C2007/3040, Transcript of Proceedings [2007] AIRCTrans 705 (21 December 2007)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 17902-1

COMMISSIONER SIMMONDS

C2007/3040

s.170LW - prereform Act - Appl’n for settlement of dispute (certified agreement)
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union-Tasmanian Branch
and
Cadbury Schweppes Pty Ltd
(C2007/3040)

HOBART

11.02AM, WEDNESDAY, 05 DECEMBER 2007

Continued from 4/12/2007

Hearing continuing

PN962

THE COMMISSIONER: Ms Taverner.

PN963

MS TAVERNER: Thank you, Commissioner.

<NIGEL COWEN, ON FORMER OATH [11.02AM]
<CROSS-EXAMINATION BY MS TAVERNER

PN964

MS TAVERNER: Mr Cowen, what is your understanding of reasonable overtime?---Of reasonable overtime? My understanding is that that varies and I know we've had discussions before around what my perception of what we might do as reasonable overtime and depending on your family circumstances an individual might view as reasonable overtime. An example would be that we have morning production meetings in one of our areas in the plant where we request that we come in 15 minutes early before the shift for a production meeting and some do and some people decline that overtime.

PN965

In terms of providing coverage over the weekends, clearly you have the capacity as management to request people to attend on overtime rates and carry out the work, you would agree?---We have the ability to request voluntary overtime.

PN966

Do you have a copy of your statement, Mr Cowen?---I do.

PN967

Turning to paragraph 13 of your statement, Mr Cowen, you say that there is no formal position descriptions for the operators nor for the employees. How do you classify your employees?---We're an old site, we've got equipment that's been there for quite some time and we have a practice that we have in place. The practice is we have known gradings for a piece of equipment. For example, a wrapper machine might be a grade 2 confectioner role so in other words, when you're trained and you can operate that piece of kit, that attracts a grade 2 pay rate. If you're not a grade 2 and you're a grade 3 confectioner, you will receive higher grade duties when you do that role. If you do that role for more than 75 per cent of your time, you'll be reclassified to do that role, so that's the current practice on site.

PN968

When a new employee starts or commences a position at the site, you would normally look at the position descriptors in the Metals Award, assuming they were carrying out maintenance. Would you agree with that?---Sorry, could you repeat that?

PN969

Assuming a new employee is commencing at the site and they're going to be employed on a predominantly maintenance function, you would, of course, look at the Metals Award position descriptions?---What we would do and I have to speak from not doing that first-hand myself, but what we would do would be look at the skills that particular tradesperson would have relevant to the classifications that we have in the EBA and make the judgment on that.

**** NIGEL COWEN XXN MS TAVERNER
PN970

Where are the classifications in the EBA? Do you know where they appear in the agreement?---We have classifications in appendix F, without having it in front of me.

PN971

Could I pass you a copy of that? Mr Cowen, can you explain with that document how someone is classified?---With respect to a confectioner or trades?

PN972

Let's look at trades. What would be the steps you would undertake?---As I think I mentioned yesterday, we would look at the role, the duties that we expected that person to perform relative to other people on site doing those jobs. We would then also take into consideration the market and we would determine a rate. An example I would use would be the plumber, for example.

PN973

So your evidence yesterday was the plumber is paid at 145 per cent, is that correct?---Yes, that's my understanding.

PN974

That is based on I assume a reasonable demand by the company for the plumber's services, is that correct?---That's true.

PN975

Would you agree, then, in terms of - I'm sorry, I withdraw that. Looking at your statement, Mr Cowen, at paragraph 23, your evidence there is that you make use of an on call roster to provide coverage for the periods over the weekend and that both these options are voluntary. Your evidence yesterday was that Mr Leek had asked for his name to be taken off that voluntary on call roster. I suggest to you that that's not the case?---Look, my understanding, my memory, and I have to go on memory on these, I've had numerous meetings with crumb plant trades where they have stated to me I don't wish to be called in, I want my name and number removed from the calling list. The option to work on call, that's being called in, so the difference there is that's to be called in. The on call roster is available to whoever would like to put their name on it and is open pretty much every weekend, so that's been running for some time and in that time, that whole time, to back up my statement is we've never had Mr Leek nor any of the crumb plant guys put their name on that, or the current crumb plant guys put their name on that list to be paid to be on call.

PN976

But it would be correct to say that Mr Leek has never been contacted, would you agree?---Maybe never been contacted, not tried to be contacted would be incorrect.

**** NIGEL COWEN XXN MS TAVERNER
PN977

Did you make those calls or who made those calls?---My team leaders make those calls and in the past I've made calls myself, but to go back to particular circumstances where I've done that, I've had the security gate at work give me the phone numbers at home and tried to call people from my home.

PN978

In paragraph 30 of your statement, Mr Cowen, you talk about the estimated cost in terms of production if there's some sort of shutdown. Is that an emergency shutdown or what are you talking about in that paragraph?---What I'm talking about in that paragraph is a shutdown of the plant, so what that would mean was there is a particular breakdown that stops the plant from operating for a 10-hour period and I use 10 hours and a shutdown just as a way of putting some factual numbers around it.

PN979

But that wouldn't happen very often, would it, an emergency shutdown?---In a bit over two years as the manufacturing manager, that's happened on at least three occasions that I can recall without going into detail.

PN980

Three times over a two year period?---That I can recall.

PN981

I presume if there's a shutdown, that would be fairly prominent in your memory?
---Reasonably, depending on the time of year, but reasonably.

PN982

Clearly your evidence is that there is a cost implication for the company in terms of these shutdowns?---Yes.

PN983

So as the acting operations manager, you would be responsible, wouldn't you, for knowing when these shutdowns are occurring?---Yes.

PN984

So are we right to accept your evidence, then, it's three times over a two year period?---I would say if you want me to give you an accurate - whether it's three, four - three to five, I'd have to go back because to be honest, my days are quite busy and a two year time period, I may forget some of the instances we're had.

PN985

The shutdown presumably didn't occur for eight hours on each occasion?---That can vary, so sometimes they will be longer and sometimes they would be shorter.

PN986

THE COMMISSIONER: Do these shutdowns occur on the weekends?---Yes, and even - - -

**** NIGEL COWEN XXN MS TAVERNER
PN987

The ones you recall?---Yes.

PN988

When there were no fitters available?---Yes.

PN989

MS TAVERNER: But isn't it the case, Mr Cowen, that if there is a shutdown, you would call in fitters from other parts of the plant?---If they're there and available to be called in.

PN990

But there would normally be fitters on site?---Not in that 24-hour period. The longest roster we run on site for a mechanical tradesperson is a six-day roster.

PN991

So the problem period is from 7 o'clock Saturday evening to 7 o'clock Sunday evening?---That 24-hour period from 6.30 Saturday evening through to 6.30 pm Sunday.

PN992

And most maintenance employees would prefer to spend time with their families than come in to work?---I wouldn't know, but that's an assumption you could make.

PN993

These people have lives and families and commitments?---Yes.

PN994

THE COMMISSIONER: Perhaps they want to get another job. I mean, it's not unusual in my experience that people take a job where there is a requirement to work call-out. Now, this company doesn't have that, it would appear that this company doesn't have that requirement, but it seems to be inherent in your submission that people have a right not to be involved in call-out. They'd better not work in hospitals.

PN995

MS TAVERNER: No, we're not suggesting that, Commissioner.

PN996

THE COMMISSIONER: That was the clear suggestion, that because someone didn't want to come, they needn't come. Now, that may be the approach this company takes and that's fine, but if it's a condition of employment and people accept that condition of employment, then that's the end of the matter, surely.

PN997

MS TAVERNER: I think there's a distinction, Commissioner, between actually being on call in which circumstances the person would be obliged to attend, to actually having a call in which is circumstances I believe Mr Cowen testified to yesterday where people from the company just ring around various trades qualified people - - -

**** NIGEL COWEN XXN MS TAVERNER
PN998

THE COMMISSIONER: If you look at paragraph 27 and 28, there is a call in roster and people are paid single time while they're on that call in roster and there's only two people prepared to do it.

PN999

MS TAVERNER: Because they make themselves available.

PN1000

THE COMMISSIONER: Whatever they do, they're not going to any longer. That's his evidence.

PN1001

MS TAVERNER: It appears to be - well, perhaps if I put it to the witness, Commissioner.

PN1002

It is correct, isn't it, Mr Cowen, that there is a requirement for employees to be on call?---It's voluntary in our agreement, on call is voluntary, so we can put the request for it to be filled and to be honest, I've been lucky. I've had two guys doing this for quite some time and I take your point that they've got families, too, and they've got family commitments and obviously they get tiresome of doing that coverage for us, so over the last few weeks and on and off since we've been running that on call, there's periods where that does not get covered because those guys have basically done their share and are fed up with it, basically.

PN1003

THE COMMISSIONER: At paragraph 28 - well, sorry, I need to be clear about this. Paragraph 28 says there is a call in roster and they're paid single time while they're on that roster?---Yes.

PN1004

Is that the situation, but it's still voluntary?---It's voluntary, so basically we say these are the hours we'd like to get covered. Sometimes, Commissioner, we only get 12 of the 24 hours. I'll take what I can get. Sometimes I'll get 12 of the 24 hours covered. From my personal experience as a tradesman myself and working in other companies, usually the moral obligation of rectifying a problem, you're there or you know that the business is in trouble, you usually don't have too much trouble getting people to come in. Unfortunately, our culture doesn't support that at the minute.

PN1005

If I understand it correctly, you've got a call in roster, but to be on the roster is voluntary and if you go on the roster, you get paid single time rates while you're on the roster and if you're called out, you get paid at whatever you get paid at?
---Yes, that's right.

**** NIGEL COWEN XXN MS TAVERNER
PN1006

At overtime rates presumably and probably with a minimum three or four hours?
---That's correct.

PN1007

If a job finishes in less than three or four hours, you go home?---Yes, and you're in pocket, yes.

PN1008

MS TAVERNER: And, Mr Cowen, it's also correct, though, isn't it, that in those circumstances where whoever is on call is available, the company would then commence its ring-around?---That's true.

PN1009

In those circumstances, you would be ringing maintenance employees to discuss with them can you please come in, we have an emergency, are you available, words to that effect?---Yes.

PN1010

THE COMMISSIONER: Your evidence is that they haven't come?---We don't get supported very well.

PN1011

You have to bring in outside contractors?---I've gone in personally and have done some trade work and we rely on - I think in my statement I talk about we rely on a mechanical engineer who comes in quite a bit and because of his commitment, we've been lucky to get away with this for as long as we have.

PN1012

How many fitters have you got?---In my area - - -

PN1013

In the factory. You say you use them across areas, don't you, to call in for emergency purposes?---Yes, I could be inaccurate here, but you'd be looking somewhere close to 50 or 60.

PN1014

And they can't share the on call around amongst them? Yes, okay.

PN1015

MS TAVERNER: If I can have a look at your figures in your statement, Mr Cowen, and just bear with me while I find the paragraph, paragraph 30. Correct me if I am wrong, but your evidence is a 10-hour shutdown of the crumb plant results in a loss of production. Crumb has a value of $1912.74 per tonne and therefore 41 tonnes has the value of 78,422 and it can also lead to the company having to sell off milk from the Burnie site. Those circumstances would only take place when there is an entire shutdown for a 10-hour period?---That's true.

PN1016

That's correct?---That's true.

**** NIGEL COWEN XXN MS TAVERNER
PN1017

So there would clearly be the capacity to recoup some losses in circumstances where you say there is only a two-hour shutdown?---It's quite simple. It can work as a direct percentage, so you shut half the plant down, obviously the loss is going to be half, a quarter, it's going to be a quarter. If that happens when stocks are full, any down time will start to impact on what we can receive, so, yes, if half the plant was down for the 10 hours, it would be fair to assume that that would be half.

PN1018

In terms of paying overtime to maintenance employees, accept these figures if you may from me, let's assume that a maintenance employee is on $30 an hour, if that person is coming in on a Sunday, I'm assuming there would be double time payable so that would make - the $30 an hour would become $60 an hour. If that person then works an eight-hour shift attending to an emergency breakdown, that would give them a payment of $480. You accept that? For the purposes of the argument, if you could just accept that?---Yes.

PN1019

Then assuming, of course, that maintenance employees would have to come in 52 weekends a year, that gives us a figure of $24,960 in overtime.

PN1020

THE COMMISSIONER: But they won't come?---Yes, exactly.

PN1021

The assumption is based on a faulty premise.

PN1022

MS TAVERNER: If I could address this to the witness, Commissioner, with respect, and perhaps it may help clarify.

PN1023

THE COMMISSIONER: It's not clarifying anything for me, because if the people are not coming in, because the only way they can come in on overtime is on call and if they can't get them to come, then it's totally a hypothetical question. It leads nowhere.

PN1024

MS TAVERNER: Can I just confirm something?

PN1025

THE COMMISSIONER: Yes.

PN1026

MS TAVERNER: Thank you for that indulgence, Commissioner.

PN1027

Mr Cowen, would it be correct to say that AMWU members proposed an arrangement whereby they would provide the coverage over the weekends provided they were paid the appropriate overtime rates?---It would be fair to say that one of the proposals put was a six-day roster and a promise, if you like, without a written down names on a call-in roster, a promise to cover the other 24 hours, so you can understand my reluctance to accept that on face value with my current experience.

**** NIGEL COWEN XXN MS TAVERNER
PN1028

THE COMMISSIONER: I am not sure I can. Perhaps you can explain it?
---Well, at the moment there's the ability and to take on your earlier point, a cost effective way for me to have coverage would be if there was one person on call for 24 hours 12 months a year, paid single time, 50, 60,000 bucks, one of the offers that went through for coverage was a six-day roster. Now, the six-day roster wasn't offered on the day where I - starting or finishing on the day where I haven't got people at the moment, so it left that 24-hour period still vacant with a promise without a guaranteed here is who is on call this weekend, next weekend type scenario that they would respond to calls and that was the undertaking that they gave me. There's two issues with that. One is the six-day roster is more expensive to run and second is I still didn't get a guarantee that I would have that ongoing coverage.

PN1029

MS TAVERNER: But you had the promise. Was that not sufficient?
---Remember what I said is there's two aspects of that offer. One is it's more expensive and didn't give me the coverage on the Sunday for the want of a better - that 24-hour period and the second part of that is there was no guarantee. It was a promise, but not here's the roster for on call that we'll cover.

PN1030

THE COMMISSIONER: But if you got that roster for on call, would that have been acceptable, in other words the cost of rostering over the six days?---That is prohibitive, yes.

PN1031

MS TAVERNER: Mr Cowen, are you familiar with - I am sorry, just bear with me. Mr Cowen, are you familiar with the manufacturing consultative committee on site?---Yes.

PN1032

You are intimately involved I assume in its operations?---Not intimately.

PN1033

But you're certainly aware of its operations, its meetings, what's going on in terms of the matters it's discussing?---My involvement with the MCC was to put a pilot of a transfer of some skills through.

PN1034

The MCC process effectively would allow you, wouldn't it, to make the sort of changes that you're proposing?---My understanding of what the MCC process is about is the transfer of minor tasks and skills - minor skills is probably the better way to non-trades employees from trades employees, so the example I think with the DPN twist wrappers that we spoke about, that's if my memory is correct from yesterday, was around the transfer of - changing out of a rubber jaw basically, so it was a transfer of those minor and incidental skills.

**** NIGEL COWEN XXN MS TAVERNER
PN1035

Mr Cowen, the agreement at clause 27 provides that a key component of the agreement is the commitment of all parties to move its current maintenance workforce to a greater proportion of preventative maintenance, you would agree?
---Yes.

PN1036

And that was the evidence you gave yesterday, that you are in fact trying to establish a more proactive, forward thinking maintenance agenda, rather than being predominantly reactive, so in that situation, why didn't the company use clause 27 to propose this idea to consult with its employees, to consult with the union, to consult with the union representatives who comprise that committee?
---My understanding of this is that we are employing someone or wish to employ someone that has that skill and has that trade qualification, so it's not about trying to transfer a skill from a maintainer or from a fitter to a non-tradesperson. It's about employing a tradesperson that has those skills available and using those skills and hence that's why I thought or my understanding is that's why it is different from the MCC.

PN1037

Certainly the company has internally advertised the position, you would agree?
---True.

PN1038

So at some stage this year, there has been contemplation by the company of internally recruiting someone to the position?---We have as in most factories people that for some reason or other decided that they wanted a change in their trade and take on other roles, for whatever reason they might have and what that did was gave them the opportunity to reassess that if they wanted to and pick up their trade again.

PN1039

If an internal fitter decided that they wanted to pursue this role, then clearly their skills would be transferred from their fitting duties and other maintenance duties to the operating duties. That's a clear transfer of skill, you agree?---No, what we would be saying is we would have someone that's qualified in that position and in the position to be able to use those skills.

PN1040

But if you've internally advertised the position, Mr Cowen, you must have been hoping that someone internal would apply for the position?---I can explain my logic behind - well, for a start, we always advertise internally, because it gives our employees the opportunity. The other thing, my logic around that, was I had guys that were asking and in previous times where we've talked about ways and options of shifts, I've always talked about six and seven-day rosters. This was an opportunity for my trades guys if they were interested to pick up a 12-hour shift position, increase their income by 20 or $30,000 and obviously gives them an opportunity to pick up that 12-hour roster they seem keen to pursue.

**** NIGEL COWEN XXN MS TAVERNER
PN1041

But, Mr Cowen, clause 27 says that changes in terms of this focus from reactive maintenance to proactive maintenance, that these changes will allow operators with greater flexibility in running their machines and reducing the reliance on the fitters in the general operation and change-over of their machines.

PN1042

MR GARDNER: Just put to the witness what you actually - it's not fair to - - -

PN1043

MS TAVERNER: Mr Cowen, do you have a copy of the document in front of you?---Sorry, what point was that?

PN1044

It's clause 27. I am sorry, I had thought Mr Cowen was familiar with it?---I was listening intently without going to the clause.

PN1045

Perhaps if you can open it at clause 27 and read that first paragraph?---On the very first page? Do I need to read this out?

PN1046

No, no, just read it to yourself. It's correct, isn't it, Mr Cowen, that the manufacturing consultative committee is established to assist the company in its agenda, that is the agenda from reactive to proactive maintenance?---I can give you an understanding or I can give you my view on what that means to me.

PN1047

Mr Cowen, I suggest to you that the purpose of clause 27 is a process whereby the company when it wants to introduce the sorts of changes that you have proposed this year is able to follow the process?---It's not the same.

PN1048

I suggest to you that it is?---We differ of opinion.

PN1049

Clearly requiring a fitter or a trades qualified person to carry out condensory operations requires a transfer of skill, do you agree?---It requires the utilisation of a skill that will be possessed.

PN1050

It requires two skills, really, doesn't it? Those two skills are a trade skill and also operating skills?---They would be predominantly using operational skills and employ their trade skills when we have breakdowns.

PN1051

But in order to conduct that breakdown, they would need to have proper accredited, up to date training in terms of their skills base?---As a tradesman?

PN1052

Yes?---As a tradesman and I can speak as a tradesman, I would need limited training to be able to do maintenance on that plant.

**** NIGEL COWEN XXN MS TAVERNER
PN1053

So you're suggesting that the maintenance functions that need to be done at the site are fairly basic?---I'm suggesting that as a tradesman, you come with a set of skills that allow you to work on equipment to maintain it.

PN1054

Certainly, and then to require a person who holds those skills to then also carry out the operating functions, a position that Mr Santi holds, requires twice as much skill, you agree?---It requires another skill.

PN1055

So you would agree it requires two subsets of skills?---It requires training to know how to operate the plant.

PN1056

Certainly, so we have our mechanical fitting trade and then we also have our operating experience in a crumb plant if preferable, but otherwise just operating experience?---I'm not denying that the person didn't know how to operate the plant and will have trade skills to be able to make repairs on the plant if it breaks down.

PN1057

Those repairs are significant repairs, you would agree?---They don't need to be significant repairs. Sometimes they can be quite simple repairs from a trades point of view.

PN1058

But that's the nature of maintenance, isn't it, Mr Cowen? Often we don't know how complicated or complex a procedure will be until it's investigated?---A failure in itself can be rectified. There is a degree of fault finding that's required to know what caused that failure. I would suggest that someone that knows how the plant operates and has the trade skills is going to be in a pretty good position to know what the root cause was.

PN1059

But again my question is the nature of maintenance is that often the diagnosis of the problem, the thinking processes in terms of how to resolve the problem and then actually carrying that function out is a changeable item?---There's basic steps you follow in root cause analysis as a tradesperson. Those basic steps don't change. The equipment will, but the basic steps of ask yourself why five times usually suffices in a lot of failure modes.

PN1060

But my question is, Mr Cowen, that it's all very well to estimate how much maintenance time might be involved, but obviously there are deviations?---If you look at the up time of the plant at 96 per cent, that will give you an indication of the down time. I am sorry, I don't understand your point.

**** NIGEL COWEN XXN MS TAVERNER
PN1061

What I was going to say is that, well, I put it to you that the nature of maintenance is such that it's impossible to just assume that a problem is going to take two hours to fix and to be quite certain and confident that it will only take two hours.

PN1062

MR GARDNER: The question is so open, the nature of maintenance is such that it's impossible to assume. In what context are we talking about? Is that a fair question?

PN1063

MS TAVERNER: Commissioner, I will rephrase the question to make it a little bit easier for Mr Cowen to understand, but it certainly is relevant because Mr Cowen's evidence is - - -

PN1064

THE COMMISSIONER: The objection wasn't relevance. The objection was the unfairness of the question.

PN1065

MS TAVERNER: I will rephrase the question. Mr Cowen, you accept that maintenance tasks vary?---Yes.

PN1066

There are big tasks and there are small tasks?---Yes.

PN1067

You would accept that whilst investigating a maintenance deficiency or default, you may come across another problem that needs to be rectified?---Yes.

PN1068

Hence the time spent on maintenance is going to increase?---It's not going to increase as a result of that. That will be the time that you spend doing that repair. For example, you can go to a job and you can look at it and say, look, I've got to undo four bolts in this flange, take the pipe out. One of the bolts could be seized and you can't get it undone and you could spend twice as long as you estimated trying to get that one bolt out. That can happen, yes. I don't know if that's what you're trying to get to.

PN1069

The question is the nature of maintenance work changes. We can have short jobs, we can have long jobs and these will vary depending on the nature of the problem?---Yes.

PN1070

It's like putting your car in to get it serviced. The mechanic may come back and say I've discovered a whole lot of problems that I also need to fix. This will take me so much amount of time. That is the nature of maintenance, you agree?
---That's true.

**** NIGEL COWEN XXN MS TAVERNER
PN1071

Thank you?---If I could clarify that, if you don't mind. Some of those things will need to be - some may be things that need to be rectified straight away. Others are things that can be put on the back of maintenance that can be done in a plant way, so there are maintenance issues that you can run with that can be later - you can plan to take the plant down and make those repairs. The important thing is you capture them.

PN1072

Mr Cowen, were you present at a meeting on 7 August this year when Mr Davies said that the MCC process in the EBA was an unnecessary handbrake on the process?---Look, I don't know if I was in a meeting on 7 August. I don't know if it's in my - - -

PN1073

Do you recall that meeting at all, or you're not certain?---I'm not certain.

PN1074

Do you have a diary you can check now?---I would have a diary. Whether I've recorded all my meetings in it or not, it would be debatable. My honest answer is I am not sure.

PN1075

Do you have a recollection of Mr Davies saying that the MCC process in the EBA is an unnecessary handbrake on process?---I can't recall me being able to quite him in saying that.

PN1076

I suggest to you, Mr Cowen, that Mr Davies did in fact say that. Would they also be your views in relation to the MCC process?---My view of the MCC process is that it's there to transfer minor tasks to operations.

PN1077

Do you see it as an unnecessary handbrake on process?---I can see that the MCC is there, my understanding of the MCC is that it's there only to discuss matters that we can't resolve ourselves within the group and I've got examples where we've resolved in our group without going through the MCC. The MCC does take and my honest answer is it takes a long time to go through the MCC and the MCC hasn't met for quite a considerable amount of time.

PN1078

But there's a reason why the MCC hasn't met, isn't there?---I would imagine so.

PN1079

Are you aware of the reason why it hasn't met?---This is again my understanding is that the MCC hasn't met because the union have a matter around relativities in our structure so - - -

**** NIGEL COWEN XXN MS TAVERNER
PN1080

So the union had asked for the implementation of competency standards and for a proper assessment of skills?---Yes, and until that was done, they weren't prepared to meet with the MCC.

PN1081

Is it correct to say that the company around about the middle of this year
agreed - - -

PN1082

THE COMMISSIONER: Sorry, I don't understand that answer. Clause 27.1(b) says:

PN1083

The MCC shall meet at intervals of four weeks or as otherwise agreed between the parties.

PN1084

Why isn't it meeting? People are breaching the agreement, are they?---I haven't got an answer that I can give you apart from the answer that I've given, Commissioner, sorry.

PN1085

So it would appear that the answer you've given that the union refuses to carry out the terms of the agreement?---My understanding is they've removed their support for that until that other - - -

PN1086

I see, so this agreement is optional, is it, from the union's point of view?

PN1087

MS TAVERNER: No, that is not the suggestion, Commissioner.

PN1088

THE COMMISSIONER: Well, then are you agreeing with the answer? Is that the union's position?

PN1089

MS TAVERNER: Our position is that - - -

PN1090

THE COMMISSIONER: Are you agreeing with the answer that's been given that the reason the MCC hasn't met is because the union refuses to meet unless there is a commitment to carry out competency assessments?

PN1091

MS TAVERNER: I will just get instructions on that, Commissioner.

PN1092

THE COMMISSIONER: Could you?

PN1093

MS TAVERNER: No, Commissioner, that's not correct. We don't agree. There has been meetings in July.

**** NIGEL COWEN XXN MS TAVERNER
PN1094

THE COMMISSIONER: Has there been an agreement that it not meet? It's a simple question.

PN1095

MS TAVERNER: No.

PN1096

THE COMMISSIONER: So why hasn't it met from the union's point of view? The agreement is quite clear.

PN1097

MS TAVERNER: Thank you, Commissioner. I am sorry to delay you. The position is such that in late 2006 there were meetings pursuant to clause 27, that earlier this year it formed part of the discussions in relation to the operator/maintainer position and that the discussions at the beginning of this year revolved around and formed part of the agreement to finalise the competency standards and the implementation of those on site and further meetings were held and the company, my understanding is and Mr Cowen will be able to confirm or deny this, the company agreed to implement the competency standards and accordingly the MCC process was resumed?---To answer your question, no, we're not meeting every four weeks.

PN1098

THE COMMISSIONER: And there seems to be a dispute about the reason for that. Your evidence is that the reason for that is because the union refuses to meet until such time as competency assessments are carried out?---Correct.

PN1099

That is your evidence.

PN1100

MS TAVERNER: If I can just show you this document, Mr Cowen?---I don't think that says anything different from what I've stated.

PN1101

But can you read out point 5?---

PN1102

Discussions have occurred with the company regarding the MCC process. The company have provided a commitment to finalise the metal industry competency standard implementation with the fitters if the MCC process is recommenced.

PN1103

And the sentence underneath that?---

PN1104

Members are encouraged to become involved in this process.

**** NIGEL COWEN XXN MS TAVERNER
PN1105

I would suggest that that reinforces my point.

PN1106

And the date of that document is 17 August this year?---Yes.

PN1107

So clearly the AMWU has been keen to resume the MCC process?

PN1108

THE COMMISSIONER: It should never have been stopped?---That's a long time between drinks.

PN1109

It seems to me that from that, what has just been read out, the implication is very clear that the AMWU withdrew its support for the requirements of the agreement, to use it as a lever to get something else to happen.

PN1110

MS TAVERNER: No, Commissioner, that is - - -

PN1111

THE COMMISSIONER: You have just asked him to read something out and that's the clear implication of it.

PN1112

MS TAVERNER: But the context in which that evidence - - -

PN1113

THE COMMISSIONER: The context in which it occurred must be clause 27.1(b) of the agreement which requires the parties to meet at least every four weeks or as agreed.

PN1114

MS TAVERNER: Ms Urquhart, Commissioner, did agree to meet with Mr Owen Davies in December of 2006 and again in February of 2007 and the meeting actually took place in August.

PN1115

THE COMMISSIONER: That is not four weeks.

PN1116

MS TAVERNER: Clearly the AMWU has been in a position where it's been - - -

PN1117

THE COMMISSIONER: If it last met in August and it's now December, we have had 12 weeks at least go past without a meeting.

PN1118

MS TAVERNER: There was no meeting in August, Commissioner.

PN1119

THE COMMISSIONER: There wasn't a meeting in August? When was the last meeting of the MCC, someone tell me? Anyone know?

**** NIGEL COWEN XXN MS TAVERNER
PN1120

MR GARDNER: It would be last year.

PN1121

THE COMMISSIONER: It sounds to me like and I am putting this to you fairly and squarely, Ms Taverner, that the AMWU has started to want to pick the eyes out of this agreement. It uses this agreement and the 170LW process because it sees some advantage, but when the agreement requires it to do something, it doesn't do it.

PN1122

MS TAVERNER: But, Commissioner, our position is the AMWU has always been available and amenable to meetings subject to the company's agreement. We wouldn't walk away from our own agreement.

PN1123

THE COMMISSIONER: I am going to need some evidence of that because at the moment the evidence that's before me is that the reason that the MCC hasn't met is because the AMWU refused to meet until such time as the company accepted the competency standard assessment. That's the evidence.

PN1124

MS TAVERNER: Perhaps if I put it to Mr Cowen. Mr Cowen, you would agree, wouldn't you, that it's a requirement under the Metals Award for you to implement competency standards?---Honestly, I don't know.

PN1125

You don't know?---No.

PN1126

Okay. Well, what is the company's position in relation to the implementation of the competency standards?

PN1127

THE COMMISSIONER: Can I put it to you that it isn't a requirement under the Metals Award that they implement competency standards? It's only where someone's classification is in dispute that there is a requirement to do it. You've got to be fair about the questions you put to people.

PN1128

MS TAVERNER: If we look at Mr Weir and his evidence from yesterday, Mr Cowen, he was provided with a letter and I will just locate that, around about July of this year. I will just find that letter for you. That is exhibit G2. If I could show you this. That is a letter confirming that Mr Weir will be paid 97.5 per cent as a result of him taking on the lubrication role, do you agree?---Taking on the preventative maintenance specialist job.

PN1129

That is his job title. What was he actually doing? He was doing additional lubrication duties, do you agree?---It's listed there what we want him to do under preventative maintenance specialist, so we're saying the role of preventative maintenance specialist entails these things and this is the agreed pay rate.

**** NIGEL COWEN XXN MS TAVERNER
PN1130

But essentially what he was doing was lubrication duties because one of the greasers had left and so he was required to take up those duties, do you agree?
---To be honest, why Mark in particular and someone leave, I probably don't have visibility of that from a site point of view, but I just restate what I said. What we're saying is the job of preventative maintenance specialist includes these points and that's the pay.

PN1131

Did that letter come about because of these proceedings, Mr Cowen?---These proceedings?

PN1132

The discussions on site in relation to the proposal for operator/maintainer?---No.

PN1133

Why was it suddenly formalised that that's what Mr Weir would be doing?---If you look at our - we're not backward in saying that we want to move to a preventative and predictive, a proactive maintenance - too many buzz words in that sentence, but we wanted to move to a proactive maintenance rather than reactive maintenance. Part of that move is preventative maintenance specialist and those roles help us, those tasks help us move that way, so regardless of whether we entertain - regardless of whether we were sitting here today or not, that preventative maintenance specialist role would still need to be created.

PN1134

Mr Cowen, Ms O'Meara has been involved in this dispute, hasn't she?---She is one of our HR support people.

PN1135

So she's been involved in providing advisory services in relation to the dispute, you would agree?---We use Camilla's services as a HR support person on site for numerous things.

PN1136

THE COMMISSIONER: Just try and answer the question?---Yes.

PN1137

MS TAVERNER: Is there a reason why she hasn't given a statement in these proceedings that you're aware of?---Not that I am aware of.

PN1138

My suggestion is she has been involved largely throughout this year in relation to this issue. I am just curious as to why she has no statement. Presumably she has something to share, some light to share in relation to the issues?---I have been fairly close to this right from inception, so I would imagine, I know most things around the operator/maintainer and the dispute we're in at the moment.

**** NIGEL COWEN XXN MS TAVERNER
PN1139

Mr Cowen, doing back to your statement, paragraph 48, page 8, you talk there about there being a body of custom and practice which has arisen which helps to dictate the proper classifications and relativities:

PN1140

Beyond this, there are no formal classification processes, although this is a matter we intend to address.

PN1141

I suggest to you again, Mr Cowen, that when it comes to properly classifying employees, you would use the Metals Award, would you not?---I think I've explained before, I don't know whether I would use the Metals Award. All I can do is explain to you the process that we use and whether it falls that way or not, I can just explain the process. My answer is I don't know. I use the process that I've explained to you. Whether that relates to the Metals Award or not, I'm not sure.

PN1142

Are you familiar with the Metals Award?---Not particularly. It's not something that I've read and consumed.

PN1143

So it's correct to say that when it comes to making decisions about classification of employees, you look at the role the company needs done and what the market is paying and appendix F?---And how that fits relative to other positions or like positions that we have.

PN1144

How does the plumber get 145 per cent, then, in terms of those relativities?---As I said before and as you've just stated, there are other drivers to entice people to come and work and that is the rate or that is the percentage that enabled us to fill that position.

PN1145

Is that person on an AWA?---No.

PN1146

Are they employed on a common law contract?---Not that I am aware of.

PN1147

They're employed under the terms of the EBA, is that correct?---As far as I am aware, yes.

PN1148

Just so I can be clear in my mind and we can move on from this issue, when it comes to classification, you consider appendix F, you consider the role or the function that you need the company to perform and you consider the market rate?
---Yes.

**** NIGEL COWEN XXN MS TAVERNER
PN1149

You don't look at or consider the Confectioners Award or the Metals Award, correct?

PN1150

MR GARDNER: I think he has answered the question.

PN1151

MS TAVERNER: I won't pursue it. I will move on from that, Commissioner.

PN1152

THE COMMISSIONER: You wouldn't consider either of those awards for a plumber, anyhow, would you?---No.

PN1153

MS TAVERNER: But in terms of general classification?---If you're asking me to pull out the award and go through it, no, I don't.

PN1154

You don't? He's clearly not familiar with the Metals Award.

PN1155

MR GARDNER: That's right.

PN1156

MS TAVERNER: In terms of when you talk about this notion of there being a custom and practice, what is that custom and practice?---I make the point that we're talking about operators and classification for operators, operating pieces of equipment when I talk about that custom and practice, so as I've said before, it's widely known on site that this particular equipment is a grade 2 operator. This one might be a grade 1 operator. If you're trained and competent and working on that piece of equipment, you will be paid at that grade. If you're working at that grade at more than 75 per cent of your time, you will be reclassified to that level.

PN1157

THE COMMISSIONER: Where are the people who work in the crumb plant classified?---They're under the condensory operator.

PN1158

So there is only one classification for a condensory operator?---Yes, that's correct. Because all the roles, Commissioner, they rotate through all those roles, so if you're an operator in the crumb plant, you do all the tasks and hence there's - - -

PN1159

Where is the team leader? That's not the name?---A working leader.

PN1160

Where is he classified?---That's a percentage rate in F above the - - -

PN1161

Can you tell us what that percentage rate is?---Not off the top of my head, I'm sorry. I'm not sure if it's 110. Without going and checking, I think it's around the 110.

**** NIGEL COWEN XXN MS TAVERNER
PN1162

So the condensory operator falls between 87.5 and 90 per cent?---Yes.

PN1163

And then one of them is up at 110?---Yes, because of the accountabilities of being a team leader, yes.

PN1164

I understand.

PN1165

MS TAVERNER: Mr Cowen, when did you commence working for Cadbury, what year?---I've been at Cadbury five years.

PN1166

So you weren't involved in negotiations for the agreement before this current one?
---No.

PN1167

In relation to the operator positions in the crumb plant, you would agree, wouldn't you, that clearly there is an advantage if you were to hold a trade qualification?
---Advantage? I'm sorry, I don't understand.

PN1168

In terms of your operator/maintainer position, it is your position, isn't it, that an applicant would be more qualified if they held a trade ticket?---For the operator/maintainer position, we are looking at a trades fitter and turner, fitter and machinist qualification.

PN1169

So the company would view more favourably someone with a trade qualification?
---I'm saying for the operator/maintainer, we would want the trades certificate.

PN1170

MR GARDNER: In respect of what?

PN1171

MS TAVERNER: The company would view an applicant for the operator/maintainer position more favourably than, if they hold a trade qualification, than someone who is also applying for that job, but doesn't hold a trade qualification.

PN1172

THE COMMISSIONER: I think it's a condition of - - -?---It is, it's one of the criteria.

PN1173

You can't get the job unless you are a fitter?---That's correct.

PN1174

That was your evidence a minute ago?---That's correct, yes.

**** NIGEL COWEN XXN MS TAVERNER
PN1175

MS TAVERNER: But clearly you would accept applications for people for the position of operator/maintainer where they don't have a trade qualification?
---Internally, last time we spoke to some of the people that applied that didn't have trade certificates, to give them an opportunity for us to speak to them, also talk to them about if they were interested in trades as a career, we have in the past had adult apprenticeships and that type of stuff where they've taken a vocational course and have moved into the trades line, so we took that opportunity, so basically I sat down and spoke with the guys that even though they didn't meet the criteria, I still took the opportunity to sit down and speak to them and explain some other options that were available to them.

PN1176

When you say they didn't meet the criteria, do you mean that there's no future for them at Cadbury?---No, what I am saying is they didn't have a trade certificate for the operator/maintainer role which was one of the criteria that we had in the ads.

PN1177

But it's not the sole requirement, is it, clearly? I mean, in terms of internal applicants, your evidence is that you would consider applications for the operator/maintainer position from people who don't have trade qualifications?
---No.

PN1178

I thought your evidence earlier was for internal applicants, you would accept applications from people with no trade qualifications, so which one is it?---What I said was they didn't meet the criteria, but we still took the opportunity to speak with them, because they're our employees, so rather than just send them a letter saying, sorry, you don't meet the criteria, we sat down with them and said, look, we're really after someone with a trade certificate, this is why we want the trade certificate, if you're interested in trades, here's some options that you can actually take on board yourself.

PN1179

But wasn't your evidence yesterday that the best technicians often don't make the best leaders?---Yes.

PN1180

So why wouldn't you consider people who come from a non-trade background, but have the competency to carry out the operating work?---For the operator/maintainer role, the criteria is we want a mechanical tradesperson certificate qualification.

PN1181

To do maintenance for 10 to 20 per cent of the time?---Yes.

**** NIGEL COWEN XXN MS TAVERNER
PN1182

Have you prepared any costings in relation to your proposals in terms of why the proposals that were put by the union were refused? Do you have any evidence of - - -?---I have looked at costings as you would expect if you're a man driven area, you look at your costings for proposals.

PN1183

But you weren't prepared to discuss or release those costings to the union so that we could analyse those?---That's not correct.

PN1184

I suggest to you that it is correct?---No, it's not.

PN1185

That there were issues of privacy and confidentiality so the company claimed and accordingly they wouldn't release the information?---I put together a spreadsheet which I gave to the union. I also explained - if I can just explain what I explained around costings to trades groups in numerous meetings that we had. If you have - I will call them off-line maintenance guys, if you have maintenance guys and you move to a six-day roster or a 12-hour seven day roster, that has costs associated with it. The only extra cost on the operator/maintainer position is the difference between the extra money you pay to have that qualification on shift, so basically what you say is here's my costs for that person, minus the cost I already have for the operator, so no matter how you do the numbers, the operator/maintainer will always come out cost favourable.

PN1186

The union provided an example to you, didn't they, of the sort of information they were after so that we could properly assess the costing projections that you had made?---I provided what I thought I needed to provide to explain the numbers and I also verbally explained the numbers in the meetings, so my opinion is I've given enough information.

PN1187

But in a consultative sort of arrangement, you weren't prepared to divulge further information?---I derived the numbers from going back into first of all pays and hence why the spreadsheet that I gave is just numbers because I got 2006 pays for guys on the seven-day rosters for our guys in the trades and took averages and I put that into a spreadsheet to give me some calculations.

PN1188

But why didn't you provide it to the union so that we could analyse it?---I gave that extract to the union and the point that I keep coming back to is the only extra cost you have for an operator/maintainer is we've got this guy that we're proposing to pay at the trade rate, you minus off what you pay an operator and the difference is your extra cost and that's always more cost effective than moving to the six and seven-day rosters which was demonstrated in the spreadsheet that I think I emailed.

**** NIGEL COWEN XXN MS TAVERNER
PN1189

In the crumb plant, if there is a minor breakdown and one of the operator/maintainers has to attend to that hypothetically, where are you going to get the relief operator from?---We will carry relief operators in our chocolate making area. We will carry relief operators within the department as we do now.

PN1190

Those relief people are always available?---Not always.

PN1191

So there will possibly be circumstances where an operator/maintainer is attending to a maintenance function thus leaving three operators to do the work of four people?---No. We will use exactly the same criteria as what we would use now if there was a night shift and one of the operators was sick and we couldn't get coverage and we had a relief operator in chocolate making, we make a call about what we do or what we turn off, so under no circumstances do I expect anyone to try and do the work of two men or two employees and I am more than happy for us to make a judged priority call on what goes and what doesn't.

PN1192

But you do expect a person to do two jobs because you're expecting them to do operating duties and you're expecting them to do maintenance duties?---Not at the same time.

PN1193

But there is an expectation that a person will be operating and they also have their eyes open in terms of any maintenance deficiency surely?---Yes.

PN1194

A person doesn't take off their maintenance hat and put their operating hat on surely. They're required to do the two jobs at once?---No, they're not required to do two physical tasks at once.

PN1195

They're required to open those heavy ovens, open those batch mixers in that heated, confined environment that's elevated that we saw the other day in an environment where the floor is not rubber, it's very easy to trip over and yet they're also expected to keep their eyes open for maintenance deficiencies and attend to that.

PN1196

THE COMMISSIONER: Only on Sundays?---That's correct.

PN1197

MS TAVERNER: And when people are sick?---I would imagine that if any one of our operators heard a funny noise from a piece of equipment while they were opening up the oven door, they would want to address that and follow that up. The trades guy is in a position where he will have the ability to see things that mightn't be correct. He's then got options, where he can make a call about whether he then rectifies those and we don't operate some of the plant, we rectify those, get a relief operator in or it's not that critical. We capture that and we make repairs in a planned fashion.

**** NIGEL COWEN XXN MS TAVERNER
PN1198

THE COMMISSIONER: I asked and you intruded an answer. Let me be clear about this. In paragraph 81 you say that the only maintenance work that the operator/maintainers would do would be when the maintainers are not rostered?
---Yes.

PN1199

And Ms Taverner interrupted with something and I want to understand what that interruption was.

PN1200

MS TAVERNER: You said only on Sundays.

PN1201

THE COMMISSIONER: Or when they're not rostered is what I should have said.

PN1202

MS TAVERNER: And I said when people are sick.

PN1203

THE COMMISSIONER: It's got nothing to do with when people are sick.

PN1204

MS TAVERNER: Presumably, Commissioner, I was using that as an example to show - - -

PN1205

THE COMMISSIONER: No, because there will be other maintainers on duty. My understanding is that there are from the evidence - well, I will ask you, how many fitters are in the crumb plant during their rostered hours?---During their rostered hours, one or two.

PN1206

What happens if there is only one of them and one is sick?---We'll cover it with the trades guys. We've got other trades guys on site, we'll cover it with some of the trades guys.

PN1207

So the normal coverage arrangements that have applied in the past would continue to apply with respect to the fitters?---Yes.

PN1208

Are they only fitters or have you got electricians as well?---No, these are fitters.

PN1209

So when the fitters are there, the normal coverage arrangements would apply. These operator/maintainers would only be doing maintenance in those hours when there were not rostered fitters there?---Yes. I would like to clarify one thing. If we had a clash where we had two really high priorities, the crumb plant goes down and I've got a burning issue over here, we might utilise their skill to make a repair, but the percentage of that would be very, very small, I would imagine.

**** NIGEL COWEN XXN MS TAVERNER
PN1210

MS TAVERNER: But essentially, Mr Cowen, again there is an expectation that two jobs be combined into one?---My expectation is that I will have a person that has a trades qualification that can utilise those trade qualifications when a breakdown occurs when I haven't got trades guys available.

PN1211

THE COMMISSIONER: And that's what, three times in the last two years?
---Well, Commissioner, the big shutdowns from my memory.

PN1212

Just going to your rationale at paragraph 103 of your statement?---Yes.

PN1213

You said earlier that there were only three of those in the last two years?---That I can recall.

PN1214

Yes, that you can recall?---Yes.

PN1215

So in paragraph 104 you say that the number of shutdowns will be reduced. Now, given that this is the rationale for it, I thought we would have been a bit more precise about it?---I suppose it's about managing risk and - - -

PN1216

That's not what you're saying at paragraph 104. You say that the number of shutdowns will be reduced?---Yes, and I am not saying we can eliminate them.

PN1217

No, because the operator/maintainer will not always be rostered over the weekend period?---Because there's only two vacant positions at the moment, yes.

PN1218

And there will be certain maintenance requirements that can't be dealt with by a single tradesperson?---That can happen as well, yes.

PN1219

So the best evidence we've got is that there have been three shutdowns in the last two years and we're going to reduce those?---Yes.

PN1220

But we're not going to reduce them to zero?---Yes.

PN1221

So somewhere between one and two of the emergency shutdowns will be avoided over a two year period?---Yes.

PN1222

And we're going through all of this because of that.

PN1223

MS TAVERNER: Mr Cowen, in relation to the - - -

**** NIGEL COWEN XXN MS TAVERNER
PN1224

THE COMMISSIONER: Sorry, so Cadbury is prepared to spend in the short-term over a two-year period $60,000 to avoid a shutdown that costs at the most - what was it? We had a figure. Well, it costs you something in lost production, but I guess you can make that up, so that's not a cost. The cost is between 13,000 and 32,000?---Not necessarily, Commissioner, because we sell milk off and we don't make that crumb. We haven't got the capacity to get more milk to make it up.

PN1225

No, but you sell off milk from the Burnie site -

PN1226

incurring a financial loss of between 13,500 and 32,000.

PN1227

?---Yes, but the 41 tonnes - - -

PN1228

You never make up?---Yes, that's true.

PN1229

So you're always 41 tonnes behind?---Yes.

PN1230

So if you only lose one shutdown because of these, you're still in front you reckon by a few thousand dollars?---Yes.

PN1231

Plus all the costs of - - -?---Plus - - -

PN1232

The costs of Ms O'Meara, the cost of Mr Gardner, the cost of - well, you're not paying for the Commission except in some strange way. Has someone done a cost benefit analysis on the process? I've just done a rule of thumb. It's either that or what you say is your rationale doesn't accurately reflect what your rationale really is?---I'm sorry?

PN1233

It sounds to me like there are some other rationales behind using the operator/maintainer than avoiding weekend shutdowns?---It's security for us.

PN1234

You don't say that in your statement. You say the rationale is this and it also gives you trades coverage after hours because the condensory plant operates for 24 hours a day, seven days a week, the tradesmen only give you coverage for?---Six days.

PN1235

Not for 24 hours either, is it?---Six days, 24 hours in the plant.

**** NIGEL COWEN XXN MS TAVERNER
PN1236

But not in the condensory?---Not in the condensory.

PN1237

So you've got to bring other people from the plant during that time?---Yes.

PN1238

And are you saying that if you get the operator/maintainers, that you will not be bringing them from the plant after the condensory maintainers knock off? They work on two shifts and I think one finishes - - -?---Yes, what I am saying is and I think I mentioned before, what I am saying is there would be, if there was conflicting priorities where you might want to use your operator/maintainer to make a repair in the crumb plant, if you had trades guys there, but there would have to be a fairly big - - -

PN1239

What time do the crumb plant fitters - what coverage do they give you?---Through to 11 o'clock on Friday night.

PN1240

No, but from what time in the day?---From 6.30 in the morning.

PN1241

Until?---Until - well, 6.30 in the morning through to 11 pm, Monday to Friday.

PN1242

So from 11 pm to 6.30 am?---I rely on the trades in the other areas.

PN1243

You do at the moment, but if you got these guys, if you got the operator/maintainer, wouldn't the obvious thing be to use them if there was a maintenance problem between 11 pm and 6.30 am?---Sometimes, Commissioner, if a plant breaks down, the operator is waiting for someone to come to fix or make a repair so in that circumstance, why wouldn't you?

PN1244

Of course, and it would be a rationale for doing it, wouldn't it?---Yes.

PN1245

But you don't put that in your statement?---That could be a mistake on my behalf, not putting that in my statement.

PN1246

Won't that impact on the existing trades personnel, because there will be less demand on those people who are rostered on a six-day roster, a 24-hour six day roster, because they won't have to come to the condensory any more because you've got the operator/maintainer there between 11 and six?---Yes, what I would say is it might result in less demand. It doesn't mean that we've got any less work for them and again they could be called away at the moment from changing over one of our major moulding plants that produces 30 tonnes a day, so if we can leave them to do that, well, that would be beneficial to us than calling them away to a minor problem.

**** NIGEL COWEN XXN MS TAVERNER
PN1247

Equally it may turn out that when someone goes from the maintenance side, you don't replace them because you don't need them, because you've got coverage between 11 pm and 6.30 am over in the crumb plant?---The skills that are used in the moulding plants that run a six-day roster are quite specific and we have quite specific equipment. To actually have someone that had the ability to cover all our plant from a maintenance point of view would be very difficult, so what I am saying is that I don't know whether it would be practical or possible to train someone to cover one person that would have enough skill to cover all that plant and equipment, especially when it's highly specialised.

PN1248

How many people do you have - okay, between 11 pm and 6.30 am, how many fitters are on shift?---Between sorry, 11 - - -

PN1249

Eleven pm and 6.30 am?---We have around six.

PN1250

All right, so if you had five, you'd still have that coverage, wouldn't you?---You'd have that coverage - - -

PN1251

What I am positing to you is that as a consequence of having maintainers, operator/maintainers in the crumb plant, then it is quite possible that the number of fitters on shift in the rest of the plant could be reduced albeit by attrition. I am not suggesting you're going to - - -?---I would suggest that it would be very difficult to cover the wide skills that they have. We've got two on shift currently in each of those other areas where I've said there's about six, because we need to cover those plants and they have specific skills around - - -

PN1252

And you couldn't do it with five if they didn't have to go to the crumb plant?
---No, I don't think there's enough work in the crumb plant to suggest that they're there to cover the crumb plant. We use them to cover, but I wouldn't suggest that the amount of work that they have in the crumb plant on those back shifts would be significant enough to say if you took it away, we can reduce the number.

PN1253

So you're getting four extra tradesmen over time and they're going to give you coverage between 11 pm and 6.30 am every day and for 24 hours on Sunday and that's not going to impact on your other trade staff because you say that there is sufficient work for maintenance for those existing trade staff, even though you're getting on your own calculations ultimately about between 40 and 80 per cent of an extra tradesperson?---Forty or 80 per cent of an extra?

**** NIGEL COWEN XXN MS TAVERNER
PN1254

Tradesperson if this proposal goes through?---One point I would like to make
is - - -

PN1255

You're ultimately going to get four and you say between 10 and 20 per cent of their work - - - Okay, I understand your calculations.

PN1256

That excludes any involvement of them in shutdown work?---Yes. One thing I would like to make as a point and some of the forward thinking is that the moulding plants move between rosters so the moulding plants where we're currently a six-day roster move depending on what demand we have so we've gone from seven-day rosters with the trades guys back to a six-day roster with the trades guys now and the moulding plants. We're looking to gain efficiencies out of our plants. Customer demand might change. That could be five days that those plants run.

PN1257

Or seven days?---That's right, yes, so there is some unknown because we do ramp up and down depending on what our customer demand is. The stable plant, for want of a better word I'll use stability, it's fairly constant with the crumb plant because we receive this much milk in, give or take depending on the season and we need to process that through the plant, so that plant consistently runs at the seven-day roster and I can't see that changing unless there's something around the corner that I can't see.

PN1258

But you are picking up at least on one estimate up to 80 per cent of a tradesperson and you're saying that there will be no impact on the other trades?---Yes.

PN1259

I can understand why the employees are sceptical about that.

PN1260

MS TAVERNER: Indeed. Mr Cowen, can I ask you in relation to the number of breakdowns in the last two year period, there's been an estimate that there's been two to three, how many of those were electrical breakdowns and how many of those were mechanical breakdowns?---I was talking about mechanical breakdowns.

PN1261

So two to three mechanical breakdowns.

PN1262

THE COMMISSIONER: And I think that was on the weekends, was it?---Yes.

PN1263

On the Sunday when you didn't have coverage?---Yes.

**** NIGEL COWEN XXN MS TAVERNER
PN1264

So there's been more than that in the number of breakdowns?---Yes.

PN1265

Or shutdowns I think they are.

PN1266

MS TAVERNER: In relation to the maintenance work that the fitters will be doing, that is not the operator/maintainer, but the genuine fitters, do you have any evidence in terms of the impact of the introduction that the operator/maintainer role will have on the type of work that those fitters are going to be carrying out?
---No. It shouldn't have any impact on the type of work that they do now.

PN1267

Do you think that it might lead to a reduction in their capacity to use the full breadth of their skills?---No.

PN1268

You don't see it as sort of a dumbing down exercise that might lead to the fitters not actually getting as much satisfaction out of the sort of work they used to do?
---No.

PN1269

You don't see it as having an effect on the confidence of the fitters in terms of their ongoing employment?---No.

PN1270

If these costing issues are so important for the company, have you had any discussions with the employees about this and the capacity, the need to actually change these roles and the likely effect on their job security?---Yes, I have.

PN1271

What have you told them?---I've confirmed that regardless of the operator/maintainer, their shift pattern, what they do now will not be impacted. I think that's in my statement.

PN1272

Your evidence is there will be no threat to their job security?---Yes.

PN1273

Even though people like Mr Santi clearly have a concern in relation to his job security. Mr Leek would be entitled to have a concern in relation to his ongoing job security?---Job security is a concern for everyone. I suppose the best way I can answer it is that we're as secure in our jobs at Cadbury Schweppes as any employer or any employee is secure at a placement point.

PN1274

But you're secure on a lot more money than what the fitters are. You see, you're entitled to have that sense of security and also because you have all the information at your disposal?---What I've said to the trades and to the operations team is there is no impact on them. We only have two people that have moved from the full-time roles in the crumb plant, so we're only suggesting that we fill those two roles. I am not suggesting that we try and displace anyone out of the other two shifts and I don't know how long natural attrition will take. That may take years, I don't know. The last person that resigned had worked for Cadbury for 15 to 20 years and wanted to go and work for himself, wanted to start straight away and gave me a few days' notice, so I don't know is my answer, but what I am saying is I am not going to displace anyone and I've said that numerous times, on numerous occasions and without going through my statement, I think it's in my statement as well.

**** NIGEL COWEN XXN MS TAVERNER
PN1275

But there's no guarantees clearly?---I can't guarantee anyone that they will always be employed.

PN1276

Mr Cowen, Mr Santi's evidence in his statement is that there is little likelihood in obtaining a relief to cover the position while an operator/maintainer is away on maintenance duties. What do you say to that?---I'd say that little is probably an incorrect word. We have relief operators now. We're actually in the stage of training some more relief operators, so, in fact, that will increase our ability to have relief operators. Now, that's not just to cover operator/maintainers. We're vulnerable when people are sick and at the moment we don't have enough relief operators trained, so, hence, we're training some more and we have over the last 12 months I suppose been going through a system of training more relief operators for the crumb plant.

PN1277

THE COMMISSIONER: Presumably these two that are temporary in there, they will become relief operators?---Yes, that's correct.

PN1278

MS TAVERNER: In terms of a risk assessment in relation to the proposed position, has the company consulted with anyone in terms of carrying out a risk assessment or has it conducted its own inquiries in relation to the OH&S concerns of such a position?---As far as safety goes on site, we don't risk assess positions. We risk assess tasks and we've had a huge focus over the last 18 months in getting better at managing our safety and really cementing it in as our number 1 priority. As far as if a maintainer needs to do work, there's processes that we have in place, job risk analysis, permit to work, lock-out/tag-out procedures, they are the mechanisms by which we control our safety of our people. Our catchcry is if it's not safe, don't do it and basically if you've got concerns about something you think is not safe, don't do it until we can assess it and go through it. Now, we're still going through training on lock-out/tag-out with equipment. We've started our permit to work procedures and there's more training to go with permanent work to procedures and how they will apply, so they are our safety plans and strategies and we've reduced lost time injuries on site by 50 per cent this year and we have a very detailed road map of where we want to get to with a zero LTI and a 50 per cent year on year reduction of LTIs in our site contract.

PN1279

Can you explain what an LTI is?---Lost time injury.

PN1280

The company does take safety as a priority and if you see there's a risk, don't do it. Why hasn't the company carried out a risk assessment?---The roles that we're talking about or the jobs that we're talking about, the operators do the operational part of the jobs now. The maintenance work that may be required is done now. If there are hazards associated with those, they will be addressed through the systems that we have in place.

**** NIGEL COWEN XXN MS TAVERNER
PN1281

But you have a responsibility to identify potential hazards, so have you done any work in terms of identifying hazards?---We have a hazard register in each of the areas and we're also safety map audited around hazard identification, hazard follow-up. I have fortnightly safety meetings in the departments where outstanding hazards are raised. We have our elected safety reps and those are the processes that we use.

PN1282

But this is a new role. It's the combination of maintenance and operator. You don't have this role at the moment.

PN1283

MR GARDNER: I object on the basis that a lot of what we've heard, a lot of cross-examination we would say has not been relevant and this is another line that's not. It's just not relevant. Unless Ms Taverner can explain how the question of safety bears upon this classification issue - - -

PN1284

THE COMMISSIONER: Yes, I did raise this earlier on.

PN1285

MR GARDNER: We don't shy away from safety and because of that, Mr Cowen put evidence about this, but in the interests of time, given the lack of relevance, I wonder if we can move on to anything which is relevant.

PN1286

MS TAVERNER: Commissioner, we say that it is relevant because the company doesn't make its decisions in a vacuum. The Commission doesn't make its decisions in a vacuum. Our members don't work in a vacuum. There is clearly an obligation - - -

PN1287

THE COMMISSIONER: There's evidence about occupational health and safety here. It seems to me that we're down to an argument about whether they carry out a risk assessment for this position and I've heard the answer in regard to that. Now, what more is there?

PN1288

MS TAVERNER: I will move on. Thank you, Commissioner.

PN1289

Turning to the enterprise bargaining negotiations this year, Mr Cowen, you've been involved in them?---Yes.

PN1290

It's correct, isn't it, that you've put in your log of claims the flexibility to create new roles?---Yes.

**** NIGEL COWEN XXN MS TAVERNER
PN1291

So you would agree, would you not, that you currently don't have the scope to create new roles?---I suppose we want an avenue to open - another avenue to open up those discussions because we have a dispute here, but we want another avenue where we could open up those discussions. From an EBA negotiation point of view without quoting exact words, the response to that was that the SBU, the single bargaining unit, had a particular issue and I'm just trying to think of the word, really objected to that and would not agree to wording like that within an EBA and wanted us to actually define the roles that we were talking about. That can be difficult because some of the roles mightn't even exist now. New technology comes in and that type of stuff, so basically we wanted just to open up or have the option to open up another area of discussion.

PN1292

So by putting it in the log, you are conceding that you don't currently have the capacity to create new roles?---No, I am not conceding that.

PN1293

Why is it in the log?---What I am saying is I am not conceding that in relation to operator/maintainer role. What I am saying is it's another avenue where we can discuss. I have an understanding of what I think the EBA means and there is a conflict in that. That started back in May. These negotiations for the EBA started a few months back and that was placed on the log of claims as a discussion point.

PN1294

THE COMMISSIONER: If I could just intrude her and say that's what concerns me a lot about this whole matter. Everyone seems to be putting their eggs in one basket. The union for its part is saying, well, the agreement means that you - I am not quite sure what the union is saying, I am going to hear more about that, but I get the impression that at least at one level the union is saying that maintenance is maintenance and production is production and you can't cross over those boundaries. The company seems to have accepted that over the years, but with this operator/maintainer position says it arguably no longer accepts that.

PN1295

Now, whether the agreement means what the union thinks or what the company thinks is a matter that I am going to have to decide, but if I decide for the company, then the company doesn't need to put anything in the agreement and if I decide for the union, then the company is locked into this demarcation forever and they're stuck because of where they're going with their current negotiations. I really put my hands up and say I am not going to run away from making a decision, but I don't like it, because this is the danger with arbitration. You end up both sides getting something they don't want. I am really quite concerned about that from the point of view of the practicalities of this.

**** NIGEL COWEN XXN MS TAVERNER
PN1296

People have dug themselves ditches and the only bridge you've got is my decision and that might not be very helpful. I toss that in as an editorial comment in the hope that maybe over lunch you can have some talks. I know you've had plenty of other talks, but if I am any judge of the situation, had people been so hard nosed about the call-outs on the weekend, we wouldn't be where we are now because that's right behind the rationale. That was part of my reasoning behind the questions about the rationale. I think it is probably a convenient time to adjourn for lunch.

PN1297

I appreciate that we're under some time constraints, but I will do my best to accommodate those. Can I suggest that people ought to take a big deep breath and really work out whether they want to go to that brink, because I don't know what my decision is at the moment, I really don't, but I can appreciate that where we're going is not necessarily in everybody's interests at all, much less your combined interests, because what is the old phrase? You hang together or you hang separately. We will adjourn until 2 o'clock.

<LUNCHEON ADJOURNMENT [12.44PM]
<RESUMED [2.25PM]

PN1298

THE COMMISSIONER: Yes, Ms Taverner.

PN1299

MS TAVERNER: Thank you, Commissioner. I can indicate to the Commission that we've taken on board the Commissioner's comments before lunch and have had some discussions with the company that have proved to be fruitless and so I just wanted to state that on record.

PN1300

THE COMMISSIONER: Yes, certainly. Thanks.

PN1301

MS TAVERNER: Mr Cowen, in relation to the Metals Award, you may or may not be aware that is a classification structure that is provided at the end of that document and I take from your evidence this morning that you're not familiar with that structure. Would that be correct?---I am not familiar, I don't know the award in detail.

PN1302

This is going to be very difficult to do because I don't have a spare copy of the award. However, if I can perhaps just proceed and if you don't understand my questions, if you could just ask me, I will rephrase it?---Certainly.

PN1303

In the back of the award, Mr Cowen, this is the Metals Award, there's a schedule D which provides a classification structure that outlines the classification numbers of people who work under the Metals Award ranging from, as you would be aware, C1 up to C14 and following that there's a number of descriptions of various classifications so, for example, a C14 person who is classified at a C14 as an engineering or a production employee, there is a description given in the award of the types of functions or tasks or duties that that person would be expected to perform so, for example, a C14, at that level that person is expected to perform routine duties that are essentially of a manual nature and to the level of that person's training and some of those duties may include general labouring and cleaning duties. They may be responsible for exercising minimal judgment, they may work under direct supervision and in addition they may also undertake structured training so as to enable them to work at the C13 level which is the next level up, as you would understand. In relation to the - sorry, I withdraw that. When you do come to classifying employees, is it your evidence that you wouldn't take into account whatsoever schedule D to the award?---My understanding and again I say this without being an expert in the award, my understanding is that the percentage rates we have in appendix F of our agreement are derived from that and that's what we use when we assess.

**** NIGEL COWEN XXN MS TAVERNER
PN1304

But the percentage levels in appendix F really just assess or it's a descriptor for that person's level of skill, you would agree?---I think 100 per cent equates to C8/C10, referring back to the scale that you're speaking about in the award.

PN1305

But in terms of the required duties of that person, for example, you wouldn't expect a person working at C2 level to be carrying out general labouring. You would be expecting them to do something a little bit more sophisticated than general labouring duties?---I'd expect that if you were classified at a C2, you would be able to do the work of the C2 and any of the work that was below.

PN1306

It would be assumed that person would be competent at doing work lower than their level of classification?---That's right, yes.

PN1307

And we have no doubt in relation to that.

PN1308

THE COMMISSIONER: I have. A C2 is what, a professional engineer?

PN1309

MS TAVERNER: Yes.

PN1310

THE COMMISSIONER: I wouldn't like to see a professional engineer on the tools sometimes.

PN1311

MS TAVERNER: Mr Cowen, In Mr Weir's statement he talks about his day to day responsibilities and they include if I could just read from that:

PN1312

Filter maintenance, joining belts, lagging, air leak surveys, basic lubrication, steam trap surveys, preventative maintenance, provide assistance to the fitters, limited mechanical work and provide support for others when they're on leave.

PN1313

I suggest to you that clearly the manufacturing - I am sorry, they're clearly maintenance duties or duties that are incidental to that maintenance function such as to provide support to others when they're on leave. That would be a reasonable expectation of a person with a metal trades background?---Yes.

PN1314

Steam trap surveys, limited mechanical work, these are all skills that Mr Weir as a trades assistant you would expect him to be able to competently carry out, do you agree?---Yes.

PN1315

The concern we have, Mr Cowen, is in the Metals Award, that is where the classification descriptors if you like reside in schedule D of that award, there is no mention in that in relation to operating duties or being responsible for the type of duties that Mr Santi carries out.

**** NIGEL COWEN XXN MS TAVERNER
PN1316

MR GARDNER: And the question is?

PN1317

MS TAVERNER: And my question is are you able to shed any light in relation to how Mr Santi's position as an operator can be seen to fit within the classification descriptors in schedule D of the Metals Award?---I don't think that I am saying that Mr Santi fits in there. I'm saying that there's a reference to the percentage in the back of appendix F in our EBA.

PN1318

So let's take a hypothetical - - -

PN1319

THE COMMISSIONER: Are you saying that operators are not covered - operators generally are not covered by the Metals Award, because I am aware of operators who are covered by the Metals Award. I've walked around factories where people are classified at C11 and they're operating machinery. Now, it may not be confectionery machinery, but they're operating machinery and they're called operators.

PN1320

MS TAVERNER: Commissioner, if I can just clarify, the agreement and the awards that underpin the agreement are the Metals Award and the Confectioners Award and those awards are read in conjunction with the agreement.

PN1321

THE COMMISSIONER: And there's a few others as well.

PN1322

MS TAVERNER: That's correct, but the two that concern us today are the Metals Award and the Confectioners Award. Part of our argument is that those awards must, of course, be read in conjunction with the agreement, so when Mr Cowen or whoever comes to classify someone or make a decision as to how to classify them, it's not just a matter of looking at their percentage.

PN1323

THE COMMISSIONER: It may be, because it may be that they've classified them under the award and then they're paying them a whole lot of money in addition and they meet the requirements of the award that way.

PN1324

MR GARDNER: I don't know if this assists, but Ms Urquhart gave evidence in cross-examination that the condensory operator which is Mr Santi or he's a team leader, a step up, that work is covered by the Confectioners Award, so I am just not sure where this point is going.

PN1325

THE COMMISSIONER: It's possible that while 80 per cent of the work is covered by the Confectioners Award, the fact that 10 per cent is covered by the Metals Award, they're covered by the Metals Award. You can be a respondent to two awards.

**** NIGEL COWEN XXN MS TAVERNER
PN1326

MR GARDNER: You can have two awards potentially covering - - -

PN1327

THE COMMISSIONER: And you've got to pay them at the higher rate.

PN1328

MR GARDNER: - - - covering the work.

PN1329

THE COMMISSIONER: So you may be calling them confectioners, but you might have to pay them under the metals, because the highest level of their work is that of a metal worker.

PN1330

MR GARDNER: Yes, or you might get a debate about which award applies, but I still - - -

PN1331

THE COMMISSIONER: Let me put it this way. There's no provision in the Confectioners Award for the employment - I don't believe there is any provision in the Confectioners Award for a person to be employed as a maintenance tradesman.

PN1332

MR GARDNER: That's right.

PN1333

THE COMMISSIONER: If you want to employ them under the Confectioners Award, go ahead, but they won't be able to do trades work.

PN1334

MR GARDNER: I am still not sure where Ms Taverner is going with the point.

PN1335

THE COMMISSIONER: Yes, I understand all that. Where are we going with this?

PN1336

MS TAVERNER: Our submission on the evidence, Commissioner, and the correct operation of the agreement is that when it comes to classifying employees, it is more than just a matter of looking at what the market is paying, determining what a person's C level is or their relativity within the scale which is on appendix F. The task is broader than that.

PN1337

THE COMMISSIONER: It may or may not be. If the person is a C10 tradesperson, by qualification they go to C10. There is then no issue of applying the competency standards. If they reckon they should be a higher classification than that and I am only talking tradespeople at the moment, if they think they should be at a higher classification than that, that's when the competency standards come in. For the life of me, I can't see what the relevance of that is to these proceedings, given that there's been no-one appointed to the job and the issue of their classification hasn't been brought into question.

**** NIGEL COWEN XXN MS TAVERNER
PN1338

MS TAVERNER: Commissioner, there is a competency standards implementation process taking place at the moment.

PN1339

THE COMMISSIONER: I know all about that. At this place?

PN1340

MS TAVERNER: Yes.

PN1341

THE COMMISSIONER: Well, no, there's not, or if there is, I haven't got much evidence about that.

PN1342

MS TAVERNER: Commissioner, there is and if you would accept from the bar table my statement that assessment has occurred and is taking place and, in fact, took place last week or the week before.

PN1343

THE COMMISSIONER: That is not the evidence of Mr Weir. Mr Weir says that there was assessment carried out in 2005.

PN1344

MS TAVERNER: Yes, and there's no further assessment that's taking place, Commissioner, because of the discussions in relation to the MCC process.

PN1345

THE COMMISSIONER: Be that as it may, what is the relevance to these proceedings?

PN1346

MS TAVERNER: Part of our submission, Commissioner, is that in terms of whether the agreement operates so as to allow a hybrid or combined role of maintenance in the operator, that is the question. Does the classification structure provide for that?

PN1347

THE COMMISSIONER: Yes, I understand that.

PN1348

MS TAVERNER: And our answer clearly is no and we say that in order to show the correct way in which the agreement operates and the manner in which it was intended to operate is that it is read in conjunction with the awards. The classification structure within the award needs to be applied and the pay rates which are in appendix F are simply the descriptors of how - - -

PN1349

THE COMMISSIONER: That just can't be true.

PN1350

MS TAVERNER: - - - how much pay someone is going to get.

**** NIGEL COWEN XXN MS TAVERNER
PN1351

THE COMMISSIONER: That just cannot be true, because my understanding of the Metals Award is that there are only three classifications below C10 and this agreement provides for a much greater number than that below C10. There is only C11, C12 and C13.

PN1352

MS TAVERNER: Commissioner, with respect, it does go up to C14.

PN1353

THE COMMISSIONER: All right, 14, then, let's say there's four, but the bottom one is for a short term. We've got 10 classifications in this agreement below C10. Now, it just cannot be - sorry, and there's probably more than that, because if I go to - that's just within the percentage classifications. I am prepared to bet that there's a whole bunch more, if I really add them up, so it can't be that the classification structure in this agreement is identical to the award.

PN1354

MS TAVERNER: No, we're not suggesting that, Commissioner.

PN1355

THE COMMISSIONER: Or that one can apply the award classification procedure to such a structure.

PN1356

MS TAVERNER: That is in fact what we're suggesting, Commissioner, and we're saying that by virtue of clause 3 of the agreement that - - -

PN1357

THE COMMISSIONER: How many classifications do you say that are in the award above C10?

PN1358

MS TAVERNER: Above C10, Commissioner, I don't have the information before me.

PN1359

THE COMMISSIONER: You've got the award there.

PN1360

MS TAVERNER: Unfortunately the award has been varied, Commissioner, since it was published, but my understanding is you go from C9, C8, C7, 6, 5, 4, 3, C2A, C2B, C1A and C1B.

PN1361

THE COMMISSIONER: And what is the percentage rate for C1B?

PN1362

MS TAVERNER: C1B is - just bear with me, Commissioner, I don't have that. I believe it would be 155, Commissioner.

**** NIGEL COWEN XXN MS TAVERNER
PN1363

THE COMMISSIONER: You've still got a 160 there and there's no 140 per cent.

PN1364

MS TAVERNER: Look, I'm sorry, Commissioner, but on my examination of it, it does appear to mirror the - - -

PN1365

THE COMMISSIONER: I can see above C10, C10 at present rates in the agreement is 940.60.

PN1366

MS TAVERNER: Yes.

PN1367

THE COMMISSIONER: There is then a series of others, but over the page there is a 1091.90 which is not reflected in the C structure, there's a 1076.90 which is not reflected in the C structure or in the percentage structure, there is a 1037.20 which is not reflected in that structure, so they're all part of the classifications contained in this agreement and they don't line up with metals.

PN1368

MS TAVERNER: Sorry, Commissioner, that's not the electrical special class you're referring to, is it?

PN1369

THE COMMISSIONER: Well, that's in metals, but I'm also talking about the fitter special class, 1034.50. Sorry, that one is there as 110 per cent. There is 1037.20 which is not a rate that bobs up anywhere.

PN1370

MS TAVERNER: Commissioner, in relation to appendix F, you can see that it's headed pay structure and rates. What we say is that the classification in terms of the percentages or the percentiles that are reflected there largely mirror what is in the metals - - -

PN1371

THE COMMISSIONER: They don't. That's the point I am making, they do not mirror.

PN1372

MS TAVERNER: Largely mirrors, Commissioner.

PN1373

THE COMMISSIONER: Whatever that means.

PN1374

MS TAVERNER: So, for example, you would see 97.5 which reflects Mr Weir's level, so perhaps - - -

PN1375

THE COMMISSIONER: But 75 and 77.5 don't represent anyone.

**** NIGEL COWEN XXN MS TAVERNER
PN1376

MS TAVERNER: Perhaps these have been percentages or assessments that have been historically brought in to the agreement.

PN1377

THE COMMISSIONER: Yes, by the parties, they've agreed to it.

PN1378

MS TAVERNER: But again we say the percentiles that are there reflect the pay rates. How you decide which percentile a person fits in is by virtue of the classification descriptors in schedule D, so we say schedule D to the Act does have some work to do. We cannot ignore it. That's our submission as to how it correctly operates. The table in appendix F reflects the pay rates that were negotiated and obviously there's annual increases incorporated there, but in terms of deciding how a person, which classification they're going to lock into and from that it flows therefore how much they're going to be paid, one has to look at the Metals Award. The EBA, Commissioner, has no classification descriptions within it, it has no position descriptions. There is simply no way in that agreement to assess or evaluate - - -

PN1379

THE COMMISSIONER: But all that requires surely is that they assess them for the Metal Industry Award and that provides the minimum rate that they've got to get subject to the agreement. I understand your argument. What you're saying is that you apply the competency standards process using the percentages in this agreement. Against that is the specific statement in the agreement that an electrician special class C7 gets a rate of 1076.90 which I don't see replicated in the percentages, that an electrician special class C8 gets 1037.20 which I don't see replicated in the percentages, that the metal tradesperson C10 gets 980.50 which I don't see replicated in the percentages. Now, are you saying that a metal tradesman should get at present day rates $940.60 when in fact over the page they get 980.50? I don't believe so and we all know that C10 is 100 per cent.

PN1380

MS TAVERNER: Yes, Commissioner. This is interesting to say the least. I can't - - -

PN1381

THE COMMISSIONER: You're the one that's making the submission and I am putting back to you that faced with these documents, the submission just doesn't make sense.

PN1382

MS TAVERNER: Well, Commissioner, with respect, perhaps the metal tradesperson C10, the C9 rates that are reflected in the second last page are hang-overs from past agreements. Perhaps they reflect a common sense way of being able to understand a classification. I can't explain the discrepancy in the levels of pay. However, again we say that still the agreement does need to be read in conjunction with the award to determine where - - -

**** NIGEL COWEN XXN MS TAVERNER
PN1383

THE COMMISSIONER: Yes, and reading it - the way I would put that to you is that if there's a dispute, they've got to be classified under the award. If the award rate be higher than the rate they're getting paid under this agreement, then they've got to get paid the award rate. If the employer is paying them a higher rate under this agreement, as in the case of the plumber - - -

PN1384

MS TAVERNER: That's correct. That's enterprise bargaining for you.

PN1385

THE COMMISSIONER: Yes, and it's also the market and all those sorts of things, but that's the extent to which it's read in conjunction with the award. If what you're saying is that the rate they should get is what comes out of the points system under competency standards, you might actually run into a bit of a problem with your own members because it may be that some of them are being paid well in advance of that, even under the system, because they've taken account of the sort of matters that Mr Cowen has described.

PN1386

MS TAVERNER: Our members have been assessed at C7, Commissioner, and Mr Weir is a trades assistant at 97.5 and my understanding is our members are quite comfortable in relation to that.

PN1387

THE COMMISSIONER: I am sure Mr Weir is quite comfortable.

PN1388

MS TAVERNER: Of course they would like more money, who wouldn't, but the purpose of the Commission making a determination as to how this agreement operates, how it was actually intended to operate when it clearly says in clause 3 that it must be read in conjunction with the Metals Award and the Confectioners Award, then - - -

PN1389

THE COMMISSIONER: Yes, I am putting to you that the way in which you do that is you say - I mean, I think I understand your submission. It is that when you say because there is nothing in the agreement, because he agreement is silent on the way in which people are classified, then at least as far as the metal tradespeople are concerned, one has to use the process that's outlined in the Metals Award to classify people.

PN1390

MS TAVERNER: Yes.

PN1391

THE COMMISSIONER: Now, I understand that submission and I am putting to you another alternative and that is that one uses that and finds out what classification that leads to under the award to ensure that people aren't being robbed, but that under the agreement they can classify them where they like so long as they meet that minimum requirement contained in the award.

**** NIGEL COWEN XXN MS TAVERNER
PN1392

MS TAVERNER: Commissioner, I have no doubt what you say is correct that quite plausibly if Cadbury wanted to pay a plumber at 145 per cent and be prepared to pay that, then that is open to them and I'm sure the plumbers wouldn't disagree with being paid the market rate or whatever the going rate is that Cadbury is prepared to pay, but in terms of the actual classification, if Cadbury is saying there is scope within the agreement to provide for a classification of operator/maintainer which in our submission is a combination of two very different and separate roles that are currently being performed differently and separately on site, then the company just can't turn up and say, well, we'll slot them in the classification structure somewhere.

PN1393

THE COMMISSIONER: That becomes argument about submission. I understand that argument, but I don't really know what it's got to do with the questions that are being asked and I am sorry, we've gone off on a tangent and, Mr Cowen, you're sitting here watching a debate, but I don't know where those questions are getting at, their context.

PN1394

MS TAVERNER: Commissioner, the relevance of these questions is I am trying to test Mr Cowen's understanding - - -

PN1395

THE COMMISSIONER: He has told us, he doesn't. He can't tell us any more times.

PN1396

MS TAVERNER: We will leave it as he has no understanding then of - - -

PN1397

THE COMMISSIONER: Little understanding, to be fair to him.

PN1398

MS TAVERNER: Little understanding of how people are classified.

PN1399

THE COMMISSIONER: No, no, he had a very strong understanding of how people are classified at Cadbury. He didn't have much of an understanding of how people are meant to be classified under the Metals Award.

PN1400

MS TAVERNER: Yes, Commissioner.

PN1401

THE COMMISSIONER: I am just being fair, a fair description.

PN1402

MS TAVERNER: I am indebted to you for doing that, Commissioner. My point is that our submission is that you must look at schedule D.

**** NIGEL COWEN XXN MS TAVERNER
PN1403

THE COMMISSIONER: Make your submission when we come to it.

PN1404

MS TAVERNER: And to that extent, it's relevant.

PN1405

Turning to the costing issue again, Mr Cowen, did you not think that it might be beneficial to provide costings to the union so that we could go away and have a look at them so that we could analyse them?

PN1406

MR GARDNER: This is not fair. His evidence is he did provide costings.

PN1407

MS TAVERNER: I withdraw the question. Did you perhaps think it was not beneficial to provide meaningful costings to the union so that we could - - -

PN1408

THE COMMISSIONER: No, that is just as bad. More detailed might be a better phrase.

PN1409

MS TAVERNER: For example, Mr Cowen, when you did come to provide the costings, the sorts of information that we would have liked to have seen so that we could advise our members and understand what the company's proposals were and how we could put a proposal that might be suitable to the company back to you was that we were interested in seeing breakdowns in terms of hourly rates of pay, in terms of base rate, weekly rate of pay, in terms of the shift loadings that are payable, in terms of the meal allowance that everyone gets every fortnight, what the fortnightly pay is, how much annual leave there is contained within that, specifications that would allow the union to go away and examine that material, to work out whether firstly the proposals that you're suggesting are do-able or are workable and alternatively to come back to you with another proposal? Had we had that information, we could have given you a realistic proposal. Without that information - - -

PN1410

MR GARDNER: Does it have anything to do with the question of the company's right to employ under the agreement the operator/maintainer?

PN1411

THE COMMISSIONER: Yes, I must say it seems to me that this is a debate about whether in fact the negotiations that took place were meaningful or not and not whether in fact the company moving to introduce a new role, if I can call it that, contravenes the terms of the enterprise agreement.

PN1412

MS TAVERNER: Commissioner, we say it's relevant in terms of the ongoing job security and possible threat to our members' employment and had we had the benefit of that information, we may have been able to go away and be proactive in terms of coming up with some proposal.

**** NIGEL COWEN XXN MS TAVERNER
PN1413

THE COMMISSIONER: I've made my comments about that before lunch.

PN1414

MS TAVERNER: I have nothing further, Commissioner.

PN1415

THE COMMISSIONER: Re-examination.

PN1416

MR GARDNER: Yes, just briefly, Commissioner.

PN1417

THE COMMISSIONER: Yes. Sorry, I've been distracted and I've got a number of questions. Mr Cowen, I think this has been put to you in a round-about way, but I am going to be quite specific. If there was the capacity to use tradespeople as operators or operators as tradespeople, why would you need clause 27?---I need clause 27 because if we were to go and to use an example, if I had a line with 10 people on it, a production line with 10 people on it and we wanted to move that and have operator/maintainers there and we pay this rate, this much, it's going to be very expensive to run that line. In that respect, it would be more, if there's minimal things that they can do and hand-over skills in that respect, you would use the MCC process to hand some basic jobs over.

PN1418

But you've given evidence that there are in fact people with trades qualifications employed in the plant as operators?---Yes, who want to be operators.

PN1419

Yes. Now, if you're right, then you can require them to carry out maintenance duties, can't you, because it's within their skills?---It's within their skills. I suppose I wouldn't even be aware of how many people I have on - - -

PN1420

But absent clause 27, you can't, can you and even if you wanted to, you would have to use clause 27?---Yes.

PN1421

That brings me back to the question, why then is clause 27 not a barrier to the approach that you're taking with these people?---With the particular plant that we're talking about, the way I understand clause 27, again it's about a transfer of skills from a tradesperson to a non-tradesperson. What we're proposing is to have a tradesperson in that position, so they possess those skills and can use them at a higher level when required. There is a cost associated with having that person in that position and we've never suggested that we want to populate the rest of the factory with operator/maintainers with that trade as a requirement. Also, Commissioner, those people that might be currently tradesmen are being paid as operators. We're not actually paying them anything extra.

**** NIGEL COWEN XXN MS TAVERNER
PN1422

Back in December 2001, your organisation approached the union regarding the use of qualified mechanical tradespersons on production work. You're aware of that?---I'm aware of the documentation.

PN1423

And it didn't proceed on that occasion. You seemed to think it was necessary to do something about that?---What we did was - and I can talk from experience when I started in 02 in that area is brought that back to some incidental operational tasks that were the main cause of our issue and went through a training program and had the operators trained in rubber jaw replacement, to address the main issue with that particular piece of equipment.

PN1424

Well, no, the main issue was that they proposed to use three and possibly one more production employee who has had formal mechanical trade qualifications to run the DFN6 high speed twist wrapping machines. In other words, to use trade qualified people as operators?---Yes, that's what the note says.

PN1425

You found it necessary on that occasion to attempt to vary the agreement?---I'm not sure how to answer that. I suppose because I wasn't there in 01 either, so I can't speak on behalf of what the intent was of the letter. I just know the outcome of when I went in there the following year.

PN1426

But that was a letter written by the human resources manager at the time?---Yes.

PN1427

The human resources people aren't giving evidence in these proceedings, are they?
---No.

PN1428

So they must have had a view about what was necessary to do?---Yes.

PN1429

I can draw whatever conclusions I am able to on that. I think the other matters I've dealt with in my discussion with you, but you confirm that - do you confirm that because it's the way your evidence is structured that had people, had the tradespeople provided call-out coverage for the weekends, this issue wouldn't have arisen?---Yes, I've had my coverage addressed, yes.

PN1430

And it is only that matter?---Yes.

PN1431

So am I wrong in saying that their intractability about providing call-out coverage on the Sunday, that 24 hours, is the problem?---Yes.

**** NIGEL COWEN XXN MS TAVERNER
PN1432

So they may be the makers of their own destiny in that sense, but that's not for you to respond. They're the only questions I had. Does that lead you to anything further, Ms Taverner?

PN1433

MS TAVERNER: If I could just clarify one matter, with respect, Commissioner. Our case is not about the intractability of our members.

PN1434

THE COMMISSIONER: No, I know it's not, but it's a matter of observation that I make that had they been willing to provide call-out cover on the Sundays, we wouldn't be here.

PN1435

MS TAVERNER: But the situation - - -

PN1436

THE COMMISSIONER: That's the evidence and we can't run away from that.

PN1437

MS TAVERNER: The situation is that there's a voluntary roster - - -

PN1438

THE COMMISSIONER: You can ask questions. The evidence that Mr Cowen has given quite clearly is that if people were turning up to do call-out work on the weekends for the crumb machine, we would not be here. Now, you're quite at liberty to challenge him on that evidence, but I am not going to get into an argument about it. He's given that evidence quite clearly.

PN1439

MS TAVERNER: I will leave that for submissions, then. Thank you, Commissioner.

PN1440

THE COMMISSIONER: Thank you.

<RE-EXAMINATION BY MR GARDNER [2.56PM]

PN1441

MR GARDNER: Mr Cowen, you were asked a question, perhaps two questions by Ms Taverner about the company in the current enterprise bargaining negotiations seeking the capacity to introduce new roles. Do you recall her asking that question?---Yes.

PN1442

Can we just clarify for the Commission, please, what was the company's motivation for doing that?---We've had this dispute or negotiation around operator/maintainer running for quite some time and I think I said in my original answer that this was another option, another means to discuss and because of how long we've been in these discussions, it may well have been that we could have got to that through EBA negotiations and addressed these types of things in that forum.

**** NIGEL COWEN RXN MR GARDNER
PN1443

THE COMMISSIONER: I think you asked what was your motivation for it, though, wasn't it?---That was the motivation.

PN1444

I thought you said generally the motivation was that you weren't getting emergency coverage on Sundays.

PN1445

MR GARDNER: The question was the motivation for actually seeking to bargain over the issue in September of this year.

PN1446

THE COMMISSIONER: I see. Yes, I am with you. I misunderstood.

PN1447

MR GARDNER: I can deal with this perhaps quickly. Paragraph 39 of Mr Cowen's statement, there's references to paragraph 12 and 13. The typewriter had an issue there and I think that's supposed to be 13 and 14. That will become apparent by looking back at the clauses.

PN1448

THE COMMISSIONER: Yes, I think that might be 13 and 14?---Yes.

PN1449

MR GARDNER: If we could just for the record make that change, but I have nothing further.

PN1450

THE COMMISSIONER: Mr Cowen, thanks. You're free to go. You can remain if you wish.

<THE WITNESS WITHDREW [3.06PM]

PN1451

THE COMMISSIONER: Yes, Ms Taverner. I take it that's the only evidence you bring.

PN1452

MR GARDNER: Yes, it is.

PN1453

MS TAVERNER: Thank you, Commissioner. In terms of submissions for this matter, the issue for the Commission's determination is whether the correct application of the terms of the enterprise bargaining agreement allow for the introduction of what we say is the new role of operator/maintainer and from that flows sub-issues of whether in fact it is a new role, secondly, how does the agreement operate and thirdly how was the agreement intended to operate? In relation to the first issue of whether the position of operator/maintainer is a new role, we say that clearly - - -

PN1454

THE COMMISSIONER: Is there any dispute about that?

PN1455

MR GARDNER: That it's a new role? Not that it's a new role.

PN1456

MS TAVERNER: In terms of the existence of the operator/maintainer position, we say that there is no classification for operator/maintainer contained within appendix F to the EBA. There is no classification of operator/maintainer in the Metals Award in schedule D to which I referred which is read in conjunction with the agreement by virtue of clause 3. Similarly, there is no classification for the position of operator/maintainer within the terms of the Confectioners Award which is also - - -

PN1457

THE COMMISSIONER: Sorry, why do you say - what is the evidence that there's no classification in the Metals Award for an operator/maintainer?

PN1458

MS TAVERNER: If you turn to schedule D of the Metals Award, Commissioner, there is no - - -

PN1459

THE COMMISSIONER: I don't have it.

PN1460

MS TAVERNER: Perhaps if I could make some very brief submissions in relation to it.

PN1461

THE COMMISSIONER: I would have thought that anyone who is covered by that award who goes through the competency process is covered by that award. Schedule B is the old classifications, isn't it?

PN1462

MS TAVERNER: Schedule D has the classification definitions, so, for example, engineering production employee level 1 which is the C14. The basis for our submission, Commissioner, is that the duties that an operator/maintainer is going to carry out, that they will be carrying out, have to fall within the position descriptions, the classification descriptions. Clearly a person who is doing maintenance type duties, you're not going to find the classification description or descriptors for that in the terms of the Confectioners Award. It's simply not going to be there.

PN1463

THE COMMISSIONER: But what is the definition in the appendix of the Metals Award?

PN1464

MS TAVERNER: I am sorry, Commissioner?

PN1465

THE COMMISSIONER: What is the definition in the appendix to the Metals Award?

PN1466

MS TAVERNER: Well, this is our point, Commissioner. There is no position of operator/maintainer within the Metals Award.

PN1467

THE COMMISSIONER: I just don't accept that because the Metals Award provides for someone to be an engineering production worker or by whatever title and there's a classification and they go through a competency process to see whether they have the competencies to fill that position. Now, what is the definition of that C14, for example?

PN1468

MS TAVERNER: C14 level 1, an employee at that level performs routine duties essentially of a manual nature.

PN1469

THE COMMISSIONER: All right, C13?

PN1470

MS TAVERNER: C13 is someone who works in accordance with standard operating procedures and established criteria, works under direct supervisor either individually or in a team environment.

PN1471

THE COMMISSIONER: Why doesn't that cover this operator/maintainer?

PN1472

MS TAVERNER: I am sorry?

PN1473

THE COMMISSIONER: It's a lower level, but it certainly encompasses the operator/maintainer.

PN1474

MS TAVERNER: In our submission, it doesn't, Commissioner, because - - -

PN1475

THE COMMISSIONER: Why? You say the definition stops it?

PN1476

MS TAVERNER: Because the operator/maintainer is a hybrid position of on the evidence 80 per cent operating functions, 20 per cent - - -

PN1477

THE COMMISSIONER: I am sorry, I am aware of operators in the engineering industry who are operating and maintaining and they are tradespeople and they are members of your organisation. Now, if you're saying that that's a hybrid - I can understand the argument that says this person is a confectioner and is not covered by the Metals Award and I didn't hear that argument. I hear the argument that you can't be a hybrid operator/maintainer. Now, I am prepared to bet that even in Tasmania there are people who are operating in the engineering industry who are making things as operators who are tradespeople and are maintaining the plant that they are operating.

PN1478

MS TAVERNER: That may be so, Commissioner, and, indeed, there may very well be, but we say within the terms of this EBA - - -

PN1479

THE COMMISSIONER: Take me to the terms of this EBA that stop that happening.

PN1480

MS TAVERNER: There is no provision to allow a position of operator/maintainer. Now, turning to appendix F - - -

PN1481

THE COMMISSIONER: Sorry, here we go again. I thought you were saying that it's the award that prohibits it.

PN1482

MS TAVERNER: That is - - -

PN1483

THE COMMISSIONER: Because the agreement is read in conjunction with the award.

PN1484

MS TAVERNER: That is our submission.

PN1485

THE COMMISSIONER: And I have just posited to you that the award does not prohibit it.

PN1486

MS TAVERNER: That is our submission, Commissioner, that one must look at schedule D to the award in order to - - -

PN1487

THE COMMISSIONER: What in schedule D prohibits it?

PN1488

MS TAVERNER: There is no positive specific definition of an - - -

PN1489

THE COMMISSIONER: No, but you're saying that the schedule prohibits it and I am asking you to show me, tell me what it is in schedule D that prohibits someone being an operator/maintainer.

PN1490

MS TAVERNER: We're saying because there is no position actually nominated there that describes the types of skills that this hybrid person is expected to carry out, so, for example, there is no position there that says operates cookers, supervises - - -

PN1491

THE COMMISSIONER: That might be going to a level of detail that is altogether too specific. I thought we got rid of those 700-odd classifications in the Metals Award in the broad-banding process that was done back in the early 90s.

PN1492

MS TAVERNER: Similarly, Commissioner, these are people who are working in a confectionery environment, they're confectionery operators, they're not metals operators, mechanical tradespeople.

PN1493

THE COMMISSIONER: I understand that argument, but you're telling me that there's something in that award that prohibits it and I am wanting to know what that something is.

PN1494

MS TAVERNER: What I am saying is that because there is no operator/maintainer position whereby someone is expected to carry out maintenance and is expected also to carry out operating duties - - -

PN1495

THE COMMISSIONER: I think there is. I'm aware of the fact that there is.

PN1496

MS TAVERNER: Our submission, Commissioner, is that it's not specified in the award and therefore - - -

PN1497

THE COMMISSIONER: It doesn't have to be specified. What you're saying is that because it's not allowed, it's therefore prohibited.

PN1498

MS TAVERNER: It's not specified, Commissioner, so therefore - - -

PN1499

THE COMMISSIONER: So therefore it's prohibited? All right, I understand that submission.

PN1500

MS TAVERNER: And it's also not specified in appendix F we say.

PN1501

THE COMMISSIONER: Nothing is specified in appendix F.

PN1502

MS TAVERNER: So therefore we would say that it's not provided for within the terms of the agreement. The structure or the process which one might follow if you were going to introduce a new role such as this one is outlined we say in clause 27 which is the manufacturing consultative committee process. That's a fairly clear process which is outlined to show the processes in the consultative mechanism and the steps that would be taken when one is considering moving people from a maintenance - I am sorry, transferring skills in terms of having maintenance functions being performed by people who are operators and we say that the company has ignored the provisions of clause 27 that was available to it at all times.

PN1503

If it wanted to actually make the proposal that it has done the correct way would have been to approach the matter via clause 27. There's no evidence of compliance by the company with the terms of clause 27 and, indeed, Mr Cowen's evidence was that he thinks that it pertains only to transfer of skills and accordingly it has no operation to play in these circumstances. Our submission is that clearly this is a matter where the company is proposing to introduce a new position whereby the person will be expected to not only have operating competencies, but also would be expected to have a high degree of skill in terms of their maintenance functions.

PN1504

Similarly, Commissioner, in the agreement there is no explicit or specific clause that allows for the introduction of a new classification, so, for example, if you compare this with some examples from other enterprise bargaining agreements, for example, Commissioner, in the matter of ALAEA v Forstaff Pty Ltd, PR955677, the agreement at issue in that matter provided at clause 3 for classification changes. Clause 3 in that agreement states that:

PN1505

In the event that a new classification and/or classification structure is required, the company will consult with the ALAEA with the view to reaching agreement on the insertion of appropriate classification structure in this agreement.

PN1506

We rely on that case to the extent of it showing a positive example of a provision within an enterprise bargaining agreement that allows the company to do what it has proposed to do. Clearly there is no such clause or provision within the terms of the current EBA and so therefore we say that the company is not permitted to introduce the new role in the way that they are doing. Similarly, in the matter of Ansett Pilots' Association v Ansett Ltd which is reference S1467, that agreement that was at issue in that matter contained a clause that said:

PN1507

During the life of the agreement, the parties may negotiate and implement changed classification structures by agreement. The parties to this agreement acknowledge that reclassification must only be achieved by agreement, recognise that increased remuneration will only result from the use of increased skill or responsibility and be achieved at no additional cost.

PN1508

So again, Commissioner, that is an example of terms of an enterprise bargaining agreement that actually allow four new classifications to be introduced in a consultative manner. Clearly there is no such clause in the current EBA with Cadbury. In relation to the actual position, the evidence has been that there would be a requirement to do 80 per cent operating duties and 10 to 20 per cent fitting duties and our submission, Commissioner, is that that is a hybrid or combined role of two pre-existing roles and so accordingly, it amounts to a new classification or a new role and therefore either the company - - -

PN1509

THE COMMISSIONER: Sorry, it's agreed it's a new role.

PN1510

MS TAVERNER: Yes, so what flows from that, Commissioner, is that the company either pursues it through clause 27 or puts it on the table for the next enterprise bargaining negotiations. Now, turning to the agreement and how - - -

PN1511

THE COMMISSIONER: No, no, but why? What's happening in that Ansett decision is that there was a series of classifications that depended on the type of aeroplane that was being captained. We don't have that here. We have a series of classifications which at one level, using your argument, are determined using competency standards. Alternatively, they're determined according to the sort of evidence that's been given by Mr Cowen. That's quite different from what the situation was in the Ansett one.

PN1512

MS TAVERNER: Commissioner, we don't rely - - -

PN1513

THE COMMISSIONER: There is no issue of introducing a new classification.

PN1514

MS TAVERNER: No, Commissioner. We rely on that case solely as an example of an enterprise agreement where it's clearly specified, if you want to change the classification structure, this is how you would go about it, so in other words, when the agreement was negotiated, the parties had within their contemplation and had intended to provide a framework which would allow for the potential - - -

PN1515

THE COMMISSIONER: Yes. That's not the case here, is it?

PN1516

MS TAVERNER: No, that is not the case here.

PN1517

THE COMMISSIONER: So what is the relevance?

PN1518

MS TAVERNER: I am sorry, Commissioner?

PN1519

THE COMMISSIONER: So what is the relevance?

PN1520

MS TAVERNER: What we're saying is there is an absence of such a clause in this agreement and so therefore the way that the agreement is meant to operate is such that because there is no clause, therefore the company is unable to introduce a new clause for the duration of the agreement.

PN1521

THE COMMISSIONER: That is just not so, is it? We've got the plumber, we've got all of those things that were talked about.

PN1522

MS TAVERNER: But, Commissioner, with respect, the plumber, with respect, doesn't come under the rules of the AMWU. It's not a member of the AMWU.

PN1523

THE COMMISSIONER: They're covered by the agreement, though.

PN1524

MS TAVERNER: They're certainly covered by the agreement, but if the relevant union doesn't decide - we don't even know if the plumber is a union member. We don't know the circumstances. There's simply no evidence as to whether that person is employed even under the terms of the agreement.

PN1525

THE COMMISSIONER: No, your argument must be that he's been wrongly classified, that they've got no right to employ a plumber under the agreement, mustn't it?

PN1526

MS TAVERNER: Well, no, because the agreement is read in conjunction with the other awards which also would provide at clause 3, the award provides the classification for plumber, so presumably it's in the Building Trades Award, Wholesale Trades Award.

PN1527

THE COMMISSIONER: The Building Trades Award. Yes, okay, I understand that.

PN1528

MS TAVERNER: In relation to the EBA, our submission is briefly and I am aware of the time, Commissioner, that section 3 operates so as to allow the agreement to be read in conjunction with the awards, both confectioners and metals. In relation to the agreement, there is no process which outlines how a person is to be classified. The agreement is silent on that, so we say then that you must go back to schedule D to the award. Thirdly, should the company wish to pursue a new classification, the route that they would pursue is to go down clause 27 which allows them in certain circumstances to have discussions within the mechanism and through the mechanism of the MCC to ensure that consultation occurs, to also ensure that the work groups who are affected by the decision agree and then the change will be implemented. Clause 27 at 27.1(a) states that:

PN1529

In the event that the work groups affected cannot resolve the transfer, then the MCC will assess the proposal and attempt to find a resolution.

PN1530

So again there are internal mechanisms there to allow for disputes and differences in relation to the requirement to move towards a more proactive maintenance agenda to allow for that to occur. Commissioner, clearly there is a leave reserved clause within the agreement which appears at clause 29. Now, clearly the leave reserved provision contains matters that were not finally agreed upon or negotiations did not finalise in relation to those matters and accordingly those matters have been reserved to allow for some discussion to occur there. Clearly there is no part there in relation to classification or proposed new classifications.

PN1531

Finally, Commissioner, at clause 6 there is the no extra claims provision which we say prevents - operates so as to prevent the company making the claim or the proposal that it is now making, so to summarise we have the agreement and the awards read in conjunction with those, we have the wage rates at appendix F, we have clause 27 which provides a procedure to be followed in these circumstances, we have clause 29 which is the leave reserved matters and clause 6 which provides a prohibition in relation to making any further claims.

PN1532

Now, the third issue is how the agreement was in fact intended to apply and the best evidence on our submission, Commissioner, in relation to that is the evidence of Ms Anne Urquhart who was present at negotiations on the last occasion, has a great deal of familiarity with the industrial issues pertaining to the site. Now, Ms Urquhart's evidence which was uncontroverted is that her understanding of the enterprise bargaining agreement, this is at paragraph 32 of her statement, Commissioner, was that the no extra claims clause would prevent the company making a new claim for a position such as the one of an operator/maintainer.

PN1533

Her evidence is that a new claim would disturb the relativities in the pay rates at appendix F and would disrupt the whole bargain that was struck with the company in 2005 during those negotiations. Similarly, it would affect the trade-offs that were made at that stage. Ms Urquhart's evidence also is the leave reserved clause would mean that the company cannot re-open negotiations or make new proposals unless they're actually engaged in a bargaining process. She goes on to say at paragraph 34:

PN1534

It was never the intention of the AMWU to leave such matters as matters that may be revisited and, indeed, the AMWU would not have recommended to the members that it endorsed such an agreement.

PN1535

Now, finally, Ms Urquhart's evidence is at paragraph 35 that there were never any discussions at the time of negotiating in 2005 to the effect that these matters might be re-examined during the operation of the agreement. We say that Ms Urquhart's evidence is entirely relevant because she was present at the negotiations that formed the agreement. She has provided comprehensive and contemporaneous notes of discussions and her involvement in the matter and they remain substantially unchallenged.

PN1536

In relation to the interpretation of the agreement, Commissioner, and your role, it's undisputed that clearly your role is to ascertain the plain meaning of the certified agreement's words and where that cannot be done or where the language is ambiguous or uncertain, you are rightly able to consider other evidence such as evidence from Ms Urquhart who was present during the negotiations. However, in relying on that extrinsic evidence from Ms Urquhart, it would not be correct for you to rely on that evidence if that meant that you reached an interpretation that was contrary to the express terms of the actual agreement and to that extent we rely on the matter of Alcoa v The AMWU, a decision of Commissioner Williams in PR974796. Commissioner, in the matter of the Health Services Union v GSL Custodial Services Pty Ltd which is PR974264, a decision of Commissioner Lewin, he at paragraph 21 of that decision expresses the view that:

PN1537

The Commission is required to exercise the power of arbitration to determine the meaning of the words in the agreement.

PN1538

And he adopts the Honourable Deputy President Ives, a summary of the principles which should be used to guide the Commission's task when it comes to interpreting an agreement and I will briefly just discuss what those principles are. Firstly:

PN1539

If the terms of an industrial agreement are clear and unambiguous, then the industrial instrument must be interpreted in accordance with that clear and unambiguous meaning.

PN1540

Secondly:

PN1541

The words of an industrial instrument should not be interpreted in a strict technical fashion because those who actually framed the agreement are often non-lawyers drafting words in the context of custom and practice in an industry or a particular enterprise.

PN1542

Thirdly:

PN1543

Each clause should be interpreted within its context, that is the meaning of particular words should be read in the context of the industrial instrument as a whole and the context in which the clause or the section of that particular clause falls.

PN1544

Fourthly:

PN1545

The Commission should strive to give effect to the intention of the authority which made the award -

PN1546

which, of course, is this Commission -

PN1547

provided that the words appearing in the agreement can reasonably be interpreted to mean that which the parties intended them to mean.

PN1548

And, fifthly, Commissioner, of course, your recourse to extrinsic material in the interpretation of the agreement is dependent upon there being some ambiguity within the agreement. Now, Commissioner, in terms of those particular principles put together by Deputy President Ives, we rely upon all of those. We say that - I suppose our submission is that the operation of the agreement in our submission is quite clear, that is that there is no provision or classification for the position of operator/maintainer. The part of the agreement that does allow for such a proposal to be made as contained in clause 27, there's no evidence that that has been complied with by the company in an attempt to actually consult with the employees about the proposal.

PN1549

Now, if you're against us in relation to that, Commissioner, and you don't actually believe that the matter is that clear cut, our alternative submission is that you are, of course, then entitled to go and look at extrinsic evidence which includes the totality of the evidence of Ms Urquhart. You are entitled to go back and look at what her evidence is in relation to the intention of the parties at the time when the agreement was negotiated and accordingly, the agreement shall be interpreted in a manner that gives effect to that or takes into account that extrinsic evidence and reaches an interpretation that is not contrary to the strict terms of the agreement.

PN1550

Of course, Commissioner, you would be familiar with the matter of Metropolitan Fire and Emergency Services Board v The United Firefighters' Union, PR950883 which, of course, is subsequently approved by the Full Bench consisting of his Honour Vice President Ross, Deputy President Hamilton and Commissioner Tolley in the decision PR957379. The Full Bench, of course, approved the Commissioner's principles outlined within that decision. I won't take you with great detail, Commissioner, to those principles. Clearly you would be familiar with them.

PN1551

However, in relation to the issue of this being an extra claim, what we say in relation to - we say that the proposal put by the company clearly must be characterised as an extra claim. This is for the reason that if it wasn't an extra claim, the company would have gone down the clause 27 route, the MCC route and they haven't chosen to do that and so accordingly they have decided to just keep on and proceed as they liked and we say that in fact that amounts to an extra claim.

PN1552

The company was informed of the AMWUs view in relation to the extra claim at a meeting that was attended by Ms Urquhart along with the national secretary of the food and confectionery division of the union, Ms Jennifer Dow, and we Ms Dow and Ms Urquhart confirmed with the company at the time they considered it to be an extra claim and Ms Urquhart has included a letter confirming that within her statement, Commissioner. Just bear with me, I will locate that.

PN1553

In fact, it is annexure P, page 32 to Ms Urquhart's statement. There is a contemporaneous file note dated 29 August 2007 that reflects what was actually discussed at that meeting, including for example that it was the intention of the company to employ an operator/maintainer. Ms Urquhart's evidence there is that there are a number of areas that were unclear in relation to the intention of the company and there was a need for more detail. Similarly, there was a requirement for a detailed job description and there were obvious concerns about the impact on current employees as well as some questions over whether a risk assessment would be carried out and in relation to the actual notification of the dispute to the Commission, clearly the union claimed as part of its application that it believed that the company's proposal did amount to an extra claim and accordingly it offends the provisions of the enterprise bargaining agreement and to that extent we say it is prohibited.

PN1554

So clearly the issue that you, Commissioner, considered in the Metropolitan Fire and Emergency Services Board is the extent to which or when a proposal does actually become an extra claim and in that matter that you commented that in some areas the agreement is specific providing for wage rates, certain allowances, specific and quite detailed provisions regarding rostering arrangements and procedures, crewing levels and the like and clearly any attempt to change those matters would amount to an extra claim and, of course, in that matter the agreement specifically would require changes to any human resources policies to be by way of agreement. In the gist of the Commission's decision which I believe is at paragraph 25, Commissioner, of course, you comment that:

PN1555

The context of the agreement makes it clear that certain change can only be implemented with the agreement of the parties. An example is the requirement that changes to HR policies must be agreed.

PN1556

We say this case is directly applicable to the circumstances that the Commission has to consider today. Clearly there is - our argument is and our submission is that the context of the agreement, if you look at it as a whole, will show that any change can only be implemented we say in accordance with clause 27 and a direct component of clause 27 is that there must be consent by the affected employees, so we say because of the requirement for employees to consent to the proposal or at least to not object, to that extent anything above and beyond that would represent an extra claim by the company and to that extent we say it's prohibited.

PN1557

The next case we rely on, Commissioner, is Melbourne City Council v The Australian Services Union, a decision from Commissioner Grainger earlier this year. Part of that quite complicated matter was whether the council had in fact breached the no extra claims provisions of clause 9 of the agreement. Clause 9 of that agreement provided a term very similar to the one in the Cadbury EBA which was:

PN1558

It is a term of this agreement that the parties will not pursue any claim relating to terms and conditions or any other matters whether covered by the agreement or not for the period of the agreement.

PN1559

The council in that matter introduced a new policy in relation to the protection of its workers in terms of UV and sun damage and the council maintained in that matter it did not represent an extra claim within the meaning of clause 9 of the agreement because the council was required to take into account OH&S issues including section 21A of the OH&S Safety Act and clause 48 of the agreement specified that it was a requirement of the company to provide and maintain for its employees so far as reasonably practicable a working environment that was safe and without risks to health.

PN1560

Commissioner, in relation to the OH&S issues that we've raised in these matters, Mr Santi's evidence which I believe remains uncontested is that his view is that if anyone was to leave the crumb plant for longer than 10 minutes, his view is that there would be serious health and safety concerns and with the benefit of having inspected the site and viewed the height of the building, the stairway which one has to traverse in order to move between floors, the heat in the environment, you could imagine on a very hot summer day how hot that environment would be, not to mention the duties that the operators have to carry out within that environment, we say that there are some serious concerns in terms of OH&S.

PN1561

THE COMMISSIONER: They can't be any greater than they are now. His evidence was that people leave to attend meetings.

PN1562

MS TAVERNER: The question always is whether a relief operator comes in. Mr Santi has been - - -

PN1563

THE COMMISSIONER: His evidence was that relief operators didn't come in when they attended meetings.

PN1564

MS TAVERNER: That's correct, Commissioner.

PN1565

THE COMMISSIONER: And those meetings could go for 15, 30 minutes.

PN1566

MS TAVERNER: Yes, Commissioner, but we say that Mr Santi - - -

PN1567

THE COMMISSIONER: It doesn't create an OHS problem now.

PN1568

MS TAVERNER: He has some 30 years working in that environment, Commissioner, and we say that although he doesn't see there to be any serious OH&S considerations at this point in time, the issue is whether those OH&S risks are going to be amplified and increased once a position of operator/maintainer comes into existence and that's yet to be tested. There has been no risk analysis or assessment that has been conducted. There's no understanding as to really how the position is going to work in practical terms and to that extent we say that it's our submission that there are some genuine OH&S concerns that our members have raised and, accordingly - - -

PN1569

THE COMMISSIONER: I am not sure that that is a matter that really - as I indicated in your opening, that's a matter I can have attention to.

PN1570

MS TAVERNER: Yes, I have certainly taken on board your comments in relation to the OH&S issues that we've raised.

PN1571

THE COMMISSIONER: This is not an agreement like that Woolworths agreement.

PN1572

MS TAVERNER: No, Commissioner.

PN1573

THE COMMISSIONER: Where there is a commitment by the parties to maintain a safe working environment in the agreement.

PN1574

MS TAVERNER: Although it may not be in the agreement, Commissioner, what we say is that the employer clearly has obligations, it's a mutual obligation. The AMWU members don't walk away from their obligations in terms of OH&S and are in fact very strident in seeking a safe workplace.

PN1575

THE COMMISSIONER: The point I am making is that in the Woolworths case there was a provision - I think it's the Woolworths case, there was a provision in the agreement that committed the parties to an OH&S regime. There's no such provision in this agreement, so a dispute about the application of the agreement can't go - the issue of OH&S can't be a relevant consideration for the Commission.

PN1576

MS TAVERNER: Commissioner, we do agree that there is no clause in the agreement, but again we say that the Commission doesn't make its decisions in a vacuum. You need to in terms of the interpreting of the agreement and working out what the Commission believes it means and how it is meant to operate, you must adopt with respect an interpretation that is both beneficial and that is sensible.

PN1577

THE COMMISSIONER: Yes, I understand that submission.

PN1578

MS TAVERNER: And so to that extent, in relation to the Melbourne City Council matter, we rely upon that to the extent that the Commission in that matter, Commissioner Lewin I understand found that - - -

PN1579

THE COMMISSIONER: Commissioner Grainger, wasn't it?

PN1580

MS TAVERNER: I am sorry, Commissioner, Commissioner Grainger found that the introduction of the new policy was not introduced and subsequently applied in accordance with the requirements of the agreement and to that extent, we rely upon that as authority for what is going on in this matter. The company has proposed we say a new classification. It hasn't been introduced in accordance with the procedure that is outlined in the agreement and to that extent, it cannot be justified or it cannot be allowed because in our view it goes against the manner in which the agreement is meant to operate.

PN1581

Commissioner, I do have some material from Chitty On Contracts, the 28th edition, which I don't think I need to take you to in relation to the rules of the interpretation in terms of dealing with situations where there is ambiguity. I am certain that the Commission is more than aware of that, but I just place that on record. In relation to the issues of custom and practice, Mr Cowen's evidence has been that there's no classification structure or classification - I am sorry, Commissioner, Mr Cowen's evidence is that there is no formal position descriptions for any operators nor for that matter any employees in the crumb plant.

PN1582

However, he then goes on to outline the duties that operators are expected to perform. It appears to be and my submission would be that Mr Cowen and the company is relying upon custom and practice in relation to how decisions in relation to classifications are made and, indeed, I believe that he did refer to
that - - -

PN1583

THE COMMISSIONER: There is a contradiction in his own evidence because at exhibit NC1 there is a position description for an operator/maintainer.

PN1584

MS TAVERNER: My understanding, Commissioner, is that that was the one and only time that a position description has been supplied, so it is curious, but in any event clearly there is an absence of position descriptions. We have the letter of I think 12 July to Mr Weir outlining the duties that he would be expected to undertake and we also have obviously Mr Cowen's annexure to the document which is the position description in relation to the operator/maintainer. Now, in relation to custom and practice in the matter of the Australian Rail, Tram and Bus Union v The Rail Infrastructure Corporation, a decision of Senior Deputy President Hamberger from earlier this year, Commissioner, (2007) AIRC 15. At paragraph 133 of that decision his Honour says that:

PN1585

In the High Court decision of Byrne and Frew, their Honours McHugh and Gummow JJ referred with approval to Constan and added that the question is always whether the genuine ...(reads)... the courts are spelling out what both parties know and would if asked unhesitating agree to be part of the bargain.

PN1586

So in other words, to put it simply, that it's so obvious that it goes without saying. What we say in relation to the custom and practice which Mr Cowen gave evidence about is our view is that it's not so obvious that it goes without saying. Ms Urquhart's evidence is that there is no way she would have agreed to an agreement back in 2004 or 2005 that allowed for the company to introduce new classifications and, indeed, she would never have recommended such an agreement to our membership.

PN1587

THE COMMISSIONER: I think that goes a bit far. You've got the plumbers in there and all of those things. I put it to both sides quite clearly that the custom and practice of the site was that there was no mixing of operators' positions with the other positions and that's been the custom and practice on that site for time immemorial and I think that's the hurdle that the company has got. It seems to me to be pretty clear that save for the procedures outlined in clause 27, an operator is an operator, a storeman is a storeman, an operator is an operator and a fitter is a fitter and that's been the history of the site and not just this site and to that extent, I think the Constan matter is relevant and it's interesting that the positions that have been - the roles that have been developed at 45 and I think it goes just too far to say there's no relevance:

PN1588

Mechanical technician, boiler attendant, plumber, refrigeration mechanic, work in progress co-ordinator, stock controller, materials co-ordinator.

PN1589

Well, with the exception of the work in progress co-ordinator, I'm not quite sure what it does, they're all on the non-operator side and they don't mix operator functions with anything else.

PN1590

MS TAVERNER: Commissioner, that would be our understanding of traditionally how the agreement and the awards would apply and it's our view that it is simply offensive to put - - -

PN1591

THE COMMISSIONER: That goes as far as the award.

PN1592

MS TAVERNER: Yes, Commissioner, it simply goes against the way that the award and the agreement to that extent are meant to apply.

PN1593

THE COMMISSIONER: I don't agree with you about the award because I am aware of places where the award applies to operators who are also involved in fitting duties.

PN1594

MS TAVERNER: Yes, Commissioner, but with respect to those examples and I do hear the Commission in relation to that is that perhaps there has been no objection raised - - -

PN1595

THE COMMISSIONER: No, no, I think it's because they are in engineering, not because there's no objection raised, but because they are clearly within the engineering stream, people making for example rear axles for cars which is the prime example apparently from my experience, but as a matter of principle, I can't see that there's a lot of difference.

PN1596

MS TAVERNER: Yes, Commissioner. Just finally, Commissioner, in relation to - perhaps to take a step back from this and more practically how one might deal with this matter, obviously there has been evidence that EBA negotiations are taking place at the moment and have done since around about the middle of this year. Now, in the matter of the National Union of Workers v Murray Goulburn Co-Operative Company Ltd, PR973812, in relation to that matter, Commissioner Eames found that at paragraph 31, the company argued that there was no classification for elevator operators as the NUW had been seeking a classification for those operators and the Commissioner proceeded to say that the company had argued there was no classification for elevator operators and that, quote:

PN1597

The appropriate time for this issue to be resolved is at the EBA negotiation time.

PN1598

Accordingly, the NUWs application was refused. Again we say that there is no classification in the agreement in relation to the position of operator/maintainer. The correct procedure that you would use in order to introduce or make such a change to the agreement is that which is outlined in clause 27. That hasn't been used. To that extent we say that the claim by the company or the proposal by the company does amount to an extra claim and can be properly characterised as an extra claim for the reasons, amongst other things, that it disturbs the relativities, it disrupts the bargain that was struck in 2004/5 when the agreement was certified, it indeed reduces certainty in terms of how the agreement operates.

PN1599

The purpose of having one of these enterprise agreements is to allow for some certainty and some formality in terms of industrial matters for the next three or five years and so accordingly this is out of left field and we say that it goes against the clear provisions of the agreement, specifically the no extra claims clause and it is contradictory to the leave reserved clause to introduce a new claim such as the company has done. We say that the proposal put by the company is sufficient to constitute an extra claim within the meaning that the Honourable Commissioner considered in the matter of Metropolitan Fire and Emergency Services Board and to that extent, Commissioner, we say that it's prohibited.

PN1600

Just turning quickly to the evidence, Commissioner, Mr Cowen's evidence this morning was that he has no understanding or familiarity with schedule D of the Metals Award and accordingly his view is that if he wants to classify someone, he just looks at the role or the function that the company is offering, makes a decision in terms of what the market is paying and off we go, we've got some employment. We say the matter is a little bit more complicated than that. Mr Weir in his statement refers to a skills audit that was carried out during the life of the 2005 EBA and annexed to his statement at annexure A, page 4, you can see the number of documents outlining the duties that are going to be undertaken by maintenance personnel and also you can see there the units required and the actual points as to whether they're being utilised or whether they're mandatory or base skills. We rely upon that to show - - -

PN1601

THE COMMISSIONER: But surely that doesn't take you anywhere, because all that means is that they may be under-classifying a person, because they've got to get to C10 plus the additional competencies that arise from being an operator.

PN1602

MS TAVERNER: Yes, but what we say again is that is the framework within which one determines a classification issue.

PN1603

THE COMMISSIONER: If you're right about that, that doesn't stop them doing it.

PN1604

MS TAVERNER: We say the correct way is to do this.

PN1605

THE COMMISSIONER: All right, let's say you're right about that. That doesn't stop them employing them. All it means is you're in dispute about the classification they get, because they get C10 because they're a qualified tradesperson and they get the additional points for the additional competencies that they bring to the job and they could well end up getting paid a lot more properly classified if your approach to the classification is correct, that is that it's the competency standards approach, they could end up getting paid more than the fitters who are currently on I think they were 110, 115 per cent. They might actually end up somewhere near the professional engineers.

PN1606

MS TAVERNER: Commissioner, we rely upon that to show that there is a process whereby you assess the skills that are required for a job, the competencies required.

PN1607

THE COMMISSIONER: I understand all of that, but all I am saying is it may mean that if you're right, the proposal to simply pay them C10 or a little bit more will not satisfy that requirement.

PN1608

MS TAVERNER: Indeed, and what we say then, Commissioner, is that what is the purpose of the agreement if it's not going to be applied in that way? If the company can - - -

PN1609

THE COMMISSIONER: No, no, that is for another day if and when someone challenges the classification that they've got.

PN1610

MS TAVERNER: Perhaps if I can just leave it by saying, Commissioner, that the classification decision or how you assess or evaluate how someone fits into a classification structure is a little bit more complicated than that that's been put by Mr Cowen.

PN1611

THE COMMISSIONER: It may be.

PN1612

MS TAVERNER: The evidence of Mr Leek, his statement was exhibit T3, he outlines what his daily responsibilities are in terms of maintenance and it's our submission that as a C7 fitter that he's got a level of skill that we would say that an operator working 10 to 20 per cent of maintenance duties isn't necessarily going to possess.

PN1613

THE COMMISSIONER: Why? Why wouldn't they have that competency?

PN1614

MS TAVERNER: Because Mr Leek is working day in day out on his maintenance functions.

PN1615

THE COMMISSIONER: I know enough about the competency standards to know that you only have to satisfy the competencies to get the points.

PN1616

MS TAVERNER: But my point is, it's our submission that the work that would be undertaken by an operator/maintainer in terms of maintenance is not going to be - - -

PN1617

THE COMMISSIONER: That's not the issue. For classification purposes, all they have to do is be a C10 tradesperson and have the additional competencies. Now, they don't have to operate those competencies every day, they only have to have them. That's your union's position.

PN1618

MS TAVERNER: If they just possess them, that's - - -

PN1619

THE COMMISSIONER: No, no, possess them and use them.

PN1620

MS TAVERNER: And use then, but my point is Mr Leek through the performance of his functions, obviously we would say it's open to the Commission to draw an inference that Mr Leek as a C7 is going to be a lot more skilled and qualified because he's carrying out these duties on a day to day basis. The operator/maintainer is carrying out more basic sort of work.

PN1621

THE COMMISSIONER: I don't know that I can come to that. What you're saying, what I understand you to be saying on behalf of your organisation is that someone who's got competencies and only uses those occasionally ought not be recognised in the same way who has got the competencies and uses them regularly.

PN1622

MS TAVERNER: No, I am sorry, Commissioner, I think you've misunderstood my submission. What I am saying is that as a matter of practical reality, someone like Mr Leek who is carrying out maintenance functions week in, week out is we say going to be a better fitter than a person who is carrying out more basic sort of maintenance functions and Mr Cowen's evidence was that an operator would be carrying out maintenance functions of a more basic nature and, in fact, that was part of the rationale for the introduction of this hybrid position.

PN1623

THE COMMISSIONER: But if the person happens to have the
competencies - - -

PN1624

MS TAVERNER: They may very well have the competencies, but it doesn't necessarily mean - - -

PN1625

THE COMMISSIONER: Well, then they're entitled to be paid at that level.

PN1626

MS TAVERNER: Of course they're entitled to be paid at that level, but - - -

PN1627

THE COMMISSIONER: And they'll be paid at a level that's higher because if they have the same competencies as Mr Leek plus they have got operator competencies, they're going to be paid more than him and get the shift penalties.

PN1628

MS TAVERNER: But that's because they're doing two jobs, Commissioner.

PN1629

THE COMMISSIONER: No, it's because they've got the competencies and they're using them.

PN1630

MS TAVERNER: Well, it's our submission that they're doing two jobs, operating and maintaining, but - - -

PN1631

THE COMMISSIONER: That's if that classification process is appropriate to be used, I hasten to say.

PN1632

MS TAVERNER: Yes. Mr Leek has also given evidence about his concerns in relation to job security and we say they're legitimate concerns. His evidence is that Mr Cowen has told him that his jobs will not be affected and he's concerned that he has no guarantee or certainty in terms of the future of his role. Mr Cowen has confirmed that this morning in cross-examination by stating that obviously you can offer no guarantees. The highest he got was a promise, but he really needs a guarantee, so clearly Mr Cowen has concerns and similarly our members have concerns we say legitimately in relation to their ongoing tenure and job security. Mr Santi's evidence - - -

PN1633

THE COMMISSIONER: Can I just stop you there? At paragraph 20 there is a dispute as a matter of fact between Mr Cowen's evidence and Mr Leek's evidence.

PN1634

MS TAVERNER: I am sorry, Commissioner, are you referring to T2?

PN1635

THE COMMISSIONER: T3, Mr Leek's evidence and Mr Cowen's evidence, his evidence at paragraph 20 and Mr Cowen's evidence at paragraphs 26, 27, 28.

PN1636

MS TAVERNER: In relation to - - -

PN1637

THE COMMISSIONER: Whose do I accept?

PN1638

MS TAVERNER: I think the distinction which I would make is that there's two scenarios, Commissioner. There's one where you are required to come in to work because - - -

PN1639

THE COMMISSIONER: No, no, he's saying:

PN1640

Regular coverage is provided by other fitters in our own unit to the crumb plant every weekend and on an on call basis.

PN1641

Mr Cowen says at paragraph 27:

PN1642

This arrangement is clearly unsustainable from an operational perspective because there is a limit to how long those two employees will agree to be on call given they're performing the majority of the on call work. Recently those employees have ceased their agreement to on call arrangements.

PN1643

MS TAVERNER: Mr Leek's evidence was that his name is still on the list in order to attend.

PN1644

THE COMMISSIONER: And Mr Cowen's evidence was that he doesn't come.

PN1645

MS TAVERNER: There was no evidence from Mr Cowen as to whether he's made phone calls to Mr Leek. He's just said there's two people that are continually doing on call work and there's a limit as to how long that can go on.

PN1646

THE COMMISSIONER: Okay, well, I will make my own judgment. You're not assisting me at all.

PN1647

MS TAVERNER: In relation to the on call, Commissioner, obviously there is a distinction between a requirement to be on call by virtue of the EBA and a more informal arrangement where the company just calls you up and asks you if you can attend. There's a distinction there. One we say is an obligation to attend because the EBA requires you to attend.

PN1648

THE COMMISSIONER: Yes, but apparently the EBA doesn't require you to go on call, so the company has made its own bed in that sense.

PN1649

MS TAVERNER: Commissioner, in relation to clause 27 in the MCC process, it's our submission that the company viewed it as an unnecessary handbrake on the process and although Mr Cowen was unable to confirm whether Mr Davies had in fact said that comment at a meeting on 7 August, we say that that is reflective of the company's view and if the company - that is consistent with the company ignoring or not paying attention to clause 27 of the agreement. If the company was comfortable to use clause 27 and really wanted the proposal that's put forward, it would have proceeded via that particular avenue and it's chosen not to.

PN1650

THE COMMISSIONER: Do you say that clause 27 enables them to do this, do you?

PN1651

MS TAVERNER: We say that clause 27 allows for them to put the proposal to employees and for discussions to take place.

PN1652

THE COMMISSIONER: 27.2 seems to restrict what production operators can do.

PN1653

MS TAVERNER: Yes, that's the other point I wish to make, Commissioner, and thank you for highlighting that.

PN1654

THE COMMISSIONER: No, that might be another point, but the point is in contradiction to the point you're making. You're saying that they could use clause 27 to allow production operators to carry out maintenance and I would have thought that they couldn't because clause 27.2 restricts production operators to doing the sorts of things that are there.

PN1655

MS TAVERNER: Commissioner, what I am saying is that if the company has this proposal during the terms of this agreement, this is one way in which it can sit down and consult with its employees. It's going to take place via the MCC process and the MCC process has to be followed. For example, if any party proposes to make a change pursuant to clause 27, it should first give written notice of the proposed change.

PN1656

THE COMMISSIONER: Yes, I can read the clause. I understand what the clause says.

PN1657

MS TAVERNER: So the process we say hasn't been followed. There has been evidence from our members and Ms Urquhart that they were prepared to sit down and talk with the company in terms of the proposal, but the company was not receptive to what had been put by the AMWU and eventually the pressure was applied to the extent that we had no alternative but to come to the Commission to resolve this matter, so we say that clause 27 has not been complied with in the manner in which it should have been used and to come up to the Commission and to try to argue for an interpretation which we say isn't available, when you consider the EBA, the award and the judicial authorities as they stand, Commissioner, we say the correct operation of the agreement is that it would prevent new claims being made and that is consistent with allowing for some certainty in terms of the bargain or the deal that has been struck between the parties. We say finally that the correct way for the company to proceed if it doesn't want to use clause 27 is to place the matter in its log as it appears to have belatedly done and to pursue it through negotiations. Unless I can assist you any further, Commissioner, they are the submissions of the union.

PN1658

THE COMMISSIONER: Thanks, Ms Taverner. Mr Gardner.

PN1659

MR GARDNER: Mr Commissioner, the dispute is about whether the enterprise agreement applies to the operator/maintainer role and if it does not, the assumption is it does not, is the company's recruitment of an operator/maintainer an extra claim or otherwise prohibited by the enterprise agreement? That is as we see the characterisation. Now, in resolving the classification point, of course one has to look at the words of the agreement and the starting point, sir, and perhaps the end point is clause 3. Can I take you to clause 3, please?

PN1660

The agreement on its terms in clause 3 makes plain who the agreement shall apply to. It makes plain who it shall apply to in respect of which employees. The answer to that question is those employees who for the major and substantial part of their working time perform work within classifications set out in those awards. Now, if the scope clause is going to be read down, to get to a result that someone doesn't fall within that, we say there needs to be clear words. There needs to be clear words to the contrary into the agreement which says but it doesn't apply to X and Y employees.

PN1661

THE COMMISSIONER: But you would be happy if the agreement didn't apply to them, because then you could employ them under common law contracts.

PN1662

MR GARDNER: Except then it's put against us that there is the no extra claims prohibition.

PN1663

THE COMMISSIONER: No, but they're not covered by the agreement so - - -

PN1664

MR GARDNER: That is our position, that it's not - - -

PN1665

THE COMMISSIONER: No, if they weren't covered by the agreement, you could do what you like, in the same way as you can with managerial employees.

PN1666

MR GARDNER: If they weren't covered by the agreement, yes, if it was a lawyer for instance that we were hiring.

PN1667

THE COMMISSIONER: Heaven forbid. I know your point, yes.

PN1668

MR GARDNER: That's what we say, they can go and hire, but it's put against us that, no, that amounts to an extra claim. That is what is put against us as I understand it, sir.

PN1669

THE COMMISSIONER: Because during the major and substantial part of their working time, these people would be engaged in a classification set out in the Confectioners Award. I don't think that is what is put against you. I think they're agreeing with you that they are covered by the agreement, but that the agreement doesn't give you scope to engage a person in the operator/maintainer position. As I understand the argument that's being put against you, it is that the agreement by any interpretation prohibits crossing the line between a fitter and an operator, putting them together.

PN1670

MR GARDNER: Yes, but you said they say the agreement covers it. From clause 3s perspective, the agreement either applies or it doesn't and the answer to that is clause 3.

PN1671

THE COMMISSIONER: They say the agreement applies, but it doesn't permit you to do what you want to do because the role that you're talking about is a mixed role and let me put it as I understand their argument. It's been a bit convoluted, the discussion that I've had, but the agreement must be read and interpreted in the context of the history of the place and the custom and practice of the industry. The custom and practice of the industry has been that fitters and maintenance workers do maintenance work and operators do operator's work and never the twain shall meet, except in accordance with clause 27 and supporting that proposition, apart from the custom and practice is the way in which appendix F is structured where the named classifications are separated. There's confectioners and condensory operators and general hands, there's store workers of various types, there's transport workers, there's carpenters and painters and you've since brought in a plumber, there's metals. Well, metals I will call them because they all come within the Metals Award and then there's clerical people.

PN1672

MR GARDNER: Perhaps we are saying the same thing. Their counter seems to be you need to then - assuming you're in the pool of clause 3, then you've also got to find - you've got to jump into appendix F as well and what we say is, no, once you're caught by - - -

PN1673

THE COMMISSIONER: I understand that, but they're saying you go to appendix F and in the context of clause 27, if you want to mix operators and any of those other classifications, then you've got to use clause 27. That is what they're saying.

PN1674

MR GARDNER: I understand and I am happy to address - I think their only point really is clause 27, so I am happy to address that now.

PN1675

THE COMMISSIONER: Do it as you wish, but I am just wanting to say, look, let's not - all I was wanting to say is let's not tilt at windmills or straw men, because it seems to me that you are agreeing on one thing and that is this classification is potentially covered by the agreement. It's not something outside the agreement. The only issue is whether the agreement allows you to engage someone as both an operator and a fitter.

PN1676

MR GARDNER: Yes, I understand that, but we actually say that's not the correct characterisation, that once you are within three, that is the answer.

PN1677

THE COMMISSIONER: I understand that's your position.

PN1678

MR GARDNER: And what we say is once you're in 3, then it's about saying, okay, well, where do you fall within appendix F, but if you fall within 3, that's it, because that's what these agreements are designed to do. They're designed to broadly capture a workforce.

PN1679

THE COMMISSIONER: It would be so easy to say that if that was what you were about.

PN1680

MR GARDNER: I am sorry, I don't follow.

PN1681

THE COMMISSIONER: It would be so easy to say that in the agreement if that's what it really meant, that you could be carpenter/fitter or that you could be a carpenter/operator, but they haven't said that.

PN1682

MR GARDNER: Most certainly, but we're in a rather I think bizarre situation.

PN1683

THE COMMISSIONER: For years you've gone without having operator/maintainers.

PN1684

MR GARDNER: We're in a rather bizarre situation where it's the union saying, no, there are certain employees that aren't covered by this agreement when the scope clause - - -

PN1685

THE COMMISSIONER: No, they're not saying that. They're saying that you are not permitted to engage someone as both a fitter and an operator and you are not permitted to do that, not because they aren't potentially covered by the agreement, but because the words of the agreement itself and custom and practice in the interpretation of that agreement prohibit it.

PN1686

MR GARDNER: What we've sought to do with respect to the words of the agreement point is show that, well, the words at appendix F are less than perfect. They don't contain all of the roles. There are other roles floating around and - - -

PN1687

THE COMMISSIONER: They don't cross that boundary.

PN1688

MR GARDNER: But what is clear, what is clear is that in terms of the application of F, it is certainly the case that there are some defined roles. It seems the parties when they turned their mind to appendix F determined there would be some certain defined roles and pay rates.

PN1689

THE COMMISSIONER: But do you accept that the custom and practice at the plant in the past has been that operators are operators and fitters are fitters and apart from the sort of things in appendix E and section 27, that they don't - - -

PN1690

MR GARDNER: We can't argue with the fact that historically there hasn't been operators with fitter qualifications doing this operator/maintainer role. We accept that.

PN1691

THE COMMISSIONER: That's right.

PN1692

MR GARDNER: We accept that, but that's not to say that - - -

PN1693

THE COMMISSIONER: That is part of the context in which - - -

PN1694

MR GARDNER: I understand, but equally what we do know is that by Mr Santi's own admission that operators do perform some maintenance functions.

PN1695

THE COMMISSIONER: Yes.

PN1696

MR GARDNER: There's no doubt about that.

PN1697

THE COMMISSIONER: In the context of what has been agreed under 27.

PN1698

MR GARDNER: That is not what he said. He said that to the level of his skill and ability, he said that in cross-examination. He was quite clear about that.

PN1699

THE COMMISSIONER: And Mr Cowen was equally clear in answer to my questions that people are engaged, people who currently hold trade classifications who are employed as operators, they do not.

PN1700

MR GARDNER: In terms of clause 27.

PN1701

THE COMMISSIONER: No, but his evidence to me in response to my question was that there are people who hold trade qualifications engaged as operators and they do not exercise those trade qualifications.

PN1702

MR GARDNER: He did say that, no argument about it. If I can turn to clause 27 and how we say that works in the context of the agreement. What is telling is the introduction or the requirement under 27.2, the opening words are telling, sir:

PN1703

The only demarcations are to be based on skill and statutory restrictions.

PN1704

This agreement is making plain at 27.2 that there aren't to be demarcations. If there are to be demarcations, it's only because of skill and statutory restrictions. It makes that plain. Now, what it then goes on to do is say that where there isn't the skills, where we need to transfer those skills, there is a process that is to be followed under this agreement, but that is not to say that where you have the skill, that there is to be some restriction on that and those words are very telling in our submission. On the plain words of the agreement, there aren't to be demarcations.

PN1705

The fact that there may have been demarcations in the past is not to the point because the agreement is now giving life to a situation where there aren't to be demarcations, but where you don't have the skills and where you want to start blending the skills of existing groups of employees, there is a process in the agreement. That is not to say, there is nothing in 27.2 which then says, well, you can't have someone who has those skills in the first place. Where it talks about the task that production operators may have, they are a list without limitation that the MCC might consider. Now, I come back to my argument - - -

PN1706

THE COMMISSIONER: If you read the second sentence in 27.2 - - -

PN1707

MR GARDNER: That is the point that if you don't have the skills, they can be transferred, but there's a process for that to happen. It's a process to ensure - - -

PN1708

THE COMMISSIONER: It seems to be implying that existing employees will be given the opportunities to up-skill.

PN1709

MR GARDNER: That may well be the case.

PN1710

THE COMMISSIONER: Not that you will recruit from outside.

PN1711

MR GARDNER: Yes, it plainly says what you have just put, but that's not to say that you can't recruit a particular role that has the skills. The agreement just doesn't say that. You would need words to read down the otherwise broad scope of the agreement, to read it down in a way that the AMWU have asked you to and that they've seized upon 27.2 notwithstanding the fact that - - -

PN1712

THE COMMISSIONER: I understand.

PN1713

MR GARDNER: One last point about 27.2, that the flavour of it is about an ongoing evolutionary process, to break down the demarcations. That is the way we say it ought to be looked at and the submission that I've put is consistent with for what it's worth Mr Cowen's view of the clause. He gave a view about the clause and he described its usage and it sits very squarely with a plain reading of the words. Can I just say a few words - one other point, sir, one other point about the clause 3. I know I am harping on it, but I think it provides the resolution to this case.

PN1714

The predecessor agreement didn't have an appendix F. All it did was reference coverage by virtue of award coverage, if I can put it that way. Now, Ms Urquhart gave evidence that she negotiated the current 2005 agreement. When I asked her was there the intention to confine the scope, the classifications in this agreement, clearly said no. Now, I understand that against us there is this custom and practice type argument, but if you take the words of the predecessor agreement which rely on scope, coverage, application on the awards and you take Ms Urquhart's unambiguous answer that the current agreement was not intended to confine the classifications, then the answer becomes plain. You don't fall in and then fall out in the way that they propose.

PN1715

To the contrary, what appendix F does is plainly provide the scope to employ people who are covered by the agreement, that is who fall within clause 3, to be employed within those ranges and Mr Cowen gave evidence about how that is utilised. He refers to a number of roles. Indeed, we had Mr Weir, we learned that Mr Weir earns more than a trades assistant. Why? Because the company with the tacit approval of the union and the employee work within the classification for 75 per cent to 160 in the opening part of paragraph F.

PN1716

The evidence we put forward and the cross-examination showed that appendix F and the opening part certainly has work to do and it provides a broad - it's a broad-based classification structure. It doesn't rely on any sort of restrictions. When I say that, there's no words around that, so it's just simply as it is, a broad-based structure. You fall within clause 3 and then the pay rate is determined by clause F. Yes, there are imperfect processes it seems to determine where someone sits in the classification structure. Mr Cowen concedes that, but that is not the task today.

PN1717

THE COMMISSIONER: I accept that, that if they are covered by the agreement, they may have a dispute and then it's got to be sorted out.

PN1718

MR GARDNER: That's another issue.

PN1719

THE COMMISSIONER: But - sorry, I am going to interrupt you again because there's one matter that troubles me and that's clause 11 and the applicant of clause 11 and associated matters. I think it's critical to your argument that this person be regarded as a production employee.

PN1720

MR GARDNER: In fact, sir - - -

PN1721

THE COMMISSIONER: Because if they're a maintenance employee, then their hours and everything else are prescribed by 11(b).

PN1722

MR GARDNER: Well - - -

PN1723

THE COMMISSIONER: I am just looking at it. Clause 11 makes a clear distinction and it's the distinction I was talking about between production employees and maintenance employees in terms of their hours of work.

PN1724

MR GARDNER: In fact, I think the crumb plant - - -

PN1725

THE COMMISSIONER: No, no, no, I will do it one step at a time. 11(a) - - -

PN1726

MR GARDNER: Perhaps I can circumvent this.

PN1727

THE COMMISSIONER: - - - refers to production employees and says:

PN1728

The above conditions do not apply to employees in the crumb plant.

PN1729

That is it regards employees in the crumb plant as production employees and for them you go to appendix E, but maintenance employees are different. Now, if he's a production employee, he's not a maintenance employee. I mean, this brings us back to the substantive argument between you, that there appears to be a clear line drawn by the agreement in clause 11 between production employees and maintenance employees and employees in the crumb plant clearly come under the heading of 11(a).

PN1730

MR GARDNER: As I understand it, the company doesn't have a concern whether they're classified as production or trades.

PN1731

THE COMMISSIONER: We're going to have a problem about the hours of work, then, because if they're production - - -

PN1732

MR GARDNER: That's a separate issue.

PN1733

THE COMMISSIONER: It may not be, because the capacity to employ people on a seven-day roster if they're maintenance employees is subject to agreement it seems to me.

PN1734

MR GARDNER: Where are you looking, Commissioner?

PN1735

THE COMMISSIONER: I am looking at clause 11(b) and then I am looking at appendix D.

PN1736

MR GARDNER: I am told it's by agreement with a group of individuals, but it's something I would have to look at more closely.

PN1737

THE COMMISSIONER: And they're going to end up I suspect getting different rates of pay, different penalties, all of those sorts of things. That's the company's business. I raise that at two levels, at one level to say, well, look, it supports that distinction between production and maintenance and at the second level that it creates - even if that's not the case, then there are going to be problems that maybe the company hasn't even thought about considering.

PN1738

MR GARDNER: It's hardly surprising, though, that the agreement deals with specific provisions for production and maintenance employees.

PN1739

THE COMMISSIONER: Because it treats them separately.

PN1740

MR GARDNER: Well, yes, that might be the case, but that's not to say that it restricts that the capacity to employ, for want of a better term - - -

PN1741

THE COMMISSIONER: I understand that argument, but it supports the proposition that you can't do it, that the agreement, that implicit in the agreement is an overriding demarcation and I hear what you say about 27.2, that implicit in the agreement is that there's an overriding demarcation between production and maintenance.

PN1742

MR GARDNER: You've heard what I've said about 27.2, the introductory words.

PN1743

THE COMMISSIONER: Yes, I understand that. Can I just put back to you so that you're aware it seems to me that the work that 27 is attempting to do and those words are declaratory and all that sort of stuff, is attempting to break down the barriers that have existed in the past and I think there's other words in 27 that support this where operators weren't allowed to do certain things that could be regarded as maintenance and it's not just in Cadbury, it's throughout industry, there's been an attempt to multi-skill people and to get people to at least perform routine maintenance type tasks and I am aware of that based on my experience in the industries and there's a lot of those words in there that, okay, they're saying that there will only be that demarcation and that can be addressed two ways. One is that we're urging people to head down this track, but it's not binding and the other one is that it might be more to do with the arguments that take place between electricians and fitters about who is going to undo what and when and I invite those instructing you to consider that, because I think they're probably more aware of it than you are. Your position is that that's a fundamental part of the agreement, that we're going to break down demarcations and that this is consistent with that.

PN1744

MR GARDNER: That's right.

PN1745

THE COMMISSIONER: I understand that. I am putting that there is an alternative argument and it's a matter I haven't decided, don't get me wrong, but it's important that you understand the matters I am considering because I do have the experience of the industry which I am alerting you to.

PN1746

MR GARDNER: We certainly respect that and understand that.

PN1747

THE COMMISSIONER: But I think I am obliged more to draw your attention to it, that's all. Mr Gardner, I understand from a note from my associate that you're not going home tonight.

PN1748

MR GARDNER: That's right. I am happy to keep going.

PN1749

THE COMMISSIONER: I've got no difficulty, but let me just try and get an indication of how long you're going to be, apart from my interruptions, apart from my interruptions.

PN1750

MR GARDNER: It depends on the level of the grilling, but I would imagine I would be no more than half an hour.

PN1751

THE COMMISSIONER: But then you've got my interruptions and then you've got Ms Taverner's response. Can we go off the record for a minute?

<OFF THE RECORD

PN1752

THE COMMISSIONER: We've had some discussion and we will adjourn until I had better say not before 10 am tomorrow, just in case that 9 o'clock matter runs on, but I don't anticipate that, so the proceedings are adjourned until not before 10 am tomorrow.

<ADJOURNED UNTIL THURSDAY 6 DECEMBER 2007 [4.42PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

NIGEL COWEN, ON FORMER OATH PN963
CROSS-EXAMINATION BY MS TAVERNER PN963
RE-EXAMINATION BY MR GARDNER PN1440
THE WITNESS WITHDREW PN1450