C2008/2933, Transcript of Proceedings [2008] AIRCTrans 549 (19 September 2008)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 19110-1

COMMISSIONER HARRISON

C2008/2933

s.496(1) - Appl’n for order against industrial action (federal system).
Visy Industries
and
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
(C2008/2933)

SYDNEY

2.06PM, TUESDAY, 09 SEPTEMBER 2008

PN1

MR A DOUGLAS: I seek leave to appear for the applicant in this matter.

PN2

MR A WALKADEN: I appear for the AMWU and I'm joined by MR S VINE.

PN3

THE COMMISSIONER: Thank you, Mr Walkaden. Is there any objection to leave?

PN4

MR WALKADEN: No, Commissioner.

PN5

THE COMMISSIONER: Leave is granted, Mr Douglas. I must say at the outset I'm surprised to be looking at you from up high, but Mr Douglas.

PN6

MR DOUGLAS: May it please. Commissioner, if I may first take you to the application there is two errors in the application and I'd just seek to amend those errors. The first one is on page 1 where it says Contact Person 2 and it's got
Mr John Lymberis, Operations Manager, Visy Board and then it's got O'Connor site. It should actually be Mr John Lymberis, New South Wales General Manager.

PN7

THE COMMISSIONER: Sorry, contact person?

PN8

MR DOUGLAS: Number 2 on the first page.

PN9

THE COMMISSIONER: Yes, John Lymberis.

PN10

MR DOUGLAS: And it's got operations O'Connor site. It really should be New South Wales General Manager Visy Board without the word site there.

PN11

THE COMMISSIONER: Yes.

PN12

MR DOUGLAS: And the second is a more glaring omission and that's in paragraph 4.2 where it says:

PN13

Each of the employees at Visy who are eligible to be members.

PN14

I just wish to refine that to who are members of the AMWU.

PN15

THE COMMISSIONER: Yes, thank you.

PN16

MR DOUGLAS: Commissioner, this is an application under 496. The current case before you, Commissioner, as you're aware talks about what can and can't be done as the Health Services Union case which is print copy PR981439 which following the TWU case permits the general nature application orders sought with service upon the union as being sufficient if it relates to members specifically and as you're aware, I don't think any issue was taken in respect of the fact the union has been served but if there is that's something I can - - -

PN17

MR WALKADEN: If I just might make a brief point, Commissioner. It's not disputed that the AMWU was served and I agree with the general principles of service in relation to these matters that were discussed by my friend. I would make the point though, Commissioner, that on attachment A which appears to contain or does contain a number of employees who work at Visy Board Warwick Farm there are a number of those employees who actually aren't in fact members of the AMWU. So the contention I would make today, Commissioner, would be in respect of those employees who are in fact members of the AMWU, service upon the AMWU would be sufficient in respect of those workers but in respect of workers who aren't members of the AMWU service upon the union only is not sufficient.

PN18

MR DOUGLAS: I'm willing to accept that. Commissioner, I'm not only willing to accept it, I accept pretty much that's where the law lies but as a company of course we can't pretend to go and ask people where they're members of the union so we just quite properly attach the list of employees.

PN19

THE COMMISSIONER: Yes.

PN20

MR DOUGLAS: If my friend is willing to indicate who is who and providing a tick list we are content with that, we don't know.

PN21

MR WALKADEN: The difficult issue would be with that, Commissioner, I'm not aware of exactly who is a member and who isn't a member. Given the short time frame that I was served this application I don't have a current printout of our members of Warwick Farm. I actually asked my secretary to compare a membership list with this list. She indicated there were about seven names of employees on this list who weren't in fact members so I would be happy to, if an order is made, and of course, Commissioner, our strong submission to you is that an order shouldn't be made, but if an order is made I would be happy to engage in a process that you direct us to to uncover those seven people. If it pleases.

PN22

THE COMMISSIONER: Yes, all right.

PN23

MR DOUGLAS: It may be of some assistance, Mr Vine actually collects through direct debits but he should be able to find those direct debit lists pretty quickly I would imagine.

PN24

THE COMMISSIONER: Well, that's something we might address further down the track if need be.

PN25

MR DOUGLAS: That's right. Commissioner, you're aware of the background so I won't do a formal opening in that respect. What I'll do is call the first witness which is Mr Lymberis.

PN26

THE COMMISSIONER: Thank you.

<JOHN LYMBERIS, SWORN [2.11PM]
<EXAMINATION-IN-CHIEF BY MR DOUGLAS

PN27

MR DOUGLAS: Mr Lymberis, could you give the court your full name?---John Lymberis.

PN28

And your work address is?---41-51 Scrivener Street, Warwick Farm.

PN29

And your occupation?---General Manager, New South Wales.

PN30

Mr Lymberis, you're aware that the Visy Board Warwick Farm site is covered by the Visy )Smithfield, Warwick Farm, Dandenong, O'Connor FAG Carole Park) Enterprise Agreement 2007?---Yes, I am.

PN31

And there's no period of bargaining at the moment?---No.

PN32

Mr Lymberis, you're aware of an incident that occurred on 2 September in respect of workers at the Warwick Farm afternoon shift?---Yes, I am.

PN33

Could you describe what that is?---2 September was last Tuesday night. We asked several employees on afternoon shift to work back on certain pieces of equipment. We got the green light, as we normally do, and then we find out that Wednesday morning there was only one crew or only four people or three people out of the total that stayed back, so we waited until afternoon shift comes in which is approximately 4 o'clock to find out what was going on. We had an employee come forward on Wednesday to the operations manager, Joe Ardolino, and the shift manager, Junior Rufati, to put forward a note of scare and bullying that went on last night. He was scared for himself and he was uncomfortable working in the conditions that were available to him on the basis that he couldn't do his overtime. We asked - - -

PN34

Sorry, if I can just stop you there. You spoke to Mr Ardolino also on the 3rd and did he advise you what led they were not working on the Tuesday night?---Yes.

PN35

Can you explain to the Commission what occurred?---What led to those people not working on Tuesday night was the two operators that were highlighted by the employee that went across to him and advised him that there is an overtime ban on and as such you will not be working or we'd prefer you not to work tonight, as we've done with the rest of the crew.

**** JOHN LYMBERIS XN MR DOUGLAS
PN36

THE COMMISSIONER: Is this information provided to you by Mr Ardolino, is it?---This is information that's provided to me by Mr Ardolino and the employee that was affected on site who came forward and basically Joe Ardolino and the shift manager, Commissioner, what can management do to fix it, please.

PN37

MR DOUGLAS: Do you understand the basis upon why such a ban was put in place?---No, not at all.

PN38

Did Mr Ardolino explain any discussion that occurred between him and
Mr Muscat as to why that had taken place?---There was a phone call made on Tuesday, 2 September at approximately six or 6.30 that evening where Joe Muscat phoned Joe Ardolino and advised him - or wanted to him question on some decision that was made on the factory floor regarding movement of personnel to fulfil a requirement. Joe advised Joe Muscat that there is normal practice, Joe, please speak to the normal supervision, why are you phoning me. At the end of the day Joe Muscat came back and said, "Understand if you continue with this decision the Asians on afternoon shift will not be happy and as far as I'm concerned they'll be not working back".

PN39

Thank you. If I can bring you back now to 3 September where you were speaking to the complainant?---Yes.

PN40

What did he describe occurred and who did he say had bullied and harassed him?
---The complainant who does not want to be named on afternoon shift, I did speak to him. I also provided a letter to him which I advised him that he would like to keep himself unnamed and basically explained to me that he was scared based on the bullying tactics on afternoon shift. He wanted to work. He wanted to feed his family. He wanted an opportunity to do the overtime, as was provided by the business, but was not comfortable in continuing what was needed. So that's when we decided to call everybody together and carry out the investigation.

PN41

Now, did you become aware of an investigation being carried out by
Mr Ardolino?---Yes, I was.

PN42

And what did you understand from Mr Ardolino in regard to an investigation or recall?---I understand that an investigation was carried out by
Mr Ardolino together with the shift manager on afternoon shift. They brought up the two name operators.

PN43

And their name was?---Minh. I need to look at my notes.

PN44

M-i-n-h?---Yes, Minh and Linh.

PN45

L-i-n-h?---Correct. Minh and Linh, two operators on afternoon shift. They were asked to come to Joe's office to discuss the occurrences of the evening.

PN46

We'll move back to the 3rd now because you don't know what was said at that?
---Mm.

**** JOHN LYMBERIS XN MR DOUGLAS
PN47

When you started investigating on the 3rd what did you become aware of from the union's point of view as to the behaviour of Mr Ardolino?---That they weren't happy at all, at all.

PN48

And you spoke to the two individuals, Minh and Linh?---Yes, I did, together with the union chapel which was Rick Edwards and Joe Muscat in the room and we went through the statements that Mr Minh and Linh put forward, correct, as part of the investigation.

PN49

All right. Now, what I want to show you and I’m sorry I haven't made more copies of this, I understand three of these appear in your book that you have with you and one of them is a document if I could just show Mr Walkaden so he understands. The first statement I want to show you, the first is a letter that you wrote to the complainant, if I could just show you that?---That's correct.

PN50

Is that a statement you prepared and is that your signature?---Correct, correct.

PN51

I tender that, Commissioner.

EXHIBIT #D1 LETTER FROM MR LYMBERIS, DATED 05/09/2008

PN52

MR DOUGLAS: The next is a statement taken by Mr Lymberis from Linh,
L-i-n-h, Tran, T-r-a-n, dated 3 September 2008, it's a photocopy of the day book that you kept?---Correct.

PN53

Now, is that your handwriting and is that your signature at the bottom?---Correct. That's from Linh Tran that I was present while he did the statement.

PN54

I'm sorry?---Correct.

PN55

You saw him put that signature?---Correct, correct.

PN56

I tender that too, Commissioner. There is a statement from Minh, M-i-n-h, Nguyen, N-g-u-y-n, dated 3 September 2008 and signed by Mr Nguyen.

EXHIBIT #D2 STATEMENT FROM MR TRAN, DATED 03/09/2008

PN57

THE WITNESS: That's correct.

EXHIBIT #D3 STATEMENT FROM MR NGUYEN, DATED 03/09/2008

PN58

THE COMMISSIONER: I think exhibit D2 is a statement by Mr Linh, not
Mr Tran.

PN59

MR DOUGLAS: I think it's Linh Tran?---Linh Tran, Commissioner.

PN60

THE COMMISSIONER: Tran.

**** JOHN LYMBERIS XN MR DOUGLAS
PN61

MR DOUGLAS: You were right both times, Commissioner.

PN62

Mr Lymberis, as part of that investigation you then spoke with Mr Ardolino and following that discussion with Mr Ardolino you stood down Mr Ardolino?
---Correct.

PN63

You stood down Mr Tran?---Minh Tran and - Linh Tran and Minh Nguyen, correct.

PN64

Now, on 4 September you had a meeting and at that meeting was John Borge?
---Correct, the factory manager, yes.

PN65

The factory manager. Mr Edwards, the 2IC?---Correct.

PN66

And the Father of the Chapel?---Joe Muscat.

PN67

Can you describe to the Commission what occurred at that meeting?---4 September would have been Thursday. We organised a review with the chapel members to review where we were at, to review what findings we've got so far. Both Joe and Rick wanted to at least be a part of what we had to say and also the way they wanted to report back to their members. But at the end of the day Joe did say that whatever outcome is presented as far as he's concerned the guys are walking. If the members - sorry, if the members don't accept it. But I can refer to my notes if you wish.

PN68

Please do?---4th of the 9th -

PN69

Discussions with Joe Muscat, Rick Edwards, myself and John Borge.

PN70

This is prior to the union chapel having a meeting with the members in the canteen at 4 o'clock -

PN71

Joe Muscat advised John Borge and myself with Rick present that whatever reason Joe Ardolino has made, whether he comes back or whatever outcome will be on the grass.

PN72

Now, at that time there was also a request at the meeting to report back to the members, is that correct?---Correct.

**** JOHN LYMBERIS XN MR DOUGLAS
PN73

And what was the agreed outcome between you and Mr Muscat?---There was a discussion with the chapel members and their union members in the canteen. The chapel came out to see me.

PN74

If I could step back, what was the agreement as to how long the meeting could be?---I advised Joe that I would be happy for him to report back to the members where we were at. I allowed him five to 10 minutes or 15. He said, "Are you going to pay for it". I said, "Joe, it's a discussion. I'm happy for you to report back to the members, as long as you pay for it". I said, "That's fine". The men took an hour and a quarter that the guys were in the canteen. That was from 4 o'clock to 5.5 pm and I had no say.

PN75

Now, after the meeting there was a report back?---Correct.

PN76

What occurred at the report back?---Joe Muscat, Rick Edwards and a third member, his name is Dennis who's a member of the chapel, came to see myself and John Borge and they gave me four things that they wrote down and they wanted me to take down a note. Can I read them out what they are? The four things were;

PN77

(a), strongest possible action to be taken on this outcome.
(b), no confidence in Joe Ardolino as manager.
(c), would like the investigation done as soon as possible.
(d), they want union involvement in all proceedings.

PN78

And what was your response to that?---In terms of the first one, strongest possible action taken on the outcome, I said we will do what's required and we'll take the necessary steps if we've done something wrong. No confidence in Joe, that's your opinion, I need to deal with that but I need, as the evidence comes out. Would like the investigation done, the investigation will be done as soon as possible and need to cover whatever needs to be covered and we've got to follow the due diligence that's necessary. If it takes a day, if it takes four days we'll do whatever's required to make sure that we do the investigation properly. The last one in terms of union involvement in all proceedings, I advised them that the union would be consulted and advised accordingly.

PN79

All right. Now, was there anything else that occurred on 4 September to your recollection?---No.

PN80

If I can take you forward then to 5 September, during that day did you have any discussions with Mr Muscat?---Correct.

PN81

Are you able to advise the court or the Commission what those discussions were or where they occurred and when it occurred?---This would have been around 5 pm on the 5th which was Friday. I decided to, like I usually do, walk around the factory and just see how things are going on the basis that Joe Ardolino is not there and I saw Joe Muscat on a forklift at the end of the line where he usually does his work and we spoke about where we were up to with everything and - I need to refer to my notes in terms of the discussion. Joe Muscat mentioned to me that there was a history with Joe Ardolino that goes back to the Visy Board Dandenong days. I said to Joe Muscat, "I'm not aware of it. All I can do is stick to the facts and the facts that have been presented at this point in time". He then started talking to me about receiving information from head office about what's going on and where this is at but then Joe Muscat said to me that there was a going concern with his members. Again he restated to me that if members aren't happy that they will walk.

**** JOHN LYMBERIS XN MR DOUGLAS
PN82

And when he said to you that his members aren't happy what did you understand that to mean?---In terms of the reinstatement of Joe Ardolino back to the business.

PN83

And that was clear to you?---Yes.

PN84

Now, I think the 5th if I'm right was a Friday?---Correct.

PN85

Was there any other instance involving this issue that arose on the 5th?---The union chapel, both Rick Edwards and Joe Muscat asked me, it would have been some time in the morning or lunch time, asked me that they wanted to interview Junior. Junior is a shift supervisor or shift manager on afternoon shift who is the other statement. There was four statements that were provided for the events of
3 September and I said, "Why". They said, "Well, we'd just like to interview Junior based on the statement", and Rick Edwards did say if he was not comfortable with it we're happy not to pursue it. I said, "Look, we've got nothing to hide. I'm happy for you guys to interview Junior". I asked Junior to come in early, was he comfortable to be interviewed by the union chapel which he said, "John, I don't have a problem", which he did. They interviewed Junior and to me it was no different to what was written on the statement. But then I asked both Rick Edwards and Joe Muscat as part of the process you should also interview Joe Ardolino because there was two parties involved in management but they were declined to do so. They were only interested in Junior's statement.

PN86

May it please, Commissioner, it was my error before, I failed to put up the statement of the man described as Junior who is Muhamed Rufati?---Junior Rufati, Muhamed Rufati, correct.

PN87

If I can just show you a document dated 3 September 2008 and signed by
Mr Rufati. Mr Lymberis, is that your handwriting?---Correct.

PN88

And that's the signature of Mr Rufati?---Correct.

PN89

I tender that.

**** JOHN LYMBERIS XN MR DOUGLAS

EXHIBIT #D4 STATEMENT OF MR RUFATI, DATED 03/09/2008

PN90

MR DOUGLAS: Now, you've referred to notes a number of times and I'll go on to that shortly, the notes you referred to are in your day book?---Correct.

PN91

And are they made immediately after conversations that occur or during conversations?---During conversations that occur.

PN92

Yes, okay. Now, on 8 September you spoke with a Mr Masalkovski, is that correct?---John Borge, the factory manager, spoke with Louis Masalkovski, correct

PN93

Can you spell Masalkovski?---M-a-s-a-l-k-o-v-s-k-i.

PN94

Okay. And are you aware did Mr Borge report to you in relation to that conversation?---Yes, I was.

PN95

Can you explain to the Commission what that conversation was?---Louis Masalkovski advised John Borge yesterday at approximately 9.30 am that if Joe Ardolino comes back to the plant not only as it stands now will the factory walk, which is Warwick Farm, there's also got agreement that Smithfield would also take suit.

PN96

Now, I understand that you had a meeting later in the day at around about 5 o'clock with the Father of the Chapel, Mr Edwards, who is here and John Borge again?---Correct.

PN97

Can you please tell the Commission what occurred then?---Can I refer to my notes, please?

PN98

Discussion between Joe Muscat, Rick Edwards, John Lymberis and John Borge. Joe Muscat gave an ultimatum to myself and John Borge with Rick Edwards present. "John, you only have two choices, either redundancy or transfer Joe Ardolino out of Warwick Farm. The members don't want Joe. Based on what's happened Visy Board Dandenong has gone to Steve Walsh and I’m expecting Visy Board head office to contact you about his past history".

PN99

So if I can just take you back through your evidence, you understood on
2 September that there was bans and you understood that from both
Mr Ardolino?---Correct.

PN100

And also from employees you spoke to?---Correct.

**** JOHN LYMBERIS XN MR DOUGLAS
PN101

And you understood that they arose as a result of the Father of the Chapel's involvement?---Correct.

PN102

You understand since then there has to be two clear threats if Mr Ardolino comes back that the employees will walk?---Yes, correct.

PN103

And you understand that by saying walk that means there will be strike action?
---Basically it means another mean for walking on the grass, yes.

PN104

And on the third occasion on 8 September you understand that you were provided with an ultimatum that these are your two choices, if you don't do that then they will walk?---Yes, I was.

PN105

Now, you did form a view about some aspects of Mr Ardolino's behaviour?---Yes, I did.

PN106

And what view did you form?---Basically that the process with which Joe conducted the two operators off the floor wasn't appropriate and then I advised the union that I will take severe disciplinary action with Joe on the basis that the process needs to be followed and done properly, correct.

PN107

Okay. And in respect to the issues of the offensive language and threats did you form any view as to that?---No, I could not from a view.

PN108

Okay. And has Mr Ardolino been reinstated today, has his - - - ?---Yes, he is.

PN109

Have you had a discussion with the operations manager of Smithfield today?
---Yes, I have.

PN110

And that's Mr Simon Warnock?---Correct.

PN111

How do you spell Simon's last name?---Warnock, W-a-r-n-o-c-k.

PN112

And did you advise him as to what you've been advised about the Smithfield site?
---Yes, I was.

**** JOHN LYMBERIS XN MR DOUGLAS
PN113

And what did he tell you?---He also had some information off the factory floor regarding Smithfield's position.

PN114

And what was that?---Can I refer to my notes, please -

PN115

Simon Warnock was advised by Frank Grech, chapel member, this morning, at about 9.45 am, if Warwick Farm goes out on the grass that Visy Board Smithfield would be obliged to follow.

PN116

Thank you, Commissioner, I have no further questions of this witness.

PN117

THE COMMISSIONER: Thank you. Mr Walkaden.

<CROSS-EXAMINATION BY MR WALKADEN [2.36PM]

PN118

MR WALKADEN: Just so I get the surname correct is it Lymberis?---Lymberis.

PN119

Lymberis, okay. Mr Lymberis, can you describe for the Commission the usual pattern that hours are worked at Visy Warwick Farm?---Day shift runs from 6 am to 2 pm and afternoon shift commences from 4 pm to midnight.

PN120

Okay?---Monday to Thursday it's a 35 hour week and on Fridays the shift starts from six, works till 11 on day shift and then 1.30 to 6.30 for afternoon shift.

PN121

And what about overtime, is overtime - - - ?---Overtime is worked where requested, whether it's done pre shift or paid shift.

PN122

And when was the last time to your knowledge that overtime was requested at Warwick Farm?---Warwick Farm is requested, whether it's requested on a daily basis I - - -

PN123

The question is can you remember the last time a request was made?---No, I can't, no.

**** JOHN LYMBERIS XXN MR WALKADEN
PN124

To your knowledge is work occurring as per the normal rostered offers at Warwick Farm at the present time?---Yes, it is.

PN125

Okay. You indicate in your evidence-in-chief with my friend that there was a conversation, that Joe Muscat had a telephone conversation with Joe Ardlantio on - - - ?---Ardolino.

PN126

- - - on 2 September. Were you privy to that telephone conversation?---No, I wasn't.

PN127

So it's true, isn't it, Mr Lymberis, that when you were describing that conversation between the two Joes that you were relying upon Joe Ardolino provided. I did ask Joe Muscat to provide a statement and he declined to do so.

PN128

But in terms of the - you've given evidence to the - - - ?---Correct, it's based on the statements, correct.

PN129

I'm not trying to trip you up. I'm just trying to establish that in the evidence you've given before this Commission today you've described the nature of that telephone conversation between the two Joes?---Correct.

PN130

You weren't a party to that telephone conversation?---Correct.

PN131

And you're relying upon Joe Ardlantio's version of how that telephone conversation took place - Ardolino?---Correct.

PN132

You also gave evidence in relation to my friend's questions as to 3 September 2008 that the union wasn't happy, can you recall giving that evidence, sir?---I'd have to check my notes.

PN133

Feel free?---Yes.

PN134

So the evidence you gave a short while ago was on 3 September of this year, you understood was the evidence you gave was the union wasn't happy. Can you recall giving that evidence, sir?---3 September is a Wednesday. I didn't make mention of anything like that on the Wednesday, no.

PN135

My recollection is that in the evidence you gave a short while ago after questions from my friend you indicated that the union wasn't happy, you expressed a position that the union wasn't happy on 3 September - - -

PN136

MR DOUGLAS: Can I just help because you might be missing part of the evidence that may help. I think wasn't happy in respect of the conduct complained against Mr Ardolino. I think that was the context. I'm just trying to help.

PN137

MR WALKADEN: Yes, sure, okay?---Yes.

PN138

So can you recall giving that evidence?---Yes, yes, yes.

PN139

So you gave evidence that the union wasn't happy, can you give a little more detail as to are you aware, sir, as to why the union wasn't happy? Is that within your knowledge?---No, it's not. That's the whole idea of doing the investigation was to find out.

**** JOHN LYMBERIS XXN MR WALKADEN
PN140

Okay. And upon conducting that investigation did you form a view or position as to why the union wasn't happy?---No.

PN141

Who did you talk to in the course of this investigation?---Both Rick Edwards and Joe Muscat.

PN142

And in the course of interviewing Rick and Joe Muscat did they give their version of events as to what happened on 2 September?---They were more - Joe and Rick just wanted to be involved in the discussions. They just wanted to know where I’m coming from, why I was making the decisions and what input they could give and what they knew about the circumstances, that's all.

PN143

My friend tendered a statement from two workers?---Correct.

PN144

At Warwick Farm?---Yes.

PN145

My recollection of those statements is they went through and made a series of complaints I suppose, sir?---Yes.

PN146

In relation to Mr Ardolino's conduct on the day in question?---Yes.

PN147

Would it be fair to say that if the union wasn't happy, they weren't happy about
Mr Ardolino's conduct on this day, was that the conclusion you drew in - - -

PN148

MR DOUGLAS: I think that's speculation at this stage, Commissioner. He's asking Mr Lymberis to say what was in somebody else's mind. I'm not being difficult but it's drawing at straws.

PN149

MR WALKADEN: The question of what I'm doing is Mr Lymberis was the decision maker in the course of the investigation. I'm trying to establish after completing that investigation why he formed the view that the union wasn't happy. He gave that evidence. I'm just trying to uncover as to how he formed that conclusion.

PN150

THE COMMISSIONER: Yes, carry on?---Based on the evidence that I had which is four, lots of statements, two from the operators and two from the company's side, it didn't substantiate to me at the end of the day there is one way or another. They were all quite different in their own way.

PN151

MR WALKADEN: I'm not asking you - I don't want to go into whether - I don't want to uncover the merits of the investigation. I'm merely trying to establish from you as you were the decision maker, you did carry out the investigation, you gave evidence today that the union wasn't happy. I'm trying to uncover from you from doing the investigation, from reading the statements from the two operators in question why?---I don't know why the union wasn't happy. I don't know. I don't understand.

**** JOHN LYMBERIS XXN MR WALKADEN
PN152

I put it to you that the union wasn't happy because two of their members had been subjected to some verbal abuse by a manager at Visy. Would you agree with that assertion?---No, I wouldn't because it was also to do with the operator that came to me that I put on the table with the union members that what were we going to do about it which was the scare tactics and the bullying that was occurring on afternoon shift. That was my concern along with the events that happened thereafter.

PN153

We'll move on. I want to take you to - you gave evidence also that there was a conversation between yourself and Mr Muscat involving a few others on both
4 September and 5 September?---Correct, correct.

PN154

Okay. In both of those conversations you attributed certain comments to
Mr Muscat. Did you put a date, a specific date on when the members were allegedly going on the grass or take the walk?---No, Joe was just waiting for the outcome so he can do what he wanted to do.

PN155

But I suppose the question is did Mr Muscat put a date as to - - - ?---No, Joe was waiting off me to supply him the answer which is basically to say that everyone will be reinstated so he can have again the stop work meeting or a stop work meeting in the canteen and on the basis that the guys won't come back and that's the concern I had and that's the pressure I had.

PN156

Now, just for my mind, sir, can you clarify your position with Visy as to where you fit into the scheme of things in New South Wales?---Yes, my responsibility is both Smithfield and Warwick Farm plants.

PN157

Would it be fair to say that you would consider members or workers taking industrial action to be a serious matter?---Very.

PN158

Okay. And the evidence that you're giving is that from the basis of the questions from my friend that you interpreted two comments from the Father of the Chapel to - you know, you're indicating that was a threat of industrial action?---Yes, it was.

**** JOHN LYMBERIS XXN MR WALKADEN
PN159

And it's fair to say that the Father of the Chapel threatening industrial action in your mind as a serious - that it would be serious?---Yes, it was, yes.

PN160

Did you discuss this matter with an official, a paid official from the AMWU?---I advised Mr Steve Vine on the - again I'd probably need to check my notes, but it would have been on 4 September when Rick Edwards and Joe Muscat came to see me and then decided to have the meeting in the canteen for an hour and a quarter. My concern was more that one, two, three, four days had lapsed, we weren't getting anywhere. I would have expected out of courtesy Steve Vine who was informed by myself to at least give me a call and go through the process with me rather than waiting until the last minute.

PN161

But it's fair to say that you as the senior manager, the evidence you're giving to the Commission this afternoon is that industrial action is a serious matter?---Yes.

PN162

And the question I'm putting to you, is it fair to say that with this serious matter you didn't discuss it with an official from the AMWU??---I was under the belief that Mr Steve Vine was speaking to his members on a daily or an hourly basis because the information that came back from Joe Muscat and Rick Edwards was that they were being advised by Steve Vine or the union in terms of where they were going, what they were doing, so I was under the belief at all times Steve Vine knew what was going on and where we were at.

PN163

The question is during the course of these discussions, the evidence you're giving to the Commission this afternoon is that you're being threatened with industrial action which in your mind is a serious matter and during this five day period, at no stage did you pick up the phone and speak to an official?---I did. I spoke to him on 4 September and I explained to him - can I read out what I spoke to him on the 4th, if that's all right?

PN164

The question I'm putting to you is that - - -?---I've got documents what I did on 4 September at 1.20 when I spoke to Steve Vine.

PN165

MR DOUGLAS: With respect, Commissioner, the question has been put and is only able to be answered in that manner. He's exhausted his memory and he should be able to answer those.

PN166

MR WALKADEN: My friend I am sure will pick it up in re-examination, Commissioner. You also gave evidence today, sir, about some discussions you've had with the manager from the Smithfield site?---Correct.

PN167

And those discussions were information which has been passed on from someone on the shop floor to this manager?---Correct.

**** JOHN LYMBERIS XXN MR WALKADEN
PN168

I have no further questions, Commissioner.

PN169

THE COMMISSIONER: Thank you. Mr Douglas.

PN170

MR DOUGLAS: Commissioner, on the basis of the questions that have been asked, with respect, the order has to be granted. It hasn't been said to Mr Lymberis yet that the threats weren't made.

PN171

THE COMMISSIONER: If that is the submission, do you want to - - -

PN172

MR DOUGLAS: Look, I will proceed, but I am just giving my friend the chance now, because it's a very strong submission that I am going to make because he actually hasn't said Mr Muscat didn't say these things and he's got to say that, otherwise - - -

PN173

MR WALKADEN: Commissioner - - -

PN174

MR DOUGLAS: It's up to you to ask it. I am just giving you a chance.

PN175

MR WALKADEN: Clearly if I put - obviously, we've given the intention that we're going to call the Father of the Chapel in this matter. Clearly there is going to be some contested evidence. For the record, I am happy to put it to the witness. In relation to the conversations which took place on the 4th and the 5th, I put it to you, sir, that the conversations that you've described to the Commission this afternoon didn't actually take place in the manner that you've described?---They did take place.

PN176

I put it to you that it's possible that you could have misunderstood what - - -?
---No, no, I don't misunderstand. When I have a daily meeting and we spent close to an hour to two hours every day with the chapel, with both Rick and Joe Muscat, going through in conjunction with John Borge going through what I would like to have done with their support to get through this difficult time and both guys are aware that I will sit down, write down in detail their conversations and they themselves said, John, please make sure you write this down and put it in point form so we're aware what's going on. Not once did both Rick or Joe Muscat come to that meeting with a pen or paper and put down what was being discussed then and there. What they did afterwards, I can't comment.

PN177

So the evidence you're giving is the conversations took place?---Correct.

PN178

You're not mistaken?---Correct.

**** JOHN LYMBERIS XXN MR WALKADEN
PN179

You're 100 per cent accurate?---As far as I'm aware, correct.

PN180

I put it to you the possibility that you could be mistaken, sir?---That's fine.

PN181

MR DOUGLAS: I have just a few questions, Commissioner, if that's all right.

<RE-EXAMINATION BY MR DOUGLAS [2.50PM]

PN182

MR DOUGLAS: You were asked about the normal hours of shift between four to 12 for afternoon shift?---Yes.

PN183

And you gave in your evidence to me the term the green light so when people are going to be asked to work overtime, how does that arise?---There's two ways you advise people about overtime. Usually it's either the day before or during the course of the shift.

PN184

You were also asked about a conversation that the two Joes had on the 2nd, the 6.30 telephone call?---Correct.

PN185

And the basis upon which you formed the view there were bans?---Correct.

PN186

There was other evidence, other people you spoke to which satisfied you, (a) there were bans on that day?---Correct.

PN187

And, (b) that Mr Muscat was involved?---Correct. The individual that gave us the letter and I had to put forward that his name would remain unnamed per se.

PN188

You were also asked about no time or date being given to when industrial action was to occur, but there's no doubt in your mind in the discussions you had with Mr Muscat and Mr Edwards that that date was the moment you reinstated Mr Ardolino?---Absolutely correct.

**** JOHN LYMBERIS RXN MR DOUGLAS
PN189

You had some notes of a discussion with Mr Vine on 4 September 2008. Would you be kind enough to read those out?---Okay. A phone call was made to Steve Vine at 1.20 pm today:

PN190

Steve, I am informing you that we are following through the process of investigation. I have asked the FOC, Joe Muscat and the 2IC, Rick Edwards of the union, to make themselves available at 2.30 today for the outcome of the investigation. The aim is to fix this issue. We don't want a blue over this issue. The feedback I am getting off the floor is that your members may not want to follow the disputes procedure and therefore walk. I would like to ask you that if this issue is not resolve, I would like you to make yourself available as union representative. Steve Vine replied, John, that's fine, happy to get involved if needed. I do have a specialist appointment this afternoon, but will be available at 4 o'clock if need be.

PN191

I have no further questions. Thank you, Commissioner.

PN192

THE COMMISSIONER: Thank you.

PN193

MR DOUGLAS: I would ask that the witness be released.

PN194

THE COMMISSIONER: Yes. You may step down.

<THE WITNESS WITHDREW [2.52PM]

PN195

MR DOUGLAS: I have one further witness. I would like to call Mr Edwards if I can.

<RICHARD EDWARDS, SWORN [2.53PM]
<CROSS-EXAMINATION BY DR DOUGLAS [2.53PM]

PN196

MR DOUGLAS: Mr Edwards, if you would be kind enough to give your full name to the Commission?---My full name is Richard Llewellyn Edwards.

PN197

Your work address?---(Address supplied).

PN198

And your occupation?---Electrician.

PN199

You've heard the evidence of Mr Lymberis today, haven't you?---Yes.

PN200

You were taking careful notes of what was said?---I have taken notes.

PN201

You've been involved in a number of the discussions arising from the incident on 2 September 2008?---That's correct.

PN202

That incident involved two issues, one was an alleged bullying incident which has been discussed with you in respect of the behaviour of Mr Linh and Mr Nguyen?
---No.

PN203

You haven't been involved in that?---No. I was made aware of it. I haven't had any discussions about it.

PN204

You're also aware of and been in discussions with respect to Mr Ardolino's behaviour?---Yes.

**** RICHARD EDWARDS XN MR DOUGLAS
PN205

On 4 September 2008 you were in a meeting with the Father of the Chapel?
---Yes.

PN206

I keep forgetting Joe's last name, so I apologise for that?---Muscat.

PN207

I don't want to get too confused. You were present, John who is the plant manager, the factory manager, John Borge?---Yes.

PN208

That's B-o-r-g-e, is it?---I believe so.

PN209

And John Lymberis?---Yes.

PN210

You've heard some evidence that's been given by Mr Lymberis in respect of comments attributed to Mr Muscat?---Yes.

PN211

I just want to read this, because these are from the notes:

PN212

Joe Muscat advised John Borge and myself -

PN213

myself being Mr Lymberis -

PN214

that whatever the reason, Joe Ardolino comes back or whatever outcome, we will be out on the grass.

PN215

Do you recall that conversation?---I don't. I don't remember that phrasing.

PN216

I understand you don't understand that phrasing, but it's clear to you that a threat of that nature was made, wasn't it?---No, not in the way you express it.

PN217

You tell me how it was expressed?---The way it was expressed, the way I understood it was, there was a lot of emotion over this whole issue and actually I will say one of the words of the membership on the floor, if he's guilty, he's got to go. Primarily, that was it. There was a process that was followed and if he was guilty of the offence, he's treated like everybody else, go. That's my understanding.

PN218

Was there a suggestion that if he didn't go that the members will go out on the grass?---No. The resolution from the members was that if he stayed - - -

PN219

This is before the meeting, this was before the meeting of the members?
---Sorry.

PN220

This is the first meeting you had?---Yes.

**** RICHARD EDWARDS XN MR DOUGLAS
PN221

And I am suggesting at the first meeting you had, before you went and spoke to your members is that Mr Muscat made it very clear that if Joe Ardolino was reinstated, the members would go out on the grass. I remind you now you're under oath?---I know I'm under oath, yes. There could have been some - because what I am trying to say, when we have a meeting, English isn't our main forte, we don't express ourselves well. We express ourselves rather passionately at times and sometimes passion comes out and something is expressed and what is said and what is heard is usually two different things and Joe is quite a passionate speaker and because of the heightened emotion into this case, things are expressed, but I can't say that I've heard that word.

PN222

Can I be fair to you and tell me if I'm not being fair and I'm sure - given the heat and the passion that was present during that meeting, it would be reasonable to draw an inference that if Joe Ardolino was reinstated, that Joe Muscat would take the members out on the grass?---If he was reinstated, that's guilty.

PN223

Can you just answer the question?---Yes. Maybe I missed it. Ask me again, please.

PN224

Given the heat and the passion that was there and the conversations that were occurring, is it reasonable because you can't remember the exact words that if Joe Ardolino was reinstated, Joe Muscat would move the members out on the grass?---Joe's not that stupid, no.

PN225

I am not asking you to reconstruct it. I am asking you - - -?---No, I know what you mean. I understand. I can't recall.

PN226

MR WALKADEN: Commissioner, my friend has had one bite of the cherry, asking for the witness's opinion. He's given that opinion.

**** RICHARD EDWARDS XN MR DOUGLAS
PN227

MR DOUGLAS: To be fair, it's not a valid objection and he's given a reconstruction, not his evidence and I am after his evidence, with respect, Commissioner?---I can't give you a word for word thing of what happened.

PN228

That is not being asked, word for word.

PN229

MR WALKADEN: In this question, my friend asked for the witness's opinion as to what Mr Muscat would do.

PN230

MR DOUGLAS: No, I didn't. I asked was it a reasonable inference from his conversation. If I have to go through it again for the third time?---No, I don't think it was a reasonable inference. Joe is a very strong speaker. He's trying to get - no, no, I don't think there is an inference.

PN231

Thanks for your evidence. If I could just take you now to 8 September, you were present at another meeting at that time and at that meeting, similar players were present, that is yourself, Joe Muscat from the union, there was John Borge and John Lymberis. We've heard in John Lymberis's evidence where Mr Muscat virtually said you have two choices, (1) Mr Ardolino is made redundant or he's transferred. Remember that conversation?---I have heard that term.

PN232

That rings a bell, does it?---Yes.

PN233

It's very clear what the inference is from that, isn't it?---Yes, but it's meant in the fact that he's guilty of the offence, giving the bloke an opportunity to go somewhere else. This is all if he's guilty.

PN234

By 8 September you were impugning the validity of the investigation itself, weren't you?---Say that again?

PN235

By 8 September, it was your view that the investigation wasn't a valid investigation, anyway, wasn't it?---How do you draw that conclusion?

PN236

I am asking the question?---Well, I don't know. How do you draw that conclusion?

PN237

Actually, in this job I ask you the questions and you answer them. You don't ask me questions?---I don't know. I can't answer that. You're asking me how do I - I don't know.

PN238

Did you have a view on 8 September that if there was an investigation, it wasn't a valid investigation and you had a further view, so that's two questions, it wasn't a valid investigation, because you'd seen the witness statements by then, hadn't you?---No, not all of them. John had read some without mentioning who they were and there was one that I was shown to read.

PN239

So on 8 September, did you feel that a fair investigation had been carried out?
---Well, the investigation hadn't finished.

PN240

At 8 September, did you feel there had been a fair investigation carried out?
---Well, I didn't know that the investigation had finished, so I couldn't have drawn a conclusion until it finished.

PN241

Did you have any view on 8 September about the quality of the investigation that was being carried out?---No.

PN242

You had no view?---My only view was that the proper process is carried out.

PN243

And did you feel that proper process was being carried out?---I wasn't aware of what the process was. I didn't know what was happening in the way of the investigation.

**** RICHARD EDWARDS XN MR DOUGLAS
PN244

Mr Lymberis had told you what the process was, hadn't he?---He's told me what happened, but I didn't know what happened.

PN245

So how were you ever going to form a view as to whether it was an appropriate process or not?---Well, hopefully he would keep us informed, because we did ask for union involvement.

PN246

So if Mr Ardolino was guilty and the process was flawed, it's your clear understanding at that stage you would be out on the grass?---If he was guilty, I would expect Visyboard to follow due process and take action.

PN247

Let me start again. If it was your view and Joe Muscat's view, so I'll be clear about this, that the process was flawed and then he was reinstated, then it's your view based on the conversations you describe that you would take industrial action?---No, no, because it's not Joe's or my decision. We would have to go back to the membership, consult the membership, as best we could make sure they were aware of the facts and let them make the decision.

PN248

Would you recommend it?---No. We don't recommend anything. We just put the position to the members and the members make the decision.

**** RICHARD EDWARDS XN MR DOUGLAS
PN249

Knowing that it would be unlawful to take industrial action, would you advise the members that it would be improper for them to take that industrial action?---We give the members appropriate advice.

PN250

But what you are clear of is that the evidence Mr Lymberis gave about two choices, redundancy or transfer, were set?---I did hear it said, that's right.

PN251

I have no further questions. Thank you, Commissioner.

PN252

THE COMMISSIONER: Thank you. Mr Walkaden.

PN253

MR WALKADEN: No, Commissioner.

PN254

THE COMMISSIONER: Thanks, Mr Edwards. You can step down.

<THE WITNESS WITHDREW [3.04PM]

PN255

THE COMMISSIONER: A further witness?

PN256

MR WALKADEN: Commissioner, I would seek to call Joe Muscat.

PN257

THE COMMISSIONER: Thank you.

<JOSEPH MUSCAT, SWORN [3.04PM]
<EXAMINATION-IN-CHIEF BY MR WALKADEN [3.05PM]

PN258

MR WALKADEN: Can you please state your full name, sir?---Joseph Muscat.

PN259

Your current work address?---It's Visyboard, Warwick Farm.

PN260

Is the evidence you're to give today to the Commission true and correct to the best of your knowledge?---Yes.

PN261

Mr Muscat, it's correct in saying that you're the Father of the Chapel at Visy, Warwick Farm?---Yes.

PN262

How long have you held this commission?---I don't know, about two and a half years, I think, something like that.

PN263

Mr Muscat, can you describe for the Commission what happened on 2 September of this year?---2 September? That was Tuesday or Wednesday?

PN264

I'm not sure?---Tuesday.

PN265

THE COMMISSIONER: Yes, Tuesday?---Tuesday, I came into work. One of the members - - -

PN266

MR WALKADEN: Sorry, Mr Muscat, what time did you come into work?
---I start work at 4 o'clock. I started work at 4 o'clock. One of the members addressed me before we started at 4 o'clock. He was working on a new Godford. He had a condition where he had problems working on that new Godford and he asked to be moved probably a month before that and that particular day, the day before they moved this guy to a Tanabi and he sees it that the company moving to Tanabi is a penalty. You don't want to work on the Godford, you go on Tanabi and that's your punishment and the guy was finding it hard working on Tanabi, so I approached the factory boss or the factory manager.

**** JOSEPH MUSCAT XN MR WALKADEN
PN267

Mr Muscat, who is the factory manager?---John Borge. I spoke to John Borge. I says to him, listen, he's having a problem of working on Tanabi, I says can you move him where one of the casuals are? He says, no, he can stay there, that's where I want him. I said that's fine, I'm not going to argue with you and then it was about 10 to five, I actually rang Joe Ardolino.

PN268

Can you just describe for the Commission who is Joe Ardolino?---Joe Ardolino is the factory manager, if I'm right, he's factory manager. I left a message on his phone. Within 45 minutes later he called me. I spoke to Joe, I says we have this problem and Joe says, well, John Borge is dealing with it. I said to him are you still recognising me as the FOC? He sort of said yes which could have been a no or a yes, whatever he said, then I says to him you've got a problem with this guy and the guys ain't happy on this thing. He says, well, what are they going to do, have another overtime ban? I says to him, no, I haven't heard anything and I said to Joe, I said, listen, I've got to go, I'm busy and I hanged up on him. That was the Tuesday.

PN269

Okay, and what happened after you hung up on this guy?---I never heard anything all night.

PN270

What about 3 September 2008, what happened on that date?---3 September, I got a page to 602 and I went to 602 and there were two guys just came out of the office, Joe Ardolino and there was Junior Rufati and this was probably two minutes after they've got out of the office, I've came down and he's told me that he's been abused by the boss, he's been harassed and he told him to stop and he kept going on with it.

PN271

Just for the purpose of clarity, sir, who was this conversation with? You were talking to who, sorry?---I was talking to Minh Nguyen.

**** JOSEPH MUSCAT XN MR WALKADEN
PN272

So Mr Nguyen has made a complaint to you. What happened from there? Where did the complaint go?---I said to Minh, I says let me find out. I grabbed another delegate that was on the next machine and we went in the office and I spoke to Joe Ardolino. I said to him did you do these things, what the guys were saying? He didn't say yes, he didn't say no. He was just shaking his head, sort of thing, so then I approached John Lymberis. He's in the next room beside him. I said to John this is what happened. Lindsay was with me still. John then went to - no, actually, John told me - I went to get one of the guys. One of the guys came in, then he's got the second guy to come in.

PN273

Who is this second guy?---His name is Linh. I don't know his last name. I know his first name, Linh. He's gone in the room, he's told John Lymberis, both of them told what happened, okay, and I says to John Lymberis, I says to him can you please go in there to see Joe Ardolino and ask him did he do it and did he say those things. John then went into the next room, asked Joe Ardolino did he say those things and did he do those things. He came back, he said, yes, he did do it. He's admitted to doing it.

PN274

MR DOUGLAS: I've got to stop this. This is the most serious allegation that's been made and none of it has been put to John. Now, I know John has a chance to come back and we're going to have to do it, but this is not part of the script we've had up to date. It's entirely new.

PN275

MR WALKADEN: Commissioner, what I am trying to do is just trying to direct the witness to the relevant points which are in doubt. I am not trying to direct the witness to go down other paths. I am just trying to focus on the issues which are contested, so for the purpose of speeding things up, I am happy to put the questions to him in a quicker fashion.

PN276

THE COMMISSIONER: My primary role today is to ascertain a very narrow question.

PN277

MR WALKADEN: I understand that, Commissioner.

PN278

THE COMMISSIONER: And you know what that question is.

PN279

MR WALKADEN: Sir, it is true that you had some - have you had some conversations with Mr Lymberis in relation to issues that are ongoing at Warwick Farm?---Ongoing?

PN280

Issues that are occurring at Warwick Farm pertaining to the matters that arose on 2 and 3 September?---Yes.

PN281

What was the nature of those discussions? What did you say?---What did I say? I said hopefully he does the right thing and punishes Joe Ardolino if he's found guilty, okay, if he's found guilty. I said to him that if he is found guilty, all right, that there will be two things. One would be termination, two would be redundancy.

**** JOSEPH MUSCAT XN MR WALKADEN
PN282

Just to stop you there, can you remember when you made this conversation, the two options, can you remember roughly what date that occurred?---No, I don't. I can't remember what day it was.

PN283

Can you remember how many conversations you had on this issue with Mr Lymberis?---Before that it was probably - - -

PN284

All up?---One every day since now. There would be one nearly every day.

PN285

Just for the purposes of clarity, can you recall the nature of those discussions? Just to be clear, you've indicated you gave him the two options. Were there any other conversations you had with the respective manager?---I can't recall. There was a couple of things that we were talking about on the way the investigation was done, who was involved. We actually asked one of our witnesses questions. That's about it.

PN286

Was a union meeting held in relation to this issue?---There was a union meeting held. It was the day after we had the discussion with John Lymberis, I says, listen, I have to take this to the members.

PN287

Just to pull you up there, what was discussed at the union meeting?---At the union meeting on what happened?

PN288

What did you discuss at the union meeting?---What happened?

PN289

Yes?---Okay, with what the incident was?

PN290

Yes?---The members were just asking questions.

PN291

Was the resolution put at the end of the meeting?---Yes, there was.

PN292

Can you recall what that resolution was?---There was a non-confidence of Joe being a manager, that strong disciplinary action would be taken, okay, and that the union gets involved.

PN293

Was that resolution put in writing?---Yes, it was.

PN294

Was that conveyed to Visy management?---Yes, they wrote it down, yes.

PN295

Pardon?---Yes, Visyboard wrote it down.

PN296

So how did Visyboard write it down?---John Lymberis wrote it down.

PN297

How did he know what the resolution was?---Because Rick Edwards wrote it down from the union meeting and he read it out to John Lymberis.

PN298

In that resolution, was there ever a comment that industrial action would be taken or a strike would be taken?---No.

PN299

To your knowledge, have you ever indicated that a strike would take place at Warwick Farm?---No. I said the investigation would take place and from the investigation, we will see what happens.

**** JOSEPH MUSCAT XN MR WALKADEN
PN300

No further questions, Commissioner.

PN301

THE COMMISSIONER: Thank you.

PN302

Mr Douglas.

<CROSS-EXAMINATION BY MR DOUGLAS [3.16PM]

PN303

MR DOUGLAS: Mr Muscat, on the Tuesday 2 September?---Yes.

PN304

There was agreed overtime when you were ..... ?---From my knowledge, I don’t know because - because what happens I work - - -

PN305

It’s a yes or no question, Mr Muscat?---It’s yes or no?

PN306

Yes?---Well to me, no, because I work in different sections where people are being asked overtime before I’m - I’ve been asked. Okay? I get asked last because they’ve got to work out how many machines are running, okay, and then how many forklift drivers stay back on the back line.

PN307

You have given evidence that after speaking with Mr Ardolino and Mr Borge you weren’t aware of anything happening on 2 September, going ..... the room?---I had no idea what was going on.

PN308

Yes, and you’re a forklift driver, aren’t you?---I’m a forklift driver.

PN309

You pick up pallets, don’t you?---Yes.

PN310

So when lines are busy you pick up the pallets?---Yes.

**** JOSEPH MUSCAT XXN MR DOUGLAS
PN311

So when overtime arose and only one machine was working, it was pretty obvious something was wrong, wasn’t it, out of eight?---No, , because it’s common - it’s a common thing where there could be - it all depends on how much board they make that night. It could be one machine, one or two machines running, three machines running, it could be six machines running. I do - I know from day to day on - and this is not till say between 8.30, 10 o’clock, on how many machines are running, and - and if I’m working back or not.

PN312

You’re aware from discussions with Mr Borge and Mr Ardolino that overtime was to be worked that night though, aren’t you?---No, I don’t - I don’t know. I don’t know unless - unless - unless they come and ask me.

PN313

Well you’re suggesting - I’m not saying it’s true, but you did suggest Mr Ardolino said to you, “What are you going to do? Put an overtime ban on?” You’re aware of your evidence as to that, aren’t you; you said they .....?---I didn’t say that.

PN314

No, you said in your evidence that Mr Ardolino said to you, “What are you going to do? Put an overtime ban on?”?---Yes. Yes, I admit that. Yes. It doesn’t mean - it doesn’t mean it was going to happen.

PN315

I want to suggest to you that what really happened is after you speaking to Mr Borge and Mr Borge saying that the employee involved would have to go and work back on the Tanabi and you spoke to Mr Ardolino; you agree with that?
---Yes, I do.

PN316

Mr Ardolino explained to you that there was a one-month cooling off period for the new job they’d been in, and as he said he couldn’t cope, they had to put him where there was a vacancy?---Yes.

PN317

That’s right, isn’t it?---Yes.

PN318

So you’re not contesting that part of the evidence, are you?---No.

PN319

Good, and you’re aware that as part of putting in the Godford, that that was actually the decision that was made; where someone who was put on the machine and couldn’t do it or there was a one-month cooling off period, and then they would be put in to where there was a vacancy?---Yes.

PN320

So that was the agreement that was reached, wasn’t it?---Yes.

PN321

You were part of that agreement because you were the Father of the Chapel, and you had been one for two and a half years and the Godford has been planned for the last year, so you were part of this discussion?---No, I wasn’t part of the discussion on the Godford, no.

PN322

You were part of the agreement reached as to what would happen to employees who trialled on the Godford though?---No, I wasn’t.

**** JOSEPH MUSCAT XXN MR DOUGLAS
PN323

But you do agree with me there is agreement between the union and management that if someone in the one-month cooling - they had a one-month cooling off period on the Godford, do you agree with that, because you agreed with it before?
---Yes, I agree there’s a one-month cooling period.

PN324

You agreed with me before, and you still agree with me hopefully, that if a person didn’t stay on the Godford in that one-month cooling off period, that Visy management would put him where there was a vacancy?---Yes.

PN325

Okay, thank you?---But where they put him wasn’t - there wasn’t a vacancy.

PN326

You are saying that in this period of a short time they were actually adding an extra person?---No, there was - there was a guy on actually - he was - actually he wasn’t stress - he was on stress leave from work, he had stress problems at home, okay, and he hasn’t been at work for maybe three weeks, three or four weeks, and they put him there.

PN327

That’s right, because there was a vacancy; there was no one there?---There was a - there was a vacancy on every other machine too.

PN328

You are not suggesting that you have the authority to say where people are employed, are you? Visy does have that right, don’t they?---Yes, I - I agree on that.

PN329

Yes?---But when there’s - when there’s a - when there’s a guy who’s got a problem, they do come to the FOC and I - and I do approach management, okay?

PN330

That’s - - -?---And I speak to the - I speak to the - and as management say, is to speak to the supervisor first. He couldn’t get the answer, so then I speak to Joe and Linh, as per agreement.

PN331

But you knew at the time, and Visy would have told you what they did?---Yes, they did, and he stayed where he stayed.

PN332

Thank you. Now during a discussion with Mr Ardolino you raised it and you said, “There’s going to be a problem if he works there”; do you remember saying that?---A problem?

PN333

Yes, if the employee has to work on it - - -?---I said - I said “The guys are - the guys have got the shits” and that “You - that you’re actually demoted a permanent and gave the casual priority over the permanents”. That’s what the guys had the shits about because all this guy wanted to do is go where the casual was working. There was four casuals on, five casuals on different machines, and the company said, “No you can stay there” and that’s his punishment. That’s the way they were saying it.

**** JOSEPH MUSCAT XXN MR DOUGLAS
PN334

So the company said it was his punishment?---They didn’t say it was his punishment but that’s - that’s the way they - that’s the way they wanted to say it.

PN335

Well that’s your view of what they wanted to say?---Yes.

PN336

Thank you. I want to suggest to you that what you then went on to - just bear with me for a sec - “The Asians on afternoon shift will push an overtime ban and leave 12 midnight tonight and go to his place and play pool and drink”, being your place?---No. I don’t recall that.

PN337

Did you say it?---No.

PN338

So when you say you don’t recall, you mean you actually didn’t say it?---No.

PN339

I want to suggest to you that you did?---Yes.

PN340

I want to remind you that you are on oath?---Yes, that’s all right.

PN341

So what is your answer?---No.

PN342

Okay. Now you are aware there was an overtime ban, wasn’t there?---I wasn’t aware of nothing.

PN343

You’re a Father of the Chapel, you’re an experienced person on the floor; if something was happening you would be aware of something, wouldn’t you?
---Sometimes I do, sometimes people leave me out.

PN344

All right, look I’ll move on from there. On 4 September you had a discussion in which Mr Lymberis was present, and so was Mr Edwards, and so was Mr Borge, and this was prior to your meeting with the employees?---Yes.

PN345

I just want to remind you though, when we come back to that in a second. Your evidence was before that on 3 September Mr Lymberis went in and spoke with Mr Ardolino and Mr Ardolino made full admissions, didn’t he?---Yes.

PN346

He made full admissions. So from 3 September your view has been, am I right, that Mr Ardolino was guilty of the allegations?---Well if - if someone admits - admits I’m doing something to a manager that’s higher than him, all right, and the manager walks in, okay, and then says, “Yes, he’s done it”. He said those - like, we - we actually told John Lymberis, did he abuse the guy and did he swear at him, okay? And he came back and said yes he did. There was - those two guys were in the room, I was in the - I was present and there was another delegate present when he said it.

PN347

So the answer to my question is as of 3 September 2008 you had view that Joe Ardolino had done things that were alleged against him; that was your clear view?---On the evidence yes.

**** JOSEPH MUSCAT XXN MR DOUGLAS
PN348

Okay, so it wasn’t about further investigation. As far as you were concerned it was done and dusted on that day?---No. We - we done investigations. The investigations kept going every day, all right? Because he was telling us new stuff every day and we were telling him new stuff every day.

PN349

But you had no doubt as of 3 September 2008, had you?---Well he admitted to it. So why wouldn’t I - - -

PN350

It’s just a question, yes or no. Yes you had that view; that’s correct, isn’t it?
---Yes.

PN351

So when you spoke to the members on 4 September and they had no confidence in Mr Ardolino, that was because in your view, and what you had explained, he was guilty; wasn’t it?---But this is before the - before the thing?

PN352

No, this is the meeting with the employees. One of their resolutions was they had no confidence in Mr Ardolino?---He was guilty because he admitted to the charge.

PN353

That’s right, and that’s why they had no confidence, because that’s what you communicated to them, wasn’t it? You communicated to the employees that Mr Ardolino had admitted it?---Hang on, the guys asked me what was - what was going on as we’re going right now, and I told the members, okay, what was going on.

PN354

And one of the things you said that was going on was that Mr Ardolino had admitted to - - -?---No.

PN355

- - - that he did it?---Yes, yes, he admitted it. He admitted it in front of four people. He did.

PN356

So when you said - - -?---You - actually John Lymberis - John Lymberis admitted it in front of four people, not Joe Ardolino.

**** JOSEPH MUSCAT XXN MR DOUGLAS
PN357

Well make no mistake I’ll be recording ...... That’s what the strongest possible action, disciplinary action, was the termination because at the end of the day, on 8 September, you said to Mr Lymberis, “You either make him redundant or you transfer him”; that’s correct, isn’t it?---That’s a hundred per cent correct, because of Joe Adolino’s - he’s actually addressed - addressed the factory in - in groups and saying - because we’ve had problems in the past where our members have done this kind of thing, and he says this is this, that and that, okay? And then he followed - we followed his example, where he’s actually sacked the member on the same - same reason. The same reason as that member of his - - -

PN358

Can I just stop you. I don’t want to interfere because Mr Walkaden will pick up anything I miss, but the short answer to the question that I’ve asked you is that on late September 2008 you made it very clear to Mr Lymberis that he had two options, just two. One, to terminate him by redundancy?---Yes.

PN359

Two, transfer him; that’s correct, isn’t it?---Yes.

PN360

Is that yes or no?---Yes.

PN361

Now why was there no third option? What was going to happen if Mr Lymberis didn’t do what you said? What were you going to do?---Nothing yet. We didn’t - we didn’t decide on what - on what was going to happen.

PN362

Right, I’m going to take you back to the meeting; remember before you went to see the members? Do you remember Mr Lymberis and you agreed 10 to 15 minutes for a discussion, a paid meeting?---Yes, I do. But - - -

PN363

That’s a yes or no question?---Yes. It’s a yes or no question but - - -

PN364

So yes or no?---Yes, it’s yes or no but you’re giving your - - -

PN365

Yes or no, can you please answer the question?---Yes. Yes.

PN366

Yes, and in fact the meeting went for an hour and a quarter, didn’t it? Yes or no|?---It went for an hour.

PN367

Okay, thank you. Now the meeting with Mr Lymberis, in which Mr Edwards is present and Mr Borge is present, prior to you going and seeing the employees, you were feeling fairly strong at that time about Mr Ardolino’s position, weren’t you
?---Can you say that again, please?

PN368

You were feeling that Mr Ardolino had done a very serious wrong?---He did.

PN369

And you were fearful that the company were not going to do anything about it, weren’t you?---I didn’t say that, no.

PN370

I’m not saying whether you said it. I’m asking you is that the fears that you held?---No, the investigation was still going and the company hasn’t made a decision, so.

**** JOSEPH MUSCAT XXN MR DOUGLAS
PN371

Didn’t you say to Mr Lymberis words to the effect, “Whatever you do, whatever happens if Mr Ardolino comes back the members will be out on the grass”?---I did not ever, ever say that to him.

PN372

Never?---Never, ever said that to him.

PN373

You are making this up as you’re going along, aren’t you? You have just made that up?---Is that what you think? Well you can ask questions and I’ll answer your questions, but if you don’t want to - if you don’t want to believe me, then don’t ask me questions.

PN374

On 5 September at 5 pm just down the back where you were working, you spoke to Mr Lymberis, didn’t you?---Pardon?

PN375

On 5 September?---Yes.

PN376

At about 5 o’clock you were on the forklift and you spoke to Mr Lymberis; he came and spoke to you?---I can’t recall. I can’t remember.

PN377

You were on the forklift and he was standing next to you and it was two days later from when the first incident occurred; do you remember having a conversation?---I might’ve been. I don’t know.

PN378

At that stage once again you made the point that if Mr Ardolino comes back the members are going to walk?---I never, ever said that members were going to walk. If he says I - if he says that, well then - but I’ve never said it.

PN379

Okay, well now you are on oath and you know that it would be unlawful to take industrial action like a strike during a period of .....; you know that’s unlawful, don’t you?---Yes, I do.

PN380

So under no circumstances, are you willing to say on oath, would you take unlawful industrial action if ..... Mr Ardolino back?---I don’t take it - I - that’s not my decision. No, that’s not - - -

PN381

No, you?---Me?

PN382

Would you leave the factory unlawfully?---Unlawfully?

**** JOSEPH MUSCAT XXN MR DOUGLAS
PN383

A strike; would you personally strike? You are on oath now so you can tell us the truth?---Would I personally strike? No.

PN384

By that you mean unless everyone else did as well; is that what you mean?---I just follow the membership, mate.

PN385

So if the members go out on strike, you go out on strike?---I couldn’t answer that question.

PN386

Well I’m asking you to now, so just answer it please?---I follow the members, that’s all I can say.

PN387

Mr Lymberis makes notes, you referred to that before, doesn’t he?---Yes, as I understand. Yes.

PN388

Of every conversation?---Yes.

PN389

And at times you rely on his notes, don’t you, because he’s the one who takes the careful notes?---Yes.

PN390

Yes. You see Mr Lymberis recorded the notes of the conversation with you, where you said your members would walk?---Did he?

**** JOSEPH MUSCAT XXN MR DOUGLAS
PN391

Yes, so are you suggesting that Mr Lymberis is lying?---He always lies.

PN392

Yet you rely on his notes?---Pardon?

PN393

But you rely on his notes?---I’m talking about all the bosses always lie, mate. Okay?

PN394

All right, I have no further questions of this witness. Thank you, Commissioner.

PN395

THE COMMISSIONER: Mr Walkaden.

PN396

MR WALKADEN: Sure, just a couple of questions in re-examination, Commissioner.

<RE-EXAMINATION BY MR WALKADEN [3.31PM]

PN397

MR WALKADEN: Mr Muscat, you gave evidence in response to questions to my friend and also questions from me that you had had some discussions with Mr Lymberis?---Yes.

PN398

You gave evidence that you didn’t indicate in those conversations that the members would be on the grass or the members would walk?---Pardon, what was that?

PN399

You gave evidence?---Yes.

PN400

That if the decision was that Mr Ardolino was put back into the factory, you gave evidence that in the course of those conversations at no stage did you indicate that the members would burn the grass or the members would walk?---I never said the members would walk - would never walk.

PN401

Okay can you just, for the purposes of clarity, put on the record what you did say in the course of those conversations, to the best of your knowledge?---I told him to make sure he deals with it the right way, okay? And not the wrong way, and as per Joe Adolino’s - he’d written something down and we had - we had a - a - I can’t remember what they call it, all right? That if this kind of action - if this kind of behaviour is tolerated, well then the bad action, like the bad thing would be happening, like people would be sacked over this.

PN402

Okay, so just to be really clear you did not indicate that members would burn the grass or would walk?---I indicated?

PN403

No, the question is, to be clear - - -?---No.

**** JOSEPH MUSCAT RXN MR WALKADEN
PN404

No further questions, Commissioner.

PN405

MR DOUGLAS: Commissioner, I have no further questions and I will just say as admitted fact, the conversation that allegedly occurred on 3 September, where Mr Lymberis said Joe did these things, I can put Mr Lymberis in the box but I’m telling you the evidence will be explicitly that. So just on that contested fact. I have no further questions or Mr Muscat. If my friend requires him called, I will call him, but otherwise I just take it as a statement from the bench.

PN406

THE COMMISSIONER: Well, it’s a statement. That’s all I can take it as. There is conflict in the evidence.

PN407

MR WALKADEN: Yes, but I think it’s clear, Commissioner, that there is a clear conflict in the evidence as to what has occurred. As you’ve indicated, there are obviously a lot of factors which are on the periphery, but the question for yourself today is to determine on the basis of those contested facts.

PN408

THE COMMISSIONER: Yes.

PN409

MR DOUGLAS: Commissioner, if the witness is relieved.

PN410

THE COMMISSIONER: Yes, thanks Mr Muscat. You are excused?---I can go back outside?

PN411

No, you can sit in here now.

<THE WITNESS WITHDREW [3.34PM]

PN412

MR DOUGLAS: Commissioner, I’m needing to be briefed about this. It’s absolutely clear, Commissioner, there was a ban on the 2nd and that Mr Muscat knew about it. It is just inconceivable that a Father of the Chapel does not know that seven out of eight machines aren’t operating. It’s just not the truth. The notes that are relied on, that Mr Lymberis takes, Mr Muscat, until he sought to step away from it, agreed they are relied upon.

PN413

You heard from Mr Edwards who tried very hard not to say the words that were said, but unquestioningly the threat to go on the grass was real and the reason was very simple. Mr Edwards said, “If I formed the view that the person was guilty, then we might’ve put something like that. We didn’t actually have a view”, but we know from Mr Muscat, as far as he’s concerned from the 3rd onwards he had the very clear view that Joe Ardolino was guilty.

PN414

It was something that he raised at the union meeting and those terms of the union meeting on the 4th can only be viewed on the backdrop that there was a perception by the union that Mr Ardolino was guilty. On that basis the threats that are recorded and given evidence on by Mr Lymberis are clearly true, because only Mr Muscat denies what was said. Mr Edwards does not deny it was said. He said it was passionate, it was difficult, he can’t be sure about the words. They clearly were said or we wouldn’t be here at this stage, because the arguments have been ongoing for a period of a week.

PN415

They are the simple facts, Commissioner. I won’t trouble you. You have the opportunity. This is purely a factual matter, but on the balance of probabilities, which is what you are required to determine this - it’s not beyond reasonable doubt - there is a real risk. Of course we know from Mr Muscat that he won’t give an undertaking that he won’t take industrial action if he is given a chance; and he won’t do it.

PN416

Now there is a real risk of industrial action and we would ask you to accept the evidence of Mr Lymberis, and a lot of the evidence of Mr Edwards, who was explaining the background to it all. Because Mr Edwards’s evidence is that if there was a view of guilt, then that risk was real. May it please the Commission.

PN417

THE COMMISSIONER: Thank you.

PN418

Mr Walkaden.

PN419

MR WALKADEN: Thanks your Honour. I would like to make a few points. For me there seems to be three issues for your consideration today. Let me first touch on the issue of overtime bans I would say my submission to you Commissioner would be whether there was an overtime ban in place or not, there clearly, on the evidence of the relevant manager, Mr Lymberis, is work that is continuing as normal.

PN420

On that basis we would say that the jurisdiction of 496 has not been enlivened in respect of the issue of overtime. 496, for the purposes of putting it on the record, requires that industrial action is either happening, threatened, impending, probable or being organised. Clearly if there was an overtime ban, the company’s submission is that overtime ban took place on 7 September. Clearly something which occurred a week ago does not fit within the definition of 496.

PN421

MR DOUGLAS: Commissioner, I don’t want to be misunderstood. We are not suggesting there’s a continuing overtime ban. We are just saying there is a history of industrial action, and I accept what my friend says. That’s not the threat we are talking to. It’s the threat that Mr Muscat made on three occasions.

PN422

MR WALKADEN: I understand that, Commissioner, but the reason I’m talking about the overtime ban is because it has been an issue which has been touched upon by my friend.

PN423

In terms of the other issue, once again it’s not the primary contention of my friend but in relation to the issues at Smithfield there has been no clear evidence of industrial action, that any kind of action at Smithfield fits into the definition of 496.

PN424

The clear issue for yourself, Commissioner, is in relation to the conversations of the 4th, the 5th and 8 September. There is no doubt that the conversation which Mr Lymberis gave evidence to the effect of, the two options conversation, if you can characterise it that way, which took p lace on 8 September. That was conceded by both of the delegates, Commissioner, that that conversation took place.

PN425

My submission to you would be that that conversation or the nature of that conversation cannot be characterised as a threat of industrial action. Essentially the Father of the Chapel indicated that the respective manager had two options. In my submission, Commissioner, if it’s properly to be characterised as a threat, there actually has to be that threat made. That if the management disregards the two options which were presented by the Father of the Chapel, that there would be some consequence which is taken.

PN426

My friend asked the question, I think it was of Mr Muscat, as to what would happen and quite clearly there was no third option which was put. There was no threat. The evidence was not that, “If you don’t follow these two options we will take action”. That’s conceded. The delegate, the Father of the Chapel put the two options to the respective manager, but in my submission, Commissioner, if that conversation on 8 September is to be properly characterised as a threat of industrial action, there actually has to be an explicit threat along the lines of, “If you don’t do one of these two options then we’re going on strike, or we’re going on the grass, or we’re going to walk”. Short of that kind of explicit threat, we would say the jurisdiction of 496 is not alive. All that’s happened is the Father of the Chapel has put two options to the company.

PN427

In relation to the conversations which we heard from the applicant’s evidence on the 4th of the 9th and the 5th of the 9th, you have heard evidence which was attributed to the Father of the Chapel, that the members would be on the grass and the members would walk. Quite clearly, Commissioner, that is contested. You have heard evidence from the Father of the Chapel of the nature of those discussions, that they expressed no confidence in the respective manager and they were concerned by this course of conduct.

PN428

That’s obviously an issue for you to resolve, Commissioner, as to which evidence you prefer but quite clearly my submission would be to prefer the evidence which was put by my side of the table.

PN429

On that basis, Commissioner, we would say this application should be refused. It would be our submission that the test which is set by the respective section has not been met. I’ll pause there, Commissioner.

PN430

THE COMMISSIONER: Thank you.

PN431

MR DOUGLAS: Commissioner, only briefly. Mr Walkaden said there is something missing, and that is clearly Mr Muscat, for whatever reason, formed the view that Mr Ardolino was guilty. Clearly he threatened on two occasions about walking and on 8 September, and Mr Lymberis gave his evidence, it was absolutely clear to Mr Lymberis what those two alternatives were; and it was meant to be made clear to him that if he didn’t take up one of those two alternatives, prior threats were going to be made following it.

PN432

This falls within the jurisdiction clearly and it’s a proper application. May it please.

PN433

THE COMMISSIONER: Thank you. I’m going to have a 10-minute break and I’ll give a decision to be recorded on transcript. Thank you.

<SHORT ADJOURNMENT [3.42PM]
<RESUMED [3.54PM]

PN434

THE COMMISSIONER: Thank you for the indulgence of that short break. Firstly in respect of this application I make no finding as to whether or not overtime bans are in place or industrial action is happening.

PN435

However, having regard to the evidence I am satisfied, and I find, that industrial action is threatened or probable. I make that finding on the basis of the evidence and where the evidence of Mr Lymberis, Mr Edwards and Mr Muscat conflicts, I prefer the evidence of Mr Lymberis.

PN436

It follows that the jurisdiction is enlivened to make an order and I shall make an order as sought by the applicant in this matter. The order shall come into effect from 5 pm on today’s date and will remain in force for a period of 14 days.

PN437

I make one observation in making this order, that the term heightened emotion was used by Mr Edwards in his evidence, and I have no doubt that emotions are riding high on site at Warwick Farm. The 14-day period of this order I think gives the parties an opportunity for a cooling off period and also for some constructive discussions about resolving the underlying issues which gave rise to this application. I trust that the parties will take advantage of that period.

PN438

These proceedings will stand adjourned.

PN439

MR DOUGLAS: Commissioner, could I just ask briefly?

PN440

THE COMMISSIONER: Yes.

PN441

MR DOUGLAS: You will provide a stamped order so we can arrange service?

PN442

THE COMMISSIONER: Yes.

PN443

MR DOUGLAS: Okay.

PN444

THE COMMISSIONER: Yes, within the next 15 minutes.

PN445

MR DOUGLAS: Thank you, Commissioner.

PN446

THE COMMISSIONER: Thank you.

<ADJOURNED INDEFINITELY [3.56PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

JOHN LYMBERIS, SWORN PN26
EXAMINATION-IN-CHIEF BY MR DOUGLAS PN26
EXHIBIT #D1 LETTER FROM MR LYMBERIS, DATED 05/09/2008 PN51
EXHIBIT #D2 STATEMENT FROM MR TRAN, DATED 03/09/2008 PN56
EXHIBIT #D3 STATEMENT FROM MR NGUYEN, DATED 03/09/2008 PN57
EXHIBIT #D4 STATEMENT OF MR RUFATI, DATED 03/09/2008 PN89
CROSS-EXAMINATION BY MR WALKADEN PN117
RE-EXAMINATION BY MR DOUGLAS PN181
THE WITNESS WITHDREW PN194
RICHARD EDWARDS, SWORN PN195
THE WITNESS WITHDREW PN254
JOSEPH MUSCAT, SWORN PN257
EXAMINATION-IN-CHIEF BY MR WALKADEN PN257
CROSS-EXAMINATION BY MR DOUGLAS PN302
RE-EXAMINATION BY MR WALKADEN PN396
THE WITNESS WITHDREW PN411