C2008/2395, Transcript of Proceedings [2008] AIRCTrans 402 (29 July 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18801-1

SENIOR DEPUTY PRESIDENT WATSON

C2008/2395

s.170LW - prereform Act - Appl’n for settlement of dispute (certified agreement)
National Union of Workers
and
Plexicor Australia
(C2008/2395)

MELBOURNE

10.34AM, TUESDAY, 15 JULY 2008

Continued from 24/6/2008

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN MELBOURNE

PN1011

THE SENIOR DEPUTY PRESIDENT: Yes, Ms Parkes.

PN1012

MS PARKES: If the Commission pleases. Your Honour, what I am intending to do is to take you through the NUW submissions and to refer to relevant evidence through them. I might start by saying that after the hearing in Adelaide and the witness evidence, I came away and thought that whilst there were three issues that the NUW has raised in its submissions, firstly the issue of observing the status quo and the disputes procedure, secondly whether the introduction to the shift arrangements was allowed under the agreement and thirdly if they were allowed, whether the arrangements constituted continuous shift work and hence entitling employees to paid breaks.

PN1013

I came away from Adelaide thinking to myself, well, we've had a lot of witness evidence, but we haven't really touched on that third issue, the most important issue of continuous shift work and paid meal breaks, so whilst I will refer you to the evidence, I somewhat recall the movie Chicago and Richard Gere who was playing one of the roles there in defending someone and stated, well, we'll have the evidence and we'll razzle dazzle everyone with the evidence and I think my point here is that whilst the evidence will touch on some parts of the dispute, the key issue here is a matter of interpretation.

PN1014

And that's a matter for submissions and a matter for your Honour to make a finding of because the evidence and the people that gave evidence, none of them were involved in negotiating the agreements and so that is something that we will find when we talk about that third issue of whether the shifts in question constitute continuous shift work and whether employees should be entitled to paid meal breaks. Now, your Honour, the agreement in question is the Plexicor Australia National Union of Workers South Australia Certified Agreement 2005 to 2008 and it was certified by Senior Deputy President Acton.

PN1015

The relevant clauses that we say in the agreement and these are outlined in clauses 9 through to 13 of the NUW submissions, exhibit NUW1, are clause 4.2, the definition of continuous shift work, clause 26, hours of work, clause 27.1.2, meal breaks, clause 31.7, meal break continuous shifts, clause 31.6, variations to the method of working shifts and the other clause that would be relevant is clause 13, the disputes procedure of the agreement. Your Honour, as I said, the NUW submissions at paragraph 10 to 13 have the extracts of the relevant clauses and I intend to look at those in more detail when we actually deal with them in the arguments.

PN1016

The next issue before I touch on legal principles is jurisdiction. It's not disputed between the parties that there is jurisdiction. The parties acknowledge that the dispute concerns clauses in the agreement and that the disputes procedure gives the Commission the power to arbitrate those matters and the NUW has put some jurisdictional points at paragraphs 14 to 18 of our submissions and unless your Honour has any questions in relation to jurisdiction, we wouldn't seek to address you any further on that particular point.

PN1017

THE SENIOR DEPUTY PRESIDENT: Yes, fine.

PN1018

MS PARKES: Your Honour, after that overview, if I could start by referring you to what the NUW says is the relevant legal principles relating to interpretation and a large part of this is not in dispute and there's various authorities that deal with this point and if I could just hand up a bundle of documents, your Honour, and if I hand them all up at once rather than in bits and pieces and I will take your Honour through those documents.

PN1019

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN1020

MS PARKES: The first document which has got NUW and Plexicor and some comments there is some summary of the evidence which we will take your Honour through when we deal with that in the relevant parts of the submissions.

PN1021

THE SENIOR DEPUTY PRESIDENT: Perhaps I should mark that.

EXHIBIT #NUW7 SUMMARY OF EVIDENCE

PN1022

MS PARKES: There should also be copies of authorities there, your Honour.

PN1023

THE SENIOR DEPUTY PRESIDENT: Yes. I won't mark the authorities.

PN1024

MS PARKES: There should also be a copy of the Victorian Plexicor agreement which is a document of this Commission and there should also be a document of this Commission in relation to the 150A review just to show when the clause was changed.

PN1025

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN1026

MS PARKES: Your Honour, in relation to the principles of interpretation, these are usefully summarised by Deputy President Ives in two decisions of the Commission, the Australian Workers' Union v Visyboard Pty Ltd trading as Visy Specialities found at print 963418 and also in an NUW decision, National Union of Workers v Graincorp Operations Ltd, print 918161 and the summary points are identical, but if I could just have your Honour's indulgence, using the NUW decision and take you to page 10 of the NUW v Graincorp decision to paragraphs 46 and 47 and there's a number of general principles there that relate to the interpretation of industrial instruments and his Honour notes at paragraph 46:

PN1027

While an award or agreement should be interpreted in the same manner as a court or tribunal would interpret legislation or another document, it must be borne in mind that often industrial instruments are framed and drafted by laypersons who are not aware of all the legal niceties that may have been developed by the courts.

PN1028

And at paragraph 47 his Honour outlines some general principles to be followed in relation to the interpretation of awards and certified agreements and those being at point A:

PN1029

If the terms of an industrial instrument are clear and unambiguous, then the industrial instrument must be interpreted in accordance with that clear and unambiguous meaning, that words used in the industrial instrument should not be interpreted in a strict technical fashion, because those who framed the industrial instruments are often non-lawyers drafting laws in the context of custom and practice in an industry or particular enterprise.

PN1030

(c):

PN1031

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

PN1032

(d):

PN1033

The court or tribunal should strive to give effect to the intention of the authority which made the award or presumably in the case of an agreement, the intent of the parties to the agreement, provided that the words appearing in the instrument can reasonably be interpreted to mean that which the authority or parties intended them to mean.

PN1034

(e):

PN1035

The court or tribunal's recourse to extrinsic material in the interpretation of industrial instruments is not dependent on the existence of ambiguity in the industrial instrument.

PN1036

And in addition to those principles, your Honour, we say that there is one further principle that also applies which is known as the absurdity principle and if I could take your Honour to paragraphs 2 to 4 of the NUW submissions in reply and they were marked exhibit NUW2 and the absurdity rule which is also sometimes known as the golden rule is that words should be given their ordinary meaning, unless to do so produces an irrational, inconsistent or absurd result and there's a number of particular authorities on that point, including Australian Boot Trade Employees' Federation v Wybrow and Co, a 1910 case found at volume 11 of the Commonwealth Law Reports at 341, quoted by Higgins J.

PN1037

And at paragraph 3 of the NUW submissions we outline some additional authorities in that point and also note that Pearce and Geddes, the book on statutory interpretation in Australia, at paragraphs 2.3 and 2.4 which are part of the bundle of documents handed up to your Honour on that point and essentially how the absurdity qualification works is that in the event that two constructions of a clause are possible, where one construction will result in an irrational result and the other avoid it, the latter construction should be adopted and Gibb J stated in Public Transport Commission of New South Wales v Murray-Moore, a 1975 decision at page 282:

PN1038

Where two meanings are open, it is proper to adopt the meaning that will avoid consequences that appear irrational and unjust.

PN1039

If I could take your Honour to the three matters in issue and make the point that the three matters in issue don't necessarily depend on each other, so for example if one falls down, the other two may still survive and the first matter in issue is the alleged failure to observe the status quo on the disputes procedure of the agreement and the disputes procedure is at paragraph 13 of the agreement and it's at 13.6 so you have what I would submit is a fairly standard disputes procedure where the parties attempt to go through various meetings, et cetera, at the workplace in an attempt to resolve any dispute or claim and that at 13.6:

PN1040

Until the matter is determined, the status quo will prevail.

PN1041

The NUWs position is that Mr Thredgold who wrote some correspondence to Plexicor on 7 February which was annexure B to his statement indicating that the parties were in dispute and that the status quo should be maintained whilst the dispute was being worked through and we would say that that writing certainly constituted notice that there was a dispute and we note that the disputes procedure doesn't say, well, if people vote differently or we choose to do something else, we don't have to apply it. It just says the status quo will apply or be maintained and we say that that correspondence of Mr Thredgold of 7 February, before the shift changes came into place on 10 February was indication that the NUW was seeking that the status quo at that point in time be maintained.

PN1042

We also take your Honour to paragraphs 6 to 9 of the NUW submissions in reply at exhibit NUW2. The shift arrangement that was in place before 10 February and this is not something that was disputed was that there was a skeleton night shift, there were three shifts in operation of eight and a half hours' duration including a half hour unpaid meal break, but the shifts in question, there was a day shift of 6 am to 2.30 pm, there was then a 55 minute gap, then there was an afternoon shift of 3.25 pm until 11.55 pm, there was a five minute gap and then there was a night shift of midnight to 8.30 am.

PN1043

If I take you to paragraph 8 of NUW exhibit 2, our submissions in reply, the dictionary definition and we've used the Concise Oxford Dictionary here, defines status quo as the existing state of affairs and so here when Mr Thredgold advised Plexicor in his written correspondence on 7 February that there was a dispute and that the status quo should be maintained whilst the dispute was being resolved, we would say the existing state of affairs was those shift arrangements that were in place as detailed just shortly by me and also listed at paragraph 6 of our submissions in reply.

PN1044

Now, your Honour, if I can just briefly touch on the evidence which is NUW7 and I've tried to group it according to each of the issues, bearing in mind we had a large number of witnesses and so the first point is the issue of failing to observe the status quo and I've got sub-points (a) down to (f) and some of those issues are obviously relevant to issue two as well. We had the infamous meeting of 7 February and the issue seems to be, everyone admits that there was a meeting and everyone acknowledges that the NUW left that meeting having said, no, we don't accept Plexicor's compromise offer, but the issue or the key issue appeared to be the attendance of Mr Abdou which was hotly disputed and what I've attempted to put there under point (a), your Honour, is a list of relevant evidence that we say supports our argument that Mr Abdou, the NUW organiser, was not present at that meeting.

PN1045

We have a range of evidence from people who had participated in that meeting, Mr Thredgold and I've put all the relevant transcripts there so I don't have to read them all out, Mr Bibl, Mr McDevitt, Mr Abdou himself who indicated he was in Arnott's negotiations and his diary extract at exhibit NUW6 was support of that. We also had a comment from Mr Ennis who was one of the employer's witnesses who states that he recalled Mr Abdou was present at the meeting because he actually apologised because he wasn't there for the previous week.

PN1046

There was a disciplinary action there. He was actually at the Arnott's EBA and he apologised, he wasn't available for the previous week on a separate incident and the witness evidence indicated that the disciplinary matter referred to was on the 4th which was the Monday and that the meeting of the 7th was the Thursday and I will touch on this in a moment, but there was also evidence that there was a meeting the following week of the 13th and we submit that the evidence of Ennis indicates some confusion with the meeting of the 13th because the reference to the Arnott's EBA negotiations which the evidence established were the 6th and the 7th would only make sense of Mr Ennis was referring to the meeting that he had participated in on the 13th in our submission.

PN1047

The other point that we submit is relevant is that both Mr Getgood and Ms Grant in their evidence specifically stated who attended the meeting of the 7th and neither referred to Mr Ennis and Ms Grant's statement specifically listed all alleged attendees, but not Mr Ennis. Mr Getgood gave evidence that also - and specifically listed who attended, but didn't mention Mr Ennis and the union raised this point and actually sought to have Ms Grant re-examined on that point and the view of the company was we will rely on the evidence that's been put and so we would say that the credibility of the NUW witnesses is to be preferred on this point, that Mr Abdou wasn't present at the meeting of the 7th.

PN1048

THE SENIOR DEPUTY PRESIDENT: What is the significance of Mr Abdou's presence or otherwise? It seems to have in the evidence assumed significant prominence, but I am not entirely sure what the significance is.

PN1049

MS PARKES: Your Honour, I think this is part of the point I was trying to get at with the reference to razzle dazzle and the confusion at the meeting of the 13th and who agreed to compromises and who didn't. The company's argument seems to be and my learned friend will address you on this point that Mr Abdou apparently either concurred or agreed or something to that effect the shift arrangements in place and that there was a variety of telephone conversations and an email and that's essentially the company's argument as I understand it, whereas our point is Mr Abdou wasn't at this meeting.

PN1050

Ms Grant had never met Mr Abdou at all. Mr Thredgold had sent a letter saying we have the disputes procedure, we want everything to be sorted out and the status quo to be in place and somehow there seems to have been an argument, well, we agreed around that with Tony, the organiser, that things could proceed, but ultimately, your Honour, in terms of the issue of whether the shifts in question are continuous shifts and whether people should have meal breaks, your Honour is correct in saying that in that context the meeting of the 7th doesn't bear a great deal of significance because that is a matter for interpretation of the agreement and similarly in relation to the confusion.

PN1051

It also goes to the context of witness credibility in terms of what has or hasn't been alleged between the parties and if I can take you down to point (c), as I said it's not disputed that Mr Thredgold sent some correspondence to the company in relation to status quo and that that was received. It's also not disputed that there was no response to Mr Thredgold. There were also issues of the flyer and once again in relation to that issue, whilst there was somewhat disagreement as to whether that was distributed to employees saying people had agreed or whether it had been distributed the day afterwards, once again the significance of any vote of employees or the flyer is at the highest, at the highest my learned friend would only be able to say that there was a vote of employees with a qualified view of working the shift arrangements in question subject to the Commission's outcome.

PN1052

It cannot be said that there was absolute agreement that we will do this. At the highest, it can be put that there was a qualified view of the employees, not of the union, that work could be performed subject to the Commission making a finding as to whether the agreement had been interpreted. Ultimately in relation to the status quo issue and I will push on to the next issue, but ultimately in relation to the status quo, that particular issue stands alone. The reality is that the shift arrangements are currently in place and have been in place since 10 February, but we would say that the correspondence of Mr Thredgold, appendix B of his statement, makes it clear that the NUW sought that the status quo be preserved.

PN1053

The second issue, your Honour, is the issue of whether or not there was a basis for implementing the shift arrangements under the agreement and the NUW submits that it was not open to Plexicor to interpret the shift arrangements in question whereby - sorry, to implement the shift arrangements in question whereby employees on all three shifts were rostered for eight and a half hours per shift, including an unpaid meal break with the shifts operating across all 24 hours of the day with no gaps in production.

PN1054

Now, the NUW addresses these points in paragraphs 21 through to 26 of our submissions, of exhibit NUW1 and also paragraphs 10 to 19 of our submissions in reply and the history of the shift arrangements is addressed in our submissions and also in the witness evidence and that's noted at point 2, points (a), (b), (c) and (d) of exhibit NUW7 and we've taken the history of the shift arrangements from when the current agreement, the 2005 agreement, came into effect and the evidence of Mr Bibl establishes that from 6 October 2005 until approximately February 2007, so the first 16 or 17 months of the current agreement, there was a situation of what the NUW would call continuous work shifts over 24 hours of the day, Monday to Friday.

PN1055

There were three shifts, eight hours' duration each including a 30 minute paid meal break and the shift times are listed there. Day shift is seven until three, afternoon shift three until 11, night shift 11 until seven and it was acknowledged by Ms Grant that there was those particular shift arrangements in question, although she did characterise it as something else, but there was an acknowledgment that those particular arrangements were in place for basically the first half of the agreement.

PN1056

In approximately February 2007 until approximately October 2007 the night shift was discontinued and so there was then two shifts, day and afternoon and they then went eight and a half hours' duration, including the 30 minute unpaid meal break and there was no night shift. In approximately October 2007 to 10 February 2008 a skeleton night shift commenced. There were three shifts of eight and a half hours, the half hour unpaid meal break. There was the day shift, six until 2.30, a 55 minute gap, afternoon shift 3.25 until 11.55, a five minute gap and then night shift 12 midnight until 8.30 am.

PN1057

It's not disputed that from 10 February onwards there was an expansion to a full night shift, that there's three shifts of eight and a half hours each, that the three shifts operate over 24 hours with no gaps between any of the shifts and they're timed accordingly. In relation to that history of the shift arrangements, it's not disputed that the first 16 to 18-odd months of the agreement there was a situation of three shifts, eight hours' duration each including a 30 minute paid meal break and it's not argued that the agreement didn't provide for this.

PN1058

There is also, your Honour, and the evidence of Mr Thredgold in his statement went to this, the history of the South Australian agreement being based on the Victorian Plexicor site and the evidence also indicated that currently in some parts of the Victorian operations the shift arrangements, there are some shift arrangements in question of eight, eight, eight, including 30 minute paid breaks and, your Honour, we've handed up the Victorian agreement as part of that bundle of documents and we would say in relation to all the relevant clauses that are in dispute here, the Victorian agreement is identical which is not surprising given the origin and the history as outlined in Mr Thredgold's statement.

PN1059

The NUW submits that in the absence of a provision in the agreement entitling Plexicor to implement the shift arrangements in question on 10 February, there is no basis for the shift arrangements. Now, Plexicor has raised the issue of clause 31.6 and if I just read that out, your Honour, 31.6 is entitled variation to hours of working shifts and it states:

PN1060

The method of working shifts may in any case be varied by agreement between the employer and the accredited representative of the union to suit the circumstances of the establishment. The time of commencing and finishing shifts, once having been determined, may be varied by agreement between the employer and the majority of employees concerned to suit the circumstances of the establishment. In the absence of agreement, the disputes settling procedures of the agreement will be used.

PN1061

The NUW submits that consistent with the legal principles I've earlier referred your Honour to, this clause should be given its clear meaning. The NUW has not agreed to the method of shifts in question whereby three shifts of eight and a half hours are worked across 24 hours of the day with no gaps in production. The NUW has raised a dispute and the fact that we're all here today clearly indicates that there is a dispute on this particular point. Now, whilst it says that employees once the method of determining shifts has been determined, employees may then by a majority vote vary the starting and finishing times, we say that this is subject to the method of working the shifts being agreed to first by the union and that's how clause 31.6 should be interpreted and in this instance, the method of working the shifts has not been agreed to.

PN1062

Even if it can be established that the union did agree to the method, albeit a qualified agreement, even if that could be established at its highest and we say it can't be, we would also note that the agreement needs to be read as a whole and I will take your Honour to clause 4.2 shortly which is the definition of continuous shifts, but whatever parties may agree, whether they be the union or the employees, parties cannot contract out of terms in the agreement. They may be able to agree to things within the terms of the agreement, but they cannot agree or contract out of things that are beyond the boundaries of the agreement.

PN1063

It's worth nothing that serious practical problems arise if the agreement is interpreted as applying in the manner contended by Plexicor. It defies belief that the same agreement can on the one hand provide for three shifts of eight hours' duration with paid meal breaks that operated under this agreement and yet on Plexicor's argument the same agreement also allows for employees to be denied that 30 minute paid meal break and have to work the three shifts of eight and a half hours across the 24 hours of the day and we say that if Plexicor's application of the agreement is found to be correct, this results in irrational and unjust consequences.

PN1064

If I could also take your Honour to paragraphs 10 to 19 of the NUW submissions in reply at exhibit NUW2, I made earlier reference, your Honour, to there being an acknowledgment by Ms Grant that the three shifts of eight, eight and eight had been worked, although that this was characterised as something other than continuous shift work, it was characterised in the witness statement as a night shift arrangement versus a continuous shift work arrangement, the operation of three such shifts and we say that this is incorrect.

PN1065

We say that the operation of the three times eight hour shifts that happened for the first half of the agreement falls squarely within the definition of continuous work with clause 4.2 of the agreement and is consistent with clauses 26.4, 27.1.1, 27.1.2 and 31.7 of the agreement. If I could just take your Honour to those clauses, they are actually outlined in paragraphs 10 to 13 of the NUW submissions at exhibit NUW1, the key clause being continuous work, clause 4.2:

PN1066

Continuous work means work carried on with consecutive shifts of employees throughout the 24 hours of each of at least five consecutive days without interruption, except during breakdowns or meal breaks or due to unavoidable causes beyond the control of the employer. In any factory or department or section of a factory where only two shifts are worked in each 24 hours and a third shift is introduced, the employees in such department or section shall not be regarded as continuous shift workers if the starting and finishing times of one or more of such shifts overlap. For the workers involved in the third shift to be considered as continuous shift workers, the third shift must continue for a period exceeding three consecutive weeks at any one period and must exceed a total of 12 weeks in any one year.

PN1067

And the significance of continuous work in that definition, your Honour, is that the agreement provides that if a shift is characterised as - if the shifts are characterised as continuous work shifts, the meal break provisions of the agreement found at 27.1 and at 31.7 provide that:

PN1068

On a continuous work shift, the employee is entitled to have a meal period of not less than 25 minutes which counts as time worked.

PN1069

So that is the significance of whether a shift is classified as continuous or not and we say the shifts that were in place for the first half of the agreement at Plexicor's South Australian site, some of the shifts that are currently in place at its Victorian site which has identical provisions falls squarely within that definition of continuous shifts. Now, we also had as part of the evidence reference to or the shift arrangements in question for the first half of the agreement were in place because that's what Holden, one of our suppliers, wanted and the point the NUW would make there is that in this particular matter, we are here about the interpretation of the Plexicor agreement.

PN1070

We're not here about the interpretation of the Holden agreement which might have completely different shift arrangements in place, so the point we make, it's not relevant what Holden did or didn't request. The clauses in the agreement do not make reference to you only work a particular shift if that is what the customer wants, so, for example, if Holden employees agreed to a 10 per cent loading on afternoon shift, Plexicor couldn't legally do the same under its own agreement because there's a minimum loading of 15 per cent must be paid, so we're making the point that whilst Holden may or may not have requested particular arrangements, Plexicor can only do or not do what the agreement that applies at Plexicor allows it to do.

PN1071

The point, your Honour, once again, even if it can be established and we say it can't be, but even if it could be established at its highest that there was some form of qualified agreement for the arrangements to go in place subject to the Commission outcome, this does not enable parties to contract out of the agreement. It allows simply clause 31.6 for agreement on the method of working shifts and time of commencing and finishing. It doesn't allow agreement for changing rates of pay or denying paid meal breaks or otherwise.

PN1072

So, for example, an employee may agree to change a shift time, but if there's particular penalties or arrangements that apply, they have to be applied. An employee can't say, well, I will forego all of those if the agreement provides for that and we note that clauses 27.1.1, 27.1.2 and 31.7 of the agreement provide that for continuous work shifts, a paid meal period does apply. There also then seemed to be the argument in the witness statement of Ms Grant at paragraph 9 that the reason for the arrangements for the eight, eight and eight and paid meal breaks for the first half of the agreement was because it was necessary for internal business requirements and once again we make the point this is not what the agreement says.

PN1073

It either is a continuous shift work or it's not. It's not subject to internal business requirements, well, we choose to pay you a meal break, therefore we will, because that's a classic catch 22 situation. You can't say an employee is entitled to a paid meal break, but only if we choose to pay it. The agreement says if it's a particular sort of shift you get it and if it's not, it's not and it was acknowledged that Plexicor in the cross-examination can't simply say we will choose whether or not to pay your meal break. If it is a continuous shift, then paid meal breaks apply and that was at paragraph 488 of Ms Grant.

PN1074

Plexicor in its submissions at paragraph 25 has stated it doesn't understand the NUWs assertion that there might be irrational or unjust consequences if Plexicor's interpretation of the agreement is found to be correct and our point on that is it is somewhat disingenuous to say on the one hand the same agreement can provide for continuous shift work with paid meal breaks for the first half of its life, but at the same time we can roster people and not give them paid meal breaks to cover 24 hours of the day and we don't have to and we say that that would lead to an irrational result if the agreement could be interpreted in both of those manners and that consistent with the acceptable legal principles, if it is found that there are those two interpretations open, that the interpretation which favours a just result should be allowed.

PN1075

The final point in relation to this issue is Plexicor has alleged it's not uncommon for other workplaces to implement the arrangements it has and once again we would make the point the issue here is about what is allowed or not allowed under the Plexicor agreement. It's not about what other agreements have or have not contained in them in relation to shift provisions and, your Honour, finally we get to the most important point of even if the shift arrangements were able to be implemented, are they continuous shift arrangements, because if so, they then constitute or the employees are then entitled to the paid meal breaks and this is essentially the heart of the matter.

PN1076

Once again it's worth noting that none of the people who gave evidence were involved in the negotiations of the agreement, so whilst their evidence might touch on therein matters relating to those first two issues, this third issue is essentially an issue about how the agreement should be interpreted and that's a matter for your Honour to make a ruling on. The NUW submits that the current shift arrangements at Plexicor fall within the definition of continuous work. We say this because they are consecutive throughout 24 hours of the day. There's no stops or gaps in production and they go across at least five consecutive days.

PN1077

Now, Plexicor has argued that it's not continuous work because there's overlap with the 30 minute unpaid meal break and Plexicor says this overlap which means that there is then a 30 minute so called overlap between day and afternoon shift, afternoon and night, night and day which is caused by the 30 minute unpaid meal break and the NUW addresses this in paragraphs 30 through to 37 of its submissions, NUW exhibit 1 and in paragraphs 20 through to 29 of the submissions in reply at exhibit NUW2.

PN1078

The NUW disputes that the 30 minute so called overlap which is there purely because the meal breaks are unpaid, we dispute that that constitutes overlap for the purpose of clause 4.2 because we say the interruption or delay is caused by the deliberate scheduling of unpaid meal breaks rather than a true overlap of shifts and we note the evidence of Mr Bibl at paragraph 3 of exhibit NUW7 that there was no real training or work done in 3A and words to the effect that employees were cleaning and pushing brooms around.

PN1079

In the alternative, though, if the Commission finds that there is a true overlap of shifts, the NUWs contention is that employees must be regarded as continuous shift workers, so this is our alternative contention, as the night shift has continued for a period exceeding three consecutive weeks and indeed has continued for more than 12 weeks. We say that the last two sentences of clause 4.2 must be given their clear meaning and read together and clause 4.2, your Honour, was the clause that dealt with what is continuous work and if I take you to paragraph 20 of exhibit NUW2, our submissions in reply, so it's not disputed that the shifts go for 24 hours or that they go for at least five days, those two points are not being disputed and we say that the first sentence of clause 4.2 is the primary sentence and is met.

PN1080

The rationale that the only way three shifts is evenly going to fit into 24 hours is if it's eight, eight and eight with a paid meal break. Now, Plexicor is relying on the second sentence of clause 4.2 which provides that where only two shifts are worked in each 24 hours and a third shift is introduced, the employees in that section shall not be regarded as continuous shift workers if the starting and finishing times of one or more shifts overlap and the Plexicor argument is that, well, because there's this so called overlap of 30 minutes, that's it, there's no continuous shifts full stop and the third sentence of the clause doesn't really have any work to do.

PN1081

As your Honour knows, our first argument is that it's not proper overlap for the purposes of that clause, but our second argument is that we need to look at the whole of clause 4.2. The overlap issue in clause 4.2 only appears to apply where a third shift is introduced and here the night shift, albeit skeleton in nature, was already in existence prior to October 2007. Accordingly, it cannot be said that the expansion of an existing night shift constitutes the introduction of a third shift and so the change did not involve the introduction of a new shift.

PN1082

Rather, it involved the expansion of the existing shift and the operation of three shifts across all 24 hours of the day and so on the one hand you could argue the alleged overlap exclusion doesn't apply as a third shift is not being introduced, it was already there, but if we have a look at that third sentence of clause 4.2, it provides there that for the workers involved in the third shift to be considered as continuous shift workers, the third shift must continue for a period exceeding three consecutive weeks at any one period and must exceed a total of 12 weeks and it is not disputed that the arrangements have been in place since February so issues of time qualifications have gone through.

PN1083

The issue, though, is the interpretation of that clause. Plexicor is appearing to interpret that third sentence as meaning that the third shift is only a continuous work shift if the alleged overlap prerequisite at sentence two is met and then if the time constraints have been met and the NUWs alternative argument disagrees with this interpretation because we say it fails to interpret all three sentences of clause 4.2 within the context of the clause and the agreement as a whole, it also ignores the clear and unambiguous meaning of the third sentence.

PN1084

You need to have a look at the second and the third sentences of 4.2 together. I will take your Honour briefly to the origins of clause 4.2, but in initially it was one sentence and so both parts of that need to be read together and given their plain meaning. We say the third sentence is not dependent on the second sentence being met. We say the two clauses must be read together with the second sentence referring to the third shift being introduced and the third sentence also referring to the third shift and so on the alternative argument, where the third shift is introduced and where there is overlap, the workers are considered continuous shift workers once that third shift has continued for more than three weeks at one time or 12 weeks in any year and here we say that that is the situation.

PN1085

If I could take your Honour to the origin of clause 4.2, the origin of the clause is that it comes from the Rubber, Plastic and Cable-making Award. The clause as it currently appears in the agreement is identical to the clause as it currently appears in the award and an extract of the award is attached to the NUWs submissions on that particular point.

PN1086

THE SENIOR DEPUTY PRESIDENT: That's the continuous work clause?

PN1087

MS PARKES: Yes, so that particular definition as it currently appears in the agreement is identical to how it currently appears in the award and it's attachment 1 of exhibit NUW1 has that extract and the NUW had much fun tracing the award back to when this clause was interpreted. We went through different rates for female employees and a whole range of other historical matters of interest, but we traced the current origins of that clause back to 1948 and that was when a continuous work definition in the award was varied to include the introduction of a third shift.

PN1088

If I could take your Honour to attachment 2 which is an order of conciliation, Commissioner Buckland, of 27 July 1948 found at volume 148 of the Commonwealth Arbitration Reports at page 1543 and that's got the relevant extract at attachment 2 to the NUWs submissions and essentially that order of conciliation, Commissioner Buckland, varied the award in two respects. It deleted the last sentence of subclause 14(b) which outlined certain conditions applying to continuous shift workers and the award, the last sentence previously in the award prior to this change in 1948 stated that the subclause did not apply to three shift workers if the start or finishing times of one or more shifts overlapped and it inserted a new continuous shift clause in the following terms:

PN1089

Continuous work means work carried on with continuous shifts of men throughout the 24 hours of each of at least five consecutive days without interruption except during breakdowns or meal breaks or due to unavoidable causes beyond the control of the employer -

PN1090

which other than the gender reference to men is the same as that first sentence in the current award at 4.2. The bit where it is different is that in the 1948 variation, the two last sentences are one sentence and the NUW has highlighted the changes in bold at clause 34 of our submissions and so the 1948 variation states:

PN1091

In any factory or department or section of a factory where only two shifts are worked in each 24 hours and a third shift is introduced, the employees in such department or section shall not be regarded as continuous shift workers at the starting and finishing times of one or more of such shifts overlap and further provided that such third shift does not continue for a period exceeding three consecutive weeks of any one period and does not exceed a total of 12 weeks in any one year.

PN1092

And it's our understanding that that particular clause which was inserted in 1948 stayed as it was in the award up to the section 150A review of the award in the 1990s and as your Honour would be aware, the section 150A review involved looking at expressing awards in plain English and restructuring awards in a common format, amongst other things and so arising from the section 150A review, the award was varied into a standard format at print N5077 and we handed an extract of that up, but essentially the clause there in 1996 was as it now currently appears in the award with that last sentence being split into two sentences.

PN1093

Now, it's here that the parties are in somewhat disagreement. The NUW submission is that the 150A review didn't change the meaning of the clause and the NUW couldn't find any Commission decision or documentation specifically explaining why 4.2 had been changed. We say if you have a look at the 1948 clause and how it was inserted into the award and how the award now stands and how the agreement now stands, we say that the clause and the intent of the clause was that even where there was overlap of shifts, if those shifts went on for more than three weeks at a time, they were then deemed to be continuous work shifts.

PN1094

Now, Plexicor has stated in its amended submissions that the Commission shouldn't turn its mind to the origins of 4.2. We say that the authorities provide that the Commission may have recourse to extrinsic material in interpreting instruments and given that where this clause has come from which is the award and that's not disputed, it certainly is appropriate that the Commission look at the history of that clause and how it came to be about and that, further, the Commission should strive to give effect to the intent of the parties in the authority which made the award.

PN1095

When you look at that origin of clause 4.2 in the 1948 decision, it's clear that the second and third sentences were originally one sentence and that reference to such third shift, so we say that it's clear that the interpretation urged by Plexicor that the existence of any overlap is fatal to employees being classified as continuous shift workers regardless of whether the third shift is worked for more than three weeks or not is incorrect. We say that reference to such third shift in that 1948 decision indicates even where there is overlap, the workers will be regarded as continuous shift workers if that third shift had been worked for more than the three or 12 week period.

PN1096

Your Honour, the NUW did not put in writing any further submissions in reply and Plexicor as your Honour would recall filed some amended submissions and I've mainly addressed your Honour on those, but there's just a couple of further points that I would like to raise in relation to those. The argument seems to be from Plexicor that the intent of the manufacturing parties to the Rubber Award was that continuous shifts arising from increased production demands be limited to three week bursts at a time.

PN1097

And their argument is if the shifts only go for three weeks, you pay the meal break, but if they go for more, you don't, so basically they've got the opposite argument and we say that it's incorrect and illogical to argue that that was the intent of the manufacturing parties because, (1) there's no evidence of this, but also following that argument, employees would get the benefit of a paid meal break for working a temporary arrangement of three weeks, but would lose this benefit in the event that the high periods of production were in place for a longer period and so Plexicor's interpretation appears to be that workers should get the paid meal breaks for short bursts of continuous shifts limited to three weeks at a time, but that they then lose that entitlement if the shifts go for medium or long term.

PN1098

We say that's illogical and is contrary to industrial principles that a status quo might apply for a short-term change like three weeks, but that a benefit would apply for a longer change, so, for example, under the agreement in the Rubber Award, a temporary night shift of only three weeks might attract a 15 per cent loading, but if it's a longer night shift, you get a 30 per cent loading, but using that analogy, if Plexicor's interpretation is applied, the temporary night shift worker would be paid the 30 per cent loading for the first three or four weeks and then when they move to permanent night shift be paid 15 per cent.

PN1099

We say that is contrary to how industrial principles in arrangements - sorry, how industrial arrangements are interpreted and we note as we've stated that Plexicor's interpretation is at odds with the shift arrangements at both the Victorian site and the arrangements that were in place for the first 18 months of the agreement, where shifts were in place for more than three weeks at a time, eight, eight and eight and with paid meal breaks. Now, the alternative argument that Plexicor has put is about multiple shift work definitions in the agreement.

PN1100

Plexicor appears to argue that because there's multiple shift work definitions such as five day shift, seven day shift, night shift, afternoon shift, day shift, et cetera, they are somehow excluded from being under the definition of continuous shifts and that further, because their shifts don't rotate, they are not continuous and we say, well, this is incorrect. The definitions in the agreement are not mutually exclusive. There's no requirement that shifts rotate in order to constitute continuous shifts under this agreement.

PN1101

All the requirement is is that the shifts operate for at least five days, fulfil the 24 hour requirement and the issues of the overlap and the period of time, you could have seven day operations that are continuous shifts, just like you could have five day operations that are continuous shifts, so just because there's multiple definitions which we would submit more go to issues of who is entitled to the extra week's annual leave, et cetera, doesn't mean that somehow you can pick the definitions that are more convenient and employees are suddenly not a continuous shift work definition.

PN1102

Essentially, your Honour, the issue, whilst there are three issues that have been raised in the NUW submissions, essentially the key issue is that third issue, the interpretation of whether the shift arrangements in question are continuous shift work and hence whether the employees are entitled to paid meal breaks and we note that if your Honour finds in our favour and subject to any appeal processes, Plexicor has indicated to the employees that the meal breaks, et cetera, and the extra time will be back paid.

PN1103

In terms of remedy, your Honour, at paragraphs 38 to 39 of the NUW submissions and exhibit NUW1, obviously we seek that the Commission arbitrate on the points in question and we seek an order that the current shift arrangements are performing continuous work as defined by the agreement and that accordingly employees should be entitled to the meal breaks. If the Commission pleases.

PN1104

THE SENIOR DEPUTY PRESIDENT: So nothing is sought in terms of an order in respect to a breach of the status quo or inability to work the arrangements at all?

PN1105

MS PARKES: The reality, your Honour, is that the shift arrangements have been in place since February. Even if you found in favour of the NUW that the status quo had been breached, I think we're looking at some months after that and the key issue for us in terms of our members is a finding that the work constitutes continuous work, that there be a payment of at least a 25 minute meal break for each worker engaged on that roster and that overtime be payable for the last 30 minutes of each shift for the workers engaged on that roster and with back pay in relation to that, but that is the key focus, your Honour. If the Commission pleases.

PN1106

THE SENIOR DEPUTY PRESIDENT: Very well. Just before you finish, I wonder if I could take you to Commissioner Buckland's decision and order? I must say this seems to be in the days which preceded plain English. Where exactly is the clause set out?

PN1107

MS PARKES: If I can take your Honour to attachment 2 of the NUW submissions and there is one page there that's got at the top the Rubber Workers Award 1947 and it's got page 1543 and, your Honour, it's attachment 2 to exhibit NUW1.

PN1108

THE SENIOR DEPUTY PRESIDENT: I see. I am looking at the wrong one, that's why it is. Yes, I have that now.

PN1109

MS PARKES: If you have a look down to - he varied the award in two respects, so at point 1 he deleted sub-clause (b) of clause 14 and at attachment 3 we've included the extract of what clause 14 previously looked like. That's the significance of attachment 3 and then at point 2 he's got by adding to clause 12 the following new paragraph.

PN1110

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you. That's clear enough.

PN1111

MS PARKES: Yes, and the changes are marked in the NUW submissions in exhibit NUW1. We've actually put emphasis in the words that are different. Perhaps I could take your Honour back to that point to assist, at paragraph 34.

PN1112

THE SENIOR DEPUTY PRESIDENT: Thank you for that.

PN1113

MS PARKES: If the Commission pleases.

PN1114

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Parkes. Mr Healy.

PN1115

MR HEALY: Your Honour, I just wonder if I could have a two minute break?

PN1116

THE SENIOR DEPUTY PRESIDENT: Yes, certainly. We will resume at a quarter to 12.

<SHORT ADJOURNMENT [11.37AM]
<RESUMED [11.45AM]

PN1117

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Healy.

PN1118

MR HEALY: Thank you, your Honour. Your Honour, before starting, perhaps if I just seek some clarification. I understand for the first time that it's now the union's position that they don't seek any orders in relation to the two issues involving the status quo and, indeed, the fact that the company had - their allegation that the company had no basis for implementing the shift changes. If that is the case, your Honour, is there any point in me making submissions in relation to those issues?

PN1119

We're hearing this for the first time and if the union now all of a sudden are turning around and saying, well, that's not a relevant issue for us any more, then the Commission has had its time wasted and so have we because virtually the whole day a couple of weeks ago was spent on these issues and my learned friend even today has spent a considerable time talking about these issues.

PN1120

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1121

MR HEALY: So I just need clarification on that, your Honour.

PN1122

THE SENIOR DEPUTY PRESIDENT: As I understood it, the union was seeking a determination of the issues, but no order in consequence upon what it was arguing in respect of those two issues.

PN1123

MR HEALY: Thanks for that, your Honour.

PN1124

THE SENIOR DEPUTY PRESIDENT: And so as I understood it didn't want to undo the arrangement that's been put in place other than in respect to payment.

PN1125

MR HEALY: So in effect they would be seeking comment, I guess, from your Honour in relation to those issues and nothing more.

PN1126

THE SENIOR DEPUTY PRESIDENT: I will allow Ms Parkes to clarify that given it's her submission. Yes, Ms Parkes.

PN1127

MS PARKES: Your Honour, I think it's incorrect to say that for the first time the company is under a different view. If I can take your Honour to paragraphs 38 and 39 of exhibit NUW1 which is the remedy and it states there clearly what the NUW is seeking. It seeks that the Commission arbitrate on the three points and then at paragraph 39:

PN1128

In the event that it finds in our favour, we seek an order.

PN1129

So we've never claimed that we wanted multiple orders on all those issues, so I think that's incorrect to make that statement. Fairly and squarely in our submissions we've stated the Commission arbitrate on those points and that the particular order we're seeking is in relation to the payment of the meal break and the overtime, et cetera. If the Commission pleases.

PN1130

THE SENIOR DEPUTY PRESIDENT: The second point about whether or not the agreement enabled Plexicor to implement the recent changes, that really goes to the third issue, anyway, doesn't it, that even on your submission it's entitled to do that with agreement on the payment basis that you now indicate?

PN1131

MS PARKES: To some extent it does, but we would say that even if employees or the union did agree, you can't agree to not pay meal breaks if the agreement provides that the particular shift does allow for that.

PN1132

THE SENIOR DEPUTY PRESIDENT: So it really goes down to that meal break issue.

PN1133

MS PARKES: Yes.

PN1134

THE SENIOR DEPUTY PRESIDENT: You say they're not entitled to introduce it on that basis, but they were entitled to introduce it with agreement on the basis of payment for the meal breaks.

PN1135

MS PARKES: Yes.

PN1136

THE SENIOR DEPUTY PRESIDENT: Very well, does that assist you, Mr Healy?

PN1137

MR HEALY: Yes. Thank you, your Honour. Your Honour, if I could hand up my closing submissions which I will speak to, your Honour.

EXHIBIT #P4 OUTLINE OF SUBMISSIONS

PN1138

MR HEALY: Thank you, your Honour. Your Honour will see that these resemble exhibit P3 or P1 I think it was which is our amended submissions. What I've done just for convenience, though, is where I've added things which reflect the evidence, I've put them in bold and italics under the relevant paragraphs. I haven't renumbered paragraphs, though, your Honour, just for convenience. Your Honour, obviously I won't take you through the first parts of my submissions which is the introduction and background.

PN1139

Jurisdiction isn't disputed. The basic rules of interpretation and the authority referred to by my learned friend and the principles governing the interpretation isn't disputed either. The relevant history of the shift arrangements is not in dispute so I will go to the heart of the issues in dispute, your Honour, and firstly can I address the issue in relation to the status quo issue? Now, this dispute related to the payment of meal breaks.

PN1140

At the time that these changes were put in place, there was already three 8.5 hour shifts including an unpaid meal break, so the status quo was maintained in relation to this issue. The only thing that changed was indeed the start and finishing times of the actual shifts themselves. Now, I will take your Honour through this. The start and finishing times can be amended by agreement and that's clause 31.6 of the agreement which provides that:

PN1141

The method of working shifts may in any case be varied by agreement between the employer and the accredited representatives of the union to suit the circumstances of the establishment.

PN1142

Now, this occurred. It's not disputed by the union's witnesses that an agreement was reached between the majority of employees and the company. It's not disputed that the employees wanted this, provided that should there be a determination, a subsequent determination made by the Commission at a later time in relation to the meal breaks, only meal breaks, then they would be back paid, so there's no dispute that the employees had agreed to the implementation of these shift changes and the shift changes that we implemented were indeed a change to the start and finishing times.

PN1143

The night shift arrangements had been in place since October 2007. What you are determining here, your Honour, and I guess is that entire period in relation to the interpretation issue as to when that third shift was introduced. Now, the third shift wasn't introduced until then. Now, the NUW have gone to considerable lengths in these proceedings to attempt to somehow discredit the evidence of Ms Grant by calling witnesses to say that Mr Abdou wasn't present at a meeting on 7 April. Now, this doesn't go to the heart of the dispute, your Honour, but I do intend to make brief submissions in relation to this issue because the union have certainly made a big deal about it and, indeed, it does go to whether or not the proper consultation had taken place between the company and the union and we say at all times the union were consulted and they were consulted largely through their organiser, Mr Abdou.

PN1144

It's the respondent's position that Mr Abdou was present at that meeting on 7 February 2008 and you will see on page 5 of my submissions I refer to the transcript references in relation to Ms Grant's evidence, Mr Getgood's evidence and Mr Ennis's evidence. They all go to support of this. Now, as I said, the conflicting evidence doesn't in any way go to the heart of the issues for the Commission to determine, but the NUW despite having had Ms Grant's statement filed and served in these proceedings within the time frame as directed by Senior Deputy President Acton when she made directions, was well aware of the company's position on this issue because, indeed, at all times it was contained in the statement of Ms Grant that Mr Abdou was present.

PN1145

Both Mr Bibl and Mr Thredgold gave evidence which attempted to contradict Ms Grant's assertion, yet at no time prior to the commencement of these proceedings were they intending to call Tony Abdou himself, despite the fact that he was based in Adelaide and despite the fact that he perhaps was the obvious witness statement to call as to whether or not he was there. The union had to re-open their case in order to do this. It's respectfully submitted that this should trouble the Commission and the inference is that they only called Mr Abdou when it became apparent that by not calling him, it would have been fatal in relation to this issue.

PN1146

In my submission I would invite the Commission to still draw an adverse inference in relation to the circumstances in which Mr Abdou was called and prefer the clear evidence of Ms Grant, Mr Getgood and Mr Ennis, remembering also that Mr Ennis whilst my learned friend in her submissions tried to make something of Mr Ennis was confused and he was actually referring to a meeting of 13 February, your Honour will remember in my re-examination of Mr Ennis or in his evidence in chief initially he said he knows the meeting where Mr Abdou and Mr Thredgold were present occurred prior to the commencement of the shift change because the meeting was about that.

PN1147

We know that the commencement of the shift change was 10 February. He is adamant that that meeting occurred prior to that time and I can give you a transcript reference at paragraph number 985. He knows that he was only ever present in one meeting where Mr Abdou was present and Mr Thredgold were present. Mr Thredgold even gave evidence that it was his recollection that he thought Daryl Ennis was present at the meeting of 7 February and I can give you a transcript reference of paragraph number 256 to 259.

PN1148

On balance, therefore, it's likely that Mr Abdou left his EBA negotiations with Arnott's for the purposes of attending this meeting and I would invite you to prefer the evidence of the respondent's witnesses in relation to that issue. However, as your Honour quite rightly pointed out earlier, what really turns on that, anyway, whether Mr Abdou was there or not because he question is and I guess the only reason it's important for us is the union have asserted that Ms Grant and Mr Getgood didn't properly consult with them and that Mr Abdou had never actually informed them that the union was happy to go ahead and implement the changes, et cetera, et cetera, and which we dispute and we say with respect that the evidence simply reflects Mr Abdou's involvement in this process.

PN1149

Ms Grant proposed that the NUW not disrupt the expansion as many of the employees had already made necessary personal arrangements and at that time we heard a verbal undertaking was given by Ms Grant that should the Commission determine there was an entitlement under the agreement, then the current unpaid meal breaks would be paid, would be back-paid. Mr Abdou subsequently communicated to Ms Grant that this would be agreed to provided it was put in writing. I refer your Honour to exhibit P3 and that's the email that both Mr Abdou and Mr Thredgold acknowledge was sent by Ms Grant.

PN1150

That email, your Honour, says it attaches the document so consistent with Ms Grant's evidence was that Ms Grant said that she would send the proposed announcement to him and if there was any changes, he could request those changes and in that email it says:

PN1151

Once again thank you for your assistance to help resolve this issue. We will now be able to supply our customers while we continue talks and we definitely as you can see from the notice will commit to back pay should we have interpreted the clauses incorrectly.

PN1152

That is clear the inference from that is that Mr Abdou had been very directly involved in relation to agreeing conditionally, agreeing to the implementation of these shift arrangements so it just defies history that the union should now turn around and say we actually didn't every communicate our agreement that it's conditional or not to Ms Grant.

PN1153

THE SENIOR DEPUTY PRESIDENT: Mr Healy, if I could take you to page 6. You say at the time a verbal undertaking was given by Ms Grant. At what time are we referring to then? That's in the unbolded - - -

PN1154

MR HEALY: Yes, that's I believe at the time of the meeting of 7 February. Following that was communication between Ms Grant and Mr Abdou about Mr Abdou communicating that, okay, we'll agree to it provided that's put in writing. She puts it in writing and she emails it to him. That is clear evidence, that email, that it's consistent with Ms Grant's evidence in relation to that issue, so the status quo if you like was simply that there were already three 8.5 hour shifts with an unpaid meal break in place and it was the union agreeing on our evidence to implement those changes in relation to the start and finishing times.

PN1155

In relation to the issue, the assertion by the union that Plexicor had no basis for implementing shift arrangements, it's not accurate to assert that the NUW has not agreed to the method of the shifts in question and raised a dispute and this is at paragraph 25 of the NUWs original submissions regarding whether employees should be required to work the shift arrangements in question. The only dispute surrounding these arrangements in previous discussions, your Honour, with the union revolves around the entitlement to paid meal breaks.

PN1156

The NUW seem to have broadened the dispute after the event and attempted to cloud the real issue by now asserting that there was no proper consultation with the union. There is no doubt the union were consulted. Mr Thredgold gave ridiculous evidence to the extent that he says as head of the union, all dealings should have gone through him in relation to this issue. This is despite his letter of 5 February 2007 which is annexure A to exhibit NUW5 which was Mr Thredgold's statement which invites the company to contact Tony Abdou if there's any issues.

PN1157

Mr Abdou was the union organiser. He was responsible for the Plexicor site, so there's no doubt that consultation would have been through him, regardless that Mr Thredgold by his our admission was at the relevant meetings, so to allege lack of consultation simply defies the history of the matter, your Honour. The agreement provides that the method of working shifts can be varied by agreement between the accredited representative of the union and the employer to suit the circumstances of the establishment. This occurred. It's not even in dispute that this occurred. We know that the majority of employees agreed to the implementation of these shifts, albeit conditionally.

PN1158

THE SENIOR DEPUTY PRESIDENT: They're two separate issues, are they not? The method of working shifts which requires agreement of the union and the time of commencing and finishing shifts which requires the majority of employees - - -

PN1159

MR HEALY: Indeed, but what we say, your Honour, is that we had agreement from both. There's no dispute that we had an agreement in relation to the employees and what we say is that we had a clear agreement with the union that these shift changes could be implemented and that's reflected in the evidence of Ms Grant and, indeed, the evidence of Mr Abdou and Mr Thredgold in relation to the email that they saw from Ms Grant. Why would she send an email thanking him for resolving the issue and sending him an email asking him to comment about any proposed changes in relation to the announcement if it hadn't occurred the way Ms Grant very forthrightly gave evidence in relation to?

PN1160

It's one thing for the union to say we have a situation where we have an organise and this isn't disputed, responsible for the Plexicor site, all dealings are usually with that organiser. Mr Thredgold is the head of the union. It's unlikely that any employee is going to get on the phone to the head of the union every time they have an issue. All issues go through Mr Abdou. Mr Abdou's responsibility then is to consult with his supervisor, Mr Thredgold. It's not the company's responsibility.

PN1161

He's the union representative that the company deal with so why wouldn't they thank - if Mr Thredgold has an issue with a lack of consultation, the issue he has could only be through a lack of consultation, if any, by Mr Abdou to him. That's not my client's problem. That's an internal union problem. I don't think on the evidence your Honour could be satisfied of anything but the fact that the union were consulted and the union gave the nod through Mr Abdou to the implementation of these shift changes.

PN1162

In relation to the issue that the union seek overtime of 30 minutes, under the current arrangements, the number of hours that count as time worked is eight hours. Employees are therefore provided with one rostered day off every four week cycle in accordance with the agreement, so the 30 minute meal break affects start and finishing times only. It shouldn't count as time worked. The 30 minutes is indeed unpaid. It doesn't count as time worked. The EBA we know allows for work of 38 hours per week - sorry, allows for work of no more than eight hours per shift.

PN1163

That's what they're working. They're not working eight and a half hours per shift, they're working eight hours and then a half an hour meal break which is completely consistent with a lot of workplaces around Australia, your Honour, in relation to 24 hour rotating shifts. Therefore, why would they be entitled to overtime of 30 minutes? They get a rostered day off to compensate for the 38 hour week so if they are working five eight hour shifts, 40 hours and they get an RDO which is contemplated by the agreement and the company abides by the agreement, every four weeks they get an RDO, again very common in workplaces where three shifts are in place.

PN1164

THE SENIOR DEPUTY PRESIDENT: It comes down entirely again to the issue of whether there should be a paid or unpaid meal break, doesn't it?

PN1165

MR HEALY: Indeed. Obviously if your Honour was - - -

PN1166

THE SENIOR DEPUTY PRESIDENT: It's not suggesting that the working of eight hours in itself brings a claim for overtime.

PN1167

MR HEALY: Yes. In relation to the substantive issue that really goes to the heart of this dispute and that's in relation to clause 4.2.2 of the agreement under the heading of continuous work, your Honour, we say that there is a clear overlap. I still don't understand the union's submissions that this is a proper overlap, that the overlap is only as a result of the unpaid meal break and it's not used very often for training or anything else. It doesn't matter what it's used for.

PN1168

The meal breaks are taken in the middle of the shift. There is then an overlap between start and finishing times. The agreement is clear and it should be interpreted in the clear and unambiguous meaning and that is that if there is overlap between start and finishing times, then they're not continuous shift workers full stop. The second sentence of clause 4.2 does not refer to overlap of hours worked. It's therefore nonsensical of the NUW to assert that the overlap under the current arrangements is not overlap for the purposes of clause 4.2 on the basis that it is caused by the deliberate scheduling of unpaid meal breaks rather than a true overlap of shifts such as that which would arise from a staggered shift arrangement. I don't understand that submission, your Honour. There is an overlap between start and finishing times. Clause 4.2 says - it doesn't say that there is an overlap between hours worked. The second sentence says:

PN1169

In any factory department or section of the factory where two shifts are worked in each 24 hours and a third shift is introduced, the employees in such department or section should not be regarded as continuous shift workers if the start and finishing times of one or more of such shifts overlap.

PN1170

Not the hours of work, the start and finishing times overlap. It's not disputed. The start and finishing times, there is a 30 minute overlap and that 30 minute overlap exists as a result of the fact that there is now an eight and a half hour difference between the start time and the finishing time. There is a 30 minute unpaid meal break which is taken in the middle of the shift as one would expect, so I just don't understand the NUWs submission that it's not a true overlap for the purposes of that clause. If that is not a true overlap, I am not sure what would categorise a true overlap.

PN1171

THE SENIOR DEPUTY PRESIDENT: The argument and the nonsensical outcome being argued by the NUW is based on the proposition of how can the same clause provide for both the unpaid meal break or a paid meal break as occurred when the shift arrangement was in place at an earlier time.

PN1172

MR HEALY: Your Honour, my client wasn't an employer at that time. Sorry, Futuris weren't the employer at that time. I am unclear as to exactly what the arrangements - I believe Ms Grant did give evidence that she was aware, but I believe they were actually working, my understanding is there was no overlap, they were actually working eight hour shifts in that time, so if there was a meal break paid, there was no overlap and they were doing short bursts is my understanding.

PN1173

THE SENIOR DEPUTY PRESIDENT: There was no overlap because they were there for only eight hours, being paid for the meal break.

PN1174

MR HEALY: That's correct. There was no overlap between the start and finishing time.

PN1175

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1176

MR HEALY: I don't know how long they were there for. There's been no evidence about the actual arrangements, the actual specifics as to what arrangements were in place, your Honour. Your Honour, I understand from Mr Getgood that the prior arrangements were in relation to - were mirroring Holden's arrangements and that's why everyone just worked eight hours, the start and finishing times were eight hours full stop, so that was what I understand, bearing in mind Futuris weren't the employer then and there has been no evidence from the employer or anyone involved prior to that date.

PN1177

I understand it just simply mirrored Holden's production line, but regardless, your Honour, it should really have no bearing on your interpretation of what is happening now and whether or not the clause in this agreement should be interpreted in the way that the union wants it to be interpreted. The current overlap, your Honour, is to minimise interruption of production. It's used by Plexicor for training, communication with employees, safety meetings, tool changes and general housekeeping matters.

PN1178

All employees working under current arrangements are paid the appropriate penalties in accordance with the agreement. All workers currently working night shift are paid a 30 per cent loading, a 30 per cent loading, your Honour. The union is inviting you to say that they're still entitled to the 30 per cent - from my understanding, they're entitled to the 30 per cent loading, but they're also entitled to an unpaid meal break. It just wouldn't make any sense, your Honour.

PN1179

The second sentence of clause 4.2 is clear and unequivocal and I would invite you to interpret it that way. I say that there shouldn't be any need for you to turn to the origins of the clause, but I would invite you to do it, anyway, because the origins of the clause are actually in favour of the respondent's position in relation to this. The NUW is correct in its submissions at paragraph 35 and 36 with respect to the intentions of the review, but they're not correct to assert that the existing award clause as varied in the agreement remains consistent with the 1948 clause, quite the opposite.

PN1180

This is paragraph 35 of my closing submissions, your Honour. The 1948 clause expressly provided that a worker would not be classified as a continuous worker in circumstances where overlap between start and finishing times existed and further provided the period did not extend beyond three weeks in any one period and did not exceed a period of 12 weeks in any one year. Therefore, should there be no overlaps and the periods didn't extend beyond the short spurts, then the workers would be regarded as continuous in line with that definition so that origin of the clause supports our case, your Honour, much better than it supports the union's position because the clear intention of that 1948 decision reflects the intention that the continuous work was to contemplate times of high production demands where workers were asked to do a third shift for a short period in order to meet such demands and no doubt that paid meal break would be intended to compensate them for the inconvenience.

PN1181

We haven't got that here, your Honour. We've got a long period of three shifts. The inconvenience is no longer a factor because they are paid a 30 per cent loading for night shift. It's not a short-term inconvenience for these workers because those who work in the night shift, it's all they work, that's not disputed and those working day shift, that's all they work. Those working afternoon shift, that's all they work. These aren't rotating shifts in the sense that the workers don't work to a roster. They're not night shift permanently so there's no inconvenience, but you are compensated by way of a 30 per cent loading.

PN1182

That 1948 clause has been misinterpreted by the union. It is clear that the intention of it was to contemplate short spurts of times of high production, but the current clause is very different in that it provides for three separate conditions to be met before an employee can be classified as a continuous shift worker. One, there cannot be overlap between start and finishing times, two, if no overlap exists, the period must continue beyond a period of three weeks in any one period and beyond a period of 12 weeks in any one year.

PN1183

It was varied in 1996 to eliminate any ambiguity in line with the intention of the review, but I think that all it's done is created it, it's gone beyond its intention and arguably if you look at that 1948 clause, your Honour, arguably it has mistakenly omitted words that have resulted in a reversal of the intention of the clause. It's Plexicor's primary position that the current clause is clear and unambiguous in that an order for an employee to be classified as a continuous shift worker, there can't be overlap between start and finishing times, but on this basis it's submitted the workers under the current arrangements are not continuous shift workers as defined by clause 4.2 and as such pursuant to clause 27.1.1 are not entitled to a paid meal break, but in the alternative, if your Honour looks to the extrinsic material and looks to the origins of this clause, it's submitted that it should interpret it in line with the clear intention of that clause being for times of increased production demands where a third shift is introduced for a short period.

PN1184

Back in 1948, if there wasn't an overlap and you worked for a period of less than three weeks in any one period and less than 12 weeks in any one year, you were a continuous shift worker, so you were entitled to whatever flowed from that, but when this review took place, your Honour, and this issue has never arisen, your Honour, it's the first time this issue has obviously been picked up since the review was done which in relation to this is not uncommon, it just simply hasn't been an issue in the past and the NUW no doubt have been the first ones to raise it, it's very obvious that the intention with a review, the review itself went beyond its intention and I think they've made a mistake because if they're going to mirror, if they're going to take the origins of the current award and they're going to seek to put in place the similar clause, why would they completely reverse the intention of that clause?

PN1185

It just doesn't make any sense. What has in effect resulted, it's resulted in a nonsensical clause in a lot of ways. In relation to overlap, overlap in start and finishing times reflects, your Honour, regular and if you like systematic rostering or running of three shifts. In times of high production, you will have a situation where there may or may not be overlap, but overlap is if you like an indication that more of a permanent structure has been put in place. If I can give your Honour the example of emergency shift workers, the police force for example, where they work rostering shifts and the day shift is seven until three and the afternoon shift is three until - sorry, seven until 3.30 with an unpaid meal break, then three until 11.30 with an unpaid meal break, 11 to 7.30 with an unpaid meal break, that's an example of a permanent structure where three rotating shifts are in place and obviously it is put in place that way to minimise the gaps in production or in the police force case no doubt to minimise the risk to the community in that half an hour period.

PN1186

So, your Honour, that is the significance if you like of an overlap, but regardless of that, there is an overlap, we know that, but regardless of that, it's very clear looking at that 1948 clause and I am somewhat bemused by why the union would even raise it because it's very clear looking at that clause that that clause is in the company's favour, because you couldn't interpret that clause any other way.

PN1187

THE SENIOR DEPUTY PRESIDENT: You say it is limited to intermittent or occasional continuous work rather than continuous work?

PN1188

MR HEALY: Yes, absolutely, because it's continuous work around the clock if you like. Taking you to paragraph 39 of my submissions, I submit the relevant principle on this point can be found in the Australian Workers' Union v Visyboard where Deputy President Ives stated:

PN1189

The court or tribunal should strive to give effect to the intention of the authority which made the award or presumably in the case of an agreement, the intent of the parties to the agreement.

PN1190

Obviously we don't have the benefit of those parties:

PN1191

Provided the words appearing in the instrument can reasonably be interpreted to mean that which the authority/parties intend them to mean.

PN1192

Looking at the current award and then mirrored into the current agreement, we can see there's no way that that clause has been rewritten or varied to reflect the intention of those that originally structured the clause in 1948 because you couldn't in my respectful submission interpret the 1948 clause in any other way than to say it was meant for continuous work as defined in that clause, was meant for periods of short periods of high production.

PN1193

Further, and in support of that submission Plexicor submits that when looking to the current agreement, the intention becomes clearer. Clause 4.3 of that agreement provides for five day shift work and it talks about five day shift work carried on with consecutive shifts throughout 24 hours of five days a week between the hours of 11 pm Sunday and 8 am on Saturday without interruption during breakdowns or meal period or due to unavoidable causes.

PN1194

That's what these workers are, they're five day shift workers. Clause 4.4 provides the night shift and it defines what night shift workers are. That's what these people are, they're night shift workers. They're paid a 30 per cent loading to compensate for working night shift. Under the current arrangements employees work a five day shift between Monday and Friday of any given week. The shifts are never rotating nor operating over a seven day period, they're fixed. Should any employees be required to work on Saturday or Sunday, Plexicor would be obliged to pay them overtime rates in accordance with clauses 32 and 33 of the agreement.

PN1195

The fact that the definitions define continuous work and then separately contemplate and define five day shift work, seven day shift work and night shift where there is no reference within those shifts to continuous work is an example of this intended difference. Continuous work contemplates a unique situation that is not reflected in the current circumstances. Where a third shift is introduced on a long term basis, it does not automatically trigger the continuous work definition.

PN1196

Looking to the clear intention of that 1948 decision to interpret this clause this way would result in any worker working on 24 hour shifts being entitled to a paid meal break. Why wouldn't other industries be doing that? If that was such a common practice or that was such an easy interpretation as the NUW submits, that would mean that every worker working shift work would be entitled to a loading of 30 per cent plus a paid meal break as well.

PN1197

It would be over compensating. The paid meal break is intended to compensate for the inconvenience of that short spurt. There's no inconvenience if that's all you're working. Your Honour, I would be inviting the Commission to interpret the agreement pursuant to my submissions and if I could just have a moment, your Honour?

PN1198

THE SENIOR DEPUTY PRESIDENT: Yes, certainly.

PN1199

MR HEALY: Thank you, your Honour.

PN1200

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Healy. Yes, Ms Parkes.

PN1201

MS PARKES: Your Honour, if the Commission pleases, my learned friend took you to clause 31.6 which deals with the method of working shifts and the sole change before the start at 10 February was merely just a change in hours, but the point we would make with 31.6 is that there's two parts to that and it refers to the method of shift, firstly that the union agrees to the method and that the employees can then vote to change the hours from six or seven or whatever once that method has been determined and whilst there were eight and a half hour shifts in operation prior to 10 February, there were gaps in production.

PN1202

They did not cover the full 24 hours and, in fact, there was not agreement of the union that you have shifts in place that covered all 24 hours and should be operated in the manner that the company did. Indeed, it was quite clear that the union sought eight, eight and eight with paid meal breaks and that particular method of working shifts. Now, my learned friend has taken you to the evidence of a variety of witnesses in this matter and has made a variety of adverse references in relation to Mr Abdou and the meeting of 7 February, et cetera.

PN1203

This is the starting point that I took the Commission to, that a lot of the evidence there doesn't impact on the issue or the order that is sought by the union in relation to the meal breaks, but it does impact on how the shifts were introduced, whether they should have been introduced and the issue of consultation and my learned friend has said, well, there was consultation with the NUW, what are they complaining about, there wasn't a break of the status quo and the evidence clearly indicates the company, Ms Grant and Mr Getgood hadn't met - sorry, Ms Grant and Mr Ennis hadn't met Mr Abdou prior to this matter, that the secretary had been involved in the meeting.

PN1204

It wasn't just a case of the secretary saying a letter, we're in dispute, we want the status quo preserved. The secretary had actively been involved that week on that very issue and on the 7th had said we are in dispute, we want the status quo preserved, contact myself, as I was at that meeting, I discussed it with you and what the evidence shows is the company went around that. It had votes of employees and didn't even tell the secretary at the meeting that we're going to have the votes today.

PN1205

Indeed, both Mr Abdou and Mr Thredgold indicated and the delegates indicated that the union didn't know about the votes, that they took place very hastily one might add without the knowledge of the union, so it's a bit hard to say that there was proper consultation and that the proper processes were there when we had this rushed period when the union first found out on the 4th and the company admitted it had already started seeking volunteers before then and so the issues of consultation and whether the proper processes were followed certainly were in question.

PN1206

There's been some inferences made in relation to Mr Abdou. It's also worth noting that Ms Grant retracted her statement in relation to a flyer being made and we weren't on advanced notice of that retraction being made and there were references to additional conversations of 6 February that weren't in her statement that were made, so in those circumstances and particularly given that it did emerge it was a major issue, the meeting of the 7th, it was entirely reasonable that we called Mr Abdou into that point, but the key issue that we would make is there was a deliberate on our submission part of Plexicor to go around the secretary, Mr Thredgold, and given them an answer they didn't like, to someone who they haven't met in person and to say and get a response to that and whilst it's acknowledged that the employees did provide a qualified acceptance to the shifts going ahead, it cannot be said that the union specifically agreed that there should be a method of introducing shifts such as there was without paid meal breaks.

PN1207

THE SENIOR DEPUTY PRESIDENT: But ultimately there wasn't agreement on the meal break issue. What is being argued is that there was agreement by Mr Abdou to give effect to the shifts with the meal break issue to be resolved.

PN1208

MS PARKES: I think the argument is Mr Abdou indicated that employees agreed and the issue is whether he actually said, well, the union agrees that you go ahead. It's clear that he indicated that employees had indicated their support because Mr Abdou's evidence at paragraph 755 and 912 was that he didn't give Ms Grant permission to change the shift arrangements. I think at best it could be argued did he or did he not give a qualified view because the employees had indicated a qualified agreement, therefore the company can go ahead, but it hasn't been established that he or the union specifically agreed to that method of working the shifts.

PN1209

Even if there had have been agreement, even if there had have been, if I am wrong on that point, even if there had have been, it goes back to the point I addressed your Honour on earlier that neither the employees nor the union can contract out provisions. If the shifts are continuous work shifts, they're entitled to paid meal breaks and regardless of what people may or may not offer agreement or qualified agreement to, they are limited to agreeing to things that are within the boundaries of the agreement.

PN1210

THE SENIOR DEPUTY PRESIDENT: And that was the caveat to any agreement if it occurred.

PN1211

MS PARKES: Yes, and it's certainly not disputed that the agreement was qualified, but I would say even - my point would be, for example, the company might say, well, you agree to work afternoon shift on a 10 per cent loading, people could agree to that, but under the agreement they can't contract out of that because the agreement provides for a 15 per cent loading.

PN1212

THE SENIOR DEPUTY PRESIDENT: But the analogy being put by the company here is that the union agreed we'll go ahead and do it, you say it's 10 per cent, we say it's whatever the agreement says, 20 per cent and we're not going to go ahead unless you agree to have that matter determined and we'll abide by the outcome.

PN1213

MS PARKES: We would say, though, that people can only agree to what the agreement allows you to agree to.

PN1214

THE SENIOR DEPUTY PRESIDENT: Therein lies the crux of the problem of the dispute as to what the agreement means.

PN1215

MS PARKES: Yes. My learned friend then made a reference to overtime being dependent on the paid meal break and I will make it clear and your Honour did pick up this point. Overtime is only suggested as part of the remedy if your Honour finds that employees were then entitled to that 30 minute paid meal break, because then it's established that employees worked eight and a half hours, so to certainly make that point clear.

PN1216

If your Honour finds against us, well, then, that particular issue doesn't arise, but it's in the context of your Honour finding that the 30 minutes should have been paid which means that employees would have been at work for eight and a half hours per day. The next issue is my learned friend said that there was no evidence in relation to the first 18-odd months of the agreement in relation to the shifts of eight, eight and eight and that his client wasn't the employer.

PN1217

There was evidence. There was evidence of Mr Bibl that those shifts continued through that period and Mr Bibl's evidence was not that it was three weeks on and three weeks off and three weeks on and three weeks off. Mr Bibl's evidence was that for a period between October 2005 and approximately February 2007 there was an arrangement of three shifts of eight, eight and eight with paid breaks and that was in Mr Bibl's statement at NUW3.

PN1218

He outlined the shift arrangements paragraphs 4 to 11, at NUW4 where he made a partial retraction, but not on that point, paragraphs 4 to 6 and in his transcript evidence paragraphs 50 to 53 and 90 to 92. That was the history of the arrangements and in particular the paid breaks was at exhibit NUW3, paragraphs 4 and 5 and it was also acknowledged by Ms Grant on cross-examination at paragraphs 465 to 469.

PN1219

There's obligations on employers to keep time and wage records, et cetera. Are Plexicor seriously saying that there was no evidence and we say that there was witness evidence, but are Plexicor seriously saying, well, eight, eight and eight didn't operate for that period, that appeared to be the argument that there was no evidence of the eight, eight and eight and there was evidence. Mr Bibl clearly gave evidence and Ms Grant and that it wasn't in bursts of three weeks, that it was approximately a 16, 17, 18 month. If I can take your Honour also to clause 26.4 of the agreement, clause 26.4 says:

PN1220

The current start/finishing times are as follows, day shift 7 am until 3 pm, afternoon shift 3 pm until 11 pm, night shift 11 pm until 7 am.

PN1221

Those were the shifts that were worked for the first basically half life of the agreement with the paid meal break, so to say that there wasn't any intent and that it somehow happened is incorrect. My learned friend then argued that continuous shift work and paid meal breaks is limited to intermittent work or short spurts of production, but there's no evidence of this. If we take this very agreement, there's been evidence that that arrangement applied for nearly 18 months for the first half of the agreement and that it was specifically envisaged that it would by that reference to clause 26.5 and history shows that it did.

PN1222

History shows that the current Victorian agreement which has mirror provisions on these matters currently has some shifts in operation with those matters and it's been interpreted that way. There's also been issued about, well, the shifts don't rotate and there's no inconvenience, therefore people shouldn't get a paid meal break. I've come across many different definitions of continuous shifts in my work as an industrial officer and what we're concerned with is the definition in this agreement, not the definition in the Metals Award that says you only get your paid meal breaks where the shifts operate for six days or more.

PN1223

Here under the Rubber Award and this agreement it's five days or more and the clause that we're required to look at is the clause that's in this agreement and this agreement doesn't say you only get a paid meal break if it's intermittent or if you rotate or if you're inconvenienced. That's not what the clause says, so to read in things that are not there and are contrary to the practice that happened at the site for the first 18 months of the agreement is completely inconsistent as well as leading to unjust and irrational results, because you would have an agreement on the one hand that says you can have eight, eight and eight paid breaks, but on the other hand you can't do that because employees are allegedly not inconvenienced, you have to have eight and a half, eight and a half and eight and a half.

PN1224

My final point is my learned friend has taken you to the 1948 definition which we have also obviously taken you to and says that that's limited to three-week bursts of production and that that's the intent of the parties and that's how it should be interpreted, but we say that's not the intent of the 1948 clause, it doesn't say that. It doesn't say that it's limited to short bursts. What the clause actually says in relation to that is:

PN1225

Where the two shifts are worked in each 24 hours and a third shift is introduced, the employees in that department or section shall not be regarded as continuous shift workers if the starting and finishing times of one or more of such shifts overlap and further, provided that such third shift does not continue for a period exceeding the three weeks in one period of 12 weeks in any year.

PN1226

And we say when you have regard to that clause, on our alternative argument, if you find against us on the overlap issue, that where the shift continues for more than three weeks, that's when it's the continuous shift and that goes back to the principle that I there is a temporary change for three weeks, you mightn't get your paid meal break, but if it continues for longer than that, that you would get the benefit and, for example, that is the industrial principles that the status quo might apply for the short term change, for example due to a temporary night shift of three or four weeks, you only get your 15 per cent loading, but if it becomes permanent, you get your 30 per cent loading.

PN1227

And we say that consistent with that principle here that if the shift arrangement was in place for just the three weeks, you may not get that paid meal break, but if it goes on for longer, yes, you're entitled to do so and we note that there's no requirement in this agreement that the shifts have to rotate or that people have to be inconvenienced or that they have to go for six days or seven days or any other arrangement, as long as it goes for at least five days. It would be our submission, your Honour, that it's the complete opposite construction of the 1948 clause than what which has been urged upon you by Plexicor. If the Commission pleases.

PN1228

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN1229

MR HEALY: Your Honour, just one point, sorry, not in reply, but it's something I missed before and that is very briefly, the Victorian agreement is irrelevant. There has been no evidence before you as to what arrangements were in place in relation to the Victorian agreement or, indeed, what is paid, what hours of work are worked. All this has been submissions from the bar table, your Honour. There's actually no evidence in relation to what takes place in Victoria and even if there was, it's irrelevant, anyway. My learned friend has made a big point of it's only this agreement, but she seems to want to pick and choose in relation to where another one benefits her.

PN1230

THE SENIOR DEPUTY PRESIDENT: The difference here is that the agreement is in identical terms in all the relevant respects.

PN1231

MR HEALY: But we don't know what is in place, your Honour. There is no evidence in relation to what is actually in place in Victoria. There's no evidence as to whether or not these meal breaks are paid, whether or not there is rotating shifts of 8.5 hours.

PN1232

THE SENIOR DEPUTY PRESIDENT: No. That much is clear in 26.4 of the agreement itself, the Victorian agreement. It, like the South Australian agreement, sets out the current start and finishing times.

PN1233

MR HEALY: The current - - -

PN1234

THE SENIOR DEPUTY PRESIDENT: In 26.4 in terms of eight hour blocks.

PN1235

MR HEALY: This is a different agreement, though, your Honour.

PN1236

THE SENIOR DEPUTY PRESIDENT: It's in identical terms.

PN1237

MR HEALY: It couldn't be, your Honour, because it defines continuous work under clause 3.2 under the Victorian agreement.

PN1238

THE SENIOR DEPUTY PRESIDENT: Continuous work is defined in the same terms.

PN1239

MR HEALY: Continuous work is defined in the same terms, yes.

PN1240

THE SENIOR DEPUTY PRESIDENT: And the current start and finishing times are similarly described in the same terms in 26.4.

PN1241

MR HEALY: Your Honour, the agreement might be - there's no evidence about what actually takes place, whether meal breaks are paid or not in Victoria.

PN1242

MS PARKES: With respect, your Honour, there was some evidence.

PN1243

MR HEALY: There was no evidence. It could only be hearsay evidence at best, your Honour.

PN1244

THE SENIOR DEPUTY PRESIDENT: It sets down eight hours, so it's either seven and a half hours with an unpaid meal break or eight hours with a paid meal break.

PN1245

MS PARKES: Your Honour, at paragraph 194 of transcript and I do note Mr Healy did object on the basis of hearsay, but Mr Thredgold stated that:

PN1246

The Victorian organiser informed me that there are shifts in certain sections of the plant in Victoria that operate eight hour shifts with paid meal breaks over 24 hours, five days a week.

PN1247

And there was also Ms Grant when it was put to her at paragraph 601:

PN1248

But they do have three times eight with paid meal breaks in some part of their operations?

PN1249

And the answer was:

PN1250

Some parts.

PN1251

And that was paragraph 601 of transcript.

PN1252

MR HEALY: Your Honour, that's not evidence you could give any weight to at all. You completely disregard the evidence of - - -

PN1253

THE SENIOR DEPUTY PRESIDENT: That is evidence only of what someone said to him, not of the fact, yes.

PN1254

MR HEALY: It's clear, yes, terribly prejudicial to put any weight on that, your Honour.

PN1255

THE SENIOR DEPUTY PRESIDENT: And Ms Grant's? I will have to look at the context.

PN1256

MR HEALY: Ms Grant wasn't - her evidence was clear, she wasn't sure. She indicated and acknowledged there may have been in some parts of the Victorian operation, but she wasn't sure what, so the bottom line, your Honour, is there's no evidence before you of what occurs in Victoria and in my view, to actually look at that agreement and to be swayed, if you like, by what happens in Victoria, you would have to be satisfied of exactly what does occur in Victoria and you can't on this evidence be satisfied of that. It may be that Victoria actually interprets the clause exactly the same as South Australia, so there's just not enough evidence before your Honour to give it any weight whatsoever. Thank you, your Honour.

PN1257

THE SENIOR DEPUTY PRESIDENT: Anything further, Ms Parkes?

PN1258

MS PARKES: Your Honour, all I would point out with Ms Grant was that there was a clear concession made that in some parts in Victoria there was eight with the paid meal breaks and I refer once again to paragraph 601 of transcript. If the Commission pleases.

PN1259

MR HEALY: Prior to that, your Honour, she also said that she was in charge of South Australia and wasn't involved with Victoria.

PN1260

THE SENIOR DEPUTY PRESIDENT: Very well. I will reserve my decision.

<ADJOURNED INDEFINITELY [12.43PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #NUW7 SUMMARY OF EVIDENCE PN1021
EXHIBIT #P4 OUTLINE OF SUBMISSIONS PN1137