C2007/3495, Transcript of Proceedings [2007] AIRCTrans 586 (31 October 2007)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 17672-1

SENIOR DEPUTY PRESIDENT WATSON

C2007/3495

s.170LW - prereform Act - Appl’n for settlement of dispute (certified agreement)
National Union of Workers
and
Australian Pacific Paper Products
(C2007/3495)

MELBOURNE

10.07AM, FRIDAY, 19 OCTOBER 2007

Continued from 21/9/2007

Hearing continuing

PN124

THE SENIOR DEPUTY PRESIDENT: Before I get underway, I will mark the written submissions of the NUW.

EXHIBIT #NUW7 WRITTEN SUBMISSIONS
EXHIBIT #APPP1 WRITTEN SUBMISSIONS

PN125

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Maas.

PN126

MR MAAS: Thank you, your Honour. You will recall that at the hearing at first instance, after we broke into conciliation, at the end of that conciliation conference the company was to put forward a formal position to the NUW by the following Monday. The hearing at the first instance was on the Friday, 21 September. On that Monday, the 24th, the NUW did receive a formal position from Australian Pacific Paper Products in the form of an email from Mr Tony Katsigionnis to our organiser, site organiser, Mr Steve Howie. I'd like to tender a copy of that email as an exhibit, your Honour.

PN127

THE SENIOR DEPUTY PRESIDENT: No issue with that?

PN128

MS CLEARY: We have no objection, your Honour.

EXHIBIT #NUW8 APPP OFFER

PN129

MR MAAS: My apologies, your Honour, what did you mark that?

PN130

THE SENIOR DEPUTY PRESIDENT: NUW8.

PN131

MR MAAS: Thank you. Your Honour, on the basis of that formal position which was put forward by the company to the NUW not being accepted by the NUW, we did then seek that the matter be programmed for directions and we now seek the decision of the Commission in settling this dispute over the application of the agreement. Your Honour, we submit that the Commission has the jurisdiction to do this in accordance with the disputes resolution procedure at subclause 14.1.4 of the agreement.

PN132

Your Honour, the submissions that the NUW will be making today is that the agreement has application over the company on one part, the union on the other and over its employees on another part. Clause 46 of the agreement is the no extra claims provision. The no extra claims provision of this agreement reads that:

PN133

It is a term of this agreement that neither the employer, the union, nor the employees shall pursue any extra claims during the life of this agreement.

PN134

Your Honour, we say that the company has breached this provision of the agreement by demoting Mr Oung in the first instance and then in the second instance by reducing his wages without his consent. We further say that there's been another breach of the agreement, your Honour, and I take you to clause 14 of the collective agreement and that is the disputes procedure. Your Honour, as has already been submitted to you at the hearing at first instance, the parties have worked their way through the disputes procedure. That hasn't been contested. At clause 14.3 of the agreement, I will read to you:

PN135

While the parties are attempting to resolve the matter, the parties, including the employees bound by this agreement, will continue to work in accordance with this agreement and their contract of employment, unless the employee has a reasonable concern about an imminent risk to his or her health and safety.

PN136

We point to this, your Honour, as another breach by the company as they have not continued to work in accordance with the agreement and their contract of employment with Mr Oung. That's demonstrated by its force of demotion and its force of reduction in the pay. I will take you now briefly, your Honour, to the central issues in the relevant case law that we see covers this matter. Since
5 September 2007, Mr Oung has been forcibly demoted by APPP and has had his wages reduced by in excess of $120 a week, but it was actually on 3 August when that demotion took place.

PN137

His reduction in wages took place on 5 September, but he hasn't been performing the duties of an assistant A-line operator I think is the title. He hasn't been performing those duties since 3 August. The company has forcibly demoted him since that time. For our part and this will come out in the evidence today and on Mr Oung's part, the warning which the company issued on 3 August has never been accepted and the facts and the grounds leading to the actual warning have also been disputed, at the time and ever since that time.

PN138

In relation to the application of the agreement and cases, your Honour, I take you to Media, Entertainment and Arts Alliance v The Australian Broadcasting Corporation. I haven't provided you with a copy today because it's a print of the Commission.

PN139

THE SENIOR DEPUTY PRESIDENT: I am not sure that excuses you from providing me with a copy.

PN140

MR MAAS: I can supply a copy to you after the hearing, your Honour, if the Commission pleases.

PN141

THE SENIOR DEPUTY PRESIDENT: No, it won't be necessary, but in the normal course it would help to have the authorities before me.

PN142

MR MAAS: Indeed, your Honour, and also a Full Bench, National Tertiary Education Industry Union v University of Wollongong. They describe the application of the agreement as follows:

PN143

As a relationship between the provisions of an agreement and the subject matters in dispute appear to be an essential ingredient in the identification of any dispute over the application of the agreement.

PN144

And further in CPSU v Seven Network Operations Limited, there is a need to characterise the dispute and then to decide once the dispute, once it's been characterised, has a sufficient nexus or a nexus to the provisions of the agreement itself. We ask your Honour to apply these authorities to the facts of this case. What we say is that when the Full Bench authorities are applied to the facts, that there is a sufficient nexus between the disputation surrounding around the warning and the subsequent demotion and pay reduction of Mr Oung and the agreement clauses which APPP have breached and I've already outlined to you.

PN145

On this basis, the Commission has the jurisdiction to make the orders sought to remedy this dispute. Your Honour, we're also alleging or we are alleging that there has been a repudiation of the contract of employment. Mr Oung's contract of employment is encapsulated by the collective agreement that's in place between the parties. By demoting and significantly reducing the pay of Mr Oung without his consent, we say that APPP may have repudiated their contract of employment with him and I take you to the Full Bench decision of Andrew Kenneth Charlton v Eastern Airlines Pty Ltd.

PN146

At paragraph 14 of the submissions that you've marked as NUW7, your Honour, there is a detailed paragraph there. I won't go through that now, but I will say that out of those words, out of this authority, the questions in relation to Mr Oung need to be asked. Does the collective agreement which the parties are bound by allow for the demotion of Mr Oung? The second question is was there a significant reduction in the remuneration of Mr Oung? Again, your Honour, in looking at the repudiation of the contract of employment, we ask you to apply the case law, this authority to the facts.

PN147

APPP were not authorised by the contract of employment or the agreement to demote Mr Oung, even if they may claim that this was only going to be for a short period. In demoting Mr Oung, APPP might have repudiated the then existing contract of employment between them. At the very least, they continued the original contract of employment, but had still breached that contract by paying the reduced salary. We further submit in answering those two questions that we posited before your Honour that the reduction in remuneration of Mr Oung equates to about 13.2 per cent over a week and is approximately $124 a week based on his pre-tax earnings of $938.

PN148

It's our submission that this is a significant reduction in his remuneration. Your Honour, it's our submission that the authorities I've taken you to are the leading authorities in this jurisdiction with respect to repudiation of the employment contract and, further, and if Macken's is anything to go by, your Honour, it's consistent with the reasoning of the development of the case law in the last 50 or so years. The company's submission refers to a case O'Connor v The Argus and The Australian, (1957) VR.

PN149

The company is contending that that case and I note some 50 years old, your Honour, is authority for the proposition that the continuation of work under new conditions without protest may be construed as consent to the variation or may preclude the worker from denying consent. Our submission, your Honour, is that's not inconsistent with our submission either, because we're saying that there's been protest all along. I will take you to what we see as being a fit remedy before I close.

PN150

In settlement of this dispute, your Honour, the NUW seeks an order from the Commission that firstly Mr Oung will be immediately returned to his assistant operator duties as performed prior to the warning being issued. Secondly, we seek that he be remunerated accordingly from 5 September 2007 at the line employee level 3 rate. Thirdly, your Honour, we ask you to exercise your discretion pursuant to section 111(1)(j) under the current Act to appoint an independent expert investigator to conduct an investigation to determine the validity of the warning which was issued.

PN151

THE SENIOR DEPUTY PRESIDENT: How does that element arise out of the agreement?

PN152

MR MAAS: The way we've characterised the dispute, your Honour, has been in terms of the reduction of this employee's pay. What has led to that reduction of pay is something that has not been agreed with not only by Mr Oung, but also by the union. It's been a point of contention right from the very, very beginning. What we say, your Honour, is that you have discretionary powers under the Act to enable that. The Media, Entertainment and Arts Alliance v Australian Broadcasting Corporation case confirmed the initial decision which was made by Commissioner Smith.

PN153

He made an order in similar circumstances and was deemed by the Full Bench not to have exceeded his jurisdiction in the circumstances of that matter. In terms of an independent expert investigator, if I may just posit a few suggestions, your Honour, and I have had some very brief discussion with Ms Cleary about this. The union would like to suggest either the Diversity Council as an organisation, should you lean this way exercising your discretion or an organisation known as Work/Life Balance or, of course, an ex-Commission member may be well placed to conduct such an investigation.

PN154

The element of fairness that has been afforded to Mr Oung we say, your Honour, has always been questionable and the evidence will show today that his responses at the times of interviews with him, leading to him being given a warning, weren't taken into consideration, that the same standard which was applied to another employee wasn't applied to him. The other employee, Mr Jason Volange, I believe, was given a less severe warning and no demotion ostensibly for him telling the truth. Mr Oung and the NUW submits that he also told the truth.

PN155

We say that by exercising your discretion pursuant to section 111(1)(j), your Honour, that we can overcome what may well have been a predetermined outcome given the way this investigation was handled by the company. This investigation was handled by the actual night shift supervisor who I dare say will tender evidence today that this very same night shift supervisor has had previous dealings with this employee in terms of minuting alleged poor behaviour in the past.

PN156

Why isn't at the very least HR taking a part in these investigations, not the same person who works as Mr Oung does each night. Should you decide to exercise your discretion under section 111(1)(j), your Honour, we also temper that by saying that where Mr Oung or the parties, the NUW and Mr Oung are after a speedy resolution to this matter. This whole process has caused Mr Oung a considerable amount of stress. He just wants to go along and go to work and do what his contract of employment says or he has said he wants to do.

PN157

The further this is continuing, he's feeling mounted pressure and not necessarily verbal pressure from the company, but he's feeling intimidated and just wants this whole thing to be over. He feels as though he's being watched very closely at work. He feels he's being prejudiced in relation to his overtime, in what was given to him, prior to negotiations to try and fix this thing before the hearing at first instance in the Commission and then what has happened after. Even as late as yesterday, Mr Howie was going argie-bargie with the company to try and get Mr Oung a day off last night so that he could be here today.

PN158

The company did not consent to that request and we advised Mr Oung that it would be prudent to take an annual leave day and he did take an annual leave day last night so he could be here. Finally, your Honour, we would seek any other orders that the Commission may deem fit in resolving this matter. Subject to any questions you have, that concludes my opening submission.

PN159

THE SENIOR DEPUTY PRESIDENT: Very well. Do you want to take us to your witnesses, or do you want to say anything in opening, Ms Cleary?

PN160

MS CLEARY: Your Honour, I assume I would do my opening after the witnesses have been called for the NUW.

PN161

THE SENIOR DEPUTY PRESIDENT: Very well. We will proceed with your witnesses. Is there any agreement between the parties as to exclusion of witnesses?

PN162

MS CLEARY: Sorry, I couldn't hear you, your Honour.

PN163

THE SENIOR DEPUTY PRESIDENT: Is there any agreement between the parties as to the exclusion of witnesses?

PN164

MR MAAS: I haven't had a discussion with Ms Cleary as yet, your Honour. However, given the interrelationship between all of the witnesses who have been called and the various meetings, I think it's probably prudent that all witnesses be excluded from the room.

PN165

MS CLEARY: We actually contemplated that, your Honour, so our witnesses are prepared to excuse themselves from the room.

PN166

THE SENIOR DEPUTY PRESIDENT: Very well. Who do you want to start with, Mr Maas?

PN167

MR MAAS: I would like to call Mr Setha Oung to the witness stand, your Honour.

PN168

THE SENIOR DEPUTY PRESIDENT: Very well. I would ask the other witnesses to excuse themselves at this point.

<SETHA OUNG, SWORN [10.30AM]
<EXAMINATION-IN-CHIEF BY MR MAAS

PN169

THE SENIOR DEPUTY PRESIDENT: Please take a seat, Mr Oung. Yes, Mr Maas.

PN170

MR MAAS: Mr Oung, do you have a copy of your witness statement?---Yes.

PN171

At this point, your Honour, could I just quickly turn your attention to paragraph 23 of Mr Oung's statement? That exhibit detail only became an exhibit earlier today and I would seek an amendment to make that exhibit NUW8 which is the email.

PN172

Mr Oung, you see a copy of that witness statement - - -

PN173

THE SENIOR DEPUTY PRESIDENT: Mr Maas, we're not recording you at the moment.

PN174

MR MAAS: Okay. I was just after a signature.

PN175

THE SENIOR DEPUTY PRESIDENT: I see. Perhaps you can do that by the microphone and then get the signature.

PN176

MR MAAS: Certainly, your Honour.

PN177

THE SENIOR DEPUTY PRESIDENT: I don't think it will be of any material difference. If the evidence is adopted by Mr Oung, that will be suitable.

PN178

MR MAAS: Mr Oung, that amendment that we just foreshadowed to the Commission at paragraph 23, is that okay with you in relation to the company email?---Yes.

PN179

Thank you, Mr Oung.

PN180

THE SENIOR DEPUTY PRESIDENT: Perhaps you should have Mr Oung - - -

PN181

MR MAAS: Adopt it?

PN182

THE SENIOR DEPUTY PRESIDENT: Yes.

PN183

MR MAAS: Do you affirm and adopt your witness statement to be tendered as evidence in this matter, Mr Oung?---Yes.

**** SETHA OUNG XN MR MAAS

EXHIBIT #NUW9 WITNESS STATEMENT OF SETHA OUNG DATED 05/10/2007

PN184

MR MAAS: Thank you, Mr Oung. Between the submissions from the company and from your own witness statement, there seems to be a little bit of conjecture as to how long you've been working with Australian Pacific Paper Products. How long have you been working there?---I've been working there for approximately six years.

PN185

So you certainly didn't start earlier this year or last year?---No.

PN186

MS CLEARY: Your Honour, we do concede that there is a typo error in our final submissions. We won't be contesting that.

PN187

THE SENIOR DEPUTY PRESIDENT: Very well, that will be corrected and that will be consistent with the position that's being put now by Mr Oung.

PN188

MR MAAS: How long have you been working the night shift?---I've been working there for approximately three years. I worked on day shift and because I need the money, then there was a position available on the afternoon shift, so I moved to afternoon shift to get 15 per cent more and then there was another vacancy on night shift, so I moved there to try to get 30 per cent, to get more pay.

PN189

THE SENIOR DEPUTY PRESIDENT: When did you move to the night shift?
---Your Honour, I don't know exactly the date, but I think roughly about two to three years.

PN190

How long were you on the afternoon shift?---I've been there for a while, probably less than a year, your Honour.

PN191

Thank you.

PN192

MR MAAS: Mr Oung, in your statement you draw reference to an investigation which the company did in relation to bullying. I think it's exhibited as NUW1. What was all of that investigation about as far as you're aware?---As far as I was aware, I think the investigation was about bullying and there was no such thing. No bullying was found from that investigation.

PN193

Before the investigation was done, was there any view as to who might have been accused of being bullied?---I'm not sure.

**** SETHA OUNG XN MR MAAS
PN194

Who conducted the investigation into the bullying?---Gordon McIntosh, night shift supervisor at the time.

PN195

When approximately was this investigation carried out?---Just two or three days before I get a warning.

PN196

According to your statement, you received a warning on 3 August and again according to your statement that was one day after you were called in by Gordon McIntosh for an interview. Now, what happened at that interview when you were called in on 2 August?---On 2 August I was calling in and Gordon told me out of bullying investigation, there was an accusation against me regarding my work and I was a bit shocked to hear that.

PN197

In particular what about your work?---About my attitude to quality and also my performance as an assistant operator.

PN198

Did he refer to any other past history that you might have had, work-related history or allegations of poor performance against you?---No.

PN199

You see, Mr Oung, I find that a little bit strange because the company or Mr McIntosh as a part of I'm sure what he'll tender as evidence today has put together two meeting records?---Yes, I have a copy of that.

PN200

What can you tell me about these meeting records?---As far as I'm concerned, it's not exist because I never told about it, I never communicate about it and I can't recall any meeting with him.

PN201

So do you know how these reports are generated?---I'm not sure how it's generated, probably by - yes, I'm not sure.

PN202

Copies of these weren't given to you?---Yes, it wasn't communicated with me and I didn't get any document or letter to that meeting.

PN203

The two meeting records which are here are dated 14 May 2006 and 21 June 2006, over a year ago. You absolutely don't recall? This meeting record says that a discussion was had with you in relation to these incidents?---Well, I don't recall such meeting.

PN204

Thank you, Mr Oung. Your Honour, I just note the commencement time or the duration of both of those meeting records is five minutes. With the meeting on 2 August, could you tell me a bit more about what happened at that meeting?---At that meeting, the allegation was put before me and I explained to Gordon what's the allegation against me in that.

**** SETHA OUNG XN MR MAAS
PN205

Mr Oung is referring to NUW2, your Honour?---The allegation was put before me and I was given an opportunity to explain and I did explain to Gordon in regard to all the allegation, but obviously my explanation wasn't considered.

PN206

Were you consistent in the answers that you gave? Did you just deny everything flatly as each allegation was put to you, or did you go through each one, one at a time and gave your view?---Yes, they give one each time, each point and I gave my view on the point.

PN207

THE SENIOR DEPUTY PRESIDENT: If you would just take a bit of case in phrasing of the questions. That was almost a multiple choice question, Mr Maas.

PN208

MR MAAS: Yes, your Honour. What happened at the conclusion of that meeting on 2 August?---At the conclusion, no matter what I said, obviously Gordon already made up his mind already, so my explanation wasn't considered.

PN209

You say he's already made up his mind. What makes you say that?---Because after the meeting, he told me not to go back to my machine, go to hold stock area.

PN210

Was that on 2 August or was that on 3 August?---Yes, on 3 August, on 3 August, the meeting on 3 August.

PN211

I will take you now to paragraph 8 of your witness statement, to 3 August and according to your statement, a written warning was issued to you?---That's right, yes.

PN212

This was and again according to your statement one day after the investigation on 2 August. What happened at that meeting on 3 August?---On that meeting, Gordon was reading out the warning to me and after that I was told to go to the hold stock area, not to return to the machine.

PN213

THE SENIOR DEPUTY PRESIDENT: Post what area, sorry?---The hold stock.

PN214

Host stock?---Hold stock, where you do all the rework, your Honour.

PN215

MR MAAS: What duties had you been performing up until 3 August?
---Assistant operator.

PN216

Can you give me an example of some of those duties?---Running the machine, basically, yes.

**** SETHA OUNG XN MR MAAS
PN217

On 3 August you were informed by Mr McIntosh that you weren't to perform what duties?---Assistant operator any more.

PN218

I am sorry? An example of the duties you were performing?---At the end of the meeting, Gordon McIntosh was asking me not to go and do assistant operator's job. He asked me to go to the hold stock area which is doing rework and some other different duty.

PN219

Since 3 August, have you returned back to your original assistant operator duties?
---Not yet.

PN220

I take you now to paragraph 12 of your statement - my apologies, paragraph 11 of your statement. At what time did you contact the NUW?---I contacted Steve after work which is after 7 o'clock on the day I get the warning.

PN221

What happened after that?---Steve have arranged the meeting with the company to try to resolve the problem.

PN222

THE SENIOR DEPUTY PRESIDENT: Seven o'clock in the morning?---After 7 o'clock, your Honour.

PN223

In the morning?---Yes.

PN224

Yes, given you were on night shift. Thank you.

PN225

MR MAAS: That meeting according to your statement was on 6 August. In paragraph 12 of your statement you talk about a meeting taking place on 4 September. Were there any other meetings or any other discussion that had taken place between 6 August and 4 September?---No.

PN226

What duties were you performing during this time?---Box stores which is finished goods roller, known as box stores.

PN227

Are those duties what you would normally perform as a part of your assistant operator duties?---No.

PN228

I take you to paragraph 14 of your statement. Can you tell me what happened at that meeting on Monday, 10 September?---On Monday about 6.45, I had a meeting with Tony Sheshadri and myself and at the meeting, Tony asked me do I really want to go to Commission and I told him I don't want to go to the Commission, but I don't want to get my pay reduced and I explained to him I do whatever duty, but I will not accept my pay is cut and I don't want to go to Commission, as long as I don't get my pay cut.

**** SETHA OUNG XN MR MAAS
PN229

Did you say at any time that you were happy to accept these duties?---As long as my pay is still the same and to avoid the Commission, yes, I accept whatever duty.

PN230

In your statement at paragraph 14, you say:

PN231

I was informed that I would receive plenty of overtime as compensation.

PN232

Did you agree with that?---Yes. Tony said, look, we cannot do anything about your pay cut, but what we can do is we give you a lot of overtime to compensate that.

PN233

I'm sorry, who said that?---Tony.

PN234

Why do you think they said they would offer you more overtime?---Probably to make me happy and just to accept the decision, because Tony said, look, he cannot do anything about the pay cut, but he can give me a lot of overtime.

PN235

Did you want to go to the Commission?---The Commission is the last resort for me. I never want to go to Commission. It's the last resort. It's not easy, you know. It's a last resort.

PN236

Do you think the company wanted to go to the Commission?---I don't know what the company do, but because they know we are - I say, look, I will do anything, but I just don't want to get my pay reduced and they're not willing to get my pay back, so I think they want to go to Commission.

PN237

I take you to paragraph 16 of your statement and your discussions with Mr Talwar who is the day shift supervisor. Mr Talwar in his statement which I gather will be tendered as evidence today has said that there was a meeting before the telephone call that you had with him. Your statement makes no reference to a meeting before a telephone call. Can you please explain the anomaly?---Well, early that morning I have a meeting with Tony and the night shift supervisor, Sheshadri. Tony want to ask me again if I really want to go to Commission and I state to him again and again, I said, you know, I don't want to go to Commission, but I just don't want to get my pay reduced, so the meeting get nowhere, we finish, I stay back that day doing the overtime. I get home about 11, 11.30. Around about - after that I got a call from Ajay. Ajay call me up, say, look, forget about the Commission, you know, we'll sort this thing out and if you just drop it, I probably can get your pay back in the next week or so. I was happy with that. I thought, you know, maybe he got some instruction from the top, but then I wasn't really sure, are you sure, Ajay, you can do this? He say, look, I know this guy, I can get it, you know, but I wasn't confident with him. I say, look, okay, then, we will need to have a meeting with Tony tomorrow.

**** SETHA OUNG XN MR MAAS
PN238

You say in your statement that you consider Mr Talwar a good friend and so you listened to his advice. Does company management - is it well known that you and Mr Talwar are good friends?---According to, I mean, with the people, yes, they think we are good friends, but I'm not sure whether the management know or not. I'm not sure.

PN239

MS CLEARY: Your Honour, I question what the application of the question is in relation to the matters before you about the relationship between two individuals.

PN240

THE SENIOR DEPUTY PRESIDENT: Yes. I don't think it matters, given Mr Oung's answer that he can't speculate as to what management knew.

PN241

MR MAAS: I have no further questions down that path, your Honour.

PN242

THE SENIOR DEPUTY PRESIDENT: Yes.

PN243

MR MAAS: So after that discussion, a further meeting according to your statement was held on 11 September?---Yes.

PN244

The next day. Firstly, who was at that meeting?---Tony and then Ajay walked past, I asked Tony, look, can we bring Ajay in and he said okay, Ajay can come in.

PN245

What happened at that meeting?---Well, I talked to Tony and Ajay about the conversation and what is the company willing to do, because if the company will do that, I don't want to go to Commission, you know. I mean, I don't mind if the company do what Ajay said, you know, put me back in one week's time, you know, which is something strange, you know, just stop one person's pay for one week and then put it back, but then Tony say, look, you cannot do anything about it, but if you really want to go to Commission, we're ready for it, anyway, and then I said, look, I don't want to make decision yet and then that's it. I get out, the meeting is finished and after that I go home, I call Steve. I said, Steve, can you sort these things out, I don't want to go to Commission, but can you talk to Tony, see what we can do, what the company can offer?

PN246

When was the next meeting with the company?---Then Steve had arranged a meeting with the company. I believe it was on the 16th, but I wasn't attending that meeting, so I wouldn't have any idea what they said in the meeting, but my meeting with Tony and all our union rep was on the 14th.

**** SETHA OUNG XN MR MAAS
PN247

What happened at the meeting on the 14th?---Well, on that meeting I was advised by my union rep and also by Steve Howie said the company going to come with the decision on that day, what they want to do and at the meeting, before we sit down, Tony just ask me straight away, do you want to go to Commission? I mean, I was shocked because I wasn't expect that, because I expect people to sit down and, look, this is what we can do for you and that's that, but it wasn't that at all. It just come, sit down, do you want to go to Commission by then, so I was a bit shocked.

PN248

After the Commission hearing and the company put forward - I take you to paragraph 20 of your statement, after the Commission hearing you say that you remained disappointed with the position that was put forward by the company in that email. Why were you disappointed?---Well, I disappointed because before the Commission, Tony had promised me that there will be no repercussion, whatever I choose to do, but after the Commission, the decision was worse than what it originally offer for me, so I feel that I've been punished by coming here.

PN249

I take you to paragraph 21 of your statement and you talk about that your overtime has been dramatically reduced. How do you explain that?---Well, before the Commission I get four to five days overtime a week to compensate my reduced rate, but after the 14th, I get no overtime at all and then once a week I get overtime, so my overtime was reduced from five days a week, four or five days a week to once a week.

PN250

Mr Katsigionnis in his statement which I am sure will be tendered as evidence today has an exhibit in his witness statement which looks like this. Do you have a copy of that?

PN251

THE SENIOR DEPUTY PRESIDENT: Do you need this and the earlier document marked separately, or would you rely on them as attachments to statements which will later be marked?

PN252

MS CLEARY: They will be tendered as exhibits to witness statement, your Honour.

PN253

THE SENIOR DEPUTY PRESIDENT: Very well. This is TK1 to Mr Katsigionnis' statement.

PN254

MR MAAS: Mr Oung, I am a bit of a layperson when it comes to reading and interpreting these overtime sheets. Would you care to explain for me what this is saying to us?---What it's saying is that on the week of knowing that I'm going to the Commission with this ending on the 18th, I get one day overtime. That's what it basically says.

**** SETHA OUNG XN MR MAAS
PN255

How is that detailed?---It's detailed in one and a half pay of three hours and two double pay for three hours which is equivalent to one day's overtime and then the following week, I get one day overtime as well. That's what it says.

PN256

You have for the week ending 25/9 three hours at time and a half?---Yes, which is equivalent to one day overtime.

PN257

And one hour at double time?---Yes.

PN258

Is that correct?---Yes, the whole lot including one day overtime.

PN259

What about the week ending 2 October?---2 October I get two days stay back and I get weekend work, one day weekend work, which everyone should get, the weekend work, which is not normal. It's a one off. Now and then we get weekend work, so you can't rely on that.

PN260

Who works on that Saturday or on that weekend, assuming it's a Saturday?---Most people work on that Saturday.

PN261

On the next week ending the 9th, can you explain what happens there or what happened then?---I got two days' overtime, two days stayed back, overtime, so as you can see, by the time from the 18th, the week end 18th, my overtime had been reduced from four to five days to one to two days and that's if no-one wanted and I would get that overtime.

PN262

This exhibit only shows from when the Commission hearing, we knew the Commission hearing was coming. Beyond that, it doesn't show what happened before that?---That's right, yes.

PN263

Your Honour, I have a pay slip from Mr Oung for that previous week which I'd like to tender as a previous exhibit. I've already foreshadowed that I'd be doing this with Ms Cleary.

PN264

THE SENIOR DEPUTY PRESIDENT: Very well.

PN265

MR MAAS: I'd like to tender that.

EXHIBIT #NUW10 PAY SLIP FOR WEEK 05/09 TO 11/09

PN266

THE SENIOR DEPUTY PRESIDENT: Are you able to identify that document, Mr Oung?

**** SETHA OUNG XN MR MAAS
PN267

MR MAAS: Could you identify this document, please, Mr Oung?---Yes.

PN268

What is it?---It's the pay slip ending on the 11th, your Honour.

PN269

So this is the pay slip for the week ending 11 September and it's marked as exhibit NUW10.

PN270

THE SENIOR DEPUTY PRESIDENT: 10, yes.

PN271

MR MAAS: What can you tell me about this pay slip?---The pay slip show that I work normal day which is eight hours a week and the overtime I get as shown there, but what I really want to point out to you is the meal allowance, meal allowance showing that I have stayed back five days, which is five days overtime.

PN272

Have you worked five days overtime since the last Commission hearing?---No.

PN273

Thank you, Mr Oung. I'd like to take you to paragraph 22 of your statement. Why do you think that the company is looking to take a faster route to terminate your employment?---I don't know, really, why. I don't know what their motive is, but according to email from Tony to Steve, it showed that by me coming here and by wanting to give me the first and final written warning, that shows that.

PN274

Finally, Mr Oung, what has been the impact for you financially and on your general health and well-being as a result of this demotion, this forced demotion?
---Since the demotion, there's a lot of impact, not just on myself, but on my family as well because I need to work five days' overtime, you know, like what's shown here just before coming to the Commission, so I had to stay back nearly every day just to get the money and by the time I get home, it's around about 11.30, go to sleep around about 1 o'clock, kids come back around about 3, 4 o'clock and by that time a lot of noise in the house, I can't sleep and the wife comes to work, kids everywhere, no-one help her with the kids and it's a lot of problem at home, a lot of problem at home and my wife get upset with me as well, but I need the money, I need to sleep, yes.

PN275

Is there anything else you would like to add?---Also, you know, when the kids come home, usually they want to play with me, 5 o'clock, 6 o'clock I play with them, but during that period I have no time with them because I was sleepy and I just want to sleep and every time they knock on the door, I say go away, I'm sleeping and if you tell the kids like that five days a week or something like that, it's no good. I can see their face. They turn around and they're disappointed, so the quality of life has changed a lot.

**** SETHA OUNG XN MR MAAS
PN276

Thank you, Mr Oung. I have no further questions, your Honour.

PN277

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Cleary.

<CROSS-EXAMINATION BY MS CLEARY [11.09PM]

PN278

MS CLEARY: Thank you, your Honour.

PN279

Mr Oung, while we're talking about overtime, I'd like to discuss with you NUW10 which is your pay slip, have you got that, for the period ending 11 September 07? With respect to overtime, Mr Oung, you would agree, wouldn't you, that overtime is only allocated on an as needs basis?---Yes.

PN280

And that with respect to overtime, it's subject to what's required to go out the door on each given day?---Yes.

PN281

On the night shift, you would agree that there is about approximately 24 employees on the night shift in the production area?---Yes.

PN282

Can I refer you now and I am not quite sure, your Honour, what the witness has in front of him at this moment, but I'd like to refer you to exhibit TK1. Now, let's look at the week ending 18 September 2007. It's noted down there that you worked three hours at time and a half and three hours at double time, but you would have to agree that other employees, for example, Rolando Olaso, also works three hours at time and a half and three hours at double time?---Yes.

PN283

But Faddi Saab and I do apologise, your Honour, if I am getting these pronunciations wrong - - -

PN284

THE SENIOR DEPUTY PRESIDENT: You must apologise to the person involved.

PN285

MS CLEARY: Had only received two hours at double time, so when you look at that table, you would have to agree, wouldn't you, Mr Oung, that you actually are granted overtime and that some of the hours that you're working are in excess of the hours that some other people are afforded at the site?---If you want to look at it that way, yes, but if you've got - - -

PN286

That's the only question I'm asking you, Mr Oung?---You've got to
understand - - -

**** SETHA OUNG XXN MS CLEARY
PN287

And also you would have to agree that - - -

PN288

THE SENIOR DEPUTY PRESIDENT: Mr Maas will deal with any matters arising?---Sorry, your Honour.

PN289

MS CLEARY: You would also have to agree that at the end of the week ending 18 September 2007, only 18 of the 24 individuals were required to work overtime. I refer you to the column headed shift and go down to the bottom of that heading where there is an asterisk with the word equal 18. Look at the front page?---Yes.

PN290

And therefore you're one of the 18 employees out of the 24 individuals who work on night shift that was granted overtime?---Yes.

PN291

Likewise if we look at the week ending 25 September 2007 and in that week you were granted three hours at time and a half and one hour at double time. Do you agree?---Yes.

PN292

And that other employees on night shift were afforded like overtime or less overtime?---Yes.

PN293

And during that week you were one of 21 individuals granted overtime?---Yes.

PN294

So three other individuals on that night shift weren't given the opportunity?---Yes.

PN295

THE SENIOR DEPUTY PRESIDENT: I am a bit puzzled by those figures, actually. They seem to relate to the 1.5 column. For example, if you go to the first day and it's 18, but, in fact, all employees have worked some overtime, some at the two times rate and none at the 1.5.

PN296

MS CLEARY: I think, your Honour, we would refer in fact to the number of employees who've worked any overtime during that week.

PN297

THE SENIOR DEPUTY PRESIDENT: I am sorry, there's only 18. It's not the full list. For example, on the week ended the 18th, there's another six employees who don't even appear on the list.

PN298

MS CLEARY: That's right.

PN299

THE SENIOR DEPUTY PRESIDENT: I see. Thank you.

**** SETHA OUNG XXN MS CLEARY
PN300

MS CLEARY: In your evidence to date, Mr Oung, you have stated that this issue that's currently before the Commission has impacted on you not only financially, but also from a stress level because normally when you worked overtime, you got home at 11.30 am and that as a result of the need to sleep, it had impacted on your family life due to the fact that you can't play with your children, but isn't it correct really to assume that because your overtime has been less subsequent to the week ending 11 September 07, that you actually have more time to sleep?---Yes.

PN301

I'd like to refer you to your witness statement which I believe has been now referred to as NUW9.

PN302

THE SENIOR DEPUTY PRESIDENT: Do you have that, Mr Oung? That's your statement?---Yes.

PN303

MS CLEARY: You've been employed at the company for approximately six years?---That's right.

PN304

You're employed as an assistant line operator?---Assistant line operator A, yes.

PN305

You would have to agree, wouldn't you, Mr Oung, that that carries a certain level of responsibility?---Yes.

PN306

And in particular responsibilities in relation to quality of the products?---That's right.

PN307

Because there's responsibilities in relation to quality of product, it's very important that you are focused on the job at hand?---It's always been my priority.

PN308

Therefore it would be quite reasonable for the company to be concerned if it received complaints about you not attending to your duties?---Yes.

PN309

You also state in your statement that on 2 August 2007 you were called to a meeting with Gordon McIntosh, but it's true, isn't it, that you actually participated in the investigation into the workplace bullying issues on the night shift?---Yes, everyone on night shift.

PN310

Can I have the witness shown NUW1, your Honour? Bear with me, your Honour, we have a spare copy.

**** SETHA OUNG XXN MS CLEARY
PN311

THE SENIOR DEPUTY PRESIDENT: Do you have a copy? That's the investigation of bullying issue document?---Yes, your Honour.

PN312

MS CLEARY: Now, Mr Oung, can you familiarise yourself with that document?
---Yes.

PN313

There's some hand-writing on the document. Is that your hand-writing?---That's the supervisor's hand-writing.

PN314

Who is the supervisor?---Gordon McIntosh.

PN315

Up the top it says Setha and Marie. Can you see that, Mr Oung?---Yes.

PN316

Who is Marie, for the Commission's records?---Marie was another night shift rep, union rep.

PN317

She was present with you at all times during this interview?---That's right.

PN318

I would like to address the first question. At the first question, it states:

PN319

Do you feel you are being bullied at work?

PN320

And the response is:

PN321

Sometimes. It doesn't matter how hard I try, sometimes controllers don't think I'm doing my job.

PN322

Is that the information you conveyed to Mr McIntosh?---Yes.

PN323

So when you say in your statement that you've never had any performance issues raised with you before, that's a lie, isn't it, Mr Oung?---It's the usual thing, you know, like controllers always complain about this and that, it's the usual thing, so it's not a lie.

PN324

But in relation to controllers, it's their job to make you aware of inadequate performance, isn't it?---Yes, that's right, yes.

PN325

I'd like to refer you to question 7 on that document where it says:

**** SETHA OUNG XXN MS CLEARY
PN326

Are there any other matters you would like to discuss which are causing you problems at work?

PN327

You then say related to question 1:

PN328

Controllers need to understand our needs and we need to understand theirs. It's as if they are in a different department. They need to understand the machines better. I'm here to do my job, not to give them a hard time. I have a few things that I am not doing my job. It's not efficient.

PN329

So obviously, Mr Oung, you were aware that there were performance issues regarding your performance, weren't you?---It's not just me, it's the whole thing.

PN330

I am asking you a question, Mr Oung. You're aware yourself that you weren't doing your job?---No.

PN331

Why did you make that comment, Mr Oung?---That's comment, it doesn't mean that I aware that I didn't do my job. That comment just to tell people that I am doing my job, about people's perception of me not doing my job. It's just my way of telling them I am doing my job, please try to understand.

PN332

So when you say in the statement if it becomes official, I will take it further, what did you mean by that?---Well, there's always things, because this one was raised and people were talking like that and I say, look, I don't hear anything about it, but if it become official, then we have to sit down and talk about it.

PN333

But that's what happened, isn't it, Mr Oung?---Sorry?

PN334

That's what happened. The company did become aware of issues and sat down with you?---Sit down and sort things the right way, the whole party who are involved, the whole people involved in the process, consult about it, talk about it. If you have problem with me, everyone have problem, we should sit down together and try to sort things out as a group, not punish one person, listen to one person, punish the others, but get them all together, what is the issue here, how can we sort these things out, how can we work together, how can we help each other?

PN335

Mr Oung, I'd like to refer you to an exhibit in Mr McIntosh's statement which, your Honour, I don't think it's been tendered as an exhibit at this stage, but clearly it's been referred to in the examination in chief.

**** SETHA OUNG XXN MS CLEARY
PN336

THE SENIOR DEPUTY PRESIDENT: It's Mr McIntosh's statement itself?

PN337

MS CLEARY: Yes. The meeting record dated 14 May 2006 and the meeting record dated 21 June 2006. Do you recall every conversation you've had with Mr McIntosh over your engagement with the company?---What do you mean, every detail of anything?

PN338

Yes?---I'm only human.

PN339

Sorry?---I'm only human.

PN340

So it's quite reasonable that these conversations did take place?---Yes, probably, yes.

PN341

THE SENIOR DEPUTY PRESIDENT: I take it this is what appears in the materials file to be the missing GM1 in Mr McIntosh's statement, is it?

PN342

MS CLEARY: Sorry, your Honour?

PN343

THE SENIOR DEPUTY PRESIDENT: This document is the missing GM1 referred to in Mr McIntosh's statement?

PN344

MS CLEARY: Yes, it is.

PN345

THE SENIOR DEPUTY PRESIDENT: Very well. Thank you.

PN346

MS CLEARY: I'd like to refer you to exhibit NUW2 now, Mr Oung. Do you have a copy of that in front of you? It's a meeting on 1 August 2007?---Yes.

PN347

At this meeting you were afforded representation from your union?---Can you repeat that again, please?

PN348

At this meeting you were afforded representation by site delegates?---Yes.

PN349

At this meeting, it's true, isn't it, that Mr McIntosh gave you details of the performance concerns the company had with regard to your attitude and your behaviour and your performance as an assistant line operator?---It was stated there that the allegations against me, yes.

**** SETHA OUNG XXN MS CLEARY
PN350

And Mr McIntosh went through each of those allegations and gave you an opportunity to respond?---Yes.

PN351

He wrote down on your behalf your responses to those allegations?---That's right.

PN352

You've previously stated that you're only human. You would have to accept, wouldn't you, that all humans make mistakes?---Yes, some, yes.

PN353

That no-one ever will be perfect in their job?---That's right.

PN354

Therefore, when you said that you've never had any issues of poor performance, you would have to agree that there probably have been issues of poor performance previously?---Not that I know of, not that I've been communicated to or consulted.

PN355

What do you mean by the phrase in paragraph 6 of your statement?

PN356

THE SENIOR DEPUTY PRESIDENT: We're back to your statement, Mr Oung?
---Sorry, your Honour?

PN357

We're back to your statement.

PN358

MS CLEARY: If I could get you to look at paragraph 6, that Gordon was dismissive.

PN359

THE SENIOR DEPUTY PRESIDENT: What did you mean by that, Mr Oung?
---That whatever I tried to explain to him, your Honour, it doesn't get through to him because it feel like he's already know what comes already, what he want to do with me already.

PN360

MS CLEARY: How can you actually state that Gordon had already made up his mind? Did he say that to you?---He not say that to me.

PN361

So it's only your opinion that the process of investigation was a farce?---Can you repeat that again, please?

PN362

It's only your opinion that the investigation that the company had taken was a farce?---That's right, because based on the written warning that I get from the allegation, I come to that conclusion.

**** SETHA OUNG XXN MS CLEARY
PN363

But you actually say at paragraph 7 of your witness statement that you came to that conclusion prior to the written warning being issued?---Sorry, say again, please.

PN364

At point 7 of your statement you actually make that comment prior to the written warning being issued to you?---No, I'm not.

PN365

THE SENIOR DEPUTY PRESIDENT: Sorry, which paragraph?

PN366

MS CLEARY: 7, your Honour?---Yes, I did ask Gordon about this allegation and who make the allegation, so Gordon wouldn't give me the name of the person.

PN367

I won't go any further, your Honour. You then state at paragraph 8 of your statement that it took Gordon McIntosh one day before he issued you with a written warning that would last for six months. Why do you say that it was only a one day investigation?---Because from this, from the allegation and my explanation, the next day I got a warning.

PN368

But, Mr Oung, you would have to agree that the workplace bullying investigation hadn't occurred the previous day, but had occurred days previously to this meeting with you held on 3 August - on 2 August, sorry?---That's right, yes.

PN369

Therefore you would agree, wouldn't you, that the investigation did exceed one day's duration?---Yes, take one day from my explanation to a written warning.

PN370

At paragraph 9 of your statement you refer to the fact that you note that:

PN371

My senior had similar allegations put to him.

PN372

How do you know that?---Because the same set of questions was given to him. What give to me was give to him.

PN373

How did you know that?---Because I was told.

PN374

By whom?---By Gordon, he said, you know, we'll give you the same thing and your answer and his answer is different.

PN375

I'm a little bit confused about what happened after this meeting on 3 August. In your examination in chief with Mr Maas, you refer to the fact that you were asked to go to the hold stock area, is that correct?---Hold stock.

**** SETHA OUNG XXN MS CLEARY
PN376

Host, is it?---Hold, yes, h-o-l-d.

PN377

Hold stock. Sorry.

PN378

THE SENIOR DEPUTY PRESIDENT: Hold stock. Our reporter will take note of that and interpret the earlier evidence.

PN379

MS CLEARY: Prior to going to this hold stock area, you state that you were issued with a written warning which is now NUW3. Do you have a copy of that, Mr Oung?

PN380

THE SENIOR DEPUTY PRESIDENT: Do you have that, Mr Oung?---I'm not sure which one, your Honour.

PN381

It's a two-page document, 3 August 2007, Mr Setha Oung, headed written warning re misconduct?---Yes, your Honour.

PN382

MS CLEARY: Prior to being issued with this warning letter, though, you clearly understood that you would be paid for the role that you would be required to fulfil, didn't you?---Not according to the written warning.

PN383

No, I am talking about a conversation prior to that warning letter being issued to you?---No, I don't know about that one.

PN384

Are you saying you can't recall?---It wasn't communicated to me about reducing my pay.

PN385

At paragraph 10 of your statement you refer to a meeting that occurred between Steve Howie, John Glover and Brian Lee for the company on the morning of 6 August 2007. Were you present at that meeting, Mr Oung?---Yes.

PN386

When you state that the company would not move from their position, you would have to agree that the company did move from their position because they agreed to maintain your rate of pay until 5 September, didn't they?---Well, at that meeting it was discussed about the warning and that warning, what they state on the warning, the company did not move from that position.

PN387

They did move from their position about maintaining your rate of pay until 5 September, didn't they?---In the warning, it did not say my pay would - - -

**** SETHA OUNG XXN MS CLEARY
PN388

I am asking the question about moving from their previous position of rate of pay?
---In the warning there were no discussions as you can read, there was nothing here to say that my pay would be reduced.

PN389

Why, and this is what I want you to clarify to his Honour, why was this meeting held, then, to discuss the wage rate being maintained to 5 September if there had been no prior notification to you that your pay rate was to be reduced?---The meeting was discussed about this written warning is unfair, because it should not be written warning straight away. They should go through the process of discipline. That what the meeting was all about is to ask the company to go through the discipline and re-state verbal warnings and all that sort of thing, but not to go to this, so the company did not move from that.

PN390

But the real purpose of the meeting was to get your pay rate adjusted, wasn't it?
---The real agenda of the meeting was to ask the company to go through the disciplinary process.

PN391

Why was the issue of pay rate actually raised? Who raised the issue of the pay rate at that meeting?---At that meeting, at the end of the meeting we asked the company to - you're going too long, so we asked the company what is their position? They say, look, you know, the position is there, it's not changed, we would not change the position, that's what Brian said and then he put in we will give you a reduced pay in four weeks' time and so he can adjust his lifestyle and is his words, in four weeks' time my pay will be reduced and this came out of nowhere.

PN392

So when you look at paragraph 9 of your statement, Mr Oung, you're actually contradicting yourself, aren't you, because you say at paragraph 9:

PN393

I note that my senior operator had similar allegations put to him, some of which I believe he admitted. He, however, was issued with a warning which would expire in three months' time. He was not demoted. His pay rate was not lowered.

PN394

So you knew before that meeting on 6 September that your pay rate was to be lowered, didn't you, Mr Oung?---This note was written after my pay was reduced, so that's why I put that statement there, because I know now my pay is reduced. That's why his pay stays the same and my pay reduced.

**** SETHA OUNG XXN MS CLEARY
PN395

I've got no further questions on that part, your Honour. I'd now like to refer you to paragraph 14 of your statement. In paragraph 14 of your statement, you actually state there were no NUW delegates invited to this meeting?---That's right.

PN396

It's true, Mr Oung, that Mr Katsigionnis actually specifically asked you if you would like a representative to be present, didn't he?---That's not true.

PN397

It is also true that you were never promised overtime?---That's not true either, because he did promise me.

PN398

THE SENIOR DEPUTY PRESIDENT: Who?---Tony and if you can see my pay slip I showed to you earlier showed that, five days a week.

PN399

MS CLEARY: You agree, Mr Oung, that obviously overtime is only afforded to the operators on an as needs basis?---That's right, yes, but if you're favoured, you're offered more.

PN400

The company can't create overtime, can it?---They're not allowed to, but there's always overtime every day and if you're favoured, you get it every day.

PN401

It's true at this meeting that you actually conveyed to Mr Katsigionnis that you were happy to comply with the performance recovery plan?---I'm happy with what the company said to do because it's always been my stand not to come here. I'll do anything not to come here, but I back him all again, just maintain my pay rate, you know.

PN402

So you were prepared to fulfil other functions for the company for a certain period of time?---As long as my pay not dropped.

PN403

You didn't explain that to Mr Katsigionnis at that meeting, did you?---I explained to him, I back him, you know, but nothing get through. Obviously nothing get through to him.

PN404

At paragraph 16 of your statement, you refer to a telephone conversation that you had with Ajay Talwar. It's correct, though, that you actually approached Mr Talwar after the conclusion of your shift, isn't it?---That's not correct.

PN405

How did Mr Talwar contact you?---After work, after I stayed back overtime, I go home and I got a contact with him and I was really surprised that he contact me and tell me this.

**** SETHA OUNG XXN MS CLEARY
PN406

Did he ring you on your home line or did he ring you on your mobile?---He was ringing me on my mobile.

PN407

Do you always given your mobile number out to colleagues?---Ajay knows my mobile because he's a supervisor. Every supervisor knows my mobile.

PN408

You talk about at paragraph 16 of your statement that you consider Ajay a good friend, so you listen to his advice?---That's right, yes.

PN409

And that you allege that he stated to you that he would get you plenty of overtime. What authority does Ajay have to give you overtime?---Well, as a supervisor, he in charge of labour for people.

PN410

But he can't create jobs, can he?---There's always overtime every day. People always on annual leave and there was no-one there and all that. There's always overtime and if you're a supervisor, you can get anyone you want.

PN411

So at paragraph 16 of your statement you also state that:

PN412

I would probably be back on my former rate of pay within a few weeks.

PN413

?---That's what he said. He said - - -

PN414

So how can you explain to his Honour why in examination in chief with Mr Maas that you said that Ajay said to you that he will get you back on your pay rate within the week? You've actually lied, haven't you, Mr Oung?---No, I did not lie. He said, look, forget about the Commission, right, we'll work things out, you know, I probably can get you back, you know, in a week's time and, you know, if not, you know, in a couple of weeks and I was really surprised to hear that because - and I was hoping that is the truth because I don't want to come here.

PN415

So you then refer to a further meeting being held on 11 September?---Yes, that's right.

PN416

The evidence of the company witnesses will be to the effect that you specifically requested that no union delegate be present?---That's not true.

PN417

At this meeting, the evidence of the company will be that you clearly conveyed to both Tony and Ajay that you had accepted the performance recovery plan, including your reduction of pay?---I can say it again and again, you know, I accept whatever the company ask me to do, as long as they don't reduce my pay and again and again I do that because I don't want to come here.

**** SETHA OUNG XXN MS CLEARY
PN418

At these meetings that you referred to on 11 September and 10 September, why did you go ahead with the meeting if there was no union delegate present?
---Because I feel that I need to confirm with Tony what Ajay is telling me by the phone is the feeling he feel as well, so I just want to hear from him, from Tony.

PN419

At paragraph 18 of your statement your refer to a meeting that was held on Friday, 14 September. It's true that at this meeting, Tony actually conveyed to all present his understanding of what happened at the meeting on 11 September?---Sorry, can you say that again, please?

PN420

On the meeting on Friday, 14 September, you would agree that Tony summarised his understanding of where the parties were in this dispute?---He do no such thing.

PN421

So what do you say happened at that meeting?---Well, everyone's in the room, everyone was seated. Tony was seated there and he was staring at my face and he said do you want to go to the Commission and I was shocked because my union rep and Steve was telling me, look, we probably hear the good news today, this meeting is about the company's latest offers and all that sort of thing and I was coming to hear the latest offer, but instead Tony was staring at my face and I was shocked.

PN422

I would like to refer you now to paragraph 20 of your statement and you allege there that you have been penalised for bringing this matter to the Commission. Can I get the witness to be shown the exhibit of I think you've now called it NUW8, your Honour?

PN423

THE SENIOR DEPUTY PRESIDENT: That's the email. Do you have that, Mr Oung?

PN424

MS CLEARY: I will hand up a copy?---Yes, your Honour, I have got that.

PN425

THE SENIOR DEPUTY PRESIDENT: It's the 24 September email from Mr Howie to Mr Maas.

PN426

MR MAAS: From Mr Katsigionnis to Mr Howie.

PN427

THE SENIOR DEPUTY PRESIDENT: I am sorry. The copy I've got is headed that way.

**** SETHA OUNG XXN MS CLEARY
PN428

MS CLEARY: Mr Oung, you would have to agree, wouldn't you, that this is an alternative position put by the company as a result of the initial hearing before his Honour?---Can you repeat that again, please?

PN429

Do you agree that this email was sent subsequent to the last time you were in the Commission before his Honour?---Yes, after the hearing, this is the email.

PN430

And that you would have to agree, wouldn't you, that this was put forward as an alternative to the recovery performance plan?---If there was an alternative, I said.

PN431

Sorry, say that again?---If there was an alternative.

PN432

And it is an alternative, isn't it, Mr Oung?---It's the worse off alternative.

PN433

Now, I'd like to refer you to paragraph 22 of your statement. What evidence do you have that you were being subject to discrimination within the workplace, Mr Oung?---One of them is overtime and another one is that I've been putting on, you know, box boys all the time, you know, and I feel like I've been watched all the time.

PN434

And who do you allege is watching you all the time, Mr Oung?---Basically from management and maybe from, you know, it's got a feeling that, you know, there's people watching me, watching what I do.

PN435

It's quite common practice within any organisation, isn't it, Mr Oung, that people's performance is monitored by their direct supervisors?---But they do it, like, to everyone. Not just concentrate on just one person because supervisors, they have to look after the whole shift and after all members in the - - -

PN436

But you can't guarantee to the Commission that other employees within the workplace are not being monitored, can you?---Well, a lot of people, you know, doing a lot of things that they're not supposed to do, but they get away with it so therefore they - - -

PN437

Answer yes or no, Mr Oung. You cannot guarantee that no other employee is being monitored, can you, answer yes or no?---I cannot answer that because I don't know.

PN438

I have no further questions, your Honour.

**** SETHA OUNG XXN MS CLEARY

<RE-EXAMINATION BY MR MAAS [11.50AM]

PN439

MR MAAS: Mr Oung, could I turn you to two exhibits. Firstly, exhibit TK1, the overtime, and also your pay slip which has been exhibited NW10. Ms Cleary put to you that overtime is given on an as needs basis, to which you agreed. Could you please inform the Commission how the process goes for giving out of overtime to employees?---Based on the needs of the days and from previous - in our company they need about at least two - or at least one person or two person a day to stay back and, you know, and help out because of sickie or annual leave and supervisor organise that based on who he want.

PN440

Is it true that some people volunteer more for overtime than others?---Yes, that's right. Some people, especially night shift, not many people want to stay back because for some reason, I don't know, but I always, you know, put my hand up all the time for overtime and probably around about two or three people that do that, not everyone.

PN441

Thank you. I have no further questions in relation to that. If I take you to exhibit NUW6, which is the performance recovery plan. Can you confirm for me at what meeting this performance recovery plan was put to you?---What do you mean by what meeting?

PN442

When was the performance recovery plan given to you?---The recovery plan was given on the 4th.

PN443

Did you accept the terms of the performance recovery plan?---To avoid the Commission I told the company that I willing to do anything, like, to avoid coming here.

PN444

Did you expressly accept demotion? So you're saying that you may have accepted the performance recovery plan, but did you expressly accept demotion?---No, I don't accept demotion at all.

PN445

Did you accept a reduction in your pay?---No.

PN446

Just one last area, your Honour. I turn your attention to paragraph 10 of your statement and the meeting that took place on 6 August. Can you please confirm for the Commission what that meeting was all about?---That meeting was to try to ask the company to change their position my warning.

**** SETHA OUNG RXN MR MAAS
PN447

Thank you, Mr Oung. I have no further questions.

<THE WITNESS WITHDREW [11.55AM]
<STEVEN HOWIE, AFFIRMED [11.57AM]
<EXAMINATION-IN-CHIEF BY MR MAAS

PN448

MR MAAS: Mr Howie, do you recognise this document?---Yes, I do.

PN449

What is it? Is it your witness statement in this matter?---Sorry.

PN450

Is it true and correct in every particular to the best of your ability?---Yes, it is.

EXHIBIT #NUW11 STATEMENT OF STEVEN HOWIE DATED 05/10/2007

PN451

MR MAAS: Mr Howie, could you please inform the Commission about your involvement in this matter when you first became involved in the matter, starting with when you first became involved in the matter?---Yes. I first was involved in the matter in early August and met with company representatives on 6 August. My attempts along with a colleague of mine, John Glover, and the delegates seemed to be fruitless in this matter.

PN452

Before that meeting that you say you first had with the company on 6 August, I'm asking you when you first heard that there was an incident out at Australian Pacific Paper Products?---Okay. I received a phone call.

PN453

Who from?---From Maree Hanigan, a delegate on the night shift.

PN454

On what date approximately was this?---As I said, early August. I specifically don't recall the date but it was early August.

PN455

The evidence that will be tendered through statements by the company makes reference to a Mr Jason Volange. Is he also - were there any references made in relation to Mr Volange to you?---There was, yes, but there was Jason and Setha.

PN456

And I take it Mr Volange is an NUW member?---Yes, he is.

PN457

Why was his issue not taken up?---His issue was not taken up. He was happy with obviously the outcome of his - or from the investigation that took place. He made no contact with the delegates, nor myself to pursue this matter any further.

PN458

So your involvement in the matter was to do with Mr Oung?---Yes.

PN459

And you've already informed the Commission and indeed, your evidence through your statement is that your first meeting with the company was on 6 August. What happened at that meeting on 6 August?---On 6 August, as I mentioned earlier, myself, John Glover and the delegates attended that meeting with company representatives and we discussed the matter in quite detail. Obviously there had been an issue with employees on that shift in relation to some behavioural problems with two of our members, Jason and Setha. Our dispute was that we weren't happy with the company's position in taking money off Setha. We again had fruitless attempts at trying to talk to the company about the process of that. Our position was that there needed to be further training, that that should take place, but again it proved to be fruitless.

**** STEVEN HOWIE XN MR MAAS
PN460

Aside from the element, the money part of it, was there anything else which was discussed in the meeting?---If I recall, again I don't have the notes of that particular meeting with me, but we had some discussion that contravened the provision of the agreement, the savings provision, that no worker should be disadvantaged from the making of that agreement.

PN461

Mr Brian Lee has exhibited a file note to his statement which will no doubt be tendered as evidence today. I'd like to refer you to that.

PN462

THE SENIOR DEPUTY PRESIDENT: Do you have that, Mr Howie?

PN463

MR MAAS: Exhibited as B1?---Yes.

PN464

In Mr Lee's file note he notes who is present at the meeting. I take it that it's supposed to be Steven Howie who was present, as opposed to Peter Howie?
---Yes.

PN465

Is that right?---Yes.

PN466

And I'll read through to you the points and claims made by the NUW and if you could please comment on each one of those. "The process leading" - points in claim made by the NUW - "The process leading to disciplinary action was inconsistent with the process previously applied at APPP. Typically there would be consultation on a misdemeanour and a verbal warning given in the first instance." Was there discussion about that?---Yes, that's right.

PN467

And the second point, the written warnings for Setha and Jason should be withdrawn and replaced by a verbal warning?---Yes, that's correct.

PN468

The focus should be on getting a turnaround result and that had already been achieved because Setha recognised that he needed to improve even though he did not agree with the criticisms made of him?---Yes, that's correct.

PN469

He said that he had been unaware that he was not doing his job correctly, no one had complained to him?---Yes, that's correct.

PN470

What else happened on 6 August from the NUW's perspective?---Well, after meeting with the company and putting our case forward we then sent a letter to the company disputing that warning that was given to Setha at that point.

**** STEVEN HOWIE XN MR MAAS
PN471

And that letter is referred to in the statement and exhibited as NUW4, right?
---Mm.

PN472

Were there any further meetings - that was the first meeting, on 6 August. Were there any other further meetings that you had with the company?---Yes, there was.

PN473

On what dates were those meetings?---I recall one day, the 16th - sorry, 21 September and one earlier. I can't recall the date, but numerous telephone conversations with Tony Katsigionnis.

PN474

THE SENIOR DEPUTY PRESIDENT: Sorry, can I just interrupt. I'm sorry, do you say that BL1 were notes of a meeting of 4 August?---6 August.

PN475

6 August. I'm sorry, I misheard then, yes, thank you.

PN476

MR MAAS: So what was the purpose of these meetings?---The purpose of the meetings was obviously to have discussions about the warning and obviously the company's position on their interpretation of what the warning is and at this point disciplinary action that the company wanted to put in place of a plan not only to take Setha's wage off him, but to obviously, you know, gradually build him back to assistant line operator.

PN477

Mr Katsigionnis, in his statement, draws specific reference to you saying that he thought that you were going to cancel the Commission hearing. What do you have to say to that?---In relation to that telephone conversation, I didn't say I was going to cancel it. I said that we'll hold off because we were trying to make every effort possible to try and resolve the issue rather than get to a situation that we're at today.

PN478

There was a meeting held at the company on 14 September. Can you recall who was at that meeting?---Myself, Tony Gordon and the delegates, Barry, Maree, Reg and Rick.

PN479

Two questions. What was the purpose of this meeting and what happened at the meeting?---The purpose of this meeting was again I had a conversation with Tony on the phone hoping that we could get some resolution to this. In actual fact we had intentions of trying to resolve this on this particular morning, but unfortunately the company just wanted to find out off Setha whether he wanted to continue on to go to the Commission.

**** STEVEN HOWIE XN MR MAAS
PN480

Is there anything further that you'd like to add in relation to the statement?---Yes, I'd like to add that it's disappointing that we've reached this stage and I thought out of all those meetings that we did have with the company we may have got somewhere. I think it's been a disadvantage to Setha.

PN481

Mr Howie, I refer you to the email which you received from Mr Katsigionnis and already exhibited as NUW8. What are your views on this formal position which the company forwarded to you to settle the matter after the hearing at first instance?---My view is I've discussed, I thought we had made a little bit of progress from the hearing that we had on 21 September. In actual fact I think it's a worse offer than what was currently discussed prior to going to the Commission and obviously what was spoken at the Commission. From Setha getting a written warning to going to a first and final written warning, I feel it's not acceptable.

PN482

I have no further questions, thank you, your Honour.

<CROSS-EXAMINATION BY MS CLEARY [12.12PM]

PN483

MS CLEARY: Mr Howie, I'd like to refer you to your witness statement now and at paragraph 4 of your witness statement, have you got that in front of you, Mr Howie? Have you got it in front of you?---I've got it in front of me, yes.

PN484

Have you looked at paragraph 4?---Yes.

PN485

You talk about having a meeting on 6 August with the company representative and you state that at this meeting you reiterated the contents of the letter that you sent to the company, which is now referred to as NUW4, and you say, "There were no grounds for the company to issue a written warning to Setha." How familiar are you with respect to Mr Oung's performance at Australian Pacific Paper Products?---Sorry, can you repeat that question?

PN486

How familiar are you with his performance?---I'm quite familiar with his performance from speaking to obviously delegates.

PN487

You've never worked alongside him, have you, Mr Howie?---No, I haven't, but I've been an organiser there for a short time and have spoken to a number of people at the site.

PN488

You've only been an organiser for two months, haven't you, Mr Howie?---As to date, over three months.

**** STEVEN HOWIE XXN MS CLEARY
PN489

And you would have to agree that a three month period doesn't really give you
a - really isn't a long period to familiarise yourself with how all of your members operate on a day to day basis?---No, but also working alongside with my colleague, John Glover, I had a fair indication.

PN490

Now, in relation to - when you say that there were no grounds to issue a written warning to Mr Oung, what experience have you had in performance in managing an employee?---Well, managing an employee, I haven't, but I guess morally.

PN491

And you weren't involved in the investigation in the complaints raised by Mr Oung's fellow employees, were you?---No, because the investigation took place during the night, on a night shift.

PN492

But you'd have to agree that that investigation also included two union site delegates?---That's correct.

PN493

And it's reasonable to infer that those site delegates convey to you their participation in that investigation?---Yes.

PN494

You would have to agree, wouldn't you, that a company has the right and has the responsibility to discipline employees when they're not performing, acting, responding or behaving in an appropriate manner?---Yes.

PN495

Thank you. Now, prior to this meeting of 6 August with Mr Lee were you aware of the details of the work performance review plan or the recovery plan for Mr Oung?---There was no recovery plan as such put together at that stage.

PN496

So when you say that they were in breach of the enterprise agreement and that any attempt to make his position or reduce his rate of pay would be opposed by us, were those details actually conveyed to you prior to the meeting on 6 August?
---At that stage, no.

PN497

So why is it that you then put in here that you reiterated the contents of the letter, that any attempt by the company to reduce this rate of pay would be opposed by us if you didn't know about that prior to the meeting on 6 August?---No. That was - we had the meeting prior to that letter.

PN498

THE SENIOR DEPUTY PRESIDENT: This is referring to the content of a letter sent after the meeting.

**** STEVEN HOWIE XXN MS CLEARY
PN499

MS CLEARY: But prior to that meeting, Mr Howie, were you aware of what the company's intentions were with respect to Mr Oung's behaviour?---I was aware that the company were going to issue a warning as such because they had spoken to Jason and he had accepted. I'd had a conversation with the delegates and Setha and obviously his position was different.

PN500

I'm talking about Mr Oung's review. How did you become aware of what the company's position was with respect to Mr Oung, not talking about Jason, but just Mr Oung?---How was I aware of that?

PN501

Yes?---I was aware of that from speaking to Setha and the delegates.

PN502

Can I get the witness to be shown NUW5. Have you got a copy of that, your Honour, or would you like this one?

PN503

THE SENIOR DEPUTY PRESIDENT: That's the Work Performance Review Program. Do you have that before you, Ms Cleary?

PN504

MS CLEARY: Yes, I do. I just have - I'll just hand up my NUW part and put that back, that would be great. Thank you.

PN505

I'll just give you an opportunity to read that, Mr Howie. Do you recognise that document, Mr Howie?---Sorry, I'm still reading.

PN506

Are you right, Mr Howie?---Yes.

PN507

Are you aware of that document prior to the meeting of 6 August. Don't worry, your Honour, I'm just getting a bit tired. I probably need to get some fluid, to be honest, so I won't proceed on that matter. I do apologise.

PN508

THE SENIOR DEPUTY PRESIDENT: Yes.

PN509

THE WITNESS: Would you like that back, Ms Cleary?

PN510

MS CLEARY: Yes, I would thank you. If you just bear with me, your Honour, and I do apologise. I'll be with you one moment. Now, in your examination-in-chief with Mr Maas, you used words to the following effect. You tried talking to the company re the process of addressing Mr Oung's performance and he suggested further training and assistance. Can you recall saying that to Mr Maas?---I'm sorry, say again?

**** STEVEN HOWIE XXN MS CLEARY
PN511

When Mr Maas asked you some questions about discussions that you had with the company representatives?---Yes.

PN512

You actually used words to the following effect, further training and assistance, that you wanted to talk about further training and assistance being provided to Mr Oung instead of him being transferred out of the assistant line operator role, that's what you gave the impression of?---Yes.

PN513

You would have to agree, wouldn't you, that the word "assistant" would mean that Mr Oung would have to be brought off - that would mean bringing him off that line to give him training elsewhere?---No.

PN514

What did you - - - ?---How does that work? If someone needs assistance and training, why would you take someone off the line to do that?

PN515

Well, how would you then give training assistance for someone who is not achieving the required standard, Mr Howie?---Well, they'd need appropriate training for that specific task, so why take them away from that task to do that assistance and traineeship to be done whilst doing the work?

PN516

At the meeting of 6 August '07 you refer to the fact that one of the issues was that you weren't happy that money was being taken from Setha?---Yes.

PN517

Who conveyed that to you?---The company said that they were reducing his rate to box boy.

PN518

And which company representative said that?---Brian Lee.

PN519

So when you talk about the fact that at this meeting of 6 August, the purpose of that meeting was to bring to the company's attention that it had contravened provisions of the site enterprise agreement with respect to ..... provision?---That was something that I had mentioned, yes.

PN520

Why did you form that conclusion, that that breach had occurred prior to 6 August?---Why had I reached that conclusion?

PN521

Yes?---Basically because Setha being an employee covered by that agreement is being disadvantaged.

**** STEVEN HOWIE XXN MS CLEARY
PN522

Disadvantaged by what, though?---Being disadvantaged from obviously the operation of that agreement.

PN523

THE SENIOR DEPUTY PRESIDENT: In what way?---In what way?

PN524

Yes?---By the company taking away his rate of pay and dropping it to line helper or box boy.

PN525

Now, Mr Maas has asked you about numerous telephone conversations that you had with Mr Katsigionnis. Did you make any written records of those telephone conversations?---At the time, no, because I was hopeful that we'd get some resolution either by over the phone or meeting with the company but unfortunately that didn't happen.

PN526

And in particular you refer to a telephone conversation with respect to organising a meeting for 14 September. What did Mr Katsigionnis actually say to you in organising that meeting for the Friday, 14 September?---Mr Katsigionnis said that we're happy to meet again to discuss the issue and I made it clear that we didn't want to be wasting any more time on this and that we were hoping that we could have some discussions around obviously the company's actions or the company's proposal of the written warning and reducing his rate of pay.

PN527

And when you say the words, "we were hoping to get some resolution to this"?
---Yes.

PN528

Had Mr Katsigionnis previously conveyed to you that he thought that the matter had been resolved?---No, at that stage, he didn't.

PN529

Now, I refer you to the NUW8 with the email that Mr Katsigionnis sent to you on 24 September, subsequent to the first day of hearing of this matter. You state in your examination-in-chief that you thought that the offer put by the company was worse than the performance recovery plan. You would have to agree though that this email states that the warning would only be on file for a period of six months and therefore if Mr Oung clearly demonstrated an improvement in his performance that obviously at the end of the six months period his employment could not be terminated, do you agree with that, Mr Howie? Yes or no, Mr Howie?---Yes.

PN530

And that it is common practice within the broad industry that warning letters are only issued on personal files for a defined period of time?---I guess that's - if that's common practice, but it's a discretion on the company's behalf, I guess.

**** STEVEN HOWIE XXN MS CLEARY
PN531

Just one last question for you, Mr Howie. When you initially became involved with this matter and you say that you became involved as a result of the telephone conversation from one of your night shift delegates, Maree, in early August?
---Yes.

PN532

Did you, as a matter of your own investigations, speak to other employees on the site?---I spoke to the other delegates, yes, so Barry, Rick and Reg.

PN533

And any of those delegates that you spoke to involved in the initial investigation into the workplace bullying allegations?---Yes, two.

PN534

What did they tell you?---Sorry?

PN535

What did they tell you?---They told me exactly that, that there was an issue of bullying and harassment. After the conclusion of that investigation there was performance issues that were outlined from two of our members, Setha and Jason.

PN536

And did they tell you the details of those performance issues against Setha?
---Against Setha, yes, they spoke to me about that, but you know, in relation to other people, no, because it was confidential.

PN537

So they actually did outline to you what had been highlighted with respect to Mr Oung's performance?---Yes, that's right.

PN538

I have got no further questions, your Honour.

<RE-EXAMINATION BY MR MAAS [12.32PM]

PN539

MR MAAS: Mr Howie, how long have you been an organiser for the NUW?
---Three years.

PN540

And what did you do before that time?---I was a storeman, forklift driver for Gillette.

PN541

For how many years did you hold that position?---Six and a half years.

PN542

In your role as an NUW organiser now, how many sites do you oversee?---About 80 to 90 sites.

PN543

And obviously Australian Pacific Paper Products is one of those sites?---That's correct.

**** STEVEN HOWIE RXN MR MAAS
PN544

Australian Pacific Paper Products is in the fibre processing industry. Are all your sites fibre processing industry sites?---No.

PN545

What other industries do they cover?---Rubber plastics, pharmaceutical, warehouse and distribution, cold storage.

PN546

Would you say that you've attained a fair level of experience throughout the different sites that you look after?---Yes.

PN547

Mr Howie, I'd like to take you to a question that Ms Cleary put to you under cross-examination. She put to you on two occasions, I think, that there was an investigation which was conducted by the shift supervisor and two union delegates within the bullying claims and then the subsequent allegations against Mr Oung. What is your understanding of the role that the two union delegates played in those investigations?---Their role obviously was for representation for those people involved and especially for that shift, because they're the shift representatives.

PN548

From your experience is that the type of role that they normally play in these sorts of investigations?---Yes, but it depends I guess on the sensitiveness of the issues.

PN549

So is what you're saying the role is more of a witness type role?---No, not - well, as I said, depending on the issues.

PN550

I'm not going to go - - -

PN551

THE SENIOR DEPUTY PRESIDENT: It's probably a leading question that's accepted by the witness.

PN552

MS CLEARY: Yes.

PN553

MR MAAS: Just lastly, Mr Howie, I'll take you to the email which was sent to you by Mr Katsigionnis and exhibited as NUW8. Please tell the Commission what you thought was the problem with this sentiment, if you could confirm that with the Commission, please?---Obviously the problem was we had good intentions of trying to fix this at the hearing prior to the email being sent. My main problem is that the company had changed their position from a warning to a final written warning. But in relation to the rate of pay, he was still going to maintain the role of line helper or box boy and I guess from the outset that was our whole argument, that we were hoping to try and fix.

**** STEVEN HOWIE RXN MR MAAS
PN554

I have no further questions.

<THE WITNESS WITHDREW [12.37PM]

PN555

THE SENIOR DEPUTY PRESIDENT: Ms Cleary, I think we're up to you?

PN556

MS CLEARY: Yes. Your Honour, for medical reasons I need to get something to drink, so I do apologise.

PN557

THE SENIOR DEPUTY PRESIDENT: Yes. Is it appropriate then if we break for lunch at this point and resume at 1.40?

PN558

MS CLEARY: That would be great, thank you.

PN559

MR MAAS: Thank you.

<LUNCHEON ADJOURNMENT [12.38PM]
<RESUMED [1.42PM]

PN560

THE SENIOR DEPUTY PRESIDENT: Before you commence I might ask you to assist me clarifying something for me. There seems to be different terminology of classification rates between the - the different terminology is for classifications in the workplace as distinct from the award. The assistant operator A is a level 1 position in the agreement, is that correct?

PN561

MS CLEARY: Let me just get a copy of the agreement, your Honour, because I know that this was some issue that we were trying to clarify last time we were before you and I think you're looking at the appendix?

PN562

THE SENIOR DEPUTY PRESIDENT: I'm looking at the appendix, yes. I'm just trying to match the terminology. For example, in Mr McIntosh's statement in paragraph 86 there's reference to an assistant line operator A and an assistant operator A. I'm just trying to work out in my own mind how each of the - - -

PN563

THE COMMISSIONER: Then the different levels, 1 to 6.

PN564

THE SENIOR DEPUTY PRESIDENT: Well, I think we only have to go up to 3 in this case.

PN565

MS CLEARY: That's right. Bear with me. Your Honour, you'll find that assistant line operator is level 3, so the line operator is level 4.

PN566

THE SENIOR DEPUTY PRESIDENT: Line operator level 4. What's level 2?

PN567

MS CLEARY: Assistant operator B.

PN568

THE SENIOR DEPUTY PRESIDENT: Assistant operator B?

PN569

MS CLEARY: Yes.

PN570

THE SENIOR DEPUTY PRESIDENT: And level 1 is the system operator A?

PN571

MS CLEARY: And helper, box boy.

PN572

THE SENIOR DEPUTY PRESIDENT: I'm sorry, level 2 is the assistant line operator level B, or line operator?

PN573

MS CLEARY: That's right. Line operator level B.

PN574

THE SENIOR DEPUTY PRESIDENT: And the level 1 is the assistant operator B? No?

PN575

MS CLEARY: Assistant line operator A is 3. And operator B is level 2.

PN576

THE SENIOR DEPUTY PRESIDENT: I see, and level 1 is what?

PN577

MS CLEARY: Level 1 I assume is - it's called helper, but I think they're calling it box boy.

PN578

THE SENIOR DEPUTY PRESIDENT: Box boy, okay, thank you for that. Well, the confusion arose in my mind because Mr McIntosh referred to the same position, it appears, as assistant line operator A and assistant operator A without the line.

PN579

MS CLEARY: That's probably my error in drafting the witness statement, your Honour, I do apologise.

PN580

THE SENIOR DEPUTY PRESIDENT: It appears it's the same thing, yes, okay.

PN581

MS CLEARY: Obviously, your Honour, before proceeding with my opening submission I would like to refer to the exhibit that now has been referred to as APPP1 which is my outline of submissions in writing.

PN582

THE SENIOR DEPUTY PRESIDENT: Yes.

PN583

MS CLEARY: Your Honour, point 3 of those submissions, I've incorrectly referred to the date being 16 May 2007 when in fact it should be 16 May 2001.

PN584

THE SENIOR DEPUTY PRESIDENT: 2001, yes, very well.

PN585

MS CLEARY: Your Honour, the issue that's really before you today that needs to be addressed is whether Mr Oung accepts the terms of the performance recovery plan presented to him in August 2007. It is the company's position that Mr Oung accepted the terms of this recovery plan and as such there is no repudiation of his employment contract. The company submits that the evidence which will be provided by its representatives would clearly demonstrate that the applicant agreed without protest to the conditions imposed by this recovery plan, including different role functions and the applicable pay rate.

PN586

It will be the company's evidence that Mr Oung clearly understood that he would be paid in accordance with the role that he was qualified to perform.

PN587

THE SENIOR DEPUTY PRESIDENT: That he was what to perform?

PN588

MS CLEARY: Required to perform. As such it is the company's submission that he agreed to the variation of his employment contract in terms of that recovery plan. The company submits that implementation of the performance recovery plan was a legitimate response to performance issues identified as a result of the investigation into workplace bullying allegations on the night shift. This investigation was undertaken by the appropriate person, being the night shift supervisor.

PN589

The night shift supervisor, the company submits, was the appropriate person to undertake this investigation and he was an individual who had been working closely with each and every employee on the night shift. We also stress to the Commission that that investigation also involved the two site union delegates on the night shift. At all times each and every employee was afforded representation when they met with the night shift supervisor, Mr Gordon McIntosh.

PN590

The company submits that Setha Oung's behaviour, his attitude, his performance and actions provided it with grounds under the site enterprise agreement to terminate his employment. However, instead of actually choosing the pathway of termination of employment, they chose a less severe level of discipline, to afford Mr Oung another opportunity to demonstrate his preparedness to assume the duties of an assistant line operator A. We say the company should not be criticised for affording Mr Oung this opportunity.

PN591

We refer to the submissions of Mr Maas of this morning when he refers to the relevant case law in this matter. In particular, I refer to paragraph 14 of his outline of submissions and in respect to paragraph 14, the naturopath part of it on page 7. We say that there has been a consensual variation to the terms of the original contract of employment, or if you do not agree with us in those terms, we say that his individual contract of employment was terminated and replaced by a new contract of employment and therefore we say that there has been agreement reached between the parties.

PN592

We say that the removal of Mr Oung from his position was justified, given that the company must value its employees and their skills, but we also have clients and quality products that need to be disbursed from the company. We are talking about a company that provides products for the use of young children or elderly individuals. The company's goal was and still is to have Mr Oung brought back up to the responsible level of assistant operator A for additional training and supervision.

PN593

However, this must be done with absolute clarity and therefore we say this is the only action that the company could follow in ensuring there is commitment from Mr Oung to achieve these levels of responsibility. In support its case, your Honour, the company would be relying on four witnesses and to proceed with that I'd like first of all to call Mr Brian Lee to the stand.

PN594

THE SENIOR DEPUTY PRESIDENT: Yes, very well, call Mr Lee.

<BRIAN JAMES LEE, SWORN [1.51PM]
<EXAMINATION-IN-CHIEF BY MS CLEARY

PN595

MS CLEARY: Mr Lee, have you prepared a witness statement for these proceedings?---Yes, I have.

PN596

Have you got a copy of that witness statement in front of you?---Yes, I have.

PN597

And does this witness statement require any amendment?---No, it does not.

PN598

Can I get you to affirm that - Commissioner, I'd obviously like now to tender that witness statement in this matter. I will get obviously the witness to affirm that statement.

PN599

THE SENIOR DEPUTY PRESIDENT: Yes. You can confirm the accuracy of the information in this statement?---Yes, I can confirm that.

PN600

And you adopt that as your evidence?---Yes.

EXHIBIT #APPP2 STATEMENT OF BRIAN JAMES LEE

PN601

MS CLEARY: Now, Mr Lee, I'd like you to refer to that witness statement. What sort of products does Australian Pacific Paper Products produce?---We make disposable nappies. Our brand name is Baby Love.

PN602

At point 3 of your witness statement, you state that you were notified of allegations in respect to workplace bullying. Could you please elaborate to his Honour what you were told?---My QA manager, Diana Dauncy, approached me and informed me that in the course of running a training course for quality inspectors on night shift, a matter had been raised of concerns with people that there was bullying occurring on the night shift. The minute that word was mentioned it had my full attention, because bullying is something that is not acceptable in any workplace, in any environment for that matter. So I questioned Diana on what that was about, who was involved. At one stage I thought maybe the supervisor was bullying people on the shift, but she assured me that wasn't the case. Apparently it was bullying between people in the shop floor teams. I asked for names and she was not able to provide any names. She just said there'd been a comment made that people were very concerned about bullying.

PN603

And so after having this conversation with Ms Dauncy, what did you do next?
---Normally I would have referred the matter to my manufacturing manager, who is Tony Katsigionnis, but he was on holidays. So I had to then go to the shift supervisor. I was concerned that apparently he hadn't known about that, so I quizzed him, "Are you aware that this is going on?" and it was totally new news to him. When I reflected on that, that probably wasn't unusual because shortly before that time our night shift supervisor resigned and left and the current shift supervisor was in a fill in capacity and hadn't been there for a long period of time, he may not have been aware of some of the things that were occurring. I suggested to him then that this was a serious matter that had been referred to me, the matter of bullying, and that I wanted him to conduct a very thorough investigation because the names of people hadn't been nominated in the allegation. I said it was important that he go through the investigation thoroughly and in a transparent way. People were passing allegations to management on the basis that they were concerned by it and they wanted management's help in resolving it, and therefore it should be done in a very open and transparent way and in a very thorough way and I must say I was impressed with what Gordon did in going through his investigation.

**** BRIAN JAMES LEE XN MS CLEARY
PN604

So at point 6 of your statement you refer to the fact that Mr McIntosh conveyed to you an outline of his findings. What did he advise you?---This was after he'd done the initial investigation - - -

PN605

That's right?---Gordon, in the presence of two of the delegates from the night shift, two of the union delegates, had interviewed every person across the shift. It took him a number of days, it took about three days, I believe, to interview everybody. He had set up a standard format questionnaire he used, so he was using the same questions when he interviewed each person, and he wrote down answers and he had collated all those answers to give to me. When we looked through it and talked about it it was apparent that it really wasn't a case of bullying. The word was being used in the wrong sense. It was more a case of people were expressing concerns about people not behaving the way they should, not showing due respect for other people in their teams and intimidating people when people raised issues. So it was more a case of intimidation there than bullying. Out of that there appeared to be two names that were coming up quite frequently that people were referring to with these allegations and those two names were Jason Volange and Setha Oung. So - sorry, it appeared that the allegations were referring to two people.

PN606

So on becoming aware that two individuals' names were raised, what did you decide to do?---Well, the fact that we had these allegations raised, I said to Gordon that the investigation wasn't finished until he went back and talked to each of the two individuals in turn and put the allegations to them and assess what their response was to those allegations.

PN607

At point 9 of your witness statement you refer to directing Gordon McIntosh to put together a correction plan. What did you mean by correction plan?---After he had spoken to the two individuals, Jason and Setha, it was obvious that there were some issues there that need to be addressed, so the natural reaction for my part was to carry out some corrective actions to get these people performing the way they should and addressing the concerns that had come through the allegations of the peer group on the night shift. So my instruction to Gordon was, work out what is required over a period of time to put a plan together that these people would follow, that Jason and Setha would follow, and that could be monitored again, so it had to be quantified as far as possible, so that we could monitor progress towards getting the two people back to being valued employees and contributing the way they should on the night shift.

**** BRIAN JAMES LEE XN MS CLEARY
PN608

THE SENIOR DEPUTY PRESIDENT: Mr Lee, in paragraph 9 you refer to correction plan and recovery plan. Are those terms meant to be interchangeable, are you talking about the same thing?---Yes, they are, your Honour.

PN609

Yes, thank you.

PN610

MS CLEARY: So what sort of responsibilities do you expect from an individual engaged in a position of assistant line operator A?---I guess it's not so much what I expect. It's what the supervisor and managers expect. My understanding of the role is that it is the assistant to the senior line operator. The senior line operator is responsible for the setting and the running of the line. If it's possible, if I could take a minute to explain how we make nappies. They're made in a continuous process. There's between 18 and 23 separate elements that go into making a disposable nappy and they go together on lines that are running at up to 350 nappies a minute. So there's a lot of adjustment to make sure that the 18 to 23 elements are going together in the right sequence and the right place and that they're aligned correctly and they will perform correctly when the finished nappy is made. So the line operator assisted by the assistant operator are people who will make the adjustments to the line. They set the line, and adjust the line. The assistant line operator A role is the understudy role to the senior operator. The next progression in work for an assistant operator becomes the senior operator. So it is the understudy backing up and doing very similar work at a slightly lower level.

PN611

And why did you make the decision it wasn't feasible for Mr Oung to be left in that position?---That was a very definite decision that I made because I had grave concerns from reading the data that was presented to me that Setha Oung did not have the appropriate attitude towards quality and towards safety in his work environment in the aspect of product quality. As a senior manager in the organisation, a significant part of my role is risk management. The board of directors expects that I manage risk in a way that minimises risk to a business and when I see a situation where somebody who has a role that impacts on the quality of the nappies it not taking those responsibilities and correctly and in a sound way, then I know I've got a risk to the market. At the time that this occurred we knew that we were about six to eight weeks away from launching a major promotion of our product and we had a very big emphasis on quality and maintaining the best possible quality in to the market place, because the marketing promotion was about enticing first time customers to try our product, first time consumers to try the product, and we knew that if a first time consumer tries the product and doesn't like it, they will never come back to it. So quality was paramount and I saw there was a major risk to our business by leaving someone in a position who is working to have impact on quality and not having the right concern for quality.

**** BRIAN JAMES LEE XN MS CLEARY
PN612

Now, at paragraph 9 of your statement, you have included words, "We decided that Setha Oung would be remunerated at the rate applicable to the position that he was required to occupy"?---Yes.

PN613

Why did you make that decision?---It wasn't so much a decision as a matter of fact, that my instruction to Gordon McIntosh was that Setha had to come out of that role because I wasn't prepared to accept the risk involved there. I said to Gordon, "You have to find some other role for him," and Gordon said, "Well, the only other roles I have, less responsible roles, what is the pay rate involved?" And I said, "He will be paid at the rate of that role." To me it is a logical natural thing that you get paid for the job you do. At that point in time there was no indication of how long Setha Oung may have been in the new role, whether or not he was capable of working himself back to a position of giving us confidence that he could handle the line operator - the assistant operator A role, and as a general philosophy, I can't support a situation that says when people step down from a high level of responsibility to a low level of responsibility and maintain the pay rate. Otherwise I set up a situation where everyone thinks, gee, this is a very good company to work in, I just abdicate out of a high role, take a lower responsible role, but keep my pay rate. Not a particularly appropriate way to run a business.

PN614

THE SENIOR DEPUTY PRESIDENT: Mr Lee, when was this discussion and decision taken with Mr McIntosh?---It would have been late July, I believe, your Honour.

PN615

Late July?---Late July/early August, in that period, July/August period.

PN616

And the recovery plan drafted by Mr McIntosh which you referred to, did that include any reference to the job Mr Oung would be doing and the rate of pay?
---The letter that I saw, which I believe was dated around 2 August, which was a letter to Setha, made a statement about he would move to a new role and he would be paid a pay rate applicable to that role. I don't remember that it actually stated what the role was. It said that he would be moved to a role and receive the pay rate applicable.

PN617

Is that document before me at all, Ms Cleary?

PN618

MS CLEARY: No, Your Honour. We have got a copy of it here now, though.

PN619

THE SENIOR DEPUTY PRESIDENT: Yes. I wonder if that could be made available. It may be relevant.

**** BRIAN JAMES LEE XN MS CLEARY

EXHIBIT #APPP3 LETTER TO MR OUNG DATED 02/08/2007

PN620

MS CLEARY: It may have been discussed on the last day, but hasn't been - - -

PN621

THE SENIOR DEPUTY PRESIDENT: Yes. I'll have copies of that made and provided to Mr Maas.

PN622

MS CLEARY: I will show Mr Maas.

PN623

THE SENIOR DEPUTY PRESIDENT: I wonder if you could show Mr Lee so he can identify it. Is that the document you're referring to, Mr Lee, the recovery plan drafted by Mr McIntosh?---It is not so much the recovery plan, your Honour. That was another document, as I remember it. This is an outline, though, of the timing that things that would happen, about the warning periods and the reviews that would occur and the comment, "You will be paid in accordance with the role you fill."

PN624

Do you know whether that was given to Mr Oung?---I'm quite certain it was.

PN625

Very well, thank you. I'll have copies made of that letter and mark it APPP3.

PN626

MS CLEARY: Thank you, your Honour.

PN627

THE SENIOR DEPUTY PRESIDENT: Do you know who would have given that document to Mr Oung?---It would have been the shift supervisor, Gordon McIntosh, your Honour.

PN628

Very well?---I think there may have been copies with the union delegates. They're also copied on the same letter.

PN629

Yes. Take it up with Mr McIntosh, thank you.

PN630

MS CLEARY: Mr Lee, I'd like to refer you to - - -

PN631

MR MAAS: Excuse me. Your Honour, I'd just like to note at this point, after only just seeing that document briefly I don't believe I've been provided with a copy of this before. I'm a bit unsure as to what it's actual terms are.

PN632

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I'll reserve your rights in relation to the document. If it hasn't been raised with Mr Oung or Mr Howie, if needs to be, we can recall them for that purpose.

**** BRIAN JAMES LEE XN MS CLEARY
PN633

MR MAAS: If the Commission pleases.

PN634

THE SENIOR DEPUTY PRESIDENT: Yes. Very well, go ahead, Ms Cleary.

PN635

MS CLEARY: At paragraph 10 of your statement you refer to a meeting that you had with the National Union of Workers. Who was present at that meeting, Mr Lee?---There were two union organisers, John Glover and Steve Howie. Union delegate, Reg Gillespie, Setha Oung and myself and Matthew Chester. Matthew Chester is the technical supervisor in the factory.

PN636

What was discussed at that meeting?---John Glover had called me and asked for the meeting and John put to me that he didn't like the actions that APPP had taken in putting together the recovery plan for Setha Oung and although he stated
that - accepted that the investigation had revealed Setha had done certain things he shouldn't have done and accepted that a warning was appropriate, he did not accept that he should be moved out of his job and paid at a different rate.

PN637

The evidence before his Honour this morning has been to the effect that you were the individual that raised the issue about the reduction in the pay. Do you agree with that?---That's not my recollection. John was - he was raising his concerns that that was not appropriate. He was prepared to accept that a warning could be given, but nothing more and there was a lot of discussion about it not being appropriate to change his rate of pay and because that was a major part of the discussion, by the end of that meeting I conceded that we would maintain Setha's pay rate for a period of four weeks, the thinking there being to give him an opportunity to sort out his personal affairs, his personal life, and adjust to the lower rate of pay.

PN638

So who specifically raised that issue, to do with the rate of pay?---The concern was raised by John Glover.

PN639

And with respect to that meeting, who did most of the talking on behalf of the National Union of Workers?---Most of the talking was gone by Reg Gillespie who was the union delegate in the factory. He repeated over and over again, "This is not the way things have been done in the past and we shouldn't do things this way," and he talked quite a lot through that particular point.

PN640

I'd like to refer you to an exhibit to your statement. Have you got a copy of exhibit BL1 in front of you, Mr Lee?---I do not, I'm afraid.

**** BRIAN JAMES LEE XN MS CLEARY
PN641

I will get you a copy now. Do you recognise this document, Mr Lee?---Yes. It is the file note I made after the meeting with the NUW.

PN642

THE SENIOR DEPUTY PRESIDENT: Do you propose to tender that, Ms Cleary?

PN643

MS CLEARY: Yes, I do. I now tender this document as exhibit BL1 to the witness statement of Mr Brian James Lee.

PN644

THE SENIOR DEPUTY PRESIDENT: I'll mark that as described by Mr Lee, notes of 6 August meeting between himself, Mr Howie, Mr Glover, Mr Oung and others.

EXHIBIT #APPP4 NOTES OF MEETING DATED 06/08/2007

PN645

MS CLEARY: Mr Lee, as you are aware, subsequent to this matter being commenced in the Commission, correspondence was sent from Mr Katsigionnis to the National Union of Workers to suggest that a first and final written warning be issued to Mr Oung. Why do you think that action would be appropriate?---At the time I thought that action was appropriate, but right here and now today I no longer believe it to be appropriate and I need to explain that obviously, your Honour. At the time it seemed appropriate because it fulfilled the requirement being put to us by the NUW to maintain Setha's pay rate and it also provided a mechanism that provided some pressure to get the message through to Setha that his behaviour in the past had not been appropriate and it was a wake up call, if you like, that he needed to change his behaviour, that he had been judged by his peers in behaving incorrectly and the, if you like, threat of a final warning should be enough to give him a wake up call. I'd become very concerned, though, in the last number of days when I read the witness statement from Setha Oung that is peppered with comments, putting in my own words, are along the lines of, "I've done nothing wrong. Everyone else is wrong. They are misjudging me. I am working perfectly. There is nothing wrong." So I'm very concerned in the situation I have got on my hands right now. To me there are three issues at stake with Setha. That is, his performance, his behaviour and his attitude. It's one thing to say that while he is being closely monitored it would appear that his performance is being corrected, but it seems quite obvious to me in reading his witness statement, his mind has not got around the fact that this is a serious matter, that his performance three months ago and six months ago was not acceptable to his peers and not acceptable to his supervisors and managers and I believe that until such time as that message gets through, we will not be able to return Setha Oung to a person who is contributing in the way he should in running one of our lines, and looking at it now, I come to this belief and inclination that although it was a by-product of the process, the fact that Setha has been required to operate a lower rate of pay, that is probably part of the wake up call for him to realise the seriousness of this situation and return himself to a position where he can contribute better, and I would suggest, possibly, some appropriate words from this Commission might also aid him in that process.

**** BRIAN JAMES LEE XN MS CLEARY
PN646

I've got no further questions, your Honour, thank you.

<CROSS-EXAMINATION BY MR MAAS [2.15PM]

PN647

MR MAAS: Mr Lee, in your statement you say that you've held a position of general manager of operations for Australian Pacific Paper Products since February of this year. May I ask what you've done before that?---I have worked in many different roles, always in manufacturing industries across a wide range of different organisations. The nature of the product is - I never regard as the key issue in the work that I do. I'm a specialist in manufacturing systems and processes which don't change, whether I'm making chocolates or steel wool.

PN648

Would you say that a human resources function falls within the role that you perform?---It definitely does.

PN649

Would you say that at the time of these investigations that there was a dedicated human resources specialist who was employed by APPP?---No, there wasn't.

PN650

Would you care to elaborate on that?---The HR manager in the business was under notice of termination.

PN651

So in relation to the investigation at this time, you thought, in relation to the bullying, and if I can just paraphrase - correct me if I'm wrong - to what you said to Ms Cleary, you wanted a thorough investigation of the bullying to take place and you wanted it to take place in an open and transparent way. So on that basis I suggest to you that you thought that Mr McIntosh, the night shift supervisor, was best placed to conduct that thorough investigation?---Gordon McIntosh presented to me what his plan was and how he was going about it. I mentioned earlier that I was very impressed with what he'd put together. He was very thorough. He called everybody together on the first evening and explained to the whole shift the allegations had been made and that he was going to investigate that by interviewing every person on the shift in conjunction with the two union delegates from the shift. He then went about interviewing everybody using a standard format questionnaire that he was able then to collate into a summary which he came back and discussed with me.

PN652

So in relation to the bullying investigation, I put it to you that everyone on the shift was interviewed in relation to that?---Yes, they were.

PN653

And I take you to paragraph 4 of your statement where you say that two site union delegates also participated in this investigation, would you say that's correct?
---That is correct.

**** BRIAN JAMES LEE XXN MR MAAS
PN654

What is your understanding of the union delegates' roles, their role in that investigation?---If you like it is as referees to be involved in the process and to assure themselves that there is a thorough investigation being undertaken.

PN655

Would you say they had the requisite skills in order to complete that role, as you see it?---It is part of the process that we work in. If we have a unionised factory, we have elected delegates who are part of a process of monitoring of what goes on and commenting in making judgments on that. They way you work in a unionised factory is to always be open and involve the delegates as much as possible.

PN656

And look, I completely agree. What I'm putting to you is that whilst they have a role to play in a witness capacity to see what management is doing in the conducting of the interview, what I'm putting to you is whether or not they have the requisite skills to, to use your phrase, participate in the investigation?
---Certainly they can participate, purely on the basis of being observers and being able to assure themselves that it is a fair, disciplined and reasonable just process that is occurring.

PN657

On the basis of the questionnaire that came back to you in relation to the bullying allegation, you said to Ms Cleary and indeed, in your witness statement at paragraph 6, that there was an issue of intimidation and lack of regard for fellow team members in relation to Mr Oung and Mr Volange. What sort of - would you care to explain what sort of process was then undertaken by Mr McIntosh in carrying out the investigation?---The extent of the process after he had talked to everybody and found out what the allegations were and they centred on two people, the next step was to talk to each of those two people.

PN658

Can I turn your attention to exhibit NUW2.

PN659

THE SENIOR DEPUTY PRESIDENT: Is there a spare copy of that?

PN660

MR MAAS: I don't have it.

PN661

Mr Lee, whilst we're finding that for you, exhibit NUW2 is the questionnaire which was put together by Mr McIntosh and put to Mr Oung.

PN662

THE SENIOR DEPUTY PRESIDENT: NUW2 is the allegations.

PN663

MR MAAS: That's correct.

**** BRIAN JAMES LEE XXN MR MAAS
PN664

THE SENIOR DEPUTY PRESIDENT: Yes.

PN665

MS CLEARY: That's okay.

PN666

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Cleary.

PN667

MR MAAS: So paragraph 6 of your statement says that, "Following the work, after the bullying investigation, it wasn't so much the matter of bullying, but more an issue of intimidation and the lack of regard for fellow team members." I'm struggling to see in this document where there is any allegation of intimidation which has been put to Mr Oung in this document. Would you take me to that section in the document?---I haven't read this in detail for some time.

PN668

Take your time, please?---The words "intimidation" are not - - -

PN669

I put it to you, Mr Lee, that there was no issue of intimidation that was put to Mr Oung, would you say that's correct?---Not using the word "intimidation", but if you look at the last item that appears on it.

PN670

With respect to the document, exhibit NUW2, and the format of this questionnaire, would you say it's correct to say that there were only two employees that this document was put to?---That is correct.

PN671

Would you say it's correct that unlike the bullying and investigation questionnaire that there wasn't a similar questionnaire put forward to the whole shift, would you say that's correct?---They were two different documents. There was the first document that had a range of questions by - being part of the investigation, distilled out of the investigation. This document came with specific things, on this case, about Setha. It plucked out responses from people who had been interviewed, and put them into this document, so the allegations could be put back to Setha.

PN672

I see. So you're not saying that it's two separate investigations?---No.

PN673

And even though it started off as bullying that led into this and you see it as encompassing the one investigation, is that correct?---It's certainly one investigation.

PN674

Would you then say that - sorry. Were the employees who made the allegations about Mr Oung, were those employees interviewed as a part of this process, would you say that's correct?---That is correct.

**** BRIAN JAMES LEE XXN MR MAAS
PN675

So I'm suggesting to you, however, that the other employees in relation to this second part of the investigation were in fact not interviewed, is that correct?---Of course not.

PN676

THE SENIOR DEPUTY PRESIDENT: Do you know whether Mr McIntosh, having received the responses of Mr Oung which were denials in many cases, at least, returned to the persons who made the allegations to seek their response to his - - - ?---I don't know that, your Honour.

PN677

You don't know that, yes?---Could I provide some clarification on that, your Honour?

PN678

Yes?---We had people - I read all the responses that came back from people across the shift, and they were highlighting one particular line which we call tech lines or fax lines, it's one particular line and two people who worked on that line. Some responses even said, "Not that I don't want to work here, but I refuse to work on that line because of the way two people treat us." It's two people they were focused on. So when the second part of the investigation started it was found to putting the allegations to each of those two people saying, "What is your response to this? This is what your peers are saying about you. What is your response?" And it was a collective about the two people. Some issues may have applied to one person more than the other person, but it was a collective about two people and the way they were operating. Some comments were very specific about Setha. Some were very specific about Jason. Some were saying, "It is those two people on that line."

PN679

Are they the only persons on that line?---They're the - in the way the line operates, they are the two people basically who run the line. The other people are at the finishing part of the line which would be in inspection activities and boxing activities. The senior operator really is the team leader and he has assistance - and it really was the inspectors at the end of the line who were saying, "We don't like working with these two people because they have a total disregard to quality," and I must say I'm very proud that our people take a great deal of pride in quality and these people were saying, "We don't like working with them because we tell them there's an issue, they shrug their shoulders, don't take any notice of us, and when we really get angry with them, they intimidate us and say, 'It's okay, let it go.'" It was the collective of the way that line was being run by two people.

PN680

MR MAAS: Would you say that those allegations were put to Mr Oung specifically where those allegations were coming from?---This document is specific to Setha Oung. It has plucked out particular things that were said about him, not necessarily things that were said about the other person involved.

**** BRIAN JAMES LEE XXN MR MAAS
PN681

I take you to paragraph 8 of your statement?---Paragraph 8?

PN682

Yes. And in that you note that the other employee that you just referred to, Mr Volange, and Mr Oung responded differently to the performance issues which were raised with them. Based on that paragraph on your statement, would you say that both Mr Oung and Mr Volange - or would you say that Mr Volange was telling the truth in answering that questionnaire?---I wouldn't make a judgment on that one way or the other. I don't think I'm in a position to make a judgment on that one way or the other.

PN683

Well, you were able to enact a recovery plan based on his responses, so?---For Jason Volange?

PN684

Yes?---Yes, we were.

PN685

And is it correct to say that you did the same thing for Mr Oung?---It was a recovery plan, a separate recovery plan for Setha Oung.

PN686

How would you explain the differences in the positions of the company between the two employees with respect to the recovery plan?---The position of the company?

PN687

Yes?---You're saying the position of me, if it's company, it's me?

PN688

You're the big cheese?---Yes. So Gordon and I discussed that and on one hand we could see we had someone that when the allegations were put to him said, "Yes, I haven't done it right. I've stuffed up. I can do it better. I know I can do it better. Give me a chance and I'll prove that." We had someone who was prepared to accept it, admit, "I haven't been doing this as well as I might. Give me a chance and I'll show you what I can do, because I know I can do this job well." On the other hand we have a person saying to us, "No, that's wrong. What everyone else thinks is wrong. I'll tell you, I'm performing perfectly." I can't deal with that person the same as I can deal with the person who is accepting that he has an issue, a performance issue that he wants to work on and correct with our help. Two different situations.

PN689

And this brings me back to the question I was trying to put to you before, you know, and I'm suggesting to you that Mr Oung and Mr Volange have both been truthful in their responses. How would you respond to that?---I have no way of judging it.

**** BRIAN JAMES LEE XXN MR MAAS
PN690

But yet you’re able to enact differing recovery plans based on the statements that were made and on the responses to that questionnaire, is that correct?---I think what I understand and read any court in this land treats people differently if they show remorse to if they were in total denial. All I was doing was mirroring what is accepted as a right course of action in our society. I can’t deal with someone who denies he’s got a problem and say right that will be the same recovery plan as someone who is admitting I have an issue and I’m prepared to work to resolve it.

PN691

THE SENIOR DEPUTY PRESIDENT: But the problem with that is that the problem has to be established on an evidentiary basis. I mean a denial can be a denial because in fact that a certain course of action never occurred?---I’m basing it on the numbers of people who have responded in a certain way about the performance about each of these people. Some of the comments are very specific, some specific to Jason, some common across both of them. But I had enough people who were saying this is how we perceive it. In fact one person has said to us, saying I refuse to work on that line.

PN692

Yes?---I knew I had a problem regardless of Setha Oung denying it was occurring it’s denying something that obviously is there. All his peers had made a judgment on this matter. It wasn’t something that management had gone out to find, the problem was bought to management saying please resolve this for us. That’s all we were doing.

PN693

MR MAAS: Mr Lee I’ll just turn your attention to Mr Macintosh for the moment, are you aware of – I’m suggesting to you that Mr Macintosh doesn’t have the requisite skills to perform the type of investigation that he did. Would you say that he does have the requisite skills?---Yes.

PN694

On what basis do you form that answer? My understanding is that he has no requisite human resources skills to be able to conduct this investigation?---You are making that comment from your own particular perception of what human relations is about and I’d say it is diametrically opposed to mine.

PN695

Sorry human resources?---Resources, I’d say your perceptions and opinions on human resource management are diametrically opposed to mine.

**** BRIAN JAMES LEE XXN MR MAAS
PN696

Would you say though that there’s issues of fairness by having a nightshift supervisor, or a supervisor who oversees the conduct of that line on a nightly basis and then carrying out an investigation in relation to bullying and then in relation to performance, would you say that there’s issue of fairness that could possibly come into play?---No, certainly not issues of unfairness would come into play. I remind you of my earlier comments that Gordon Macintosh was a fill in supervisor.

PN697

THE SENIOR DEPUTY PRESIDENT: Did Mr Macintosh himself raise any issues about Mr Oung or confirm any of the allegations made by others on the basis of his personal observations supervising the nightshift?---He had experience previously where which I gather was many months prior to this incident, where he had been relieving I think on the nightshift where he had occasion to counsel Setha Oung.

PN698

But he had – he offered no view about any of these matters at the time?---No he did not.

PN699

They were not matters that he observed or was able to comment upon?---No, he did not they weren’t matters, on this particular issue they were not matters that he observed.

PN700

Yes, so as a supervisor, supervising the line and others, presumably, he hadn’t noticed Mr Oung and the other gentleman clowning around and continually sleeping on the line, matters of that kind, disappearing off line?---On the disappearing off line, I believe when you talk to Gordon later he will confirm that there was an incident where he had found Setha off line in the lunch room when it wasn’t an appropriate break time.

PN701

That was at that earlier time?---No that was quite close to this instance, I believe.

PN702

Yes, very well. Mr Maas?

PN703

MR MAAS: Thank you, your Honour. Mr Lee I’d like to turn your attention to your exhibit BL1 to your statement which has been exhibited as APPP4 to your file note. Mr Lee when was your file note completed?---I make a habit of completing file notes within a matter of hours after the event, so the memory is fresh in time the memory dimmers and you don’t record things correctly.

**** BRIAN JAMES LEE XXN MR MAAS
PN704

Absolutely I can agree with that and I’d just like to take you through a couple of the points that you’ve made.

PN705

THE SENIOR DEPUTY PRESIDENT: This is your note – a note prepared by yourself?---Yes it is. I normally prepare these after meetings of significance so that I have a record of what transpired.

PN706

Yes, there’s just nothing on it that indicates that to be the case, that it is your notes?---Okay.

PN707

MR MAAS: Mr Lee I won’t take you through that I just want to confirm with you that there’s no date on this exhibit and it does refer to the meeting which took place on 6 August?---Yes, it does and I accept what you say I noticed that I had not put a date on that and that was remiss of me.

PN708

I have no further questions thank you Mr Lee.

PN709

THE SENIOR DEPUTY PRESIDENT: Very well. Ms Cleary anything arising?

PN710

MS CLEARY: Yes, thank you your Honour.

<RE-EXAMINATION BY MS CLEARY [2.39PM]

PN711

MS CLEARY: Mr Lee Mr Maas has taken you to the investigation that occurred with respect to initially workplace warning and then subsequently towards these performance behaviour and attitude problems that were identified. Mr Maas has questioned you with respect to the site delegates being involved within that process. Is it common practice at your site that union delegates attend trade union training, or dispute settlement training?---I couldn’t give you a very definite answer on that. I don’t know what has been the practice again I suggest it might be an appropriate question for Gordon Macintosh. I don’t have enough history to know it would have been practice.

PN712

Now there’s been some questions put to you about Mr Macintosh’s ability to conduct this investigation. What capabilities do you think an individual needs to demonstrate to be able to conduct an investigation?---A logical approach a analytical approach, analytical mind, be well structured, articulate.

PN713

No further questions your Honour.

**** BRIAN JAMES LEE RXN MS CLEARY
PN714

THE SENIOR DEPUTY PRESIDENT: Thank you Ms Cleary, thank you for your evidence Mr Lee you’re excused. Is there one document that I’m missing or am I up to date.

PN715

MS CLEARY: I think I’ve lost a document at this stage your Honour. I handed one up.

PN716

THE SENIOR DEPUTY PRESIDENT: You’ve lost a document.

PN717

MR MAAS: I have one. Sorry this is APPP4.

PN718

MS CLEARY: No, NUW2 that’s what I’m missing now.

PN719

THE SENIOR DEPUTY PRESIDENT: NUW2. What was APPP4?

PN720

MR MAAS: That was the file note.

PN721

MS CLEARY: The file note APPP4, is that right?

PN722

MR MAAS: That’s right.

PN723

THE SENIOR DEPUTY PRESIDENT: The file note I don’t have that.

PN724

MS CLEARY: You don’t have the file note, now there’s the exhibit BL1, your Honour.

PN725

THE SENIOR DEPUTY PRESIDENT: Sorry, that’s - - -

PN726

MS CLEARY: It should be tendered with - - -

PN727

THE SENIOR DEPUTY PRESIDENT: Right thank you. I’m glad some of us know where we are going.

PN728

MS CLEARY: Your Honour I would now like to call Mr Gordon Macintosh please?

PN729

THE SENIOR DEPUTY PRESIDENT: Yes, certainly.

<GORDON RONALD MACINTOSH, SWORN [2.42PM]
<EXAMINATION-IN-CHIEF BY MS CLEARY

PN730

THE SENIOR DEPUTY PRESIDENT: Please take a seat Mr Mcintosh.

PN731

MS CLEARY: Mr Macintosh, have you prepared a witness statement in these proceedings?---Yes, I have.

PN732

Have you got a copy of that witness statement in front of you?---Yes I do.

PN733

Does your witness statement require any amendment?---No it does not.

PN734

Mr Macintosh could I get you to affirm and adopt that witness statement please, do you affirm the contents and is that a true and accurate record of your recollection of events?---Yes these are my recollections.

EXHIBIT #APPP5 WITNESS STATEMENT OF GORDON MCINTOSH OF THREE PAGES DATED 15/09/2007

PN735

THE SENIOR DEPUTY PRESIDENT: It is marked 120 paragraphs but that’s wrong, and that’s not your responsibility though?---I was hoping it wasn’t.

PN736

But I wonder if I could ask you a couple of questions in paragraph 1, the position of PTSG what’s PTSG?---It’s production technical supports group your Honour. I’m a technical support officer at the moment.

PN737

Good thank you and in paragraph 3 and 4 you refer to NUW question mark, I take it that it’s that document the investigation of bullying issue, you’ll see in paragraphs 3 and 4 you refer to NUW 3 and 4?---Yes I believe it is that document.

PN738

So that is NUW1 rather than NUW question mark very well.

PN739

MS CLEARY: Yes your Honour you did make the comment that there is a120 paragraphs, can you just bear with me while I confer with my friend, because my assistant filed these and my documents doesn’t say what your document is saying your Honour so I’m a bit concerned now.

PN740

MR MAAS: Yes I’ve got a 12 on mine so.

PN741

THE SENIOR DEPUTY PRESIDENT: I jump from 5 to 54 and I was just wondering what Mr Mcintosh was saying in 5 to 53 inclusive it’s been withheld from me.

**** GORDON RONALD MACINTOSH XN MS CLEARY
PN742

MS CLEARY: Did you actually print yours out yourself your Honour.

PN743

THE SENIOR DEPUTY PRESIDENT: No my associate did that.

PN744

MS CLEARY: I can assure that Mr Maas and I have a direct copy and would you like me to hand up a revised one for you?

PN745

THE SENIOR DEPUTY PRESIDENT: Look let’s not worry about that, I’ll cross out the second digit in each case and the final digit in the last cases, so that takes me to 12 paragraphs is that correct?

PN746

MS CLEARY: Yes, thank you, you just had me worried there.

PN747

THE SENIOR DEPUTY PRESIDENT: We have ways of dealing with printers we’ve discovered recently.

PN748

MS CLEARY: Now Mr Mcintosh can I refer you now to your witness statement, what sort of duties did you provide as the nightshift supervisor?---As the nightshift supervisor I was responsible for the people on the shift. Managing the people on the shift, I was responsible for the quality of the products. I was responsible for the safety of the plant. I was responsible for the security of the plant and basically the output of production.

PN749

As nightshift supervisor do you get involved with performance management issues?---Yes regularly.

PN750

Can you just confirm to his Honour how long you’ve been doing this sort of role for?---Supervisor role?

PN751

Yes?---Approximately 22 years.

PN752

Now as a nightshift supervisor, how familiar were you with Mr Oung’s performance?---I was fairly well versed in his performance and had known had Setha work for me for approximately two years I think.

PN753

At paragraph 2 of your witness statement you state that you are instructed by Mr Lee to conduct an investigation into the workplace bullying on the
nightshift?---That’s correct.

**** GORDON RONALD MACINTOSH XN MS CLEARY
PN754

Were you surprised to hear of these allegations?---I was a little surprised because – I’ll just clarify that. In the last period where I was a supervisor, I was actually filling in for someone who had taken on that role, who had left the business so I was temporary supervisor for three months until the role was filled. So when Mr Lee told me that there was complaints of bullying I was only familiar with the shift, the previous two years when I had been running the shift. What had happened in the previous six months I wasn’t that familiar with so it did come as a bit of a surprise to me that there was bullying issues on the shift.

PN755

What were you doing that prior six months period?---In the six months period I was doing PTGS, the technical support.

PN756

Now you’ve been asked in the questionnaire – can I have the witness shown an exhibit your Honour, NUW1?

PN757

THE SENIOR DEPUTY PRESIDENT: Mr Mcintosh while that’s arriving paragraph 1 again, you’ve held that PTSG position since when?---Since January this year your Honour.

PN758

Yes the statement stops at since?---In June this year the previous – the person who took over from me left the business. So therefore I stepped back in as supervisor for a period of time.

PN759

Yes, so you were supervisor again from June until when?---Until September, yes around about 6, 7 September I think.

PN760

Yes thank you, yes Ms Cleary?

PN761

MS CLEARY: Yes sorry Mr Mcintosh you’ve got the exhibit in front of you called NUW1 up the top?---Yes.

PN762

Is this the questionnaire that you drafted that you referred to in paragraph 3 of your statement?---Yes it is.

PN763

Now did you draft that questionnaire by yourself?---Yes I did.

PN764

Okay and at paragraph 4 of your statement you refer to the fact that you held a meeting with all nightshift employees?---Yes, I did.

**** GORDON RONALD MACINTOSH XN MS CLEARY
PN765

What was the purpose of that meeting?---The purpose of that meeting was to let them know that I would be investigating the issue which had been brought to me by senior management and that I was deeply concerned that any bullying or any sort of intimidation could be going on, on the shift.

PN766

Then you refer to the fact that you subsequently conducted an investigation over a three day period?---That’s correct.

PN767

Who participated in any investigation with you?---Every employee on the shift participated in the investigation. In each case there was one of the delegates, one of the NUW delegates present when I interviewed every single person.

PN768

With respect to these NUW delegates is it common practice that those individuals are sent off to delegate training conducted by the NUW?---I believe so.

PN769

How did you conduct this investigation?---By interviewing each individual with the delegate present. I asked them the questions and their response I wrote down. After they had responded I read to them what I had written down to confirm the confirmation that that was correct and if there was any changes necessary to what I had written down.

PN770

Okay so the document you’ve got in front of you, whose responses are detailed on that document?---These are the responses of Mr Setha Oung.

PN771

Now that point or paragraph 5 of your statement you refer to the fact that at the conclusion of the investigation you prepared a summary of the responses provided and then you state that there were significant concern over performance and behaviour of two line operators Setha Oung and Jason Volange. Can you tell the Commission what your action - - -?---Sorry I’ve got two paragraph 5 here.

PN772

THE SENIOR DEPUTY PRESIDENT: I’ve already got enough surplus paragraphs so I don’t need it?---You don’t want any spares. It might be at your end after all Ms Cleary?

PN773

MS CLEARY: No it isn’t your Honour I can vouch for that. It’s the way it’s been printed out. Sorry about this?---Okay.

PN774

Can you just familiarise yourself with paragraph 5. What sort of issues came to your attention with respect to Mr Oung please?---Sorry could you repeat the question I couldn’t hear?

**** GORDON RONALD MACINTOSH XN MS CLEARY
PN775

What sort of concerns with respect to performance and behaviour of Mr Oung were identified to you?---There was considerable concern from a number of people over his lack of response to them when they were highlighting issues on the machines or quality problems, he was not responding to them. That he was giving the indication that it was not his job to fix these things. That it was the senior operators job to fix these things who was not there at the time, who may have been on a break of something like that. Their concern was that, one of the major concerns was that he was not responding to quality issues and was ignoring their requests for help.

PN776

THE SENIOR DEPUTY PRESIDENT: When you say number, what sort of number?---I don’t have exact figures, I think it was probably about between eight and 10.

PN777

MS CLEARY: Now paragraph 6 of your statement - - -

PN778

THE SENIOR DEPUTY PRESIDENT: You answered the last question.

PN779

MS CLEARY: I just wanted to get some further details, when you talk about continually clowning around on the line?---Yes.

PN780

To what extent were you advised of that?---I was told that there were things being thrown around on the line. Material course, just general nonsense on the line, pushing and joking and things like that on the line.

PN781

At sub paragraph (g) you say that some of the accusations made included continually disappearing off the line outside of break time?---Yes.

PN782

Were you aware of any of those – any of the occurrences like that
previously?---No, not previously.

PN783

What did you do after becoming aware of these findings?---I spoke to Brian Lee on these findings and Brian asked me to go back to those two individuals that were highlighted in the findings. Brian Lee asked me to go back and put the findings to them for their responses.

PN784

Was anybody else present when you met with Mr Oung?---Yes, two union delegates were present at that meeting.

**** GORDON RONALD MACINTOSH XN MS CLEARY
PN785

THE SENIOR DEPUTY PRESIDENT: Mr Macintosh why do you describe them as findings, rather than allegations?---I think it was because I was just asked what my findings were and I responded findings.

PN786

So these in your mind had the nature of findings before they were put to
Mr Oung?---No these are allegations, the question was what was my findings and these were my findings, I’m sorry your Honour.

PN787

Sorry what were your findings, the findings were the allegations put?---No, I responded – sorry Kate asked me what were my findings from this and I responded these were my findings.

PN788

Yes you said you discussed your findings?---Based on what she had said.

PN789

You discussed your findings with Mr Lee?---Yes.

PN790

The findings being the allegations?---The allegations, yes.

PN791

Yes very well go ahead Ms Cleary.

PN792

MS CLEARY: Thank you, your Honour. What was Mr Oung’s demeanour during this meeting?---During the meeting Mr Oung was quite matted would not accept that anything that I put to him was factual. Would not accept that any of the items that I put to him that I had seen were factual that any of the accusations at all were factual and that he was extremely defensive and negative towards it.

PN793

Did you follow this meeting up with any file note?---I’m sorry a file note?

PN794

Or did you convey it to Setha Oung what was discussed in this meeting by way of a document?---I wrote his responses down at each of those of the allegations and each of his responses I then discussed with Brian Lee. The Bolwat document was probably slightly later. After I discussed the findings with Brian Lee and we’d come to the conclusion that we believed the findings, the allegations to be legitimate - - -

PN795

THE SENIOR DEPUTY PRESIDENT: Did it occur to you Mr Macintosh to take any of Mr Oung’s responses back to the persons making the allegations? For example whoever alleged that Mr Oung slept on the line to go back and say well he says he occasionally sat down and rested when things were running smoothly and denies having been asleep, did you test his responses with any of the persons who made those allegations?---No I didn’t your Honour. The allegation where he was accused of sleeping on the line, where one person specifically noted an occasion where Mr Oung was sitting at the top of a step ladder sleeping. So occasionally sits and rests on the line, really didn’t qualify to cover that particular allegation.

**** GORDON RONALD MACINTOSH XN MS CLEARY
PN796

And others, his response to the continually disappears off the line that sometimes, I do go to a different path of the machine, but I’m still on the line?---No I didn’t follow that through with him your Honour or with any other person on that.

PN797

Yes very well , thank you Ms Cleary.

PN798

MS CLEARY: Thank you, your Honour on paragraph 8 of your statement you refer to prior to a previous history in 2006 with respect o malingering and disregard of quality issues?---Yes.

PN799

I’d like the witness to be shown two documents? Mr Macintosh do you recognise those documents?---Yes I do.

PN800

Are those the documents referred to as GM1 in your witness statement?

PN801

THE SENIOR DEPUTY PRESIDENT: In paragraph 8?---Yes.

PN802

I’ll mark those separately. No, I’ll mark them as a package, 6.

EXHIBIT #APPP6 MEETING RECORDS DATED 14/05/2006 AND 21/06/2006

PN803

MS CLEARY: Mr Macintosh is it common practice for you to recall any performance discussions in a file note?---Yes, it is.

PN804

Is it common practice for you to issue a copy of that file note to the
employee?---No.

PN805

In evidence this morning Mr Oung has denied that you ever spoke to him on 14 May 2006, or that you spoke to him on 21 June 2006, what do you say to that?

PN806

MR MAAS: I might just object there your Honour I believe Mr Oung said that he couldn’t recollect which I think is different to actually denying but I’m more than happy for the record to show that.

PN807

THE SENIOR DEPUTY PRESIDENT: Yes, could you repeat the question Ms Cleary?

PN808

MS CLEARY: Mr Macintosh can you recall having these discussions with Mr Oung?---Yes, I can.

**** GORDON RONALD MACINTOSH XN MS CLEARY
PN809

Can you recall Mr Oung’s responses?---I cannot recall his responses, sorry can I read them again to see if I can recall?

PN810

Yes?---Yes I do recall both of those occasions.

PN811

Can you recall Mr Oung’s responses to you?---On the occasion where I found him in the canteen having a cup of coffee when he shouldn’t have been in the canteen having a cup of coffee he apologised to me for that and returned to the work area.

PN812

Yes?---On the occasion where I spoke to him about not responding to the quality issues we did have some discussion on the machine at that point in time, as I’ve noted there. But he complied with my request.

PN813

Thank you, I’d like the witness to be shown APPP3 your Honour.

PN814

THE SENIOR DEPUTY PRESIDENT: Yes, as long as I get it back I’ll be fine.

PN815

MS CLEARY: Now Mr Macintosh I’ll give you a moment to familiarise yourself with that document. Do you recognise that document?---Yes I do.

PN816

Whose document is it?---This is a document which I composed.

PN817

When did you compose it?---I composed that 1 August I think it would have been, around about 1 August I think.

PN818

THE SENIOR DEPUTY PRESIDENT: You refer in paragraph 8 to Mr Lee and yourself deciding to issue a formal warning when did you and Mr Lee decide to issue Mr Oung with a formal warning?---After we had discussed the responses that I’d had from the Mr Oung.

PN819

On which date do you recall?---Sorry your Honour off the top of my head I cannot exactly recall the exact date.

PN820

Okay well don’t guess, was it before you prepared that document in
APPP3?---Sorry can you?

PN821

Is it 3?

PN822

MS CLEARY: Yes.

**** GORDON RONALD MACINTOSH XN MS CLEARY
PN823

THE SENIOR DEPUTY PRESIDENT: Is it before you prepared the document Ms Cleary just referred you to?---Yes it was before – when I sat down – prior to issuing – prior to composing this and making this Mr Lee and I sat down.

PN824

Yes very well, while I’ve interrupted Ms Cleary, you’ve referred in the end of paragraph 8 to an action plan being drafted to get Mr Oung back as an assistant line operator – I’m sorry just before that passage, you say you, we – you and
Mr Lee believe that Mr Oung should be transferred from his line operator A position immediately and initially would perform the work of a packer box boy. He was paid an assistant operator A for a one month period and then the applicable site rate, that document refers only to the appropriate rate is that correct on the second page? I’m just trying to get at when this is?---Yes, it says you will be paid in accordance with the role you fill.

PN825

Yes, when was it decided that he would be paid for the one month period at his existing rate?---That was done on 6 September – that was done at an appeal, when the appeal was made to Mr Lee by Setha – Mr Oung sorry and the NUW organizer. I was not present at that meeting.

PN826

So this is slightly – so your statement is slightly out of sequence you then go on to provide a written warning and action plan to Mr Oung on 3 August at that stage he was to be paid at the box boy rate if that’s what he was working?---Yes, but the appeal was made on 6 August I think.

PN827

6 August yes?---So it was the 3 August I’d made up, we’d given him, Mr Oung this – the paid back on it, the decisions that what he would receive on 2 August and the appeal was made after that weekend, the weekend and the appeal was mad on the Monday morning to Mr Lee, I think it was 6 August.

PN828

Yes I’m just trying to understand the statement and the retention of the payment for a month is a little out of sequence in this statement that would be right?---The retention of the payment is a decision made by Mr Lee on the 6th.

PN829

Yes that would be right, okay go ahead Ms Cleary.

PN830

MS CLEARY: Yes, can I get the witness now to be shown NUW3?

PN831

THE SENIOR DEPUTY PRESIDENT: Yes, have you got a spare copy of that, that might?

**** GORDON RONALD MACINTOSH XN MS CLEARY
PN832

MS CLEARY: That’s okay, that’s fine. Do you recognise that document Mr Macintosh?---Yes.

PN833

Who issued that letter?---I issued that letter.

PN834

THE SENIOR DEPUTY PRESIDENT: On what date?---That was issued on 3 August.

PN835

The other document APPP3, you drafted it, what happened to that document? Was that document ever given to anyone?---The meeting document APPP3?

PN836

No, that’s a meeting document, yes?---That was given to Mr Oung.

PN837

On what date?---On the 2nd.

PN838

On the 2nd?---2 August, yes, in that it basically says that he will receive a written warning. The written warning was issued to him on the 3rd.

PN839

At what time was that given to him on the 2nd?---At 6 am.

PN840

At 6 am, that’s just a bit confused. Mr Oung’s evidence refers only to a 3 am meeting on 2 August at which the allegations are put to him, that’s correct the allegations were put at 3 am on 2 August?---I think that refers to - - -

PN841

Mr Oung’s evidence is that at 3 am on 2 August the allegations were put to him and that’s that document NUW2.

PN842

MS CLEARY: I don’t think the witness has got NUW2?---I don’t have NUW2.

PN843

THE SENIOR DEPUTY PRESIDENT: Is that correct that that’s when the allegations were put to him at 2 am on 2 August or perhaps I will let you have a look at that?---No, I don’t think that would be correct because I would not have put the allegations to him on the same day that I issued this, it would have been a day later that I issued this.

PN844

MS CLEARY: That’s right?---Because I had discussed this with him and then composed this. That was put on 1 August, NUW2 was done on 1 August and APPP3 was 2 August.

**** GORDON RONALD MACINTOSH XN MS CLEARY
PN845

THE SENIOR DEPUTY PRESIDENT: I think on the last occasion the matter was before the Commission and accepted the reference to 1 August on the other document is incorrect, it’s 3 am on 2 August?---Yes that would be 3 am on 2 August. Please excuse me but when you work nightshift you count the start of your shift as the date of the shift. So therefore 11 pm on 1 August until 7 am on 2 August is counted as 1 August.

PN846

So when you say you gave him APPP3 on 6 am 2 August?---No actually that would have been probably 6 am on 3 August, but because the shift starts at
11 o’clock we count it as 2 August.

PN847

Very well and the written warning date 3 August was that 3 August or
4 August?---The night of 3 August, so therefore that would theoretically have been 4 August.

PN848

Yes I see?---It confuses a lot of people, sorry your Honour.

PN849

All right well I understand I think the sequence, just bear with me one minute. So APPP3 you say is the notes of a meeting at which Mr Oung was advised verbally of the outcome of the inquiry and the warning to be issued and that was followed up by - - -?---He was also given a copy of that document.

PN850

Yes right we’ll have to work out how to deal with this because it was never put to Mr Oung that such a meeting occurred or such a document was produced.

PN851

MR MAAS: If I could just say it is highly unusual, we can’t test it unfortunately as Mr Oung’s already given evidence but if I can – and from the instructions I’ve just received and from the bar table, I can put to your Honour that Mr Oung hasn’t received this document and indeed this is the first time I’ve seen this document.

PN852

THE SENIOR DEPUTY PRESIDENT: Well it may be that we need to consider at some point recalling Mr Oung and Mr Howie is referred to in the document as well is he?

PN853

MS CLEARY: No.

PN854

MR MAAS: No, not in that one.

PN855

THE SENIOR DEPUTY PRESIDENT: Not in that one.

**** GORDON RONALD MACINTOSH XN MS CLEARY
PN856

MR MAAS: We haven’t seen this before.

PN857

THE SENIOR DEPUTY PRESIDENT: Yes, okay?---There were two union delegates there when I gave Mr Oung the document, Maree Hanigan and Ian Hughes who were also NUW delegates.

PN858

Being the APPP3 document?---Being APPP3 yes that’s correct.

PN859

All right well I think I understand the timing issue. There are still some unanswered questions. Very well I’ll let you resume if you can remember where you were Ms Cleary?

PN860

MS CLEARY: Thank you, your Honour. Now Mr Macintosh let’s come back to the discussions you had with Mr Lee. What did you and Mr Lee discuss in coming to the conclusion that Mr Oung be transferred out of the role of assistant line operator, operator A?---Mr Lee and I discussed the issues that have been, the accusations and the responses. We looked out the number of significant number of accusations and complaints, a lot of which were consistent with each other. We looked at the both the safety of the product and for the people. As a production supervisor your Honour I have overriding responsibility for the care and well being of the people, I have a duty of care for the care and well being of the people on the shift and when I get people who saying to me that I don’t want to work there because I feel threatened or because I feel intimidated I have to take action.

PN861

Now your Honour bear with me I can’t now recall, and in case I haven’t, can I get the witness to be shown NUW4?

PN862

THE SENIOR DEPUTY PRESIDENT: NUW4 being a letter from the union to Mr Lee is that correct?

PN863

MS CLEARY: No, no sorry, wrong one.

PN864

THE SENIOR DEPUTY PRESIDENT: NUW3 is the dated 3 August the warning letter.

PN865

MS CLEARY: Mr Macintosh you’ve got my copy?---I have NUW3 here.

PN866

At point 10 of your witness statement paragraph 10, you refer to the fact that when Mr Katsigionnis returns from annual leave a more detailed performance recovering plan is developed, can I have the witness shown NUW6?

**** GORDON RONALD MACINTOSH XN MS CLEARY
PN867

THE SENIOR DEPUTY PRESIDENT: Yes, have you finished with APPP3 I might recover that?

PN868

MS CLEARY: Yes I have your Honour.
THE SENIOR DEPUTY PRESIDENT: If we need it for Mr Maas, we’ll cover it.

PN869

MS CLEARY: Do you recognise that document Mr Macintosh?---Yes I recognise that document.

PN870

What part did you play in drafting this performance recovery plan?---I drafted all of it.

PN871

THE SENIOR DEPUTY PRESIDENT: Sorry Ms Cleary, is that the action plan that you refer to at the end of paragraph 8 of your statement you say there, the written warning action plan was issued to Mr Oung on 3 August 2007?---Yes your Honour.

PN872

Which warning are you talking about, the one in NUW3 not the A?---Yes, NUW3 your Honour.

PN873

That was – sorry just remind me that was at six – no sorry what time was that actually? When did that occur on 3 August?---The action plan was not 3 August, the warning was done on 3 August the action plan was done on the Sunday night because Mr Touzel had been who’s present, had been elected as a shop steward on that night and he was present as a representative with Mr Oung. That was issued on the 6th I think.

PN874

Not Sunday 5 August?---Sunday 5 August, yes.

PN875

Sunday so action plan on 5 August?---The performance recovery plan was issued.

PN876

MS CLEARY: But Mr Macintosh the document in front of you that his Honour is referring you to which is now NUW6, is that right, yes. NUW6 that it’s true isn’t it that was prepared in conjunction with Tony Katsigionnis when he returned from annual leave?---No, no that wasn’t sorry.

PN877

THE SENIOR DEPUTY PRESIDENT: Okay?---There is another document, there’s another one which was prepared by Tony.

**** GORDON RONALD MACINTOSH XN MS CLEARY
PN878

MS CLEARY: When you talk about that there was another recovery plan prepared by Tony what – how did it differ than the document in front of you?---It was the – there was more to do with the pay structure and how long he would be at each level.

PN879

THE SENIOR DEPUTY PRESIDENT: You might try NUW5?---Yes I think that was NUW yes.

PN880

That might be the one, that’s the 4 September document is it?

PN881

MS CLEARY: Can I have the witness shown NUW5 please?---Yes that’s the one that was done with Mr Katsigionnis.

PN882

Who presented that document to Setha Oung?---I recall I initially presented that document to Mr Setha Oung.

PN883

What was his response when he saw that document?---My recollections of it,
Mr Touzel was also present when we did this and Maree Hanigan when we talked it through and it was – one of the major questions of it was the period at which he would be on operating level B.

PN884

How is that operator level B differ from operator level A role?---It is at a lower pay rate and lower responsibility rate.

PN885

Are you aware what happened after those concerns were raised with the company?---It was originally to be operator level, operator B for a period of two months, three months and after reviewing the improvement and Mr Oung’s performance for the period up until that point he had really been performing very well and had shown positive performance in that period of time. He had really picked his act up basically and the recommendation that it be reduced to two months and which was agreed by Mr Katsigionnis it was then taken back to Mr Oung and told that would be the period.

PN886

Subsequent to conducting the investigation until this date, what was your understanding in respect of Mr Oung’s acceptance of this recovery plan in broad terms?---The recovery plan the initial recovery plan, NUW6 I felt that Setha was quite positive towards, he saw that each of those things, everything in it was very achievable, there was measures that he was a stakeholder along with there were stakeholders and there were review dates set up in that. I felt that he was very positive towards this, he seemed like it was a good recovery program.

**** GORDON RONALD MACINTOSH XN MS CLEARY
PN887

I have no further questions for this witness thank you your Honour.

PN888

THE SENIOR DEPUTY PRESIDENT: Thank you Ms Cleary, Mr Maas?

<CROSS-EXAMINATION BY MR MAAS [3.27PM]

PN889

MR MAAS: Mr Macintosh you under examination-in-chief just then you informed Ms Cleary, you agreed that you were as a supervisor with 22 years experience who has been on the nightshift for the last three years?---Yes.

PN890

That you’re very well versed in Mr Oung’s performance would you say that’s correct?---Yes.

PN891

Would you say that that puts you in the best position than with the company to be able to conduct the sort of investigation that was conducted?---I believe it does yes.

PN892

You wouldn’t say then that perhaps someone who is more well versed or skilled in human resources would be better placed to perform that role?---Well that’s not my decision I’m afraid.

PN893

I’m not asking if it’s your decision, I’m asking for your opinion?---I’m sorry I don’t know.

PN894

Your witness statement seems to go to great lengths, indeed the submissions of the company seem to go to great lengths to emphasise the role of the union NUW delegates at each, as part of the investigation process, what would you say was the role of the NUW delegates at the investigation?---To witness the proceedings, to make sure that I have acted fairly and that each person was treated equally. That there was nobody asked any different questions to anyone else, that the investigation was conducted above board and honestly.

PN895

Thanks Mr Macintosh, could I turn your attention now to the meeting records, APPP6. You’ve described your recollection of these meetings with Ms Cleary as Ms Cleary put to you Mr Oung cannot recollect these meetings. My question to you is given that these meetings took place over a year ago, would you say that it’s unreasonable that someone wouldn’t remember these meetings taking place?
---Sorry can you ask that again?

PN896

I’m putting to you is would it be unreasonable that given that these meetings took place over a year ago, would it be unreasonable that someone wouldn’t remember that this meeting took place?---I guess that depends on the person, I honestly couldn’t answer the question. I can recall them quite distinctly, whether somebody else can recall them quite distinctly, I honestly wouldn’t be able to judge, I’m not a expert in that field.

**** GORDON RONALD MACINTOSH XXN MR MAAS
PN897

Sure, could I just ask you then how long the meetings did go for from your recollection?---These were only short meetings, these went for approximately even maximum of five minutes each. Whenever I have a meeting with a person over an issue where I feel, whether it’s a behavioural issue where the person has done the wrong thing, I will talk to the person on line and then I’ll make a diary note which is basically one of these diary notes on the conversation.

PN898

I see, is it usual at these record meetings aren’t forwarded to – aren’t communicated to employees on their alleged misconduct or alleged poor performance?---Yes.

PN899

The company’s submission is that the reason that the company took in demoting Mr Oung and in reducing his pay, was because of overwhelming performance related issues and that legitimated the response that the company took, I believe that your submissions say that it was a reasonable response. Would you say given that these meeting records took place over a year ago, that they weren’t communicated to Mr Oung and in light of what your investigation has brought up that this is in fact so?---The actions taken to immediately remove Mr Oung from the position he was in was for the protection of the product and the people, all the people who had raised these allegations, that were saying that he was not responding to them, that they felt threatened all of these things. I feel I acted in a responsible manner in removing him from the opportunity to affect these areas of quality, of quality of the product and being in control of other people. I put him into an area where his work would not affect the quality or have great bearing on the people who worked on that production line.

PN900

Would you say it’s fair that he was moved to that area on 3 August?---Would I say that it was fair that he was moved to that area on 3 August.

PN901

Would you say that he was moved to that area on 3 August?---He was moved to that area immediately after the meeting that I’d had with him detailing what was going to happen.

PN902

THE SENIOR DEPUTY PRESIDENT: That was the first meeting, or the one where the formal warning was issued?---That was on - - -

PN903

I’m referring to the document you just had as a formal warning, the other one which specifies?---Before the formal warning, it was when I delivered, I can’t remember which document number it is that you’ve got - - -

**** GORDON RONALD MACINTOSH XXN MR MAAS
PN904

APPP3?---Yes, APPP3 if you have a look on the back of that it basically says immediately removed from that role so that was following that meeting I had him go straight out to do wee work.

PN905

That was given to Mr Oung you say at that first meeting?---Yes.

PN906

That sets out what was going to happen a written warning and the implication for where he worked and what he was paid?---Yes.

PN907

And the other document was the formal warning?---Was the formal warning, yes your Honour.

PN908

Okay?---Whether it be fair or not I do that, I felt it was for the protection of the products and the people and it wouldn’t have been fair to put him back on to an area where there could have been problems.

PN909

Would you say that the company has taken this type of action before given in relation to performance management with its employees?---I don’t know.

PN910

Well in your recent history with the company let’s say the last three years, that’s what you’ve said you’ve worked as a nightshift supervisor?---Yes.

PN911

Has it occurred in that last three years?---Not on nightshifts.

PN912

I’ll take you to paragraph 7 of your witness statement. In your statement you say that Setha Oung responded negatively to the issues raised with him taking no responsibility for the areas of performance recorded. Would you say that the reason he did respond negatively was perhaps and that his answers reflected that – sorry let me rephrase that – would you say that the reason he responded negatively to the accusations, was because he didn’t see it the way you saw it, that he was telling the truth? That he was denying the allegations that were put to him and that’s why he was responding negatively?---Some of the allegations that were put to him were direct things which I had seen and I had been involved in and I had had conversations with him on. I knew for a fact that he recalled these items, because we had discussed them in that. Even so he was still negative towards those items.

PN913

THE SENIOR DEPUTY PRESIDENT: In respect of those items did you put that proposition to Mr Oung when you got his response, sort of hang on Setha I’ve actually seen you do this and I’ve spoken to you?---Yes, your Honour I did, I did.

**** GORDON RONALD MACINTOSH XXN MR MAAS
PN914

The response to that?---No response.

PN915

MR MAAS: That being the case Mr Macintosh, could you see that there’s the possibility that maybe that there are elements of unfairness in the way this investigation has taken place if you’re relying upon what you’re saying?---This investigation was conducted completely fairly. Every person was given exactly the same opportunity and every person was read back what they had said in their statements to me, and it was conducted as fairly as this investigation is being conducted.

PN916

Would you say that people on the shift who had made the allegations were also interviewed as part of this process?---I’m sorry I don’t understand.

PN917

The allegations which were made against Mr Oung were made by people on his shift?---That’s correct.

PN918

Were those people also interviewed like Mr Oung were and Mr Volange were?
---The people who made the allegations?

PN919

That’s right?---Mr Oung and Mr Volange were part of the investigation as well as being recipients of it. Mr Oung and Mr Volange and every other employee on the shift was interviewed with a union delegate present.

PN920

In relation to the second part of the investigation – but the point I’m trying to make is that Mr Oung gave you responses after allegations had been put to
him?---yes.

PN921

He denied those allegations was there a forum that those allegations that he denied were put back, I mean was there some sort of transparent process?---Put back to the originators you are talking about?

PN922

Yes?---No there was not.

PN923

I’ve no further questions. Thanks Mr Macintosh.

PN924

THE SENIOR DEPUTY PRESIDENT: Was there anything arising out of that?

PN925

MS CLEARY: No further questions for this witness.

**** GORDON RONALD MACINTOSH XXN MR MAAS
PN926

THE COMMISSIONER: Thank you for your evidence Mr Macintosh you’re excused from the proceedings.

<THE WITNESS WITHDREW [3.41PM]

PN927

MS CLEARY: What I might do your Honour if I can before calling the next witness if I can just get some paper work back, because a lot of my paper work is now up there.

PN928

THE SENIOR DEPUTY PRESIDENT: You certainly may, you can approach the witness if that helps and work out what’s yours and what’s his. Before we do go to another witness can I just get an indication of where we’re likely to get tonight? We’ve still got Mr Katsigionnis and Mr Talwar and then submissions, how far are we likely to get – I mean I’m prepared to sit for some period but not excessively. If we are at a point where we have no prospect of concluding today we might pull the plug at some point. Mr Talwar I expect could be dealt with fairly quickly he wouldn’t need to return.

PN929

MS CLEARY: He would be your Honour.

PN930

MR MAAS: Yes your Honour.

PN931

THE SENIOR DEPUTY PRESIDENT: Mr Katsigionnis might be in a different category.

PN932

MS CLEARY: I think he would be probably take a bit longer.

PN933

THE SENIOR DEPUTY PRESIDENT: Yes.

PN934

MR MAAS: What sort of timeframe were you?

PN935

THE SENIOR DEPUTY PRESIDENT: Well I wouldn’t want to go beyond about – where are we now 3.45, beyond 4.30 is that going to see us through?

PN936

MS CLEARY: Yes your Honour I obviously have to take into account some responsibilities I wouldn’t be able to site more than 4.30 I’m just concerned that Mr Katsigionnis may be longer than half an hour.

PN937

THE SENIOR DEPUTY PRESIDENT: So it would be unlikely that we would get to submissions.

PN938

MR MAAS: Definitely I think so.

PN939

THE SENIOR DEPUTY PRESIDENT: You doubt whether we would by that time.

PN940

MR MAAS: I agree.

PN941

THE SENIOR DEPUTY PRESIDENT: Well I think it would be desirable to get Mr Katsigionnis and get rid of him in a positive sense, to save him the bother of returning. Perhaps once we’ve dealt with Mr Talwar’s evidence – sorry is that convenient to you Ms Cleary to bring him before Mr Katsigionnis?

PN942

MS CLEARY: That’s fine your Honour yes.

PN943

THE SENIOR DEPUTY PRESIDENT: Then when we’ve finished with
Mr Talwar then we can review where we are at.

PN944

MR MAAS: Yes your Honour.

PN945

THE SENIOR DEPUTY PRESIDENT: Well have Mr Talwar called.

<AJAY TALWAR, SWORN [3.44PM]
<EXAMINATION-IN-CHIEF BY MS CLEARY [3.45PM]

PN946

MS CLEARY: Mr Talwar have you prepared a witness statement in these proceedings?---Yes your Honour.

PN947

Have you got a copy of the witness statement before you?---Yes, your Honour.

PN948

Does this witness statement require any amendment?---No.

PN949

THE SENIOR DEPUTY PRESIDENT: Is it accurate and do you adopt that as your evidence in these proceedings?---Yes, your Honour.

EXHIBIT #APPP7 WITNESS STATEMENT OF MR AJAY TALWAR OF FOUR PARAGRAPHS DATED 15/09/2007

PN950

MS CLEARY: Sorry what number did you give it?

PN951

THE SENIOR DEPUTY PRESIDENT: Six. Sorry seven I’ve been corrected, it’s getting late for us all.

PN952

MS CLEARY: I’d like to refer to paragraph 2 of your witness statement?---Yes your Honour.

PN953

You refer to a conversation that you had with Mr Oung at about 6.15 am?---Yes.

PN954

Did you approach Mr Oung or did he approach you?---I started my shift at 6 o’clock normally as I finish my roster, as I went on the lines to check my daily plan as the supervisor Setha was working on pack 2 and he approached me.

PN955

What did he say to you?---He started talking about what company have taken action against him your Honour and he started discussing about what the company has done and what their plans are and he asked me if I could create some overtime for him your Honour.

PN956

What was your response to that Mr Talwar?---I told him I can’t just create overtime like this, if I am short of labour your Honour I’ll give you some more time when the situation required. While I was discussing this matter I told Mr Setha Oung that I have just took my shift and I’m handing over when I take over from nightshift, so I’m very busy at the moment and if you want I can discuss this matter at some later time if you don’t mind I’m very busy if you want me to ring you later on you going to finish at 7 o’clock I’m happy to give you a ring your Honour.

**** AJAY TALWAR XN MS CLEARY
PN957

Did you then ring Mr Oung?---I subsequently around 10 o’clock when I finished my job so I had a bit of time, and I thought I’ll give him a ring. I subsequently ring Setha and I spoke to him I did not tell him to forget about the hearing in the Commission. I did not promise him any overtime, excess overtime your Honour and I did not ask him that I would get his old pay fully pay back by in two weeks or in a couple of weeks your Honour. Then he started after these discussions he explained me about the Commission and he want a meeting him and Tony recalling the company actions, so I said I will talk to Tony and I’ll let you know by tomorrow morning when you come and see.

PN958

What did you advise him the following day Mr Talwar?---I advised him in the morning that I’d arranged a meeting with Tony and I will check Tony when he come into the office, I will call in the office your Honour and when Tony arrived in the morning I asked Tony would he see Setha and as we discussed he wants to have a meeting with you, what time suits you. So your Honour Tony came in the supervisor office and he advised me call Setha Oung, so I rang and got Setha Oung in that supervisor office and about to leave then Setha Oung requested that he wants me to be there in the office while he’s having this meeting your Honour.

PN959

Were you already in the room with Mr Katsigionnis ?---Yes your Honour.

PN960

At this meeting on 11 September at which you were present what was discussed between Tony and Setha?---Setha was just asking if Tony can review his action plans and cut down the time shorter your Honour and he doesn’t want to pursue this case with the AIRC.

PN961

What did you understand, what did you think he meant, did not want to pursue this case?---I think after that discussion your Honour I thought this whole matter is finished and all decisions had been made and he agreed what time the company had taken action I’ll work through with that plan the only issue that was there was that he was worried if we can discuss this matter with Tony and reduce the time limit your Honour.

PN962

I have no further questions your Honour, thank you.

PN963

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Maas?

<CROSS-EXAMINATION BY MR MAAS [3.51PM]

PN964

MR MAAS: I turn your attention to paragraph 4 of your witness statement and the meeting on 11 September?---Yes your Honour.

**** AJAY TALWAR XXN MR MAAS
PN965

So in your witness statement you say that you did meet with Setha and
Mr Katsigionnis that day but in your statement you say that Setha advised both you and Tony that he was happy with the decision implemented by the company?
---Yes, your Honour.

PN966

Is that – are they the specific words you remember or is it just words to that effect?---This is exactly what’s there your Honour.

PN967

Would you say that Mr Oung was concerned about his remuneration?---When we were discussing Setha was asking Tony to review the timeframe limit that’s all it was concerned your Honour.

PN968

Would you say he was also concerned about being demoted?---No your Honour.

PN969

So I put it to you that your statement is not quite correct because you say the only concern that he had was to do with the time frame that the performance recovery plan?---That was all I said before that was your Honour that was only the concern.

PN970

But that negates what I’ve just put to you Mr Talwar. Can I also ask you was there any talk or is it your recollection that there was any talk at this meeting on 11 September by Setha in relation to Christmas?---No, your Honour.

PN971

You can’t recollect any discussion to do with working hours up to Christmas?
---Not your Honour.

PN972

THE SENIOR DEPUTY PRESIDENT: You say there was no mention whatever of related pay being reduced?---No, your Honour.

PN973

But Mr Katsigionnis witness statement indicated that he was not happy with his rate of pay being reduced but had accepted the action of the company?---That was maybe different time your Honour when I left the office. When I called Setha when Setha asked me to come back I came back after later, that discussion took place your Honour before me, when I was there. The only concern was he was worried his timeframe and he was asking Tony to review the timeframe limit and he was happy with all the decisions.

PN974

So you left the meeting at some point?---Yes, your Honour.

PN975

And returned?---No.

**** AJAY TALWAR XXN MR MAAS
PN976

The meeting as best you know, obviously you can’t know because you weren’t there, as best you’re aware the meeting continued between Mr Oung and Mr Katsigionnis?---Yes your Honour when I left the meeting room I think everything was finalised I think Setha was all happy with it all the decisions, the only concern he was asking, Tony what the time limit frame is going to be your Honour.

PN977

Yes very well, Mr Maas?

PN978

MR MAAS: Thank you, your Honour. Mr Oung in his statement just said by way of passing that he considers that you and Mr Oung are friends would you say that’s correct?---Yes, your Honour.

PN979

Would you say that as friends just talking you were having a discussion about the overtime?---I wasn’t discussing about the overtime your Honour because I come down from the floor, 12 years I did that’s why I was a bit friendly with everyone and when the situation came he didn’t mention this pay drop or whatever the only thing he mentioned to me if I can clear some overtime to him your Honour.

PN980

Would you be able to inform the Commission when that was – when that discussion took place, sorry I’m a little confused?---That was on 10 September your Honour.

PN981

Was that on the phone?---That was in the morning when I took day shift start of the shift your Honour.

PN982

Was that there was some discussion on that telephone call with Mr Oung about overtime?---I did not discuss any matter and I did not promise anything when I ring Mr Setha Oung your Honour.

PN983

That being the case on that telephone conversation in paragraph 3 of your statement you say you convened another meeting, why would you do
that?---Sorry?

PN984

Why would you convene another meeting?---Because Setha requested, Setha we do have a meeting with Tony your Honour. As a friend he spoke to me this discussion the only thing I tried was the meeting with Tony to work anything for him that’s all I would do your Honour.

**** AJAY TALWAR XXN MR MAAS
PN985

Thank you Mr Talwar I have no further questions your Honour.

PN986

THE SENIOR DEPUTY PRESIDENT: Just stay there one moment, Ms Cleary may have some questions she may not, but we better ask her. Ms Cleary?

PN987

MS CLEARY: No thank you, your Honour, that’s fine.

PN988

THE SENIOR DEPUTY PRESIDENT: Thank you for your evidence Mr Talwar you’re excused.

<THE WITNESS WITHDREW [3.57PM]

PN989

THE SENIOR DEPUTY PRESIDENT: Very well, I think we’re at the point where it’s probably not worth persisting, we are going to have to come back for submissions and obviously Mr Katsigionnis evidence. There doesn’t seem much point starting is there issue if I set the matter down for another date which I will discuss off the record with the parties.

PN990

MS CLEARY: No that’s fine your Honour.

PN991

MR MAAS: No issue your Honour.

PN992

THE SENIOR DEPUTY PRESIDENT: Very well, well I’ll go off the record for a moment.

<OFF THE RECORD

PN993

THE SENIOR DEPUTY PRESIDENT: I intend to adjourn until 10 am on Wednesday 7 November. Transcript will be produced but in the circumstances of the period of the adjournment it won’t be ordered on an urgent basis it should be available in time for the parties to have access to it in the normal way. Before adjourning can I say this to the parties. I’ve been invited today by both advocates and indeed one witness to do all manner of things. I would remind the parties that I am acting pursuant to section 170LW of the pre-Reform Act in terms of the agreement of the parties.

PN994

I am not at large to make any finding or determination which occurs to me to be appropriate rather than I’m required to act both within jurisdiction and on the authorities in the manner which isn’t inconsistent with the terms or the parties agreement. As I understand from the NUW written submission in NUW7 there are essentially three, what I would think are relatively discreet issues although related to some degree. The first is if one goes to paragraph 17, remedy sought by the NUW the issue in dispute of the duties undertaken by Mr Oung. The second is the remuneration paid to Mr Oung. The third is an issue in respect of a warning given to Mr Oung.

PN995

In respect of each of those matters, obviously I would require jurisdiction to deal with them and then obviously if jurisdiction existed make a decision on the basis of the evidence and submissions before me, provided they were not inconsistent with the terms of the parties agreement. Can I say in respect to the issue of remuneration it is plain that there is a provision in the agreement dealing with a rate of remuneration to be paid. There is then an issue of whether there is anything in the agreement which permits a reduction and on what basis and if not we go I think to a contract. The contract between the parties and whether failure to pay in accordance with the agreement is established on the evidence which will depend in part on whether there is evidence of a variation of the contract of legal effect.

PN996

The second issue of the duties performed on its face subject to what the parties will say seem to fall within the scope of the agreement. One issue which arises and want to be addressed on is whether as to merit provisions of clause 15 of the agreement whether the company has acted in a manner inconsistent with clause 15 of the agreement. The final issue of the warning does raise an issue I’d need to be fully addressed on as to jurisdiction. The agreement in clause 14, and I understand the agreement stands alone in regard to clause 9 provides a procedure for the avoidance and resolution of disputes in relation to the agreement. That obviously raises a need for me to be satisfied that a dispute in respect of the warning is of that nature, having regard to the authorities that both parties have brought to my attention. If there is jurisdiction obviously again determination of the question within jurisdiction.

PN997

I just thought I should propose on notice that I would need to be addressed on all those matters and something the parties could perhaps reflect upon and I certainly encourage the parties to reflect on that and if there is any prospect of the parties coming together and resolving the matters between them I would very much encourage that. If not I will see you all again on 7 November and we’ll work our way through all of those and a variety of other issues, some of which might not be material at the end of the day. So I’ll now adjourn until 10 o’clock on 7 November.

<ADJOURNED UNTIL WEDNESDAY 7 NOVEMBER 2007 [4.07PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #NUW7 WRITTEN SUBMISSIONS PN124
EXHIBIT #APPP1 WRITTEN SUBMISSIONS PN124
EXHIBIT #NUW8 APPP OFFER PN128
SETHA OUNG, SWORN PN168
EXAMINATION-IN-CHIEF BY MR MAAS PN168
EXHIBIT #NUW9 WITNESS STATEMENT OF SETHA OUNG DATED 05/10/2007 PN183
EXHIBIT #NUW10 PAY SLIP FOR WEEK 05/09 TO 11/09 PN265
CROSS-EXAMINATION BY MS CLEARY PN277
RE-EXAMINATION BY MR MAAS PN438
THE WITNESS WITHDREW PN447
STEVEN HOWIE, AFFIRMED PN447
EXAMINATION-IN-CHIEF BY MR MAAS PN447
EXHIBIT #NUW11 STATEMENT OF STEVEN HOWIE DATED 05/10/2007 PN450
CROSS-EXAMINATION BY MS CLEARY PN482
RE-EXAMINATION BY MR MAAS PN538
THE WITNESS WITHDREW PN554
BRIAN JAMES LEE, SWORN PN594
EXAMINATION-IN-CHIEF BY MS CLEARY PN594
EXHIBIT #APPP2 STATEMENT OF BRIAN JAMES LEE PN600
EXHIBIT #APPP3 LETTER TO MR OUNG DATED 02/08/2007 PN619
EXHIBIT #APPP4 NOTES OF MEETING DATED 06/08/2007 PN644
CROSS-EXAMINATION BY MR MAAS PN646
RE-EXAMINATION BY MS CLEARY PN710
GORDON RONALD MACINTOSH, SWORN PN729
EXAMINATION-IN-CHIEF BY MS CLEARY PN729
EXHIBIT #APPP5 WITNESS STATEMENT OF GORDON MCINTOSH OF THREE PAGES DATED 15/09/2007 PN734
EXHIBIT #APPP6 MEETING RECORDS DATED 14/05/2006 AND 21/06/2006 PN802
EXAMINATION-IN-CHIEF BY MR MAAS PN888
THE WITNESS WITHDREW PN926
AJAY TALWAR, SWORN PN945
EXAMINATION-IN-CHIEF BY MS CLEARY PN945
EXHIBIT #APPP7 WITNESS STATEMENT OF MR AJAY TALWAR OF FOUR PARAGRAPHS DATED 15/09/2007 PN949
CROSS-EXAMINATION BY MR MAAS PN963
THE WITNESS WITHDREW PN988