to where the union stands on future industrial action or unlawful industrial action, can I ask you again - I'll strike that, Commissioner. Can I take you to the fourth paragraph, Mr Michalakellis, and ask you to read that sentence beginning with "Additionally"?---You wish for me to read it?

PN419

Yes please?---So you're referring to that paragraph beginning with "Additionally?"

PN420

That's correct?---

PN421

Additionally both Mr Glover and Mr Portelli in their separate meetings with the employees clearly explained the illegality of such actions and the potential legal consequences before advising all employees that the union does not condone unprotected industrial action and advising them not to consider engaging in such action in future.

PN422

Mr Michalakellis, would that count as feedback for you about its bona fides?---I saw this letter on Monday night for the first time. I would remind you, Mr Portelli, that you were in our business on Monday and Tuesday of the week before, and until Monday evening, by which time we felt we had no further option other than to come to this forum today, this is the first time that I had seen any feedback at all from the union. So almost a whole week passed before we had any feedback from you.

**** GEORGE MICHALAKELLIS XXN MR PORTELLI
PN423

Mr Michalakellis, is it fair to say then that you have received feedback from the union approximately two days ago?---I saw this letter for the first time on Monday evening.

PN424

Okay, thank you.

PN425

THE COMMISSIONER: You may receive feedback from the union as a body. What he's telling the Commission, and it's very clearly the Commission's understanding, and let's not hedge around it, you received no feedback from those employees. I'm going to say for myself without making any or preordaining any decision that I may or may not make, they've already walked out once in breach of an agreement, a breach with the assistance of the union and certified by this Commission. They have breached or ignored the recommendations made by Commissioner Mansfield as he was then, and when did they seek the union's advice about their walk out on the 28th? They didn't. Unless you're going to adduce evidence to that. So I'm just telling you to be careful going down that line because it doesn't help you.

PN426

MR PORTELLI: Thank you, Commissioner.

PN427

Mr Michalakellis, has any industrial action occurred since the stand down meeting of 28 May 2007 which has been characterised in this application as industrial action?---We consider the refusal of the employees to abide by the custom and practice on site to assist in the loading and picking of trucks by members of
TWU - - -

PN428

I'm sorry, I don't mean to interrupt you. I'm a bit confused, Commissioner. I was under the impression this matter had been taken out of the application - - -

PN429

THE COMMISSIONER: Well, to be fair to the witness, he was outside at your request, and I hope he didn't know what was said in here because it would mean someone has opened their mouth when they shouldn't have, so I'll just explain it?
---Thank you, Commissioner.

PN430

While you were outside the matters about the stoppages on the - I'll refer to my notes - the matters on the 8th and the 11th have been removed from these proceedings. They were about custom and practice, okay? The only matters that are before this Commission is about the stoppage on the 28th, okay?---Thank you, Commissioner, for the explanation.

**** GEORGE MICHALAKELLIS XXN MR PORTELLI
PN431

So any views you may have about the matter that's before Commissioner Lewin can't be raised?---Thank you, Commissioner, I appreciate the explanation.

PN432

Now, Mr Portelli, you ask the question again now the witness understands.

PN433

MR PORTELLI: I'll restate my question. Are you aware of any industrial action which has occurred since the stand down meeting of 28 May 2007 which the company in this application characterises as industrial action?---No.

PN434

Sorry?---Not if you exclude 8 and 11 July.

PN435

There's been no industrial action. Thanks. Are you directly aware, Mr Michalakellis, of any employee or union official currently planning, threatening or organising future industrial action?---Mr Portelli, that is a question I couldn't possibly answer you, I'm sorry.

PN436

Thank you. Just getting back to the meetings of 30 and 31 July briefly. Did you state to employees during all of those meetings that the company was considering legal avenues against - - -

PN437

THE COMMISSIONER: Will you be finished by a quarter past?

PN438

MR PORTELLI: Yes, I will, Commissioner.

PN439

Mr Michalakellis, did you state to employees during each of those four meetings that the company was considering legal action against the 23 or so employees engaged in the stop work meeting to recover costs against them that were alleged to have been incurred as a result of 28 July?---My recollection, Mr Portelli, would be that I expressed extreme dissatisfaction about the unlawful strike action and that the company would seek all legal avenues, would explore legal avenues to protect the company and those who continued or wished to continue to work. So if that's what was inferred then the company would continue, yes.

PN440

Thank you. Just one last question, Mr Michalakellis. You say that this situation is quite unique compared to other sites that you have and you've never experienced this. Has any other site that you've looked after also had four union delegates and/or health and safety officers terminated on the one day?---Are you referring to any kind of termination, Mr Portelli? I've been involved in sites where people have been locked out and not returned to work.

**** GEORGE MICHALAKELLIS XXN MR PORTELLI
PN441

I'm asking if this is unusual. Specifically I was asking if you had experience at other sites of having four union members, all either union delegates or health and safety representatives terminated on the same day?---I cannot specifically recollect, but I will also say that it's also unusual in my experience that a senior manager within the organisation was terminated for along the same lines during the course of the investigation. So it is a very unusual case, I agree with you, Mr Portelli.

PN442

Mr Michalakellis, I put it to you that these may be unusual circumstances and the consequences for the company may, in the company's opinion, be unusual, that the manner in which the terminations came about from the union's perspective and employees' perspective is highly unusual. I have no further questions.

PN443

THE COMMISSIONER: We'll adjourn and we'll resume at a quarter past two.

PN444

Sir, you'll have no discussion with anyone. You can be like me and have a very lonely lunch?---No problem.

PN445

Thank you.

<SHORT ADJOURNMENT [1.06PM]
<RESUMED [2.06PM]

PN446

THE COMMISSIONER: You were finished, Mr Portelli?

PN447

MR PORTELLI: I was, Commissioner.

PN448

THE COMMISSIONER: Mr Fawkner?

PN449

MR FAWKNER: Thank you, Commissioner.

<CROSS-EXAMINATION BY MR FAWKNER [2.07PM]

PN450

MR FAWKNER: Mr Michalakellis, I got it right too. I noticed my friend got you right too, so did Mr Tolley, and yet a person with such a high education as Mr Wood couldn't get it right.

PN451

THE COMMISSIONER: You blokes get outside and play. Down the road there I've got a two year old daughter on the swings, go down and play with her.

PN452

MR FAWKNER: I was just impressed with Mr Wood's questioning, Commissioner.

**** GEORGE MICHALAKELLIS XXN MR FAWKNER
PN453

THE COMMISSIONER: Come on.

PN454

MR FAWKNER: Mr Michalakellis, how long have you worked at Parmalat, Pauls?---Two and a half years.

PN455

Two and a half years. And where did you work before that, Mr Michalakellis?
---Immediately before Parmalat?

PN456

Yes, Mr Michalakellis?---At Nestle.

PN457

And, Mr Michalakellis, was there much industrial action at Nestle? And if Mr Wood wants to interject - - -

PN458

THE COMMISSIONER: Don't start putting out offers. Let the witness answer the question, otherwise I'll start asking you all questions none of you are going to like.

PN459

MR FAWKNER: Sorry, Commissioner, I apologise again for the second time.

PN460

THE COMMISSIONER: You are very, very naughty.

PN461

The question was, was there much strife at Nestle?---Nothing that I would consider untoward in terms of normal business practice.

PN462

MR FAWKNER: What, personally towards you or anything?---Absolutely nothing against me personally.

PN463

Thank you, Mr Michalakellis. I just wanted to get that right. Mr Michalakellis, you understand industrial relations and enterprise bargaining?---To the extent
that - - -

PN464

Well, certain things would have to be in an enterprise agreement?---I am not an expert on it, but if you can expand on your question?

PN465

Well, what I'm saying is like, something like a disputes procedure. Do you understand the disputes procedure?---I do, yes.

PN466

And, Mr Michalakellis, just to enlighten you - and, Commissioner, I might add I've got my exhibits with extra copies because even though I'm not well educated I know that you always come with plenty of copies.

**** GEORGE MICHALAKELLIS XXN MR FAWKNER
PN467

THE COMMISSIONER: And what are you handing along?

PN468

MR FAWKNER: It's just a copy of the disputes prevention procedure, Commissioner.

PN469

THE COMMISSIONER: In what, the certified agreement?

PN470

MR FAWKNER: Yes, the certified agreement, Commissioner.

PN471

THE COMMISSIONER: Well, the Commission comes prepared to matters too, it's got a copy of the certified agreement.

PN472

MR FAWKNER: Thank you, Commissioner. I thought you might.

PN473

THE COMMISSIONER: Thank you. Yes?

PN474

MR FAWKNER: Mr Michalakellis, we'll go through the disputes procedure right through to 4.8, but I want to pick out one that really gets to me, it sort of hits me in the face, right? And that's the one where if the matter remains unresolved, which is 40.5, do you see that, Mr Michalakellis?---Go ahead, Mr Fawkner.

PN475

It says:

PN476

If the matter remains unresolved then it shall be referred to the Australian Industrial Relations Commission for conciliation, if necessary arbitration.

PN477

Am I right?---I read what you are reading, yes.

PN478

Right. I'm just wondering that's all because, as I say, I've been pretty impressed here with Mr Wood and all those people there working over there and what they're costing, it's unreal. But anyhow, Mr Michalakellis, where in the dispute procedure does it say that a legal firm can come in and short circuit the disputes procedure and just sack people without going through the proper way of what the disputes procedure says? Can you tell me who advised you that they can do that?
---I think you need to explain. I don't understand your question, Mr Fawkner.

PN479

Well, what I'm saying to you is, there's a disputes procedure there that goes 40.1 down to 40.8, and nowhere can I read that Deacons can come in and take over in the middle of the disputes procedure and do what they want to do. I can't read that there. Can you read it there? And please explain it to me. You might see it. I can't see it.

**** GEORGE MICHALAKELLIS XXN MR FAWKNER
PN480

THE COMMISSIONER: We'll go off the record for a moment.

<OFF THE RECORD [2.11PM]

PN481

MR FAWKNER: Mr Michalakellis, I'll rephrase my question as it probably seemed a little bit aggressive but probably, I don't know why, but it just got me the wrong way. Mr Michalakellis, I'll ask you a question here, so I want you to be very honest because that is being tabled. Do you think there's going to be any more industrial action at Pauls in Rowville?---Mr Fawkner, I answered Mr Portelli a little while ago. I answered questions at the meeting, we went through a process where we spoke with people, I was left with no feeling guaranteed that that would not happen. My answer is still the same as I answered earlier.

PN482

THE COMMISSIONER: And what was that answer?---The answer was no, I am not satisfied that that would be the case.

PN483

MR FAWKNER: So you're not satisfied that there could be any more industrial action?---I am not satisfied that there would not be more industrial action.

PN484

Well, why would you think that way?

PN485

THE COMMISSIONER: Well, he's just told you that.

PN486

MR FAWKNER: All right, Commissioner, I'm sorry.

PN487

THE COMMISSIONER: It's a personal view.

PN488

MR FAWKNER: All right, sorry. Yes, his own personal view, Commissioner.

PN489

THE COMMISSIONER: Yes.

PN490

MR FAWKNER: Okay. You got that sort of feeling I got too. Okay, thanks, Commissioner.

PN491

Just one more thing, and I forget what exhibit this was, the memorandum to the staff, to all staff off Mr Michalakellis.

PN492

THE COMMISSIONER: Four.

PN493

MR FAWKNER: Four was it?

**** GEORGE MICHALAKELLIS XXN MR FAWKNER
PN494

THE COMMISSIONER: Have you got a copy of it there, sir, do you have a copy?---This one here, Mr Fawkner?

PN495

Yes, that's the one.

PN496

MR FAWKNER: Yes, that's the one, Mr Michalakellis. Mr Michalakellis, it says here:

PN497

Mr Michalakellis and Laura Lesley will provide an update on Monday and Tuesday in the training room at 842 Wellington Road.

PN498

But it doesn't say what for. Why would you word it that way and not tell them about what the meeting was about? It's intriguing me, because it wasn't across the road either, it was only on one side?---Can I - I think there was sufficient awareness amongst staff seeing as we've had two previous sessions already, and Ms Lesley and I had undertaken to get back to the staff, that this is what this was about. And in relation to only one side, when you say 842 that is where the training room is located.

PN499

But if the people were working across the road who you want to come to that meeting surely you would have put it up on the other side of the road too so they knew about the meeting?---I cannot answer the question as to whether it went up across the road or not.

PN500

But aren't you the GM, wouldn't you have told them to put it on both sides of the road?---Yes, we told them to discuss it with all staff.

PN501

No further questions, Commissioner.

PN502

THE COMMISSIONER: Thank you. Mr Wood?

<RE-EXAMINATION BY MR WOOD [2.16PM]

PN503

MR WOOD: I just have a couple of questions in re-examination for you. You were asked some questions by Mr Portelli about a threat, and the questions were phrased by using the phrase direct threat. In relation to an indirect or implied threat what do you say if anything about whether or not an indirect or implied threat to take industrial action was made at any of the four meetings that you conducted on 30 and 31 July, and why do you say that, if anything?---I would read a comment made by one of the employees who said they did not believe it was industrial action, it was people taking time off to get questions answered as an indirect threat in the sense that if for some reason I did not come up to an exact personal expectation despite our best efforts to speak, that that may result in action again.

**** GEORGE MICHALAKELLIS RXN MR WOOD
PN504

Can the witness be shown exhibit 3, which is the witness statement of Mr Frieh? At paragraph 24 of that witness statement Mr Frieh refers to in the last two sentences, information sessions. In your own - perhaps you can just read those two sentences to yourself. In your evidence in answer to Mr Portelli and Mr Fawkner you said that there had been two previous information sessions. Are those the information sessions you're referring to?---Yes.

PN505

Nothing further in re-examination.

PN506

THE COMMISSIONER: You're excused, sir, thank you. You can remain in the body of the Commission if you wish?---Thank you, Commissioner.

<THE WITNESS WITHDREW [2.19PM]

PN507

MR WOOD: Commissioner, that's our evidential case. I was going to hand up some draft orders that we'd seek, but I thought I might do that after we determine whether there's any evidence to be called on behalf of the unions, and if not I'll make my final submissions and hand up the orders.

PN508

THE COMMISSIONER: Mr Portelli?

PN509

MR PORTELLI: Thank you, Commissioner. Firstly, the answer to the question, is there information or evidence that we'd seek to lead in opposing the application, the answer to that is yes. There are two individuals that we are seeking to call shortly to provide evidence.

PN510

THE COMMISSIONER: Do you wish to make a preliminary opening or go straight to the evidence?

PN511

MR PORTELLI: I would like to, and I will keep it brief, Commissioner. And can I say that if nothing else at least today has set aside one ongoing issue on site, that being the custom and practice arrangements, and we trust that regardless of what the outcome of the substantive issue is today, that any order that's made would reflect the limitations that have already been discussed today, in the sense that custom and practice arrangements and those working arrangements are not before the Commission.

PN512

THE COMMISSIONER: It's not before the Commission so there's no need to belabour the point.

PN513

MR PORTELLI: Commissioner, at point simply is that the matter, the application before you today should be dismissed on the basis of jurisdiction. Clearly there is a background that no one disputes that all comes back to the Holy Cow newsletter. It hasn't been disputed today, but the context for this stop work meeting dated 28 July stems from the process, the investigations and the subsequent terminations of four NUW delegates and health and safety representatives. That is the issue that led to the stop work meeting on 28 July 2007.

PN514

In terms of that stop work certainly it's denied that Mr Zammit as the on site delegate encouraged or initiated that dispute, and it's - - -

PN515

THE COMMISSIONER: Well, I think Mr Zammit went beyond that. He warned them the company was entitled to take four hours pay off them from memory.

PN516

MR PORTELLI: That's correct.

PN517

THE COMMISSIONER: That's not disputed.

PN518

MR PORTELLI: That's correct. And certainly it's our view that the actions were born out of the frustration of the employees unable to get what they saw was adequate answers and information about the process which led to the termination of the employees. It's important note, Commissioner, and we'll go into this in more detail when evidence is led, but throughout this process the union has consistently advised its employees, delegates and the company that it does not condone unlawful industrial action.

PN519

THE COMMISSIONER: When you say employees, you mean it's members who are employed at the site?

PN520

MR PORTELLI: Its members, that's correct, Commissioner. We have consistently provided that advice to the company, our own members throughout this process, the last meeting being on 30 or 31 July 2007. We say on behalf of the union and on behalf of our members there on site, and specifically the 23 or so employees that are listed in the schedule of the applicant's application that there is currently no industrial action on site, none is occurring or continuing. We say that there is no action probable, threatened, likely or being organised by either the union or the employees on site, and we say that so far the employer's failed to provide evidence, direct evidence that such action is being contemplated let alone planned or threatened, and we'll be providing evidence to that regard.

PN521

Commissioner, we now will call our first witness. I'll ask Mr Glover to leave the room.

PN522

THE COMMISSIONER: Who is your other witness?

PN523

MR PORTELLI: I call Mr Zammit.

<PAUL ANTHONY ZAMMIT, SWORN [2.24PM]
<EXAMINATION-IN-CHIEF BY MR PORTELLI

PN524

THE COMMISSIONER: Take a seat, sir. And you heard me tell the others, if you don't understand the question ask it to be repeated, and use your big voice. Yes, Mr Portelli?

PN525

MR PORTELLI: Thank you, Commissioner.

PN526

MR PORTELLI: Mr Zammit, could you state your name and occupation for the Commission?---Paul Zammit, order picker/forklift driver.

PN527

Can I provide Mr Zammit with a copy of his statement?

PN528

THE COMMISSIONER: Have you got one for Mr Fawkner before he spits the dummy?

PN529

MR PORTELLI: I've already provided Mr Fawkner with a copy, Commissioner. I was very careful of that.

PN530

Mr Zammit, is this the statement that you've prepared?

PN531

THE COMMISSIONER: Just read it, sir, and make sure it is for your own sake. Scan it quickly?---Yes, that's the statement, my statement.

PN532

MR PORTELLI: And it reflects a true and accurate version of what your recollection is, Mr Zammit?---That's correct.

PN533

Thank you. I tender that, Commissioner.

PN534

MR WOOD: I object to certain parts being received, Commissioner. Paragraphs 2 through 20.

PN535

THE COMMISSIONER: 220?

PN536

MR WOOD: Paragraphs 2, 3, 4, 5, 6, 7, 8 - - -

PN537

THE COMMISSIONER: In entirety?

PN538

MR WOOD: Through to 20, and paragraph 30. They relate to the events of 8 July and 11 July.

**** PAUL ANTHONY ZAMMIT XN MR PORTELLI
PN539

MR PORTELLI: Thank you, Commissioner. And I obviously don't intend on asking Mr Zammit questions in relation to that.

PN540

THE COMMISSIONER: Okay. Well, just to make sure that he's understood.

PN541

Do you understand what's being said?---Yes, that's correct.

PN542

Any matters in your statement about those matters we've already said are subject to another place?---Yes, on the 17th.

EXHIBIT #R1 STATEMENT OF PAUL ZAMMIT

PN543

MR PORTELLI: Mr Zammit, how long have you been a union delegate at the Parmalat site in Rowville?---Just on 12 months.

PN544

Can you tell the Commission, Mr Zammit, what were the reasons as far as you were concerned and to the best of your knowledge that led to the stand down meeting of 28 July 2007?---The meeting? Sorry, I'm not sure.

PN545

In your opinion what circumstances led to the stand down meeting of 28 July occurring?---When I arrived to work everybody was curious about why the guys had been dismissed because they hadn't been given any information. At the 10 pm break, which is a 15 minute break, most of the cool room guys were sitting around. I told people what I knew. It made them emotional and upset. They were shooting off questions left, right and centre, purely based on the fact that I'd told what I knew, that the guys had been presented with an allegation, asked to defend it and then dismissed, and as far as I knew that no evidence had been shown. They got extremely upset at that, thought it was a witch hunt. Like I said, there was lots of questions being fired and someone said something about stopping work. That was when I first told them that if you done something like that that's wrong, that we can't take that course of action, that, you know, even if you stop for two minutes you'd lose two minutes pay. The company, it won't make the company tell the truth, it won't make them reinstate it. They seemed to, well, what I thought, that seemed to understand that I was still extremely emotional. And the break finished and we went back to work.

PN546

Well, would it be accurate to say that the Holy Cow newsletter and the termination of the four NUW delegates and health and safety representatives played a big part in the stop work?---Definitely, and it was more so the private investigation.

**** PAUL ANTHONY ZAMMIT XN MR PORTELLI
PN547

Sorry, can you repeat that, Mr Zammit?---It was more so the private investigator. People felt threatened by it purely because they were related to some of the people that had been stood aside and then dismissed, that lack of evidence showed, made people again think it was a witch hunt, that anybody could be dismissed, you know, unfairly.

PN548

To the best of your knowledge, Mr Zammit, did this private investigator investigate people across the site, managers, employees, everyone?---I'm aware of second hand information that management was spoken to. To the best of my knowledge none of the 50-odd people that work in a cool room apart from the three that were dismissed were ever spoken to by the investigator.

PN549

Thank you. When the stop work meeting began at around, I think it was 12.30 or 12.45 on the morning of the 28th, did you attempt to contact John Glover, the organiser, to seek assistance?---I tried to ring him twice, I couldn't get through to him.

PN550

They were unsuccessful?---That's correct.

PN551

Were the employees on the morning of 28 July 2007 aware of the content of the report back meetings to be held on 30 and 31 July?---Not that anyone made aware to me.

PN552

Were you aware, Mr Zammit, of the content of those meetings on 30 and 31 July?
---I assumed it may have been that, but also I'd asked the site manager via email questions about the splitting of the cool room and how one cool room was going to one management and one was going to another. He replied in the email that we need to get together for a meeting, and I never heard anything back after that, so there was a bit of doubt on whether or not - because George also put out an email stating that he - sorry, the general manager George had put out an email stating that the two cool rooms had been split.

PN553

So you're saying then are you, Mr Zammit, that there was a range of industrial issues or at least more than one industrial issue upon which this meeting could have been about?---That's correct.

PN554

Did any managers, Mr Zammit, advise employees that they would only be docked wages for the time that the employees withdrew their labour?---Yes, that's correct. Carol Wallace first said it, Bruce Venables also stated that he believed that to be the case. Carol Wallace also stated that wasn't the case, never to trust any manager at Parmalat again. Also in the first memo that came out after that evening signed by George, the general manager, it said that wages would be withheld for the time, would be withheld in your labour - withdrew your labour.

**** PAUL ANTHONY ZAMMIT XN MR PORTELLI
PN555

Mr Zammit, could you tell the Commission the content of the meetings of 30 and 31 July, the flavour of those meetings?---I went to three of the four meetings. People were still emotional, the way the guys, the whole process it's being done, the secrecy around it, how they'd been dismissed, and they really wanted answers. The meetings that we had with George, the general manager, and Laura Lesley, I actually think inflamed things. People were asking for answers and they weren't getting direct replies, it was talked around. Those meetings themselves, those first ones, like I said, I actually think made people's emotions and tempers worse before the meetings started.

PN556

Do you believe the employees attending the meetings accepted the seriousness of this concept of industrial action?---Not overly at that time, but after those meetings when they departed, the meetings held with yourself and John Glover, it was the actual process of where we go to from here for the guys that have been terminated and why you can't take industrial action, unprotected industrial action and all that sort of - - -

PN557

Mr Zammit, what did the NUW advise you of in the subsequent meetings, the meetings that occurred directly after these four report back meetings?---The terminated, the four terminated were filing for unfair dismissal, explained the process that's required to be followed for that, explained that in no way did the NUW support, I think unauthorised was the word, unauthorised industrial action, and explained the consequences of doing that sort of thing. And that was a meeting where it calmed people down, they understood that there was a process in place for the first time. From that point on they understood how serious what they had done was, and yes, it calmed people down.

PN558

In your opinion were people content with that explanation and to let the unfair dismissal process - - -?---Extremely.

PN559

During these meetings, both the update meetings and the subsequent meetings with NUW officials did any employee threaten either directly or indirectly future industrial action?---No, they did not.

PN560

Did any union official indirectly or directly threaten industrial action or threaten to organise industrial action?---No.

PN561

Mr Zammit, has there been any industrial action since 28 July 2007, that stop work meeting that the employer has characterised today as industrial action, has there been any industrial action?---No, there hasn't.

**** PAUL ANTHONY ZAMMIT XN MR PORTELLI
PN562

Mr Zammit, have you spoken yourself to the cool room employees that were involved in the stop work meeting and that are covered by this application?---Yes, I have.

PN563

And can you tell the Commission what they've indicated to you moving forward in terms of their actions?---Mr Commissioner, regretful, they were emotional at the time. Once it had been explained, the seriousness of it and the process that has to be followed they regret doing it.

PN564

Has anyone whatsoever out of this group of people or in fact employees on the site in general confided in you as the delegate that they are considering or contemplating strategising over the future legal action?---No, the opposite.

PN565

Future industrial action I should say, sorry, Commissioner?---The opposite. They're all talking about the unfair dismissal case, about they don't have to work, are they allowed to come to it and that sort of thing, they're actually looking forward to the process.

PN566

THE COMMISSIONER: They should be able to find something better to do.

PN567

MR PORTELLI: Commissioner, just for clarification, it is included in our submissions but I thought I'd clarify that, for the four individuals that were terminated unfair dismissal applications have been lodged.

PN568

THE COMMISSIONER: Well, I figured that they would have been.

PN569

MR PORTELLI: Mr Zammit, do you believe that the employees were intimidated by the individual undertakings they were provided by hand?---Yes, they were.

PN570

How do you know this?---Because most people - - -

PN571

Did they tell you?---Yes, most people came and spoke to me about it, but the way it's worded they don't quite understand it. I also raised that with Carol Wallace when she handed me my letter, that I had concerns with it and I needed to seek further advice because I didn't understand parts of it. She asked which parts and wrote it down, but she actually hasn't got back to me with further explanation.

PN572

THE COMMISSIONER: Well, what correspondence are you referring to?

**** PAUL ANTHONY ZAMMIT XN MR PORTELLI
PN573

MR PORTELLI: Sorry, Commissioner. There is a reference made to the individual undertakings that have been provided to employees which appear - - -

PN574

THE COMMISSIONER: Have I got them?

PN575

MR PORTELLI: Yes, in Mr Frieh's statement at AF4.

PN576

THE COMMISSIONER: Just bear with me. I thought I seen it, I wasn't sure. Which parts of that correspondence were unclear?---I can't remember the exact words because I haven't got it in front of me, but it was on the first page, it said about the previous protest.

PN577

MR WOOD: We can provide a copy to the witness, Commissioner.

PN578

THE COMMISSIONER: That might help I think. Yes, thanks for that, Mr Wood. I'll make sure you get it back.

PN579

MR PORTELLI: The sixth paragraph down?---Yes, the sixth paragraph down, I didn't understand what they meant by protest, and I thought it was very open, if they had an accusation I believe it should have actually been in there, not just something as a protest.

PN580

And then you and other employees sought advice?---Yes, we sought advice. And then also there was - we were unsure about on page 2, in brackets it says number one, this letter to amount to a final warning, we were unsure whether or not this letter actually was a final warning or not.

PN581

THE COMMISSIONER: Are you saying you don't understand that they were an indication of the above paragraph?---Yes, I wasn't 100 per cent sure. They were the two things that I didn't understand.

PN582

Yes, I understand what you're saying, thank you.

PN583

MR PORTELLI: Mr Zammit, do you believe future industrial action is probable at this site?---No.

PN584

Can you tell the Commission why you don't believe that's the case?---Because I speak to most of the members nearly every day or six days a week most weeks, and because of the union meetings they understand the process that's required.

**** PAUL ANTHONY ZAMMIT XN MR PORTELLI
PN585

Thanks. No more questions, Commissioner.

PN586

THE COMMISSIONER: Thank you. You've obviously got no examination of the witness, Mr Fawkner?

PN587

MR FAWKNER: Commissioner, I haven't, thank you.

PN588

THE COMMISSIONER: Thank you. Mr Wood?

PN589

MR WOOD: Thank you, Commissioner.

<CROSS-EXAMINATION BY MR WOOD [2.41PM]

PN590

MR WOOD: Mr Zammit, I take it - I've had my back to you during the course of the morning and the early afternoon, but I take it you were in the body of the Commission.

PN591

THE COMMISSIONER: He's been here all day.

PN592

MR WOOD: Thank you, Commissioner.

PN593

It says in your witness statement at paragraph 21 you arrived at work at 8 pm on 27 July 2007, that's 8 pm on Friday the 27th?---That's correct.

PN594

And when you say you arrived at work, you arrived at work because you were rostered to work from 8 pm until 4.30?---That's correct.

PN595

And as I understand things that's referred to as the night shift?---That's correct, yes.

PN596

And you've been rostered to work on the night shift from 8 pm to 4.30 am both Friday the 27th, Saturday the 28th, Sunday the 29th, Monday the 30th, Tuesday the 31st, Wednesday the 1st, Thursday the 2nd, Friday the 3rd, Saturday the 4th, Sunday the 5th and Monday the 6th, is that right?---Without checking my diary I'd have to take your word on that. I don't have a copy of the rosters for those weeks.

PN597

And you said you turned up to three meetings on Monday and Tuesday the 30th and 31st, you at least went to the 8 pm meetings on those days, but you were rostered 8 pm to 4.30 am?---The only meeting that I did not attend was the midday Tuesday meeting.

**** PAUL ANTHONY ZAMMIT XXN MR WOOD
PN598

I see. So you went midday Monday, 8 pm Monday the 30th, 8 pm Tuesday the 31st?---That's correct.

PN599

And your evidence is that in accordance with Mr Michalakellis is that - I'll just get your exact words - the employees were emotional and they didn't regard what they had done as overly serious at that time, that is in those meetings?---Pardon?

PN600

They didn't regard what they'd done as overly serious at that time in those meetings?---They thought it was serious, they just didn't realise how serious it was until the union explained it to them.

PN601

And then you gave some evidence that you were at each of these union meetings?
---Three of the four.

PN602

Three of the four, okay. So you're at the one for 45 minutes after the one that finished - the one that commenced at 12 o'clock on Monday the 30th, another one which commenced after the meeting at 8 pm on Monday the 30th, and another one after the meeting which commenced at 8 pm on Tuesday the 31st?---That's correct.

PN603

And it was at those meetings you say the employees began to realise how serious what they'd done was?---I'm not following what you're saying. I thought I just answered that, as in they understood that, you know, when George and Laura explained that you shouldn't be doing that sort of thing, they don't understand. My feeling from the group was that they realised that what they'd done was serious, they didn't realise just how serious it was until the union explained it to them.

PN604

So they realised it was more serious when the union explained it to them at those three meetings?---That's correct.

PN605

Are there any other meetings which you had with the union where the union explained that things were more serious than they had previously thought?---I'm not sure what you mean.

PN606

Well, as I understand it there were only those three meetings.

PN607

THE COMMISSIONER: Well, he just said he doesn't know.

**** PAUL ANTHONY ZAMMIT XXN MR WOOD
PN608

MR WOOD: You say do you not that you have been told by employees that they are content with the process in place to resolve the issue of the terminated employees, namely by way of unfair dismissal applications which have been lodged with the Australian Industrial Relations Commission?---That's correct.

PN609

And when you say since that time, you're meaning since the time of the industrial action or since the time of the meetings on 30 and 31 July?---Since the meetings of 30 and 31 July once again to explain the actual process.

PN610

Right. So when you say since that time you mean at that meetings?---Well, I spoke to the people after those meetings and that was when I got the assurance that they're not - I wouldn't say they're happy, they're still fearful of being unfairly dismissed.

PN611

And when did you speak to the employees?---I speak to them on my breaks. It's because day shift doesn't have delegates at the moment, I come in on my day off before they start at approximately quarter to four each morning on my days off, so that the information flow keeps going.

PN612

All right. So when did you speak to Mr Backman for example?---I speak to Mr Backman every day.

PN613

So when did Mr Backman tell you that he was satisfied with the process in place to resolve the issue of the terminated employees?---Are you asking did he say those words exactly?

PN614

Yes, I'm asking when did he indicate that to you?---Within a couple of days of those meetings.

PN615

Of the 31st?---The 31st or the first. I'm not sure which meeting he went to.

PN616

The meetings were on the 30th and 31st. When did Mr Backman speak to you, by the second?---Yes, more than likely, second or third.

PN617

Well, see, what's this more than likely mean, Mr Zammit? You've given evidence that the employees have indicated to you that they are content with the process in place to resolve the issue of the terminated employees. Now, when did Mr Backman indicate that to you?

**** PAUL ANTHONY ZAMMIT XXN MR WOOD
PN618

THE COMMISSIONER: You might be more specific and ask the witness what day did Mr Backman indicate, not when.

PN619

MR WOOD: What day did Mr Backman indicate that to you?---I'm not sure, however I can explain that by, I've spoken through my breaks and through my days off to every cool room employee, not just the ones that took the action, and everybody indicated that they're happy with the process. They're talking about the unfair dismissal. They're not talking about taking action or anything like that. It was not a formal meeting. If I done that we would have been docked four hours for another stop work meeting.

PN620

So you didn't talk about this issue of whether or not the employees were content with the process in place to resolve the issue of terminated employees in a group meeting with any group of employees, is that what you're saying?---I done it during our breaks which is small groups.

PN621

All right. Now, when was the first time that you did this, which day and who was present?---Well, I done it on days of the meetings, on the 31st - sorry, the 30th and the 31st, pretty much all week, every week on my breaks we were talking about it, and all I've got is reassurance about, you know, there won't be industrial action.

PN622

When was the first time you had - - -?---On the first day of the first meeting.

PN623

MR PORTELLI: Commissioner, Mr Zammit's evidence before was that over the time since 30 and 31 July that he's spoken to the employees and got their general consent as to the course to follow, which doesn't include industrial action. There was never any evidence provided as to the exact dates, and if he can't recall, he can't recall.

PN624

THE COMMISSIONER: I think he's done a magnificent job of saying he did tell them to the best of his ability.

PN625

MR WOOD: Commissioner, the point of this cross-examination should be obvious.

PN626

THE COMMISSIONER: Well, it's obvious to me, but it mightn't be obvious to the witness. If you keep getting stroppy with them, as that's what you're doing, all you'll do is put them off side. He might go to sleep mentally.

**** PAUL ANTHONY ZAMMIT XXN MR WOOD
PN627

MR WOOD: Mr Zammit, the employees who work 4 am to 12.30 pm day shift employees who took the action, that is Mr Brown, Mr Coelho, Mr Daniels, Mr Getlinger, Mr Houston, Mr Jarvie, Mr Plattis, Mr Sawrey, Mr Smith, Mr White and Mr Zanella, when did you speak to them?---I see them as my knock off time's 4.36, I see them each morning as they're coming in to work, I speak to them individually. Everyone wanted to discuss those letters, on what they meant and everything else. Also on the last day - not my last day off. Again, I haven't got my diary with me, but on my day off I went in at approximately 3.30, quarter to four in the morning and I spoke to the group that was there about to start work.

PN628

And who was in that group?---Adam, I'm not sure of his surname.

PN629

Sawrey?---Sawrey. Kon.

PN630

Kon Plattis?---Kon Plattis. I'm sorry I don't know the surnames, I don't see a great deal of day shift compared to night shift. Mark Smith.

PN631

THE COMMISSIONER: Have you got a list of the names there, Mr Wood, a spare list?

PN632

MR WOOD: I can provide one to the witness.

PN633

THE COMMISSIONER: Well, why don't you give it the witness and let him refresh his memory. He's got one now, thank you.

PN634

Now, you be very sure though. I'm not trying to con or trap you. You be sure who you're talking about. When you're ready to answer the question let us know?---The people that weren't there were Rod Pawsey, Fernando - I'm not sure how to pronounce his surname - Coelho, or Jamie White, they weren't at that before the work, before they started work, the discussion I had.

PN635

MR WOOD: But the others were, Mr Brown, Mr Daniels, Mr Getlinger, Mr Houston, Mr Jarvie, Mr Plattis?---Whether or not they were there on that day I'm not 100 per cent sure, but I've definitely spoken to all the highlighted people. I don't - - -

PN636

Even though you don't know their surnames? Even though you don't know their surnames you've spoken to them?---That's correct. It's a very informal workplace where we call each other by nickname and first name. Surnames, the only time I have to use them is if they're going up in front of management for some reason.

**** PAUL ANTHONY ZAMMIT XXN MR WOOD
PN637

And when do you think you'd finished speaking to all those employees?---Well, up until my last shift we were still talking about it. Not - I didn't work last night or the night before, but previous to that I've still been telling people we can't take action, it's not allowed, and everything else, we're going to let it run its course.

PN638

So when was your last shift did you work?---Two nights ago.

PN639

Two nights ago?---Yes. I've had the last two nights off, so it was the night before that.

PN640

So your last shift was Sunday night was it?---Yes, that's correct.

PN641

Sunday night till Monday morning. And is that when you completed - you spoke to the last of the group of employees?---I've spoken to some of them two or three times just to make sure that nothing else is going to happen.

PN642

I see. And when did you speak to anyone from management to say that, look, I've spoken to all these employees, every one of them, and they've assured me that they are content with the process in place to resolve the issue of the terminated employees?---It's very hard to speak to management at the moment. Very few of them return my phone calls. I send emails, they take three or four days to get replies of. So did I say that? No, I haven't said it to management.

PN643

So the first time anyone has been aware that you say you have been indicated - you have been told by all the employees the subject of this proceeding that they're content with the process in place to resolve the issue of the terminated employees is today at about 2.30 when this witness statement was filed?---I wasn't looking at it from the angle that you're looking at it. I was making sure that they didn't damage themselves by exposing themselves by doing unprotected action again.

PN644

So the answer to my question is yes I think?---Well, could you repeat the question and I'll try and answer it.

PN645

Well, the first time you told anyone from management, anyone in the room here today that you had been told by each of the employees the subject of this proceeding that they were content with the process in place to resolve the issue of the terminated employees by way of unfair dismissal applications was today in writing by tendering this witness statement?---Yes, that's correct. And if they had asked earlier I would have told them.

**** PAUL ANTHONY ZAMMIT XXN MR WOOD
PN646

THE COMMISSIONER: Mr Zammit, how many supervisors are in the cool room area where you work?---At any one time or in total?

PN647

At any one time?---On night shift, one.

PN648

Okay. And what about across the spread of the shifts that you come into contact with over the week?---Occasionally as I'm going home I'll see the day shift coordinator coming in, so on an average week I'd see two. Once a month we have a consultative meeting where I see - - -

PN649

Has there been a consultative meeting since the 28th?---The 28th, no. It was supposed to be today and it's been deferred.

PN650

Okay. Do the supervisors talk to any other persons in the workplace apart from you?---Yes, certainly.

PN651

So they're not sort of - people just don't sort of go about their job and ignore them?---No, not at all. They are intimidated at the moment.

PN652

I didn't ask you that?---Sorry.

PN653

So to be fair, I could surmise that if they were telling you that they realise now that they've been dills, my words, in taking the action they've taken, the supervisors should have been aware of it too?---If they'd spoken to them, yes.

PN654

Thank you. Yes, Mr Wood?

PN655

MR WOOD: Thank you, Commissioner.

PN656

I want to ask you a question about the meeting that was scheduled for Monday the 30th and Tuesday 31 July. I want to show you exhibit 3, which is Mr Frieh's statement. At paragraph 24 of this witness statement, Mr Zammit, it refers to information sessions that were held on 14 July and repeated on a number of occasions over the next two days, and a second lot of sessions that was held on
5 July 2007 and repeated on 6 July 2007. Mr Frieh gave evidence twice that, to use his words, George and Laura told employees in those meetings that they would update them when and if it was necessary. Mr Frieh wasn't cross-examined on that. I take it that you were at that meetings?---The second meeting was postponed by management. I asked Laura Lesley via email if we could have those meetings again as morale was so low and we needed to get them up and running in a better way than we were.

**** PAUL ANTHONY ZAMMIT XXN MR WOOD
PN657

So you didn't attend the second information session which was held on 5 July and repeated on 6 July?---Not that I can recall, no.

PN658

All right. Now, in terms of the events of 28 July you yourself engaged in industrial action from about 12.30 till about 4.30 on the morning of Saturday
28 July, did you not?---At 12.45, yes, I did.

PN659

And you yourself have not at any stage said to anyone from management that you now see the error of your ways, you're now satisfied with the resolution of this issue through the process of the unfair dismissal applications, have you?---I explained to Carol Wallace and Bob Booth that as soon as I understood what that memo was that they gave me totally, that I would sign.

PN660

I beg your pardon?---That I would sign that once I understood the two points that I've pointed out to.

PN661

You've never said, have you not, to anyone from management, picking up the words at paragraph 37, that you were content with the process in place to resolve the issues of the terminated employees, namely by way of unfair dismissal applications?---Yes, I'm not sure what you're saying.

PN662

You've never said that to anyone from management?---I haven't said what, sorry?

PN663

What you've said in paragraph 37.

PN664

THE COMMISSIONER: He's talking about your statement now. You asked the witness about one statement, now you're asking a question about another statement.

PN665

MR WOOD: I'm sorry, Commissioner.

PN666

THE COMMISSIONER: You're being about as clear as a bit of mud at the moment.

PN667

MR PORTELLI: Commissioner, which statement are we reading from?

PN668

THE COMMISSIONER: Good gracious me, you blokes are going to make me lose my temper. I've just told the witness he's asking him a question about paragraph 37 in Mr Zammit's statement after having referred to the other statement. I'd almost cleared that up.

**** PAUL ANTHONY ZAMMIT XXN MR WOOD
PN669

Are you sure what we're talking about, Mr Zammit?---I am now.

PN670

If you're not, for God's sake tell me?---I am now, Commissioner.

PN671

MR WOOD: You've never said to anyone from management that you yourself were content with the process in place to resolve the issue of the terminated employees, namely by way of unfair dismissal applications?---No, I haven't.

PN672

THE COMMISSIONER: Can you tell me what the point of that question was? He says he's spoken to other employees about it. He didn't say he did.

PN673

MR WOOD: I just wanted to clarify whether he was supposedly in the same position as the individuals.

PN674

THE COMMISSIONER: He's trying to answer your question. He did say he was prepared - now he understood what the document about not taking further action meant, he was prepared to sign it. Just in case you missed that, and I thought you might have?---All I'm asking for is that I don't understand the protest, I want that explained to me, and I also wanted to know is it or isn't it a final warning?

PN675

MR PORTELLI: And, Commissioner, this is the subject of advice that's been sought from the NUW.

PN676

MR WOOD: I see. So what is your issue with paragraph 6 of the letter?---Well, what is protest?

PN677

THE COMMISSIONER: Probably the same issue I'd have if I got a letter like that being in the workplace, and I've had the misfortune to hang around industrial relations for 20 years. It's about as clear as mud.

PN678

MR WOOD: This is not the first occasion in which employees have engaged in inappropriate behaviour to protest against management decisions?---Well, have I asked questions about why things are getting changed or done? Yes, I have. But is that a protest, is that what they're talking about? It's not clear enough. I don't know what they're trying to imply.

PN679

Are you saying that you don't understand what inappropriate behaviour means?
---I'm saying the word protest - - -

**** PAUL ANTHONY ZAMMIT XXN MR WOOD
PN680

THE COMMISSIONER: The word protest is you're talking about - - -

PN681

MR WOOD: So if you - - -

PN682

THE COMMISSIONER: The word protest to a lot of people is a connotation of boofheads walking up and down the street waving flags and yelling, or university students who want more money, like you used to.

PN683

MR WOOD: Are you saying that if this - if paragraph 6 is explained to you to mean that it is a statement of fact, that two years ago there was a stop work meeting of eight and a half hours, and this previous Saturday there was a stop work of five and a half hours, that that is what the paragraph means?---Well, that's why I asked my union to explain.

PN684

THE COMMISSIONER: If that's what it said would you understand what it meant?---Yes, I'd understand what it meant.

PN685

MR WOOD: And do I take it that you - I don't understand what your complaint about paragraph 1 on page 2 is, that you should consider this letter to amount to a final warning. Do I take it that you don't agree with - - -

PN686

THE COMMISSIONER: Before the witness answers, if that's read right through from the top of that page and read without pauses it could be taken to mean that by such signing that he's agreed to a final warning, not the fact that if you do it again you may get a final warning, because that's what I think it says. Do you understand what I'm saying?

PN687

MR WOOD: I'm understanding what you're saying, Commissioner.

PN688

THE COMMISSIONER: I think that's what's confused him?---I read it more than once, and the first time I read it, it was a final warning, the second time I read it was if you done something like this again then it would become a final warning. And like I explained to Carol Wallace at the time when they handed it to me, I wasn't comfortable with that part and that was part of the reason I was seeking further advice.

PN689

MR WOOD: But I take it that you yourself are prepared today in the witness box to give an undertaking that you yourself - - -

**** PAUL ANTHONY ZAMMIT XXN MR WOOD
PN690

MR PORTELLI: Commissioner, this has been answered more than once, that the witness is confused by several elements of this undertaking and he has sought advice from the NUW. I don't think it's fair for my friend here to be attempting to have the document signed or an undertaking provided while he's in the witness box.

PN691

THE COMMISSIONER: He's not asking for that, and I won't allow it to happen.

PN692

MR PORTELLI: Thank you, Commissioner.

PN693

THE COMMISSIONER: But what he is asking is this, and Mr Zammit did say if he had have known what it meant and if it had have been written properly so that it could be understood clearly he would have had no problem signing it. He's made it very clear in his evidence he was confused by the use of the word protest and the run in of subparagraph 1, as already said, and if that had been explained properly or written properly in the problem it wouldn't be a problem. I've got some problems about the wording of some of the documents. I'm not going to raise them now.

PN694

MR WOOD: Leave aside all the wording in the letter. You today would be prepared to give an undertaking that you yourself will not engage in unprotected action against Parmalat in the future?---I have no intentions of taking any further unprotected industrial action against Parmalat.

PN695

You sound like a politician when you talk about intention and - - -

PN696

THE COMMISSIONER: Stop it. He's already said it.

PN697

MR PORTELLI: Commissioner, the answer - - -

PN698

THE COMMISSIONER: Sit down. The witness has given the undertaking to the Commission's satisfaction. The Commission will decide about the outcome of this case, not those at the bar table.

PN699

MR WOOD: In relation to the meeting on the 28th, Mr Zammit - I'm sorry, the meeting that was planned for the 30th and 31st, I take it that there's never been - that there was never any suggestion that certain things could not be discussed on the 30th or 31st?---All I know is what's on that memo. It doesn't state if we're going to talk about the weather.

**** PAUL ANTHONY ZAMMIT XXN MR WOOD
PN700

And the biggest issue at the site at that stage was of course the fact that there had been four employees, some of whom were union delegates, who were terminated not three days earlier on 25 July?---It was how they were terminated that upset people.

PN701

I understand that, but it was a big issue.

PN702

THE COMMISSIONER: That's not the question that's Mr Wood's asking you?
---I'm sorry.

PN703

You were saying that's not clear enough because it's not specific enough, right, because it doesn't say we'll give you answers about the termination. But what Mr Wood is saying is this. The hot topic, my words, at the site was about the terminations, therefore it would have been reasonable to expect that the answer about the terminations, if they could be given they'd be given at that meeting?
---That's probable, Commissioner.

PN704

Yes, thank you.

PN705

MR WOOD: Now, I've got to put these things, but I'm going to ask the Commissioner to make some submissions. You might not agree with me, but I'm going to put this to you?---You're putting that to me?

PN706

Yes, I'm going to put to you a question, which I expect you're going to say no to.

PN707

THE COMMISSIONER: What he's doing is warning you he's going to put some things to you, you probably don't like.

PN708

MR WOOD: Now, what I'm going to ask the Commission to find is that your evidence about what the employees have told you is untrue, what do you say to that?---You're incorrect.

PN709

And what I'm going to ask the Commission to find is that what you did from the period of 30 July to date is play a game whereby you refused to give an accurate or precise response to the employer so that you could maintain the impression that industrial action was likely or it could occur?---No, that's incorrect, because I gave the exact reason why I couldn't sign at the time.

PN710

And I'm going to ask the Commission to find that the NUW did the same thing by not responding to the employer and clarifying the situation that it intended to create the impression that industrial action was likely to occur, what do you say to that?---I say that's incorrect also.

**** PAUL ANTHONY ZAMMIT XXN MR WOOD
PN711

Mr Portelli asked Mr Frieh some questions about the newsletter. Who distributed the newsletter?---I only ever found it in the tearoom, or the lunchroom, whatever you want to call it, sitting on the tables.

PN712

And who contributed to it?---I have no idea.

PN713

And who authored it?---I have no idea.

PN714

There's nothing further, Commissioner.

PN715

THE COMMISSIONER: Thanks Mr Wood. Re-examination, Mr Portelli?

PN716

MR PORTELLI: Yes, thank you, Commissioner.

<RE-EXAMINATION BY MR PORTELLI [3.11PM]

PN717

MR PORTELLI: Mr Zammit, how long have you worked at the Rowville site?
---Nine years in three stints.

PN718

Is it safe to say then that you'd know most people if not everyone on site?

PN719

THE COMMISSIONER: That will be the ones he wants to know?---Sorry, Commissioner?

PN720

I said probably the ones you want to know?---I don't know that many of the drivers, after that pretty much most people on site on a first name at least.

PN721

MR PORTELLI: Do you know all individuals that engaged in the stop work meeting of 28 July?---Yes, I do.

PN722

You're confident and you're happy to restate again to the Commission that you advised all these employees against taking industrial action in the future?---That's correct.

PN723

And all employees confirmed that they had no intention of taking industrial action in the future?---That's correct.

PN724

None of these employees at any time over the last week or so since the meetings of 30 and 31 July indicated in any way, shape or form that they're considering or planning industrial action in the future?---No one's planning anything to the best of my knowledge.

**** PAUL ANTHONY ZAMMIT RXN MR PORTELLI
PN725

Have any employees, including yourself, approached management since the meetings of the 30th and 31st indicating that in fact industrial action is being planned?---No.

PN726

Has management approached you in the last week or so since the meetings of 30 and 31 July 2007 to attain your view and the employees' view regarding potential future industrial action?---No, they have not.

PN727

So the employer hasn't gotten in touch with you and tried to chase up the view of the cool room employees as to whether or not they are seeking to take industrial action in the future?---No, no questions whatsoever.

PN728

Mr Zammit, in terms of your meetings with the employees witness the members of the cool room is this something that you're just making up for the benefit of yourself, the union, the Commission, because you think that's what they want to hear?---No, not at all. I meet with the members all the time, it's part of being a delegate, you know, it's what your lunch breaks and your smokos are taken up with.

PN729

No further questions, Commissioner.

PN730

THE COMMISSIONER: You've got nothing, Mr Fawkner?

PN731

MR FAWKNER: Commissioner, I would not like to put the man through any more pain, he seems nervous enough.

PN732

THE COMMISSIONER: No, you're not quite off the hook yet. Were you working at Parmalat in July 2005?---Yes, I was, Commissioner.

PN733

Are you aware of the statement of recommendation put out by Commissioner Mansfield?---I've never actually viewed it but I was told - - -

PN734

You were told about adhering to the disputes procedures and stuff like that?
---Sorry, I missed that?

PN735

You were told about adhering to the disputes procedure and things like that?
---That's correct, Commissioner.

PN736

Do you think there was an understanding among the workforce to the best of your knowledge that they understood this as well?---More than likely, Commissioner. But the only thing I can say in their defence was because it had been so long, it's not fresh in their minds.

**** PAUL ANTHONY ZAMMIT RXN MR PORTELLI
PN737

Yes, good. The witness is excused.

<THE WITNESS WITHDREW [3.15PM]

PN738

THE COMMISSIONER: Mr Glover's next I think isn't he?

PN739

MR PORTELLI: Yes, Commissioner.

PN740

THE COMMISSIONER: You can stay in the body of the court, Mr Zammit, if you wish.

<JOHN GLOVER, SWORN [3.16PM]
<EXAMINATION-IN-CHIEF BY MR PORTELLI

PN741

THE COMMISSIONER: Sit down, Mr Glover. When you're ready, Mr Portelli.

PN742

MR PORTELLI: Thank you, Commissioner.

PN743

Can you state your name and occupation for the Commission?---John Glover, senior organiser.

PN744

Mr Glover, you have a statement sitting before you hopefully. Is that the statement that - - -?---I'd have to borrow it if there's a spare one.

PN745

Mr Glover, is this statement a statement that you've prepared?---That's correct.

PN746

And does it reflect a true and accurate version of your recollections?---That's correct.

PN747

Can I tender this, Commissioner, and as I do so, and I guess it's pre-empting the response of my friend, I assure the Commission that the questions are going to be directed at the relevant matters for today's proceedings, not the custom and practice or anything that we've already discussed previously.

PN748

MR WOOD: Well, I object to paragraphs 2, 3, 4 and 5 on that basis.

PN749

THE COMMISSIONER: Two?

PN750

MR WOOD: Two, 3, 4 and 5.

PN751

THE COMMISSIONER: They'll be excluded. They're about matters already been excluded. Do you tender the matter otherwise?

EXHIBIT #R2 STATEMENT OF JOHN GLOVER

PN752

MR PORTELLI: Thank you, Commissioner.

PN753

Mr Glover, how long have you been a union organiser?---Twenty years.

PN754

And specifically the Parmalat site in Rowville?---Two years.

PN755

In your opinion what are the main reasons that led to the stop work on 28 July 2007?---Look, I'd have to honestly say there's been probably a build up resulting around the newsletter over a period of months, but I think it was obviously at the end of the day extreme frustration about the workers being terminated, their work colleagues being three union delegates and one occupational health and safety representative.

**** JOHN GLOVER XN MR PORTELLI
PN756

So you believe that the fact that these four delegates and/or health and safety reps being terminated within a day or two of the stop work contributed to that stop work?---I have no doubt.

PN757

Mr Glover, during your period as an organiser overseeing Parmalat has there been any industrial action on site aside from this stop work meeting on 28 July which the employer today is characterising as industrial action?---I've been thinking about that, and during my period of time no industrial action whatsoever.

PN758

Mr Glover, did Paul Zammit try to contact you on 28 July 2007?---Yes, I had a few phone calls that evening, or that morning. I'd put in a lot of hours that week, and basically when the calls come through during the early hours of the morning and night I was sleeping. There was an initial phone call I think around about 12.30, and there was a follow up one I think around about 12.50, and voice messages were left. There was also a message at approximately 2.30 am from Mr Bruce Venables, the site manager, who also left a message, and then there was a further message which I actually heard the phone ringing, I was up getting a drink of water, and that was approximately around about 5.20 am on the 28th, the Saturday morning.

PN759

That's in fact after or at about the time that the stop work ceased?---That's correct.

PN760

Mr Glover, prior to the information sessions or report back sessions held on
30 and 31 July did you in your role as a union organiser attempt other prior meetings on site?---I think I'd spoken to Laura Lesley in relation to trying to organise meetings because things were quite tense at the site. I understand though from Laura's comments that the company was quite busy, and also the concern was about service to the customers in having stop work meetings.

PN761

So in a time where the site was clearly tense just prior to four employees being terminated on one day - they're our members, Commissioner, there were others - is it fair to say or correct to say that the employer refused paid meetings for you to discuss these issues, NUW members?---Look, that could be said, but I also have to indicate that the company had made it clear that they were extremely busy and, as I said, behind in service to the customers. And I know from our members at the site they are concerned about service to the customers, they understand the need to do that.

PN762

During the meetings that were held on 30 and 31 July did any employee directly or indirectly threaten future industrial action?---No.

**** JOHN GLOVER XN MR PORTELLI
PN763

Did you encourage, organise, attempt to organise or threaten industrial action at that meeting?---No. In fact at those meetings on the 30th - - -

PN764

The initial meetings I'm referring to?---On the 30th and 31st?

PN765

That's correct, the meetings that occurred directly prior to your meetings with the members?---No, there was no threats of any form of industrial action at all.

PN766

And what feedback did you detect from the employees during those four meetings, the initial portions of those meetings, towards the employer, towards the company?---Well, I think it's probably been stated here today, initially Ms Lesley and Mr Michalakellis spoke and addressed the meetings. When they left the meeting we spoke properly for about - myself spoke for approximately 45 minutes to an hour, and I think the key thing that come out of that was solely frustration. We made it perfectly clear to the employees that this was not the way to go. I should say the feeling was that their motives, I'm certain, from the workers' perspective were well meaning because they had - they'd been through a period of turmoil at the site from the whole investigation, the fact that an outside investigator, a former detective superintendent I think he was of internal affairs, had been brought in. That wasn't the Parmalat style. There had always been an extremely good relationship with human resources especially at Parmalat, and especially at the site through their local HR officer, Hayley Cotton. She was highly regarded and very well respected by, I think everyone across the site. And of course - - -

PN767

What's happened to her, Mr Glover?---Well, I obviously only know very few details, and that is that Hayley resigned. I'm also informed that Sarah Lansky, who was another senior HR person working out of the Brisbane office, resigned. I think we've heard here today that the former site manager who had managed the site probably 12 months prior and was back in Brisbane, I think the company indicated that this gentleman was terminated. Again the rumours going around the site was that he was working out notice, he'd actually resigned. So with all this going on, as I said, the investigation, losing senior management people who were highly thought of, and then to top it all off having, you know, three or four of their work colleagues, and I should say that the fifth employee, the TWU member, who was highly regarded, but from the NUWs point of view three highly regarded union delegates and a highly regarded occupational health and safety rep terminated, it just - the place felt as though it was in turmoil. That was the comments we kept getting back at the conclusion of those meetings, and the questions during the meeting that the place was in turmoil.

**** JOHN GLOVER XN MR PORTELLI
PN768

Mr Glover, at the meetings that you and I conducted subsequent to the report back meetings, those four meetings across the two days, 30 and 31 July 2007, did you advise that the union does not condone unlawful industrial action and advise the employees not to engage in any future industrial action?---Yes. Look, we - again, myself and yourself, Adam, made it perfectly clear to the employees. I am extremely confident that they they've got that message. As I said, I think a few of them, not all of them, but a few of them were just extremely frustrated and I think they were venting - they just wanted answers. And we made it clear that that was not the right way to go about it, in fact it was detrimental to their fellow workers who had been terminated and that we must follow the correct legal process of the unfair dismissal process.

PN769

Sorry, Mr Glover, are you saying that the response from the employees then at those subsequent meetings was conciliatory, was aggressive? How would you characterise the tone of those meetings in terms of their feedback and their view about potential future industrial action?---I'd be lying if I said that they still are not frustrated and just disappointed that what's gone from a good environment - as I said, the word turmoil is thrown about everywhere at the site now, which is disappointing from the union's perspective as well, because I think over the long relationship with the NUW and Parmalat there has been an extremely good working relationship. So frustration's still there but the message is well and truly, through those meetings, but also through the delegates as well, they've made it perfectly clear to people that that is not the way to go.

PN770

Do you believe, Mr Glover, that future industrial action is probable on site?---I'd say the opposite. Now, in saying that again, of course, there also have been comments that people are concerned about provocation on the site, and I've indicated to those people who have raised those concerns, please don't do anything silly, just phone us, as simple as that, and we'll take it from there.

PN771

No further questions.

PN772

THE COMMISSIONER: Yes, Mr Wood?

<CROSS-EXAMINATION BY MR WOOD [3.29PM]

PN773

MR WOOD: Mr Glover, I think you've missed a meeting out of your chronology. I don't mean that in any sense to impugn your credit, but it's true that on Wednesday 26 July you were invited onto site to speak to Mr Zammit and Mr Robinson about the events that had happened the previous day, 25 July, that is the termination of the four employees who were members of your union?---That's correct, in the fact that once I was invited I think I contacted Ms Lesley just to - it might have been Ms Lesley or Mr Venables, I just can't remember, to indicate that I wanted to attend the site to talk to two of the existing delegates who were working on site that evening.

**** JOHN GLOVER XXN MR WOOD
PN774

I think you were allowed onto site?---Yes. Mr Venables had - I think it was Mr Venables, had no problem in doing that.

PN775

THE COMMISSIONER: What was the cause that date?

PN776

MR WOOD: The 26th?---It was a Wednesday.

PN777

That's Wednesday the 26th - sorry, it's Thursday the 26th?---That's correct, Commissioner.

PN778

And you spoke to Mr Zammit and Mr Robinson, the other delegate, about the events of the previous day?---Yes.

PN779

That is the fact that four employees had been terminated. And I take it, you just gave evidence that it was during this period that the company was busy with a backlog?---That's my understanding.

PN780

And you say that you think the employees who went on strike for five hours on Saturday morning did so because they wanted answers. It's equally plausible that they wanted to put industrial pressure because there was a backlog on the employer to revisit this question of the dismissal of four of their work mates some four days ago?---I don't agree with that, Mr Wood. I should say also that I think the union was also under a fair bit of pressure from its membership out there. I think they felt as they though wanted meetings with their union on site as well to find out what the heck was going on. As I said, they'd seen a lot of turmoil occur over the previous two months. So we're in a difficult position as well, because I understood that the company were struggling with their service and their supplies to customers, so we're trying to balance that as well. So I informed the two delegates at that meeting what was going on and, as I said, again made it clear to the delegates make sure - do everything you possibly can to keep the emotions in check.

PN781

Your answer to Mr Portelli's question was that it was in your opinion that the employees, 23 of them who engaged in a strike action on Saturday morning, wanted answers?---That, well - - -

PN782

I'm just asking you, you've been a union organise for 20 years, is that your real view, or isn't it much more likely that having regard to the fact there were meetings to be called the next Monday and Tuesday, having regard to the fact that there was a backlog, that what they were in fact doing was try and put industrial pressure on the employer to revisit the question of the termination? Tell me if you disagree, but that seems - - -?---No, I do disagree. I stand by what I said earlier on. I think people were looking for more information, answers, and as I said, they'd been through a lot over the previous couple of months at the site.

**** JOHN GLOVER XXN MR WOOD
PN783

I don't want to be too rude, Mr Glover, but you're not serious are you to say that they wanted answers at 12.30, between 12.30 am and 5.30 am on Saturday morning, you're not seriously suggesting that are you?---I'm very seriously suggesting that people would like answers on what's going on.

PN784

You also attended the initial series of meetings on 14, 15 and 16 June at the Parmalat site where, I might call then George and Laura, explained to the employees what was going on in terms of the investigation into the distribution and publication of the newsletter?---That's correct.

PN785

I take it because you're an organiser with responsibility for many sites, Mr Glover, that you haven't responded in any way after the meetings on 30 July and 31 July with your members at Parmalat site in Rowville with members of management?
---Responded in regards to?

PN786

In terms of reporting back what the outcome of those meetings was?---Well, I should indicate there, I think it might have been the first meeting, or it could have been - it was one of the day meetings. I think I went up to respond to, again, Laura and George, opened the door, and they, the whole management team was around a speaker phone. I obviously don't know who they were speaking to, but they were tied up in a conference. At two of the other meetings, the two night shift meetings, again, to the best of my knowledge, I think George and Laura left and may have left the site as well. At the end of the meeting we had a number of questions from members as well, and probably didn't leave the site till about 10.30.

PN787

I think it's uncontested but I'll get you to confirm this. I don't think you spoke at any stage since those meetings to any member of management?---I don't think so.

PN788

In those meetings on 30 July and 31 July, are you able to identify - I take it that you won't be able to but I'll just ask you this anyway - who out of the 23 employees who engaged in industrial action was at that meetings?---No, I'm sorry, I couldn't identify them.

PN789

And can you say whether, and I think it follows from your answer, whether any of those employees or all of them said that they were not going to take unprotected industrial action again?---can I just re-track. When you said about not knowing at the meeting, who was at those meetings, obviously the delegates I know who were in attendance.

**** JOHN GLOVER XXN MR WOOD
PN790

All right. So perhaps I'll show you the application.

PN791

THE COMMISSIONER: What application is that you're going to show him?

PN792

MR WOOD: I beg your pardon, Commissioner?

PN793

THE COMMISSIONER: What application is that?

PN794

MR WOOD: The application before the Commission.

PN795

THE COMMISSIONER: Well, you won't be showing it to anyone as I see it. The application you want me to make?

PN796

MR WOOD: No, sorry, not the orders, the application.

PN797

THE COMMISSIONER: The application that was filed and served?

PN798

MR WOOD: Yes.

PN799

THE COMMISSIONER: Yes, righto.

PN800

MR WOOD: Schedule 1 has a list of the employees participating in industrial action.

PN801

THE COMMISSIONER: Ignore the scribble on there, Mr Glover.

PN802

MR WOOD: There's a list of 22 names, Paul Kovac isn't there, which - - -

PN803

THE COMMISSIONER: No, it's on there, I added it.

PN804

MR WOOD: I beg your pardon?

PN805

THE COMMISSIONER: It's on there, I wrote it.

PN806

MR WOOD: From Simon Backman down to Kevin Zanella. Can you identify whether at any of those meetings on 30 July or 31 July any of those individuals said to you that they were not going to take unprotected industrial action again?
---I'd indicate that Mr Zammit was well aware of the situation and had been, had been doing his utmost to make it clear to employees - - -

**** JOHN GLOVER XXN MR WOOD
PN807

I understand what the union's position is, and I think in due course we won't press the application against the union very strongly. But I'm asking you about what the employees said to you and whether any of those 23 that we've identified said to you that they were not going to take unprotected industrial action again?
---Individually I can't sit here and say, again, apart from Mr Zammit, Mr Zammit's made that perfectly clear to me, but the strong feedback from those meetings after myself and Mr Portelli had spoken to our membership it was all very positive, they now had a much better understanding of the process and it was probably, you know, disappointing that we couldn't get to the employees prior to that incident occurring on the Saturday morning.

PN808

You say there was strong feedback. Is that feedback that was communicated in that meeting or those meetings on 30 and 31 July to you consistent with - can the witness be shown exhibit R1? Can you look at paragraph 37? That's what Mr Zammit says in his witness statement and thus his evidence before the Commission, the position of the employees after the meetings that you conducted was as communicated to him. I want to ask you whether that was the position of the employees as communicated to you in those meetings?---Well, those employees who are our members who spoke up obviously agreed with that position.

PN809

Did they say that?---They said that they now understood the situation after we'd explained it to them and understood also that the best thing in the best interests of our terminated members was to go through the appropriate legal process of an unfair dismissal process.

PN810

Did they say to you, to use Mr Zammit's words, what he said they told him, that they were content with the process in place to resolve the issue of the terminated employees, namely by way of unfair dismissal applications?---Whether they used the word content with me, I think they understood the whole situation a lot better now and, as I said, made it clear to me that it should and would run its course without any further stoppages, stop work meetings.

PN811

Did they give the impression that they were content rather than used the words that they were content?---Yes, but still frustrated to be honest, they were still frustrated, but I think they understood that they now had the answers that they were looking for. They had heard from the company, they also heard from the union and, as I said, resulting from that it was the very strong feeling that was generated through those meetings that we would go through the unfair dismissal process.

**** JOHN GLOVER XXN MR WOOD
PN812

And would you, in your opinion, regard them as being content with that process from your observations in the meetings that you conducted?---Content, comfortable.

PN813

Can you explain why it is that when Mr Thow came to write a letter on 6 August, this Monday, he didn't make any reference to the fact that a week earlier in meetings that you conducted the employees had expressed, in your view, that they were content or comfortable with the process in place to resolve the issue of the terminated employees, namely by way of unfair dismissal applications?

PN814

THE COMMISSIONER: Is that a matter for Mr Glover or Mr Thow?

PN815

MR WOOD: Well, this witness is not saying he can't explain it?---Look, I haven't spoken to Mr Thow about it the letter, and I'd probably need to have a look at it to see if I viewed that letter. As an organiser I spend most of my time out on the road.

PN816

Well, I'll hand you exhibit 3.

PN817

THE COMMISSIONER: Mr Wood, to be fair to the witness and to you, union secretaries don't do something organised, they tend to do as they want to. As a former union official I can attest to that.

PN818

MR WOOD: It may be that there's some explanation for the fact that this comment is missing. I'll allow the witness to try and explain that, Commissioner. It might be what you say. Mr Thow might have just made this letter up without referring to anyone.

PN819

If you look at the last document there's a letter of 6 August. I'll let you read it for a moment. That letter seems to me to be based, when one looks at paragraph 2, on a report back of the meetings that you and Mr Portelli conducted, that is, either you gave this information to Mr Thow or Mr Portelli gave the information about what occurred in the meetings of the 30th and 31st to enable Mr Thow to write this letter. Is that a fair assumption?---I would think at some stage I would have indicated either by phone or personally to Mr Thow that I believed that the meetings of our members went quite well and, as I said, still frustrated the people are, but they now have a much better and clear understanding of what the situation is.

**** JOHN GLOVER XXN MR WOOD
PN820

And do you know, and you might not know, whether Mr Thow spoke to Mr Portelli in order to write this letter? You just don't know?---I'm not certain.

PN821

But you accept don't you that there's no reference in that letter to any suggestion that the employees as a result of the meetings on 30 and 31 July were content or comfortable with the process in place to resolve the issue of the terminated employees, namely by way of unfair dismissal applications?---I don't agree with where you're leading, Mr Wood.

PN822

I know you don't agree with where I'm leading, but just try and answer my question?---Well, I'm trying to do that. I think the letter from Mr Thow, as I said, the assertion that industrial action is highly probable I would totally refute based on the feedback at the end of those meetings and, as Mr Thow indicates, employees expressed their frustration with the company's handling of, amongst other things, a dismissal of their fellow employees. And as I said before, I think in saying they feel comfortable, they feel comfortable now that there is a process there, they've had it explained it to them, they've had it explained how that process will work, it will go through this conciliation process and if necessary arbitration.

PN823

It might really be a matter for submissions, Mr Glover, because it seems clear to me that the reference to the employees being content or comfortable with the process in place to resolve the issue of the terminated employees, namely by way of unfair dismissal, does not appear in this letter, but I don't want to cross-examine you any further on it because it's something - - -?---Well, I don't draft the letters for Mr Thow.

PN824

This might not be anything - you might not be able to answer this question either because it relates to Mr Thow, Mr Glover. Did Mr Thow speak to you after the first meeting on 30 July and say to you that Laura Lesley had called him to get feedback on that meeting?---I can't remember, I can't recollect that.

PN825

But I take it because you can't remember you never gave Mr Thow any feedback to pass on to Ms Lesley because you can't remember whether or not Mr Thow asked you for that information?---I just said I can't recollect.

PN826

There's nothing further, Commissioner.

PN827

THE COMMISSIONER: Mr Portelli?

**** JOHN GLOVER XXN MR WOOD
PN828

MR PORTELLI: Thank you, Commissioner.

<RE-EXAMINATION BY MR PORTELLI [3.49PM]

PN829

MR PORTELLI: Mr Glover, how many employees do you look after around Melbourne in your role as a union organiser?---It varies but it varies from anywhere from 2100 to 1500, it fluctuates.

PN830

So it's fair to say that any given site you might not know every single name to a face, would that be correct?---That is definitely correct.

PN831

It would be fair to say wouldn't it, Mr Glover, that you're able to speak to many employees and yet not be able to point out their names from a sheet of names wouldn't it?---That's correct.

PN832

Mr Glover, did anyone from management or the management team more broadly attempt to contact you through feedback from the meetings of 30 and 31 July?
---No.

PN833

No more questions, Commissioner.

PN834

THE COMMISSIONER: Mr Glover, I make it clear that I'm not doubting anything you've said because I've known you for a long time. Are you aware of these two scurrilous publications, was it ever brought to your attention before today?---Yes, it was brought to my attention, and again, March April, around about that period of time.

PN835

Of this year?---Yes.

PN836

And when was it brought to your attention who was it brought to your attention by, a union member or the employer?---I think in all honesty initially I think it may have been Ms Lesley.

PN837

To the best of your knowledge how many people of Indian or Sri Lankan extraction work at Parmalat that are your members?---Again it would only be a guess, maybe two or three, but that would only be a guess, Commissioner.

PN838

And the NUW for many years have had a policy about harassment, sexual harassment and other sorts of harassment, bullying, rumour mongering and all that rubbish at sites hasn't it?---Definitely, that is correct.

**** JOHN GLOVER RXN MR PORTELLI
PN839

And from memory the organisers and other officers of the union, paid or otherwise, have always been directed to put a stamp on it where it existed, is that right?---That's correct. And, Commissioner, as soon as it was brought - as soon as it was highlighted and brought to my attention it was made clear to the delegates if anyone knows or has anything to do with this situation please step back from it, don't have anything to do with it. And as I've said and I've indicated, and it's the same today, I have no knowledge of who the publisher of Holy Cow is.

PN840

Thanks very much, sir. Thank you, you're excused.

<THE WITNESS WITHDREW [3.52PM]

PN841

THE COMMISSIONER: I've got to say, whatever the outcome of other matters, dismissal or otherwise, the publication of this sort of filth, and that's what it is, scurrilous, sexual, racist, filth in any workplace is no credit on the bag of rubbish published in it. If it's written by a male or a female I make no apologise for saying they're the lowest of the low. If I were working in the workplace and found out who it was they'd be wearing my fist down their face and that fast they wouldn't know what struck them. Having got myself off the unlawful termination case I'll leave it at that. Mr Wood?

PN842

MR WOOD: Commissioner, I'll hand up the orders that we seek. Commissioner, you'll see that having regard to the fact that the evidence implicating the NUW is quite weak. We don't press an order against the NUW, except what Mr Glover says and what Mr Portelli says, that they explained to the employees what the NUW position was. We accept what Mr Zammit says, that he didn't organise the stop work meeting though he participated in it obviously. And I repeat what we say about the TWU, there's been no evidence they were involved. But in relation to the employees that we list in the schedule and there are 19 of those, each of those employees was involved in the industrial action, and none of them have, in our view, satisfactorily assured the Commission that they will not continue to take the law into their own hands and decide how the industrial relations at the site will operate.

PN843

THE COMMISSIONER: With the exception of Mr Zammit.

PN844

MR WOOD: With the exception of Mr Zammit, having regard to what he said about his intention.

PN845

THE COMMISSIONER: And his prior indications very clearly to people that they were facing losing four hours pay, not just the time they lost by not being at work, and his upfront attitude, something the company didn't do, the company did not do at the time.

PN846

MR WOOD: Explain that they were going to lose money?

PN847

THE COMMISSIONER: Yes. Mr Zammit was the one who - well, in the evidence.

PN848

MR WOOD: I'm not sure if he goes as far as the last bit, but the first bit is definitely correct, your Honour. So perhaps we won't press the order against Mr Zammit either having regard to the observations that you've just made. But in relation to the others the position is clearly this, Commissioner. There have been prior occasions of the cool room employees taking matters into their own hands, it was the subject of a recommendation statement by Commissioner Mansfield. You asked some questions of Mr Zammit about that recommendation and statement, and that recommendation and statement required that the parties recommit themselves to the dispute settlement procedure.

PN849

It shouldn't have been necessary to do that because the dispute settlement procedure is already in the agreement. But we have the agreement, we have what Commissioner Mansfield says should be the parties recommitting to it and then wild cat action is taken without warning. That wild cat industrial action is taken for totally spurious reasons. It cannot be accepted that it was taken because the employees wanted answers. They were never going to receive answers between midnight and 5 am on a Saturday morning. It beggars belief to even make that suggestion. Moreover, there are the following factors suggesting that that reason is just a ruse.

PN850

First, officers of the company from Brisbane had conducted two previous information sessions regarding the newsletter in June and July. They indicated that they would update employees - the evidence on that was uncontested - when and if it became necessary. They published a memorandum, exhibit 4, the day after a need for an update arose, i.e. the day after the termination of four employees. The memorandum referred to an update and referred to the fact that meetings were to be held the very next day, Monday and Tuesday the 30th and 31st.

PN851

It is simply not credible having regard to Mr Zammit's own evidence when one appreciates that the hot issue at site was the fact that four union delegates or three union delegates and one OH&S rep had been terminated, that any person could presume to think that this meeting, this update on 30 and 31 July was about anything other than the investigation into the Holy Cow and the consequent terminations. Indeed, Mr Frieh's own evidence was that he spoke to an employee that day, that is the Saturday morning the 28th, Alex Groger, who said just that, why don't we wait for the meeting on the 30th and the 31st and we'll get the answers.

PN852

To suggest that the industrial action was taken on that day was taken because there was a need for answers is simply industrially not credible. It was done because production was behind because it was a way of putting pressure on management having regard to the fact that the Coles contract was up for grabs and that this type of industrial action would cause damage, both monetary damage and damage to reputation which might force management to reconsider their position of having terminated four employees. That's what the point of the industrial action was. And to suggest that it was done because employees were in the dark and somehow wanted reasons simply beggars belief.

PN853

The next point, Commissioner, is that the evidence we say is that irrespective of the position of the NUW and the position of Mr Zammit, the employees themselves have not accepted that they did anything wrong in taking industrial action and they have not accepted or indicated that they will not take unprotected industrial action in the future. And this is part of a contra strategy. Having asked for that undertaking or some indication that they accepted what they did was wrong and they wouldn't do it in the future, the employees decided to prevaricate, to try to play for time, to not answer directly but to speak out the side of their mouth, to not say unequivocally we accept what we did is wrong, we will recommit to the dispute settlement procedure, and we accept that until 31 March 2008 when the enterprise agreement comes to an end we are bound by that.

PN854

No, what they did was try to maintain pressure on the employer by failing to give a direct answer and to give direct comfort to the employer by not responding to the - by doing two things. First of all, indicating in the meetings on the 30th and 31s that they were unhappy. Mr Zammit's own evidence was to that effect. He said those meetings inflamed the situation. That's directly consistent with the evidence of Mr Michalakellis, who said in effect that there was an implied threat of further industrial action, that the position was left, deliberately we would say, from those meetings that the employees left it open that there would be further action of this character. And indeed that is the whole point of that behaviour, to again make management reconsider whether or not they wanted to proceed with the terminations.

PN855

There was no suggestion in these meetings to management that the employees were content with the unfair dismissal regime, none at all, simply no evidence of that. None of the employees have come to management and said that. The union hasn't come to management and said that, and in their own correspondence of 6 August there is nothing in that correspondence to suggest that. The one piece of evidence we have that the employees themselves are now content with the process and won't take matters into their own hand is the hearsay evidence from Mr Zammit presented for the first time here in the Commission at 2.30. Well, that's not good enough we say, Commissioner.

PN856

We say in circumstances where employees have taken things into their own hands in breach of obligations in the certified agreement, in breach of recommendations and statements of this Commission, in order to put industrial pressure on the employer to support a decision which is reviewable in this Commission in any event, that those employees should be required, if a finding of industrial action is not to be regarded as probable, should be required to clearly state their position. And if they don't clearly state their position as a wrong doer who has no regard to their obligations and will breach it when they see fit, then one must for the view that industrial action is probable.

PN857

Now, I say that one must, Commissioner. You're appointed to this position because you have industrial judgment of these matters and you're required to keep yourself acquainted with industrial affairs, and we simply say to you, Commissioner, having regard to your knowledge of the way in which industrial relations works, what is being done here by these employees. What is being done is that they want to avoid an order of the Commission but at the same time not face up to the responsibilities they've signed up to and have been ordered previously by the Commission. That's what's happening.

PN858

And we say any fair construction of what went on last Saturday week and what has gone on for the 10 days since is that the employees want to maintain the impression in the employer's mind that industrial action is probable in order to overturn the decision to terminate the four employees. Of course we don't say that there is an actual threat. Mr Portelli's cross-examination in relation to section 496 was to cross-examine on the points we don't make. 496(1) says you can make an order if industrial action is happening. Well, it's not happening, we accept that. You can say if it's threatened. Well, there is no direct express threat. The threat is implied. If it's impending or probable. We say it is impending and probable because of the factors and the context surrounding the application.

PN859

He cross-examined as to whether or not it's being organised. We don't make any allegation it's being organised. We simply say there's an implied threat, and in the Commission's assessment using it's industrial judgment it should find that industrial action is probable. Once it finds that, Commissioner, we say the rest follows. We don't seek an order against the union because we accept that on Mr Glover's evidence they've done the best they can do. We don't seek an order against employees who have indicated that they will not take industrial action in the future if it's unprotected. And we obviously don't seek an order that goes beyond the term of the certified agreement, that is beyond 31 March 2008.

PN860

All we ask for the Commission to do is to indicate to the employees that they can't arrogate to themselves the ability to reach the industrial obligations that are imposed by them, some of which are imposed by their own agreement. They can't choose when they're going to abide by the agreement and when not. And all the order that we seek seeks to do is to make it clear to those employees that this Commission is not going to stand by and watch its agreements breached, to watch the fact that its recommendations can be ignored, and that employees by playing a game of taking action and then not unequivocally indicating that they intend to be bound by the instruments that bind them, can't get away with it, that's all.

PN861

Commissioner, the order is very straight forward, it simply says that you can't engage in industrial action, it's directed to each of the employees. If the Commission finds that industrial action is probable or is impliedly threatened or impending, then that provides the jurisdictional basis for the order, and we say the appropriate thing would be for the order to run for the same period of time as the enterprise agreement until 31 March 08, but the Commission might find that a shorter order is more appropriate. It certainly shouldn't go past 31 March 08, but we would be content with an order of shorter duration. But there must be, we would say, some expression of the Commission's attitude in the form of a binding order to the events that have taken place at the site over the last 10 days. Is there anything else you wanted to address me on, Commissioner?

PN862

THE COMMISSIONER: Not at the moment, thank you. Mr Portelli?

PN863

MR PORTELLI: Thank you, Commissioner. Obviously the NUW is seeking that the application for this order be dismissed. We say, Commissioner, all employees have assured Mr Zammit they are comfortable and content with the process moving forward by way of the unfair dismissal applications as opposed to any further industrial action that was provided by Mr Zammit in evidence. There has been assurances and discussions both with him and with Mr Glover and their members there on site about the lack of desire, lack of want to engage in future industrial action.

PN864

The last occasion on site, Commissioner, that can be described as in any way getting close to industrial action occurred just over two years ago. It's hardly the history of industrial disputation that the company sought to paint it as today. Commissioner, the employees on site, the 23-odd employees engaged in the stand down on 28 July 2007 due to frustration and anger arising from the termination for NUW delegates/occupational health and safety reps just a day or two beforehand.

PN865

The employees, as strange as it may be for my friend to understand, did expect, seriously expect answers on that morning, and while most of us here today don't work night shift we have a significant portion of our membership that do and are used to having supervisors available at the same time as they work and getting answers when they request them. I don't think that was a furphy and I think that's been raised to confuse the company or the Commission. That certainly will - - -

PN866

THE COMMISSIONER: Well, it won't confuse the Commission as an old shift worker, so you're right now.

PN867

MR PORTELLI: Commissioner, the company's memorandum which was provided prior to the meetings of the 30th and the 31st and again prior to the incident on 28 July, we would again emphasise that the document, and we've all seen the document, is self evidently unclear. It was very simple for the company to provide additional information, one line, one sentence, two or three words on that memorandum of understanding, or memorandum I should say, so that every individual on site, especially the affected individuals of 28 May would have been aware that there was a meeting about this most recent issue.

PN868

Mr Zammit in his evidence referred to other industrial issues that were occurring on site which meant that it was not a fait accompli for the employees that this meeting was about that one issue, in other words the termination of four NUW delegates and the Holy Cow. It could have been about other matters. And we certainly emphasise, Commissioner, that the employees were indeed in the dark about the process leading up to the terminations. We had a secret process, we had an ex policeman who interviewed, interrogated, whatever term you want to use, a certain amount of people, a very limited amount of people with no input from outsiders, and the end result was that four of our members were terminated on the basis of serious misconduct, and other employees also.

PN869

There was a palpable and I think understandable level of frustration by the members on site which was exercised in a manner I think we would all agree with is inappropriate. That doesn't detract though from the context within which it occurred. Commissioner, Mr Wood seems to be arguing this matter in the reverse or upside down. He seems to be saying that because employees haven't said they will, then they won't, in other words, the view seems to be that because the employees en masse have not said or indicated to the employer we won't do these things that you're worried about us doing, then by implication they automatically will.

PN870

We think that's not the correct way to look at this matter, Commissioner. Indeed the employees have strongly indicated to their union, to their union delegate and through Mr Zammit now at the Commission that they have no intention whatsoever of engaging in industrial action in the future. It's beyond dispute that there's been no action organised, that there's no continuing. The only thing, as Mr Wood correctly points out, that is in dispute is the issue of whether it's probable or not. And what we have here today in the Commission is one individual and only one individual that, according to his witness statement, has sat down at various times over the last week or so, week and a half, and spoken to all these individuals and can confirm to us their view. No one else here has done that, only Mr Zammit.

PN871

Commissioner, we of course emphasise that in this matter the onus is not on the union, it's on the company to demonstrate, firstly, it has the jurisdiction in this case that the disputation is probable. And I would just briefly run through some of the matters that have already been conceded under oath, and I will try to be brief, Commissioner. Mr Zammit under oath has admitted that employees at the meeting did not directly or indirectly threaten future industrial action. There's no current industrial action continuing.

PN872

He spoke to all cool room employees who indicated they had no plans whatsoever to engage in industrial action and were content to follow the process, being unfair dismissals being lodged with the Industrial Relations Commission. Mr Frieh, a witness for the company, admitted under oath that he did not see - strike that, Commissioner - that he is unaware of any industrial action being organised by the employees or the union, that he did not see the union or employees threatened or allude to future industrial action. In the meetings he did not see or hear any individual employee threatening or implying that there would be future industrial action.

PN873

And again Mr Frieh admitted that as opposed to paragraph - just bear with me, Commissioner - paragraph 52 of his statement, exhibit 3, which seemed to characterise the site as a hotbed of industrial disputation, that there has been only one incident of industrial action that he can recall which happened around about two years ago. Mr Michalakellis also admitted under oath that at the meetings of 30 and 31 July there was no direct threatening comments or behaviour regarding future industrial action, and admitted, as all the other witnesses did, Commissioner, that there's been no action since 28 July 2007.

PN874

It is clear, Commissioner, that there is no industrial action on foot or continuing as we speak. The only issue then is whether or not that is probable. The only way we say, Commissioner, and ultimately of course you're the one who is deciding this, but from our perspective the only way to determine whether something is probable or not is look at the intentions of the parties, in this case the intention of the individuals and how those views have been expressed. We only have one person in this courtroom today that has spoken to any provided any witness evidence attesting to those intentions, that's Mr Zammit, and look at the conduct of the parties involved in the recent memory.

PN875

We have two years of effectively harmonious industrial relations. Now, that's not forever, Commissioner, but it's a significant period of time. Certainly the idea that history is somehow on the company's side we say is a fallacy. Our view also, Commissioner, that - strike that, Commissioner. We say on the basis of what we've provided in terms of evidence and what I've just briefly referred to here indicates that industrial action certainly isn't occurring, it's not threatened, it's not impending and it's not probable. On this basis we say that that presents a jurisdictional bar to the granting of the bar and, as such, we would request the Commission dismiss this application.

PN876

If however, Commissioner, it is your decision to provide that application and order against us or, more accurately, a number of our members, we would have some issues with the order as presented by Mr Wood. To begin with, Commissioner, our view is the definition at 383(b) seems to be wide enough to take in some of those issues that we've described earlier today that are going to be dealt with in another forum potentially, we have concerns about that, and secondly, we say that for a limited stoppage at a site with generally good and harmonious industrial relations where a fraction of the workforce were involved, the idea that the order could take effect till the expiry of the agreement, which I believe is April 2008, we say is certainly a very long bow to draw and we would seek something far shorter than that. If the Commission pleases.

PN877

THE COMMISSIONER: What do you say about the service of the order if the Commission were minded to grant it?

PN878

MR PORTELLI: Sorry, Commissioner, I missed that?

PN879

THE COMMISSIONER: What do you say about the service of the order as contained in the draft if the Commission were minded to grant the order?

PN880

MR PORTELLI: We understand there's representatives of the employees, and would be served on us, although would have no effect on us, and it would be a responsibility then to advise employees. I don't think there's anything particularly objectionable from our perspective about that. Our main objection, Commissioner, is the breadth of the order and the time.

PN881

THE COMMISSIONER: Yes, thank you.

PN882

MR PORTELLI: Thank you, Commissioner.

PN883

THE COMMISSIONER: Mr Fawkner?

PN884

MR FAWKNER: Commissioner, being an old style person I listened to Mr Zammit's evidence, and to me I think he's got the message pretty well and clear and I think he would take that back to those people and explain to them, a bit like a rabbit in the headlights. Thank you, Commissioner.

PN885

THE COMMISSIONER: Mr Wood?

PN886

MR WOOD: Commissioner, quite briefly can I deal with the points Mr Portelli dealt with from the ones he made last to the ones he made initially? Dealing with what he says is a harmonious work site, we would say exhibits 1 and 2, the filth that you've referred to, Commissioner, make it clear that the work site is not harmonious and provide some of the context as to why the industrial action having regard to this particular work site should be regarded as probable.

PN887

Secondly, dealing with intention, intention is not just what someone says. If it was then every murderer would go free. They would simply get in the witness box and say I didn't intend to kill them, and they'd be let off. Intention is determined by not just what people say but what they do and the context in which they say and do things. And it's not enough for Mr Zammit to come here and say I've spoken to everyone and their intention - of course he doesn't use the word intention, he says they're content - their intention is not to take industrial action, when the context and what they've done points the other way.

PN888

We don't say that because the employees have said they won't take industrial action, they will. The test really is just a question of probability. We say having regard to the context, having regard to what they've done, having regard to how long it's taken them to say anything, and to what they have now said, it's probable that they will take industrial action. Nothing more than. We're not Nostradamus, we don't say they will take industrial action.

PN889

And in relation to the question that the submission that the meeting planned for the Monday was unclear, we'd say that is just nonsense. Mr Frieh said the memo was on the board, Mr Zammit was here in court, and Mr Frieh wasn't cross-examined on it. There's a suggestion that the subject of the meeting is unclear. That cannot be upheld having regard to the fact that it refers to an update, and the only thing to update on was the progression of the investigation. Moreover, even if the subject of the meeting is unclear, there is simply no evidence to suggest that it would not have been possible to raise the issue, that is the hot issue at the meeting on the Monday having regard to the manner in which the memorandum is phrased.

PN890

It's quite nonsense to say that the employees were in the dark about the process having regard to the uncontested evidence, that there were in fact sessions in June and July in which Mr Glover himself says that he attended. So we say, Commissioner, that having regard to all the context and all the facts and regard to the factors that Mr Frieh sets out in the last paragraph of his affidavit that I've taken you to a couple of times now, the industrial action is probable, and that this type of order is appropriate. But of course there is a question of discretion as to whether or not the Commission will make it for as long as we like or we want.

PN891

I said 31 March, Commissioner. The agreement actually runs out on 30 April 2008, but I understand that you may not be inclined to make it for that long in any event, Commissioner, but I just make that point.

PN892

THE COMMISSIONER: Yes, thank you. Well, normally the Commission will reserve its decision in these sorts of matters. As the member of the Commission who, under the previous legislation, dealt with the first application or orders under section 127 as they were then, and section 496 pretty well replicates the section as it was in the previous legislation. I'm greatly aware of the meaning of the word probable and its effect. I've got one or two things to say.

PN893

I've already made my view very clear about exhibits 1 and 2, the scurrilous publications, for want of a better word. In a workforce that allows that sort of stuff to be distributed it's got some problems in my view. It's not good enough to say someone published them or printed them and they appeared on desks or on noticeboards. That's rubbish, utter rubbish. It could have been dealt with. If people were fair dinkum about it being offensive or had a concern about it, all they had to say was don't bring that junk anywhere near me, and it would have stopped.

PN894

It's like people whinging about what's written in the daily press about workers and their attitude to life and everything else. There's a way of dealing with it. Don't buy the newspaper. They'll soon stop publishing it because they need your income. That shows me there is a problem with the workforce at the workplace, between both the workforce and the management. In respect to the memorandum over Mr Venables' signature it's about as clear as mud. One further sentence in that would have resolved all these issues in my view, and the sentence would have been about the matter of the dismissals and the concern raised by the workforce.

PN895

So that doesn't assist your argument, Mr Wood. But witnesses for both sides have honestly stated, and I accept that the evidence of all witnesses in this matter have been honest, clearly show that there was an understanding among people about what the meeting was about even if it wasn't specified. And somebody who has had to run large transport companies and other sorts of organisations I've always believed in over kill, make it that plain that blind Freddie could read it and dumb Dora could hear it and understand it. So it's up to Parmalat's human resources people to take that on board.

PN896

I've got no doubt, Mr Zammit, that people have told you they understand. I've also got no doubt that they're like my children used to be years ago, they understood all right about they got a bollocking or were barred from the telephone or barred from going out or barred from something, they understood then if they were punished. I think it's unfair to try and place anything at the feet of Mr Glover. I've known Mr Glover a long time, I've got no doubt he would report it honestly and faithfully and made people very aware to the trouble they are in because of the action they took, no doubt whatsoever.

PN897

And it's my decision that on the balance the application should be granted. The application that's tendered is agreed to with the exception of Mr Zammit's name is removed in the schedule to employees, not because he was here as a witness, not because he's here as the delegate, because he genuinely said, and it wasn't refuted or any attempts to rebut that were not successful. He genuinely said he needed clear understanding about what the wording of the letter he was asked to sign meant, and I accept that it was truth. Perhaps that's a lesson for the human resources people at Parmalat about the use of words.

PN898

I can nit pick the letter from the general manager too because it's full of spelling error and comprehension errors as well, but as a old prick I get accused of being overly fixated about those things. Accordingly Parmalat seeks an order to stop or prevent industrial action pursuant to section 496 of the Workplace Relations Act. The persons bound are those persons listed in the schedule A with the exception of Mr Zammit whose name is excluded, and they are Simon Backman, Peter Blow, Kym Brotchie, Fernando Coelho, Vlado Getlinger, Wayne Gillot, Andrew Grant, Bryce Houston, Michael Jarvie, Rodney Pawsey, Kon Plattis, Daniel Portelli - and no relation to Mr Portelli - Adam Sawrey, Mark Smith, Murray Webb, Jamie White, Roger Yap and Kevin Zanella.

PN899

The order comes into effect from today and remains in effect until 8 November 2007. The service of the order is specified in paragraph 30 and that's the way it will be done. Have you any comment, Mr Wood?

PN900

MR WOOD: I think there's one slight error, Commissioner. Vlado Getlinger should actually be Paul Kovac, because Vlado, there's evidence that he's given an undertaking that he won't engage in further industrial action. I think he just slipped in by mistake.

PN901

THE COMMISSIONER: Well, I was just checking my notes about that, Mr Wood, and Mr Getlinger was one of those persons listed with Mr Daniels and Mr Fairhurst, is that right?

PN902

MR WOOD: That's right.

PN903

THE COMMISSIONER: As having signed documents.

PN904

MR WOOD: Yes, Commissioner.

PN905

THE COMMISSIONER: Yes. Well, that wasn't clear to me whether it was Getlinger or the other bloke.

PN906

MR WOOD: Yes, I think it should be Kovac, not Getlinger.

PN907

THE COMMISSIONER: Well, Mr Getlinger will be excluded, and Mr Paul Kovac was the person who was omitted from the first list, is that right?

PN908

MR WOOD: Yes, Commissioner.

PN909

THE COMMISSIONER: K-o-v-a-c, no S?

PN910

MR WOOD: No, Commissioner.

PN911

THE COMMISSIONER: Any other comment or submission, Mr Wood?

PN912

MR WOOD: What was the date again, Commissioner?

PN913

THE COMMISSIONER: Today's date till 8 November, three months.

PN914

MR WOOD: Thank you, Commissioner. No, there's no comment, Commissioner.

PN915

THE COMMISSIONER: Mr Portelli?

PN916

MR PORTELLI: Nothing, Commissioner.

PN917

MR FAWKNER: Commissioner, whatever you say.

PN918

THE COMMISSIONER: No, Mr Fawkner, okay. Well, I just hope all those people at that workplace get their act together. If any of you talk to anyone who may evince some knowledge about this rubbish you can tell them what I have said. If they want to have a go at somebody they can have a chop at me, I'm available. The Commission is adjourned.

<ADJOURNED INDEFINITELY [4.34PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 NEWSLETTER 7 DATED MAY 2007 PN40
EXHIBIT #2 DOCUMENT, THE MAD COW!!!! PN40
ATEF FRIEH, SWORN PN64
EXAMINATION-IN-CHIEF BY MR WOOD PN64
EXHIBIT #3 STATEMENT OF ATEF FRIEH PN82
EXHIBIT #4 SCHEDULE PN135
CROSS-EXAMINATION BY MR PORTELLI PN161
CROSS-EXAMINATION BY MR FAWKNER PN253
RE-EXAMINATION BY MR WOOD PN308
EXHIBIT #5 RECOMMENDATION OF COMMISSIONER MANSFIELD DATED 21/07/2005 PN327
THE WITNESS WITHDREW PN346
GEORGE MICHALAKELLIS, SWORN PN347
EXAMINATION-IN-CHIEF BY MR WOOD PN347
EXHIBIT #6 STATEMENT OF GEORGE MICHALAKELLIS PN362
EXHIBIT #7 LIST OF EMPLOYEES ATTENDING MEETINGS PN380
CROSS-EXAMINATION BY MR PORTELLI PN396
CROSS-EXAMINATION BY MR FAWKNER PN449
RE-EXAMINATION BY MR WOOD PN502
THE WITNESS WITHDREW PN506
PAUL ANTHONY ZAMMIT, SWORN PN523
EXAMINATION-IN-CHIEF BY MR PORTELLI PN523
EXHIBIT #R1 STATEMENT OF PAUL ZAMMIT PN542
CROSS-EXAMINATION BY MR WOOD PN589
RE-EXAMINATION BY MR PORTELLI PN716
THE WITNESS WITHDREW PN737
JOHN GLOVER, SWORN PN740
EXAMINATION-IN-CHIEF BY MR PORTELLI PN740
EXHIBIT #R2 STATEMENT OF JOHN GLOVER PN751
CROSS-EXAMINATION BY MR WOOD PN772
RE-EXAMINATION BY MR PORTELLI PN828
THE WITNESS WITHDREW PN840