C2008/2686, Transcript of Proceedings [2008] AIRCTrans 839 (24 December 2008)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 19532-1

COMMISSIONER HARRISON

C2008/2686

s.170LW - pre-reform Act - Application for settlement of dispute (certified agreement)

Liquor, Hospitality and Miscellaneous Union
and
Wattyl Australia Pty Ltd
(C2008/2686)
Wattyl Group of Companies Certified Agreement 2008

(ODN AG2005/4581)
[AG840680 Print PR959032]]




Melbourne

10.09AM, WEDNESDAY, 10 DECEMBER 2008

Reserved for Decision

PN1

MS A DUFFY: I seek leave to appear on behalf of the applicant.

PN2

MR A VERNIER: I also seek leave to appear on behalf of Wattyl Australia Pty Ltd. With me I have MS T ROBERTS who is the HR manager.

PN3

THE COMMISSIONER: Thank you, Mr Vernier. Leave is granted in both cases. Ms Duffy.

PN4

MS DUFFY: I should have indicated, Commissioner, I expect to be shortly joined by Mr Bakri from the LHU. So I'll enter an appearance on his behalf as well.

PN5

THE COMMISSIONER: Thank you.

PN6

MS DUFFY: Commissioner, if I could just check first because I understand there may have been a problem with some of the attachments to our documentation coming through. You should have an outline of submissions from the union which runs for six pages.

PN7

THE COMMISSIONER: Yes.

PN8

MS DUFFY: There are three witness statements. The first is a witness statement of Peter Anderson. It has two attachments and that might be where the problem is. I have the witness statements of Mr Anderson and Mr McDonald. One of the attachments which I think Mr Anderson referred to is attached to the respondent's material, that is the notice that was placed in December I think.

PN9

MS DUFFY: Commissioner, do you have a statement of Mr Larossi?

PN10

THE COMMISSIONER: Yes, I do.

PN11

MS DUFFY: Commissioner, if I can do it when I call Mr Anderson, but if it would assist now I could just give you a copy of those two attachments because I think that's probably all that's missing.

PN12

THE COMMISSIONER: Yes, thank you Ms Duffy.

PN13

MS DUFFY: Commissioner, I didn't propose to say a lot by way of opening, assuming that you'd had an opportunity to read the submissions of the parties. Particularly I didn't want to take up a lot of time in terms of how we come to be here under this agreement. I think it's agreed that the process essentially is agreed between the parties. It's a pre reform agreement. The operation of that agreement has been extended. And clearly we're conducting and dispute resolution process and the Commission is authorised to conduct that process under the pre reform legislation. That is essentially the provisions of section 170LW of the Workplace Relations Act.

PN14

THE COMMISSIONER: Although I'm not sure whether Mr Vernier would agree that all questions of jurisdiction have been cleared. But perhaps - - -

PN15

MR VERNIER: That's probably so, Commissioner, but I think Ms Duffy had a conversation just before we came on the bench and it's probably one of those situations where if there is a jurisdictional issue you probably won't be able to work that out until some of the evidence is out. That's the way we see it.

PN16

THE COMMISSIONER: All right, thank you.

PN17

MS DUFFY: I had understood that to be the case, Commissioner, from my friend. I think the real issue as the respondent puts it is they don't accept necessarily that there is a dispute about the application of the agreement. And really that issue can only be determined by you hearing the evidence and determining the facts surrounding the dispute to then properly characterise the dispute and to determine whether it is in fact one that concerns the application of the agreement. And of course that terminology, the dispute being about the application of the agreement, stems from the operation of section 170LW.

PN18

THE COMMISSIONER: Yes.

PN19

MS DUFFY: If I could just go back a step, Commissioner, just to give you a very brief outline. As you probably appreciate from the papers, really the nub of the dispute is the respondent's change to what we, the union, say was a long standing custom and practice of providing the relevant employees at the relevant site with a paid meal break. That practice changed in January of this year 2008. Commissioner, the relief sought by the union is set out at paragraph 1 of our written submissions. Now, I understand from the respondent's submissions that again there might be some issue taken with the way, or the form of the relief sought. I'm not sure I fully understand what that issue is yet and I might return to that in closing submissions.

PN20

It's certainly my submission that the determinations or findings sought by the union are certainly within the Commission's power. Clearly the Commission rather can't make a binding declaration in terms of exercise of judicial power, but the High Court in the private arbitration case was very clear in spelling out that in determining these types of disputes the Commission is functioning as a private arbitrator and it doesn't impinge on the judicial functions of the Commonwealth. It's my submission, and as I said I might come back to this depending on what my friend says about it, that the determination or orders sought by the union are within power.

PN21

Commissioner, at paragraphs 2 and 3 we have set out a short history really of the agreement. The agreement was originally certified by the Commission in June 2005. An order was made to vary and extend the operation of the agreement in accordance with the transitional provisions of the Workplace Relations Legislation. That order was granted on 14 July 2008 and the nominal expiry date of the agreement became 1 February 2008. As I said earlier, Commissioner, I don't think there's any dispute between the parties that the agreement is a pre reform certified agreement within the meaning of clause 1 of schedule 7 of the transitional provisions of the Act.

PN22

The agreement contains a dispute settlement procedure which is clause 50 of the agreement. That dispute settlement procedure is set out in full at paragraph 4 of our submissions. The relevant part really, Commissioner, for your determination today is at paragraph 4 which is over the page on paragraph 3 of our submissions and that is if after taking the initial steps, which we say have been taken, if the dispute is still unresolved the matter may be referred to the Australian Industrial Relations Commission for determination. Commissioner, as I have indicated earlier the issue before you today is really in relation to whether there was a custom and practice in relation to the taking of paid meal breaks in the colour and chemicals site of the respondent.

PN23

Now, the relevant clause of the agreement that deals with custom and practice is clause 6(b) of the agreement. Part of that clause, Commissioner, is set out at paragraph 11 of our submissions. Clause 6(b) of the agreement provides that:

PN24

Existing site customs and practices not otherwise dealt with in this agreement will continue to apply having additional effect as a term of this agreement.

PN25

That's really the main thrust of that provision, Commissioner. It does go on to deal with specific references to existing custom and practices at various sites. Commissioner, it's the union's submission that this clause or that the effect of this clause is that a custom and practice will operate as a term of the agreement where there is an existing site custom and practice and where it's not otherwise dealt with in the agreement. The issue, Commissioner, as I have indicated before, or the main issue, turns on the evidence as to whether the paid lunch break was in fact a custom and practice which is not otherwise dealt with in the agreement.

PN26

Now, Commissioner, at page 5 of our submissions we have set out our submissions as to why the union is of the view that it certainly is a custom and practice. As I said, really that will turn on the evidence. I didn't propose to say much more about that at this stage, although I might of course return to that in closing. Commissioner, I think both parties have set out some relevant case law in relation to the term "custom and practice". I think essentially we are in agreement as to the various cases cited there. The point that I wanted to make in relation to that is that if you are to find that the paid lunch break is a custom and practice you need not apply the same test as is required to imply a term into a contract. That's the test that's set out in Con-Stan Industries v Norwich Insurance where both parties have referred to.

PN27

It's my submission, Commissioner, that that case certainly gives you some guidance, but it is in fact a higher test or a test that is potentially harder to meet because of the nature of what is required to imply turn into a contract. And it's not necessary for you to actually apply that case to any determination that you might make today. The other issue, Commissioner, that I want to raise by way of opening is that it's the union's submission that the custom and practice of paid meal breaks is not dealt with elsewhere in the agreement. That's of course the second leg of the test in clause 6(b).

PN28

There is a clause, that's clause 32, that deals with meal breaks. It does not deal with the issue as to whether that meal break should be paid or not. Commissioner, I didn't propose to deal with any other matters by way of opening and so unless you want to hear from my friend, at this stage we're ready to call our first witness.

PN29

THE COMMISSIONER: Thank you.

PN30

MR VERNIER: I'll probably open at the end of their case, Commissioner. I just wanted to have one housekeeping matter and that is can I just tender a copy of a series of the agreements that have occurred since 2000? There was an agreement in 2000, one in 2003, one in 2005 and then the extension in 2008. I understand you've got the extension one. Is that correct, Commissioner?

PN31

THE COMMISSIONER: Yes I do.

PN32

MR VERNIER: So I won't hand that one up, but I'll hand up the others just in case we need to refer to them. So what I've handed up is in fact just three agreements, the one in 2005 which is prior to the variation and extension, the one in 2003 and the one in 2000. And you have got the current one with the extension.

PN33

THE COMMISSIONER: Yes. To save me looking does clause 6(b) - - -

PN34

MR VERNIER: 6(b) is consistent. It's consistent, yes.

PN35

THE COMMISSIONER: Yes, all right. Thank you. Good, thank you Ms Duffy.

PN36

MS DUFFY: Commissioner, I should indicate I've had some discussions with my friend about other witnesses not being present until they have given their evidence, so I might just ask the other. I'll call Mr Larossi and ask that the other witnesses leave.

PN37

THE COMMISSIONER: Thank you.

<ROBERT VITO LAROSSI, SWORN [10.25AM]
<EXAMINATION-IN-CHIEF BY MS DUFFY

PN38

MS DUFFY: Mr Larossi, could you just state your full name and address please for the record?---Robert - well, my middle name too?

PN39

Yes please?---Robert Vito Larossi. My address is (address supplied).

PN40

And what is your current occupation?---Account manager.

PN41

Have you prepared a statement for today's proceedings?---Yes I have.

PN42

Do you have a copy of that statement in front of you?---Yes I do.

PN43

It's a one page statement with a one page attachment, is that correct?---Correct.

PN44

Have you had an opportunity to review that statement recently?---Yes.

PN45

Are you able to confirm that the contents of that statement are true and correct?
---They are true and correct.

PN46

Commissioner, if I might just be permitted to ask Mr Larossi a couple of additional questions?

PN47

THE COMMISSIONER: Yes.

PN48

MS DUFFY: Mr Larossi, when did you commence - - -

PN49

THE COMMISSIONER: Perhaps just for housekeeping. I'll mark the statement of Mr Larossi as exhibit D1.

EXHIBIT #D1 WITNESS STATEMENT OF ROBERT VITO LAROSSI

PN50

MS DUFFY: Thank you, Commissioner.

PN51

Mr Larossi, when did you commence employment with Wattyl?---Well, actually with Wattyl it would have been 22 November 1976.

PN52

If I could perhaps - I should have been more specific. Perhaps at the Colours and Chemicals site?---Colours and Chemicals? It would have been 1 April 1989.

PN53

And what was your position then in 1989?---1989 I was the sales manager for Colours and Chemicals on a national basis.

**** ROBERT VITO LAROSSI, XN MS DUFFY
PN54

And then as you've indicated in paragraph 1 of your statement, you became the production manager in January 2000?---In 2000, that's correct.

PN55

Now, in the email that is attachment RL1 to your statement you have set out what your understanding was in relation to the meal breaks and the arrangement as to meal breaks during your time as production manager?---Yes.

PN56

What's the basis for that understanding? Why did you have that understanding?
---It's always been the case. The first day I actually started at Colours and Chemicals the operators would have their meal breaks whenever the process would allow. That's why they weren't given like, you know, you shall take your meal break between 12 and 1 o'clock. It really depends when the process allowed them, that there was a break long enough for them to have their lunch or dinner or whatever it was, then they would take their break.

PN57

Did you ever observe employees taking their meal breaks?---Yes. At times they either sit in the canteen. They had - if they just charged a kettle, you know, and they've got I think it's about a 45 minute hold, then yes they'll go off and have their lunch. Other times I've seen them heat up their lunch and take it into their work station. But the majority of the time they'd try to sit in the canteen.

PN58

O you recall having a conversation with Mr McDonald, Warren McDonald, when he commenced employment at the Colours and Chemicals site?---Yes.

PN59

What was the nature of that conversation?---Well, I think the details that would be pertinent to hear were the working hours. The working hours were day shift would start at 7 o'clock in the morning and they would finish at 3.16 in the afternoon which also included a half hour hand over time. So that way the operator that was on shift and who was leaving could pass on the information to the incoming operator. So we'd have a half hour overlap and that was also to cover the instances when an operator was either late or rung in sick at the very last minute, so that made the kettles weren't left half manned.

PN60

You said in the email that's attached to your statement that that hand over time was paid at time and a half?---That's correct.

PN61

Why was that the case? Do you understand why was that payment made?---That's what I was told to actually put on the clock cards by the general manager of that station, as the production manager. His name was Andrew Darly. And previous to that even at times when Peter McTaggert, the production manager who was there beforehand, if he was away and the clock cards had to be done, I would do them on certain occasions and it was always time and a half and that was what I was told to put down for that half hour change over.

**** ROBERT VITO LAROSSI, XN MS DUFFY
PN62

And did that change over occur every day?---It occurred every day except for the Sunday night start up and the Friday night shut down because there was no one to hand over to or from. But apart from that every other shift, the day shift, the afternoon shift and the night shift would have that half hour change over.

PN63

I have no further questions.

PN64

THE COMMISSIONER: Thank you. Mr Vernier.

PN65

MR VERNIER: Thanks.

<CROSS-EXAMINATION BY MR VERNIER [10.31AM]

PN66

MR VERNIER: So Mr Larossi, in your position as the production manager for Colours and Chemicals, were you involved in the requirement process on site?
---Yes I was.

PN67

So you attended interviews of people?---For the operators, yes I did.

PN68

Yes. You have also been familiar with the enterprise agreement that covered that particular site?---Yes I was.

PN69

And you were familiar with the terms of that enterprise agreement?---Yes.

PN70

Now, one of the people that I assume you were involved in which you just gave evidence was Mr Warren McDonald?---Correct.

PN71

Now, you mentioned the fact that you spoke to Mr McDonald about his hours of work and you said you starting at 7 am and you finish at 3.16?---3.16.

PN72

And did you mention anything else?---There was the half hour change over, meal breaks were to be taken whenever the process allowed. That would have been about the other thing.

PN73

And did you mention that the meal breaks would be paid?---No, but then again I never mentioned that the meal breaks weren't paid. Because it was normally the way that the plant operated was the meal breaks were always paid because on the clock cards, whenever I would do the clock cards if they start at 7 and finish at 3.16 that's eight hours and 16 minutes, you take off that half hour change over that leaves them seven hours and 46 minutes and they were working a 35 hour week. So there was never any deductions for their meal breaks written on the clock cards.

PN74

So at the time when you were interview the employee Mr Warren McDonald you did not mention to him that their meal breaks would be paid?---No, it wasn't mentioned that meal breaks will be paid.

PN75

But you did mention to him that there were no set times for meal breaks?---That's correct. Meal breaks would be taken as the process allowed.

PN76

And if time allowed as well, is that right? The process allowed and time allowed?---No. Actually - well, you can't expect someone to work eight hours and 16 minutes without having a meal break in between. No, the words would have been you will take your meal break as the process allowed.

**** ROBERT VITO LAROSSI, XXN MR VERNIER
PN77

Now, you would have been recently contacted by Peter Anderson, is that correct?
---Yes.

PN78

Yes. Can you tell us what he told you?---Peter said he just rang me and he asked me, he said, "Rob, can you write down what your procedures were the production manager at Colours and Chemicals to do with our hours of work and our meal breaks".

PN79

And you responded by preparing that email?---Via an email, yes.

PN80

Yes. Obviously he gave you the email add with which to send?---He gave me his email address, yes.

PN81

And that's all he mentioned to you?---And he said that because we'd need this to go to the Commission and I really didn't ask him what was the reason or whatever and I said certainly I can write that down, I still remember all the - - -

PN82

So you weren't - you didn't want to know what the issue was?---Well, I knew there was an issue even before I'd resigned from Colours and Chemicals. Something was stirring to do with why was that half hour hand over paid at time and a half and not at double time. But you know, I was sort of departing Colours and Chemicals at the time so I really didn't take much interest.

PN83

Do you remember how that issue arose?---I think it was one of the ex employees, Sean Franklin, who had left and then raised the issue after he left. I'm not aware.

PN84

Do you remember any reaction on the site when Sean Franklin made the claim for double time for the overtime instead of time and a half?---Not that I can remember.

PN85

Okay. So Peter Anderson contacts you and you prepare an email and this is the email that's attached to your statement and you swore that this is correct?
---Correct.

PN86

Yes. Now, you state in this particular email starting from the third line:

PN87

The lunch/meal break was paid for and no time was deduced from period on site as it was to be taken if time allowed between processes.

PN88

Do you see that?---That's correct.

**** ROBERT VITO LAROSSI, XXN MR VERNIER
PN89

Now, it would be fair to say that there was no set time for the meal break?
---Correct.

PN90

It would be fair to say that if employees took the meal break some took it at the beginning of the shift, is that right?---I don't think anyone would have a meal break as soon as they started work. Some might have taken it two hours into work. It really depends when the process allowed them. Because you can't just flick a switch on the kettles and walk away and say right I'm going to have my half hour lunch, because anything could happen.

PN91

Possible some took it at the end of the shift?---It's possible that some people were so busy that they never had lunch during the processes.

PN92

That's right?---I've heard that once or twice, you know, we were so busy didn't even have time to have lunch because the process didn't allow it.

PN93

And do you understand and - sorry. And as a result of all that as part of this meal was it the fact that they would get the last half hour at time and a half? Is that your understanding of it?---No. The last half hour at time and a half was to do with the hand over. So that way one operator could tell the next operator this is where the process is at, this is what I've done, this is what needs to be done.

PN94

So you're saying - - - ?---It was a hand over for the process.

PN95

So you're saying that the paid meal break had nothing to do with the fact that there was a half hour hand over at time and a half at the end of the day?---As far as I'm aware, no. The meal break has got nothing to do with the hour and a half. That hour and a half has always been called a hand over. Sorry, that half hour was always called a hand over. And you could actually go there and you would see the kettle operators, the one who's coming off shift and the one who's coming on shift, they would have their conversation, they would show each other the log, this is what I've done, this is the process, this is the stage it's at, we've got to take a sample in half an hour or whatever.

PN96

But the shift starts at 7?---Yes.

PN97

Finishes at 3.16?---Correct.

PN98

The other shift starts at 3?---Correct.

**** ROBERT VITO LAROSSI, XXN MR VERNIER
PN99

How do you have a half hour hand over when there's only 16 minute overlap?
---Because there is 16 minutes at the start of the shift, or 15 minutes at the start of the shift as the operator is coming onto shift, he gets the hand over there and then there's the other 15 minutes when they actually finish the shift.

PN100

So that's where you get your half an hour?---That's correct.

PN101

But the fact remains that potentially the seven hours and 46 minutes before that is actually you count that as time paid?---Correct.

PN102

Yes. Because sometimes they work through lunch, sometimes they don't?---Well, that would be right. But ..... I'd say 95 per cent of the times they would have a half hour window at least for them to have a bite.

PN103

You can't say 95 per cent because you weren't there all the time, were you?
---Well, I was there on day shifts and at times I was even called in, you know, the middle of the night, the middle of the afternoon shift and yes I'd see the operators sitting in the canteen having lunch or at their stations even, eating an apple.

PN104

But you didn't see everyone go on lunch, did you?---No, of course not.

PN105

But you knew of cases where people didn't take lunch, didn't you?---Yes. Once or twice there'd be people who would say I was so busy on my shift I haven't had time to have lunch.

PN106

And the reason why is because there was no set lunch break and the reward for this process was they get the half an hour of overtime at the end of the day?---No. That half an hour overtime at the end of the day was to do with the hand over. That's what I've always been told.

PN107

It can only happen at overtime rates if the first seven hours and 46 minutes were worked. Is that correct?---That is correct.

PN108

Because it's at the ordinary time, seven hours and 46 minutes. You agree with that in a day?---Yes.

PN109

So unless you work seven hours and 46 minutes the time after that can't be overtime, can it?---No. But there were also instances where an operator didn't stay for that hand over. They would leave early and they weren't given that additional half hour at time and a half. You know, irrespective if they had their meal break or not.

**** ROBERT VITO LAROSSI, XXN MR VERNIER
PN110

Well, let's look at another scenario. I mean, you mentioned that on a Friday they left half an hour early. Is that right? They finished the shift at 10.46?---No. The shift had finished at 11 on a Friday night.

PN111

Are you sure? Not 10.46?---No, 11 o'clock from my recollection.

PN112

And the reason is because there was no change over?---Correct.

PN113

Now, part of your role was also to sign the time cards, is that correct?---Yes.

PN114

I just want to show you some time cards. Now, can I just take you to the one that's got entry to Charlesworth, Andrew Charlesworth?---Right, yes.

PN115

You've got that one? And it's got the 2/21/2006 which I assume is 21 February 2006?---Correct.

PN116

And then there's 7 March 2006 as well on the other side of the page?---Yes.

PN117

Which is 3/7/2006. Now, Mr Charlesworth, he's a day worker, is that correct?
---That is correct. He is not a shift operator. He is only a day time forklift operator.

PN118

Yes. So we can see - and he never got the added overtime, did he?---No because there was no one to hand, do the change over to.

PN119

Right. So he didn't receive a paid meal break?---Yes he did receive a paid meal break. He was the only operator. But the provision was that whenever he would have his meal break, if there was a truck that had a delivery he would go out and unload that truck, irrespective if he's sitting down having his meal or not.

PN120

Now, there's a little signature that appears on that particular time card. Is that your signature?---That's my signature, yes.

PN121

And you agree with me that in these two particular time cards there was no extra half hour at time and a half on there?---That's correct.

PN122

Yes. Commissioner, I'll tender that time card.

EXHIBIT #B1 TIME CARDS OF ANDREW CHARLESWORTH

PN123

MR VERNIER: Now, I'll take you to the next person, Hussain Hussain. Have you got that in front of you, Mr Larossi?---Yes I do.

**** ROBERT VITO LAROSSI, XXN MR VERNIER
PN124

And there's a time card which is dated 21 February 2006 and 24 January 2006. Do you have that?---Yes I do.

PN125

And Mr Hussain Hussain, he was also a day operator. Do you agree with that?
---Under special circumstances he was put onto day shift hours only for medical reasons. I can't recall I that was before my time was taken over the production manager, but that was the agreement he had, yes.

PN126

Yes, but he's a day operator?---Day shift operator.

PN127

Yes. And in this - and can I say is the signature on that particular, on those two time cards, that's your signature again?---That is correct.

PN128

And you agree with me that Mr Hussain was the recipient of the half hour at time and a half?---Correct.

PN129

And you agreed on the previous one Mr Charlesworth was not the recipient of the half hour at time and a half?---Yes.

PN130

But they're both day workers?---Like I'd mentioned before, Hussain Hussain used to be a shift operator, but because of medical reasons he was only allowed to work daylight hours only. So that's why he was put onto day shift.

PN131

Commissioner, I tender that time table.

EXHIBIT #B2 TIME CARDS OF HUSSAIN HUSSAIN

PN132

MR VERNIER: Can I take you to the next time card which is for Peter Anderson. We have two time cards there. One day is 7 March 2006 and one 14 February 2006. Do you have those in front of you?---Yes I do.

PN133

Again is that your signature that's recorded on each of those time cards?---Yes it is.

PN134

And Commissioner, I tender that time card.

EXHIBIT #B3 TIME CARDS OF PETER ANDERSON

PN135

MR VERNIER: And finally we have a time card for Warren McDonald, time cards. One dated 21 February 2006 and one dated 24 January 2006. Do you have those, Mr Larossi?---Yes I do.

**** ROBERT VITO LAROSSI, XXN MR VERNIER
PN136

Again I ask you is that your signature on those time cards?---Yes it is.

PN137

And I tender that time card, Commissioner.

EXHIBIT #B4 TIME CARDS OF WARREN MCDONALD

PN138

MR VERNIER: Now, is it your understanding that the system of work whereby they could potentially work through lunch or have a lunch break around the process was because they were shift workers?---No. The reason that was the case is there are three work stations at the Colours and Chemicals. There's the old kettle, the acrylic kettle and the filling station. So that's where the shift operators would work. And it really depends when time allowed. You know, either during the filling process or during the acrylic kettle charging, after it's been charged, if there was a window where they could have lunch then they'd go off and have lunch.

PN139

You never enforced a particular lunch break, did you, a particular time for a lunch break?---No.

PN140

No. And you knew that when you first became the production manager for Colours and Chemicals overtime was at time and a half, correct?---No. Overtime worked was at double time. The hand over was only at time and a half.

PN141

No. But under the EBA you would agree with me that when you first became the production manager overtime was at time and a half for Colours and Chemicals employees? Just ordinary overtime?---No, double time. All overtime at Colours and Chemicals was at double time.

PN142

Would you agree with me that overtime at Colours and Chemicals became double time in 2003?---No.

PN143

No?---No. There would be pay records going back to when I would have started there as a production manager to 2000 and you will see if there was any overtime worked, that that would have been at double time.

PN144

So you knew then it was your understanding that all overtime was at double time for Colours and Chemicals employees?---Correct.

PN145

However you were prepared to sign time cards which had overtime for half an hour at time and a half?---We never classified that as overtime. We always called that hand over which historically has always been paid at time and a half. That's what I was told to do.

**** ROBERT VITO LAROSSI, XXN MR VERNIER
PN146

But if that was your understanding you also agreed with me earlier that in fact these employees were working seven hours 46 minutes, which is the ordinary hours per day?---Yes.

PN147

Plus the extra half an hour?---Correct.

PN148

So you would have to agree with me that under the EBA that extra half an hour would be classified as overtime, correct?---Technically, yes, it would be correct. That would be classified as overtime.

PN149

You still signed timecards for overtime at time and a half?---Because it was handover, you know, it's historically what they've always called it and that's what I've been told to put the half hour handover as at time and a half.

PN150

You assumed that this whole process, and it wasn't just potentially the paid lunchbreak, because sometimes they took lunch, sometimes they didn't but the whole process, that's the practice of that particular site, isn't it, the whole process, that is the particular times of the shifts, the fact that they work around the process if they had time to take lunchbreaks and this handover, the fact that’s the handover was paid at time and a half?---Yes.

PN151

That was the whole process, wasn't it?---And any additional overtime was paid at double time.

PN152

Which is what, some of the timecards show, that outside of the half an hour, it was at double time?---Correct.

PN153

You'd have to agree with me this is - we just can't simply extract a paid lunchbreak because that wasn't part - that was a little part of the process, which is what you've just agreed with, correct, and we have to look at the whole process as being potentially the system of work on that particular site?---The whole process, as I understood it and the way it was explained to me by the general manager, was that the operators would work seven hours and 46 minutes which would mean that after nine days they would have a rostered day off, which was a paid rostered day off. They would have half an hour at time and a half handover per shift and any overtime that was worked was at double time and their meal was to be taken as the process allowed. They were the instructions that were given to me.

PN154

Just back on the EBA, the enterprise agreement, Mr Larossi, you mentioned that your recollection was that even when you first became production manager in 2001 - was it 2001?---I think it should have been 2000.

**** ROBERT VITO LAROSSI, XXN MR VERNIER
PN155

January 2000, yes, overtime at that Colours and Chemicals site was still at double time, according to you?---Correct.

PN156

Would you surprise you if it was at time and a half?---Well, that was actually written in the EBA at Colours and Chemicals, all overtime would be paid at double time.

PN157

Would it surprise you that that was first written in 2003?---I can't recollect what previous EBAs would have stated. I thought it was always at double time.

PN158

Do you recall interviewing Peter Anderson for a job?---Peter Anderson actually started with Colours and Chemicals, then he left and then the second time when he returned to Colours and Chemicals, yes, I interviewed Peter Anderson.

PN159

Do you recall what you said to him in relation to the conditions of work at Colours and Chemicals when he applied for that position again?---It would have been the same wording. Peter knew the process and I think he'd only been gone for about 18 months, two years, I can't remember exactly. Peter knew what the hours of work were, the half hour handover and taking meal breaks whenever the process allowed.

PN160

Nothing further, Commissioner.

PN161

THE COMMISSIONER: Ms Duffy.

PN162

MS DUFFY: Yes, I've got a couple of questions by way of re-examination, Commissioner.

<RE-EXAMINATION BY MS DUFFY [10.56AM]

PN163

MS DUFFY: Mr Larossi, do you have the timecards in front of you?---Yes, I do.

PN164

Are lunch breaks recorded anywhere on any of those timecards?---No, they never were.

PN165

Were they recorded anywhere else?---No - well, excepting - well, if I was walking out of my office because the canteen was right in front of there, just do a visual. If I'd see someone sitting in there for too long I'd say, "Hey, get out and go do some work." That would be about the only record of the lunchbreaks.

PN166

In terms of paying the handover at time and a half, who told you to do that?
---From the first time I stepped onto the Colours and Chemicals site it was always paid at time and a half and that was through - who was in charge of the site then, Les Cook, who has now passed away and he went through Peter McTaggert who was the production manager at time when I was the sales manager.

PN167

When you were the production manager, who told you to do that?---Andrew Darly who was the general manager for the resin division.

PN168

I have nothing further, Commissioner, and I'd ask that - unless you have any questions - that the witness be excused.

PN169

THE COMMISSIONER: Yes. Thank you, Mr Larossi, you're excused.

<THE WITNESS WITHDREW [10.58AM]

PN170

MS DUFFY: Commissioner, the next witness that the union will call is Mr McDonald.

<WARREN MCDONALD, SWORN [10.58AM]
<EXAMINATION-IN-CHIEF BY MS DUFFY

PN171

MS DUFFY: Mr McDonald, could I ask you just to state your full name and address again for the record, please?---Warren McDonald (address supplied)

PN172

What's your current position, job?---Plant operator, level 2, Colours and Chemicals.

PN173

Have you prepared a witness statement for today's proceedings?---Yes.

PN174

Do you have a copy of that statement in front of you?---Yes.

PN175

That's a two page statement?---Yes.

PN176

Have you had a chance to review that statement recently?---Yes, I have.

PN177

Are you able to confirm that the contents of that statement are true and correct?
---Yes, that's true and correct.

EXHIBIT #D2 STATEMENT OF WARREN MCDONALD

PN178

MS DUFFY: Once again, Commissioner, I've just got a couple of additional questions for Mr McDonald.

PN179

You've given some evidence in your statement that when you attended an interview with Mr Larossi, he outlined basically what the terms and conditions of the position were. Did he give you anything in writing about those terms and conditions?---No. From memory he was jotting down on a bit of paper as we were going along and explaining all the hours, rates of pay, RDOs and that type of thing.

PN180

In the time that you've been employed at Colours and Chemicals, what's the process for taking your meal break or lunchbreak?---Well, it virtually works around the basis of we don't stop, like across the road they have a buzzer that goes off 12 o'clock, they can switch a button off and go and have lunch. Because of our process we can't so in a sense the process dictates when we have lunch.

PN181

Has that changed since the introduction of the new policy earlier this year?---No.

PN182

Can I ask you what your understanding is of the handover process at the end of each shift?---Well, the handover process is to advise the next operator of what the batch is at. It is more reactive, even the same batch might be two days in a row but they relate differently at different stages so from a safety point of view and the safety of the batch, you explain to the previous operator what's going on, the rest of the materials prepared and, you know, in that general nature so he's aware of what's going on for the protection of the batch and himself.

**** WARREN MCDONALD XN MS DUFFY
PN183

What's your understanding of the pay rate for that handover time?---Sorry, how do you mean?

PN184

What were you paid for that time?---It's virtually the handover time and wash-up time, about half an hour.

PN185

Was that at your ordinary hourly rate?---Sorry?

PN186

Was that at your ordinary hourly rate?---That was at time and a half.

PN187

I have no further questions.

PN188

THE COMMISSIONER: Mr Vernier.

<CROSS-EXAMINATION BY MR VERNIER [11.03AM]

PN189

MR VERNIER: Mr McDonald, you commenced employment with Wattyl in November 2003?---Yes.

PN190

You had interviews with Mr Larossi, is that correct?---That's true, yes.

PN191

During the course of those interviews I think you've given some evidence as to what was indicated to you by Mr Larossi?---Yes.

PN192

Can I just take you to paragraph 5C of your statement?---Explanation of the hours and the roster and that.

PN193

You indicated, as I understand it, that Mr Larossi said to you that at the Colours and Chemicals site all shift workers were paid during their meal break. That's what you've given evidence?---Yes, virtually those words. We went through, you know, the roster, the RDOs and coming from previous resin plants, he said, "Well, you'd understand" - from the best of my memory, he said, "You understand how it works, you know, the job dictates the lunch and lunch is included in your 7.46 hours." Yes, we went through all that part.

PN194

He said obviously you work around the process to take your lunch and sometimes you don't have time and sometimes you do have time to take lunch?---Always make sure you have something to eat.

PN195

Sometimes you might work in front of the screen, the computer screen when the process allows you to do that?---Yes, I sit in front of the computer screen specially during the football season, you know. There's two operators in there and you have lunch and yak about football and whatever.

PN196

I thought you were going to say you watch the football?---Eh?

PN197

I thought you were going to say you watched the football?---I wish I could. I'm a North Melbourne supporter, we don't get that many wins.

PN198

Sometimes what, you might have a lunchbreak early on in the shift, a lunchbreak later on in the shift?---Yes. I usually like to try and get it at around about, I don't know, half past 10, 11 o'clock.

PN199

When you're on the dayshift, is it?---Yes, virtually down to similar hours on the nightshift. I don't have breakfast and on nightshift, you know, I usually take whatever the wife has cooked for, you know, lunch for the family to work with me.

**** WARREN MCDONALD XXN MR VERNIER
PN200

At what time do you finish on a Friday if you were on the afternoon shift on a Friday?---Well, there's no handover which Robbie did make a point - pointed out to me. He said, "Your hours on afternoon shift on a Friday are from 3 o'clock till 10.46 unless a batch continues," you know, we can't shut a batch down at certain points. He did say to me one time, one of the other shifts had stayed back for that extra half an hour and he wasn't happy about it. He said, "There's no one to hand over to so why" - I won't use the language Robbie used, "why the hell did you stay back, there was no one to hand over to. You should have been gone by a quarter to 11."

PN201

The handover happens what, in the last half hour of the shift?---Yes.

PN202

Let's look at a dayshift. You start at seven in the morning and finish at 3.16. The other shift starts at three?---That's right.

PN203

Isn't the handover only 16 minutes then?---Sorry?

PN204

The handover is only 16 minutes?---Yes, the handover - well, we actually finish at a quarter to three.

PN205

All right, but you don't start handing over until 3 o'clock when the others turn up?
---All depends what time they turn up. We can't leave - well, we can't walk downstairs at a quarter to three and say, "Well, that's it." You must stay for the batch. I don't really follow what you're driving at there, to be honest.

PN206

That's all right. You're aware of the double time for overtime under the EBA?
---Yes, well, I am now.

PN207

What, you weren't aware previously?---Everyone was quite happy with the way it was going, you know, always getting on and jumping to get it on. There was a previous employee who brought that up.

PN208

Sean Franklin is his name?---Yes.

PN209

You weren't happy with the claim that he made?---Sorry?

PN210

You weren't entirely happy with the fact that he made a claim for - - -?---I didn't think it was necessary.

PN211

Because this whole thing, it blew up, didn't up?---We were going along nicely.

**** WARREN MCDONALD XXN MR VERNIER
PN212

You had this nice system in place where you could take your lunchbreak at any time that the process allowed you to. Is that right?---Yes, within reason.

PN213

Sometimes you couldn't take a lunchbreak because of the process. That's fair enough?---Well, that's the standard way it works in this type of industry.

PN214

Then, when you come to the last half hour of the day you call that a changeover. That's correct, isn't it?---Yes, changeover, lost time. Yes.

PN215

You get that paid at time and a half?---Yes, if it was paid. Yes.

PN216

The first seven hours and 46 minutes of you shift is at ordinary time?---Ordinary rates.

PN217

You include your lunchbreak in that if you ever take one and then the last
half hour is at time and a half. That's correct, isn't it?---That's the way it was, yes.

PN218

The shift cycle starts at 11 pm on a Sunday. That's correct, isn't it?---Yes.

PN219

You've worked some of those shifts?---Yes.

PN220

That would go till what time on the Monday morning, 7.16?---7.16, yes.

PN221

If you work that shift cycle, would you get a half hour changeover there as well?
---Well, you're handing over to the next shift in the morning, yes.

PN222

Your changeover is all about handing over to the next shift?---Yes, handover and .....

PN223

Commissioner, can I show the witness exhibit B4, please.

PN224

THE COMMISSIONER: Yes.

PN225

MR VERNIER: What I've given you there is a couple of timecards. They're your timecards. correct?---Yes, it's got my name on it.

PN226

I don't have your page there but I'm pretty sure it says 2/21/2006 at the top of the left-hand one?---2nd of 21st I see - - -

PN227

Yes, so it would mean it would be 21 February. That's the American style?---Yes, That's just the way they're done.

**** WARREN MCDONALD XXN MR VERNIER
PN228

That's a representation of your time for those two particular days, you'd agree with that?---I'd have to say so.

PN229

If I take you to the one on the right-hand side which is dated 24 January 2006, if we start from the right-hand side, we want the second time entry from the right-hand side which - I think it's a Sunday. Do you see it says 23/11, I think it says. Is that right?---Which one are you talking about?

PN230

The Sunday finishing at 7.14 on a Monday?---Where are we?

PN231

From the right-hand side?---Sorry, yes. I was looking at the - yes.

PN232

That was a Sunday shift. Is that right?---I can't see that.

PN233

You can see it finishes at, it's got an M for Monday at 7.14?---Yes. This is on the 23rd, yes, 7.14, 7.16, yes.

PN234

I'm looking at not the one that finishes at 7.16 but the one that finishes at 7.14?
---Yes.

PN235

That's the one that starts on a Sunday at 11 o'clock?---Yes.

PN236

You've been paid for your half hour of changeover at time and a half for that particular day?---Yes.

PN237

Nothing further, Commissioner. Sorry, Commissioner, I forgot. I might just go through some of the conversations in our evidence just in case Ms Duffy makes a point of it.

PN238

Do you remember having some conversations about these issues with - or a conversation with David Gresswell at any time?---We had, I think between George, don't ask me his last name, earlier in January.

PN239

Would there have been a conversation round about 4 December - it's difficult to remember dates, say early December?---December last - this year?

PN240

2007, so it's a year ago?---No, I don't think so.

PN241

David Gresswell is going to give evidence and he says he had a conversation with you and I'd like to put this to you - - -?---If you say it, I might remember it then.

**** WARREN MCDONALD XXN MR VERNIER
PN242

I'll put this to you and you tell me whether you remember this or not. David said that:

PN243

Warren stated that it was normal when doing shiftwork with resin cooks to get paid lunchbreak.

PN244

Is that correct?---Yes. All the various places I've worked at lunch is included in the hours.

PN245

Because you're a shift worker, that's the reason why you get it paid?---No, it's not because of shift worker. I have worked casual at certain places where you can push a button and you go and have lunch.

PN246

No, but this is at Wattyl?---At Wattyl?

PN247

Yes?---We have always - the half hour is included in a certain point, 4, 6 hours, yes.

PN248

As people who are shift work?---Because of the process, yes, but a lot of places do pay it because of the shift work if they work at certain places.

PN249

Then Mr Gresswell also said that you said you had some paperwork that had been given to you by Robert Larossi that stated you should be paid in that manner, that is you should get your lunch paid?---No. What I said there, Robert was writing things down and I said it could be in my folder. I said, he just could have been jotting it down as he explained to me because I think the day I went for that it was an RDO or something like that. There was only Robert and myself and the engineer at the time, Chris, there. So he was taking his time in explaining things to me but as I said to Dave then, I thought he did but I said, "I'm not 100 per cent sure." I said, "It could be in the folder, he could have been just jotting down as we were talking" because I made it quite clear to Dave so I said I would have a look. He asked me if I could have a look and I said, "Yes, I will" and I reported back to him that I couldn't find anything but I'm pretty sure that was in January this year, that conversation.

PN250

Yes, some conversation did take place?---I'm pretty sure it wasn't last year because I can't remember - I didn't find out until - about this change of policy by the company of lunch as I had the week off before last Christmas and I dropped in and so it was put on the table on the break-up day. That's the first I knew about it.

**** WARREN MCDONALD XXN MR VERNIER
PN251

When is the break-up day?---Last year it was the Friday before Christmas, I think it was.

PN252

Do you remember getting that note from David or - - -?---No, it was on the table, because I'd had the week off prior, the same as I'm having this year and I was down at mum's that's just down the road so I dropped in to wish the boys a merry Christmas and all that and actually I don't think it was on the table then when I left. It came on the table afterwards.

PN253

Have you read a copy of that note that was sent by David Gresswell?---The one that was left on the table?

PN254

Yes. Can I show you a copy of it?---Yes, let me glance through it. I'm pretty sure it was dumped on the table. From memory, what the boys said, they went back upstairs and it was just sitting in the middle of the table.

PN255

For the record I'm showing you what appears to be a memo dated 14 December 2007. Is that correct?---Mm. I think this is the one I seen. Yes.

PN256

It's addressed to all colours and chemical employees. It's only a one page document. What I'm showing you is just that one page in front of you?---I think this is the one that was there but I don't think it's the whole document. I think you're right, it's only one page or something at the time.

PN257

Down the bottom it's signed by David Gresswell?---Yes.

PN258

This particular document it says that commencing Monday, 17 December you have to take a half hour unpaid meal break. That's what it says, right?---Yes.

PN259

Effectively, that was not enforced until you came back in the new year. Is that correct?---Yes, that's when me and George met with David and Justin. This was already out in the Christmas - before the Christmas break.

PN260

This came out before Christmas because it's dated 14 December?---Yes, it was on there beforehand.

PN261

Wattyl decided to enforce the unpaid lunchbreak from the beginning of the new year when work recommenced after the shutdown, correct?---Yes. I think it started then, might have started the week after.

**** WARREN MCDONALD XXN MR VERNIER
PN262

There's a table there. Do you see the table in there which says the preferred lunchbreak and the other possible maximum lunchbreak times that you can take?
---Yes.

PN263

Would it be fair to say that you are now working within the times indicated in that table, taking a lunchbreak within those times?---Yes, it would be fairly consistent, maybe, you know, a minute or two, five minutes, a bit earlier but it doesn't seem to worry the company that much about that anyway.

PN264

You're taking the lunchbreaks now?---Yes.

PN265

Do you understand that the other employees are also taking their lunchbreaks now?---Yes, because I remember we had the conversation with David and he pointed out, you know, like the company's obligated health and safety rules which we all understand, we abide by and you know, we went through this. That's the last - virtually the last we ever heard of it. No one has ever inquired about that lunch since or whatever since this date come out, in 12 months. Not one man from staff has asked me what time I had my lunchbreak. They don't care. All we were told - I said, "All right, we'll have lunch at 12 o'clock like everyone else." He said, "No, you must continue the same way that you've been working."

PN266

Who said that?---David Gresswell. You must have your lunch in those breaks but you cannot shut the - stop at 12 o'clock because it's in the EBA you must continue the process.

PN267

You've had your breaks and the process has continued. Isn't that correct?---Well, that's what I'm saying, no one has ever asked me if I have since January. You're the first person that asked me.

PN268

And you've answered yes. You did have one other conversation, I think with Justin Farrell. It may have been the same conversation that you had with David Gresswell. Justin says that in about September or October 2007 he had a conversation with you and you said words to this effect, right. This is the effect of the words, "It's normal for shift workers to be paid their lunch. I received a piece of paper from Robert Larossi stating my hours." Do you remember saying that to Justin Farrell?---Basically. Virtually, as I said before, you know, saying about when Robert explained it, he was writing things down and that. Actually Justin had a look - I asked Justin to have a look on my file, you know, they keep a file on everyone in the office, but there was no paperwork in there. As I said before, you know, David asked me if I'd have a look at home and I reported back to David and said, "No, I couldn't find anything at home about it." So I said I thought it had been put in the file, no such stuff is. You know, we can sign agreements and that and the company keeps a copy of it. As I said to him, I said, "No, I can't find anything."

PN269

You don't dispute that the context of that conversation occurred at some point in time?---Well, the basics of it, yes. I can't remember the exact wording.

**** WARREN MCDONALD XXN MR VERNIER
PN270

The effect of it?---Well, that's what I'm saying, I can't remember the exact wording of it.

PN271

Yes, but something like that was said by you to Justin Farrell?---Possibly.

PN272

You don't deny it, do you?---I'm not denying it because I can't remember the exact wording. You know, we did discuss it in general terms and that.

PN273

Are you suggesting, just from your last answer, that you signed a piece of paper setting out the terms and conditions of employment?---We sign lots of papers, you know, employment, super, whatever.

PN274

Do you remember signing an employment contract, do you?---Sorry?

PN275

Do you remember signing a contract of employment?---Contract? Don't think we called them contracts in those days.

PN276

Letter of appointment?---I think so. I can't remember, to be honest. As I said, when we were talking about with Justin in general and that, he said, "Well, I'll have a look through your folder," and all that, you know, but there was bugger all information in my folder.

PN277

Nothing further, Commissioner.

PN278

THE COMMISSIONER: Ms Duffy.

<RE-EXAMINATION BY MS DUFFY [11.23AM]

PN279

MS DUFFY: Mr McDonald, a few minutes ago in your evidence I think you said that Mr Vernier is the first person to ask you whether you've taken lunchbreaks since January?---Yes.

PN280

Did anyone ask you whether you'd taken lunchbreaks prior to January of this year?---No.

PN281

I think earlier in your evidence you agreed with Mr Vernier that sometimes you couldn't take a lunchbreak. Was that your evidence?---Yes.

PN282

How often would that have happened?---You're testing my memory now.

PN283

How often, say, in a week?---Maybe once. It's a bit hard to say.

PN284

If I perhaps ask you, in your view did it happen very often?---.....

PN285

I think you've said that sometimes you couldn't take a lunchbreak and I'm wondering if you can tell the Commission, roughly, how often that would occur?
---What do you mean, taking a lunchbreak every day at set times?

PN286

What do you mean when you say you couldn't take a lunchbreak?---Because of the process, you know, stops us from having a lunchbreak. I'm not following your question.

PN287

When you say that you can't take a lunchbreak, exactly what do you mean by that? Do you mean that you don't take a break?---We always have a break but, you know, not in their process, not meaning to say you can't stop at 12 o'clock as you'll get a lunchbreak before or later.

PN288

I have no further questions, Commissioner. Commissioner, unless you have some questions I ask that the witness be excused and allowed to either remain in the courtroom or is free to go.

PN289

THE COMMISSIONER: Thank you, Mr McDonald, you can step down.

<THE WITNESS WITHDREW [11.25AM]

PN290

THE COMMISSIONER: Talking about breaks, we might have a 10 minute break.

<SHORT ADJOURNMENT [11.25AM]
<RESUMED [11.38AM]

PN291

MS DUFFY: If the Commission please, I call Mr Anderson, who is just behind me.

<PETER ANDERSON, SWORN [11.38AM]
<EXAMINATION-IN-CHIEF BY MS DUFFY

PN292

MS DUFFY: Mr Anderson, just for the record, could you state your full name and address again, please?---My name is Peter Anderson, Peter ..... Anderson, sorry, (address supplied)

PN293

What's your current job, your current position?---I'm a plumber operation at colours and chemical and one of the senior operators.

PN294

Have you prepared a statement for today's proceedings?---No, what has been submitted to the union, Robert's statement there.

PN295

Sorry, I'm talking about a witness statement, your witness statement?---Whatever - this statement?

PN296

Yes. Do you have a document in front of you?---Yes, sorry, yes.

PN297

Witness statement of Peter Anderson. That's what I'm asking you about?---Yes, yes.

PN298

Can I get you to confirm that that is your witness statement. It's a document that runs for three pages and it has two attachments?---When you say attachments, what are they?

PN299

The first attachment is a document that has the Wattyl letterhead in the top corner. It's dated 14 December 2007?---Yes.

PN300

That should be marked PA1?---Yes.

PN301

The second one is an email from - - -?---PA2?

PN302

That's right. You've got both of those attachments?---Yes.

PN303

Have you had an opportunity to look through that statement recently?---Yes, I did.

PN304

Are you able to confirm that your statement is true and correct?---Yes.

PN305

Commissioner, are we going to mark the statement?

**** PETER ANDERSON XN MS DUFFY
PN306

MR VERNIER: Commissioner, can I object to just two aspects of that statement, please. I object to the second sentence in paragraph 8. I don't think he can give evidence of what the other shift workers do at the site and I also object, Commissioner, to the attachment PA2. That is an email from I think a former production manager at Wattyl. I think if they want evidence by the former production manager, then they call the former production manager and it would not be proper to get that email through Mr Anderson. They had Mr Larossi here who provided a similar email and he gave evidence but Mr McTaggert is not giving evidence and therefore, that email should not be allowed.

PN307

THE COMMISSIONER: Ms Duffy.

PN308

MS DUFFY: If I deal with the first matter first, Commissioner. I'm happy to take Mr Anderson to that but he has indicated at his paragraph 8 that the basis for that comment is, as far as he knows, he's entitled to give that evidence. I certainly understand what my friend has put to you about the second attachment and I'm sure I don't need to remind the Commission that you're not strictly bound by the rules of evidence, but if you were to apply those rules, clearly the contents of the email itself would be hearsay. The fact that that email was sent to Mr Anderson is something that he can give evidence about. Just applying the hearsay rule, it clearly can't go to the truth of the contents of the document itself without the author of that document giving evidence.

PN309

THE COMMISSIONER: I think in respect of paragraph 8, second sentence, it's an opinion of Mr Anderson and in respect of PA2, again it is hearsay but I note your objection on both matters, Mr Vernier, and I'll take it into account.

PN310

MS DUFFY: Mr Anderson, if you could look at paragraph 8 of your statement, the second sentence there where you say:

PN311

As far as I know this mean taking the lunchbreaks is the case for other shift workers at the Colours and Chemicals site.

PN312

Why do you make that comment?---Yes, because we all do, all of us.

PN313

How do you know that?---Well, that's basic knowledge. I mean, everybody has their lunchbreak. I mean, they take their lunchbreak and as far as I know this always has been.

**** PETER ANDERSON XN MS DUFFY
PN314

Both Mr Gresswell and Mr Farrell, for Wattyl, will have evidence that during conversations with them, you said that sometimes lunchbreaks were not taken. Is that what you said?---Well, I said that in context, like, lunch break to me it's 12 o'clock. Yes, we sometimes got that part. We have our lunch break before and after but if the process is there during our lunch break we work it, but that doesn't mean we have a lunch break. We have it. We have it before or after.

PN315

And is that what happened prior to the introduction of the new policy in January of this year?---Is always been like that. Everyone been having it aware and what generally is, we receive that, we've got to have that lunch break which never has been enforced, right? So as far as concerned, we were always doing what we were doing. But we do have our lunch break.

PN316

So has - - - ?---What I'm trying to say is we don't have a set lunch break at our site. Across the road, they do. They knock off at 12 for lunch, but we have a lunch break if process permit, but if not we have it before or after, but we still have lunch break.

PN317

So what's changed since January of this year?---Nothing. Nothing has changed yet. I mean, all we were given was on January 27 that they want us to have that sort of lunch break and we still doing what we doing.

PN318

Are you now required to record when you have your lunch break?---No.

PN319

Were you required to do that prior to January of this year?---Well, they say they wanted to do it, but nothing's been enforced, nothing has determined that we do.

PN320

I have no further questions.

<CROSS-EXAMINATION BY MR VERNIER [11.47AM]

PN321

MR VERNIER: Mr Anderson, you've had a couple of stints with Wattyl, haven't you?---Yes.

PN322

Who employed you in your first employment with Wattyl back in 1990?---1990 was Peter McTaggart, Production Manager, yes.

PN323

Did you have an interview with him?---Yes.

PN324

During that interview did he mention to you the system of work that you would be doing?---Yes.

PN325

So he mentioned to you that if you took a lunch break you'd work around the process, or you'd take it around the process?---Well, from my understanding what you - - -

PN326

No, answer my question?---Okay. He said, "We work around process but we have our lunch break. We - production sometime will go through our lunch break, but people work around it. Like if, argument sake, there's a process that's going to be done during the lunch time we normally have it before process or after process."

PN327

Or early on in the shift or very late in the shift?---Yes.

PN328

And some employees might not have one?---No. I don't believe anybody goes work without having a lunch break. Everybody do have a lunch break.

PN329

But some of them - - - ?---But no process that goes on for eight hours in our place. The most is two hours solid, yes, and the rest if just monitoring the batches.

PN330

Yes, and you might have a break, say, in front of the computer and you'd monitor the computer?---Sometimes because we sit down in front of computer. Sometimes we've got to sit in the lunch room, right? But you're not working. You're sitting down.

PN331

So when you first commenced employment with Wattyl it was McTaggart that told you all of this, yes, and - - - ?---But the first time when I commence work with Wattyl it wasn't computerised.

PN332

No?---We have a lunch break downstairs. As you know, we separate building. We virtually go down and have a lunch.

**** PETER ANDERSON XXN MR VERNIER
PN333

Now, you finished your employment and started again in 2001?---2001, yes.

PN334

And that was Mr Larossi that then employed you, is that correct?---Yes.

PN335

And did he repeat the process to you as to - - - ?---As per normal, yes.

PN336

Yes, as per normal. So did he tell you that you take a break if time allowed around the process?---He told me as per normal what hours before, everything haven't changed. The only change is the buildings, that's all.

PN337

Well, what else did he tell you? Did he tell you that the last half hour of your shift is a changeover?---It always has been a changeover. Always have, there is no need to explain because we know this, even the new guys that come in, he will tell them, okay, I'm been there before, so he told me everything as per normal what it was before.

PN338

So you're saying the last half hour of each shift is a changeover?---Yes.

PN339

That doesn't happen on a Friday, though, is that correct?---Friday afternoon because there's no one to hand over to.

PN340

So that Friday finishes at 10.46?---Yes.

PN341

Now, if we look at a particular shift, say you're on morning shift?---Yes.

PN342

You start at 7 am?---Yes.

PN343

And you would finish at 3.16?---Yes.

PN344

And the next shift would start at 3?---Yes.

PN345

Changeover is only 16 minutes?---Yes. Then we got wash up time.

PN346

Which is, what, wash up is - - - ?---15 minutes before changeover shift, when the new guys come in, and 15 minutes after when we handle work, we go and do a wash up.

PN347

So you're saying then it's wash up time and changeover, so you would get a payment of overtime for wash up?---Yes.

**** PETER ANDERSON XXN MR VERNIER
PN348

Is that what you're saying?---That's the extra half an hour that which we stay back for.

PN349

Did you mention that in your statement?---Where is it?

PN350

No, never? Have you ever mentioned that to the company, that is, wash up time and changeover, that's what you get paid time and a half for?---Yes. I think I've spoken to this one about it.

PN351

So how was that explained to you then when you first started employment with the company?---This was explained when I started in 1990. We get half an hour, time and a half for handover and wash up. That was as per normal, when I came back, I was told the same thing.

PN352

So your normal work day, your ordinary hours is 7 hours and 46 minutes, right?
---Yes.

PN353

Which equates to a 35 hour week on average?---Yes.

PN354

And you have an RDO every fortnight?---Fortnight.

PN355

Now, your shift is in fact 8 hours and 16 minutes in length, that's a normal shift, that's correct?---Yes, that's the half an hour, yes.

PN356

Which you say that includes, what, a half hour for a paid lunch?---No.

PN357

No?---Paid lunch - yes, it is, yes, sorry, yes.

PN358

And the last half an hour is time and a half which is in effect, if lunch is paid you're then also assuming then, what, that lunch counts as time worked as well, is that what you're saying?---Yes.

PN359

So it's paid and counts as time worked?---Yes.

PN360

And then therefore the last half hour of your shift is in effect overtime?---Yes.

PN361

That's what you're saying?---Yes.

PN362

And the last half hour is paid at time and a half?---Yes.

**** PETER ANDERSON XXN MR VERNIER
PN363

Now, you're aware obviously, aren't you, that overtime is double time for colours and chemical employees?---Yes. That was in - - -

PN364

2003?---2000 where it was certified, on all the time, which always have been, but has been certified all overtime is double time.

PN365

Do you agree it's 2003?---Well, I'm not really sure, but yes, around there.

PN366

Because you weren't there in 2000, were you?---2000 I left for working somewhere else.

PN367

Yes?---Yes.

PN368

So why haven't you demanded double time for the last half hour of the shift?
---See, we didn't know about it until the last guy who left the place, he picked it up. He picked it up and he informed the company about it.

PN369

So you're telling the Commission now that you were not aware of the overtime being at double time?---As you know, I left the company. I came back. Everything was as per normal. I only got - I only inherited all this. I only got, when the guy left and he brought it all up. Explain to Gresswell, "We don't mind everything as per normal," but the company paid us up because they know they were, you know.

PN370

So you're saying you didn't want double time for half an hour?---We can forget, because what he paid Sean Franklin, right, you can't deny the rest, right. You pay us and we just go back to normal, but Mr Gresswell said no. He confident the lunch that which we should be unpaid and that's where he overlaps that half an hour at the end, so. You explain. I don't know.

PN371

Is any of this written down anywhere to your knowledge?---No. I don't think so.

PN372

Where's the wash time?---Well, this is all, like I said, been indoctrinated to us when I first started there in 1990 and every one has been doing it ever since. Is basically like we say, it's a site custom and practice, right? I'm in there, if you want to come the time now, seven years, the guy has been there 30 years and he's been saying the same thing.

PN373

Well, you can't tell me what he's been saying because he's not here to say it. You can only tell me what you're saying?---Well, you want, you can check. I mean, the company has got record of it.

**** PETER ANDERSON XXN MR VERNIER
PN374

When you do a changeover, right?---Yes.

PN375

Which is the last 16 minutes of your shift, what does that entail, what do you do?
---Well, that last half an hour - - -

PN376

No, I'm looking at the last 16 minutes?---16, okay. That is after the changeover. I go down to my clock, if the guy comes up. If he doesn't, I'll hang around. I'll hang around till he comes. There's also why the extra 15 minutes after 3 o'clock. We wait for the operator to come and changeover. If he's not there we are obligated to stay on until we get someone to replace us because we can't just walk away from the process.

PN377

Didn't you get double time for that extra?---That extra half hour. That's the half hour, a quarter to and a quarter past.

PN378

So from, on a day shift, but looking at this on the end of a day shift - - - ?
---Instead of 2.46 - - -

PN379

Let's get one thing straight?---All right.

PN380

You answer my questions?---All right.

PN381

You just answer my questions.

PN382

MS DUFFY: Commissioner, I'd have to object. My friend is arguing with the witness. He's not allowing him to answer the questions.

PN383

MR VERNIER: I want to ask a question and I'd like him to answer it and then - - - ?---Okay, right.

PN384

For him not to interrupt my question, right?---All right.

PN385

THE COMMISSIONER: Slow it all down a bit.

PN386

MR VERNIER: Yes.

PN387

Let's look at the end of, say, a day shift, okay?---All right.

PN388

Now, start 7 am, finished at 3.16?---Yes.

**** PETER ANDERSON XXN MR VERNIER
PN389

At 2.46 you say you're in this changeover period, is that correct?---Yes, yes.

PN390

The employee that's coming in from the next shift, which will be the afternoon shift, commences at 3 pm, correct?---Yes.

PN391

So between 3 pm and 3.16 pm you have a changeover because that's when, in theory, the employee has got to be there so you can changeover?---Yes, yes.

PN392

In that period what do you do, what work do you do?---The process is still there. I'm still looking after the process until he comes in.

PN393

Yes. So he's there now at 3 o'clock - - - ?---I go to the - I explain to him what's going on, whatever got to be done, whatever, and that's it.

PN394

Yes. So you're still doing work between 3 and 3.16?---Yes.

PN395

And you're still doing your normal work and also you are explaining what has occurred during the day for the new operator to take over?---Yes.

PN396

Right. So are you now telling the Commission that between 2.46 pm and 3 pm you have a wash down?---Yes.

PN397

So you wash down before you finish your work?---Yes.

PN398

Doesn't it normally go the other way?---No, no, no.

PN399

Yes?---Either way, one way or the other. You - what you're trying to tell me is, either way, it's either before or after, right? That's the half an hour we're given, okay? I can't tell you we wash up before. Sometimes I'll be busy working till he comes. I'll hand over to him. I'll go and wash up. Either way. It works either way. That's what it is all about.

PN400

So if he turns - - - ?---That's why we're getting paid half already. That's what I was explained years ago. That time and a half for us to finish off or handover, or whatever, is always has been.

PN401

It's always been time and a half for that last half hour?---Always been time and a half.

PN402

The only reason it's time and a half is because if you took a lunch break, sometimes you took a lunch break, sometimes you didn't and therefore it counts as time worked, isn't that right?---Yes.

**** PETER ANDERSON XXN MR VERNIER
PN403

Now, when we look at this system of work, right, it's not just about a lunch break, is it, it's the whole process. Now, let me go through it with you?---All right.

PN404

Obviously you work a shift of eight hours and 16 minutes?---Yes.

PN405

And in that shift you may take a break when the process and time allows you to do that, correct?---Yes.

PN406

And if you take the break then that counts as time worked as well, correct?---Yes.

PN407

And therefore the last half an hour of the shift is effectively overtime, correct?
---Yes.

PN408

But it's been, what, agreed somewhere that that would be paid at time and a half, the last half hour?---Yes.

PN409

Even though the overtime is at double time?---Well, overtime, double time. It's only just recently brought up.

PN410

Well, it's been double time since 2003 and you knew that?---Yes, but listen, that agreement was done by the last union delegate, all right? The last union delegate that left and I was just pushed on and he said, "This is what happened."

PN411

All right?---Ask Sean Franklin.

PN412

I'm just looking at this whole system?---Yes.

PN413

Right, we're describing the system?---Yes, sure.

PN414

And what I've described to you just then, you'd have to agree to that?---It's something - yes, I agree, something that been overlooked, right, and was brought up by the guy who is leaving and he said, "We got done here," and I said, "All right." He brought the matter up with Mr Gresswell.

PN415

You weren't too happy when Sean Franklin made the claim for more overtime, were you?---Yes, because everybody's now losing something, it's more than what Sean Franklin claimed. We're looking we're losing about something like six grand a year.

**** PETER ANDERSON XXN MR VERNIER
PN416

But that's - - - ?---That's everything. That's including lunch and handover.

PN417

Well, that's because you didn't want the company to change this system that you had?---Well, we thought - I - in fact we told David Gresswell that. We don't mind going back to the normal, just as it is, right, but if you paying Sean Franklin, to us that's an admission that you did a mistake there. But you can't expect to pay Sean and tell the rest of you, you're not getting it, right?

PN418

No. But you've been paid your back pay for that, haven't you?---Yes, we have. That's why I was saying, but then we don't mind staying as the normal, just carrying on as per normal, not even - you're not going for a double time. Just as back to where it was, but then Mr Gresswell has brought up, "You're not getting unpaid lunch. You should be having unpaid lunch and the handover is unnecessary." I mean, basically with the work we're doing, I mean, everybody knows we can't just walk away from the work. Is health and safety, which is Mr Gresswell, so, you know, spot on, health and safety. We're doing it and that's why is always has been said, that half an hour is for the safety of the batch, we handover, we explain the next operator that comes in, right, or doesn't comes in, that's why we wait till we get replaced or we ask to stay back. That's what it is.

PN419

And if you stay back you get double time for that, don't you?---Yes, that's the four hour, that's the minimum of four hour we stay back to.

PN420

And you knew that because you were getting that at double time many years ago?
---When we stay back, if we stay back for the four hours, right, that's standard. Is always been that way.

PN421

Can I show Mr Anderson exhibit B3, please. Mr Anderson, I've shown you there exhibit B3 which is a copy of two of your time cards, do you see that?---Yes.

PN422

And the date for those cards is actually 7 March 2006 and 14 February 2006, you agree with that?---Yes.

PN423

So the time for each of the days that you worked on those particular time cards shows a half hour at time and a half, do you see that?---Yes.

PN424

And it also shows one day, you get another half hour at double time?---I'll explain that.

PN425

And another day at four hours at double time?---Yes.

**** PETER ANDERSON XXN MR VERNIER
PN426

So I mean, you were aware even back then in 2006 that overtime is double time, weren't you?---Yes.

PN427

No further questions on that particular document. Now - - - ?---Did you want to ask me about that half an hour?

PN428

No?---All right.

PN429

Now, you've had a number of conversations with Mr Gresswell?---Yes.

PN430

And one conversation we say took place on 4 December 2007. Do you have any recollection of that?---Yes, I think so.

PN431

Have you read a copy of Mr Gresswell's statement that he's made in these proceedings?---No, not really.

PN432

Not really. Yes or no?---No.

PN433

On 4 December there was a meeting between yourself, Justin Farrell and David Gresswell?---Yes.

PN434

I'm not sure if Ms Deleni was in that meeting as well, so not sure about that, can't remember. During that meeting you gave your view that the half hour payment was for the shift - half hour for overtime was for the shift changeover, right?
---Yes.

PN435

That was your view and then David Gresswell explained to you that in order to receive the half hour of overtime employees had to work for eight hours and 16 minutes per day and not the normal seven hours and 46 minutes per day for a 35 hour week, do you remember him saying that?---Yes.

PN436

Yes, and then David Gresswell put it to you that the operators were working through their lunch break for these hours to be possible?---Yes.

PN437

And that it was the more likely reason that the payment for the shift changeover and you reluctantly accepted that?---No. I told David I had to come back with you on that one. I had to talk to the boys about what he's saying, but then that was taken for Gospel so, like I said, he can say what he wants, but okay, say, I don't make decisions for the boys, yes.

**** PETER ANDERSON XXN MR VERNIER
PN438

So David was saying that the reason why you get your half hour overtime at the end of the shift is because you worked through your lunch break and then he gave you the opportunity to provide another explanation for that and you couldn't provide any other explanation, could you?---No.

PN439

Then he also explained to you, this is still in that same conversation?---Yes.

PN440

This is when you explained that the flexibility had to be provided to operators to fit in with the batch resin process?---Yes.

PN441

Do you agree with that?---Yes.

PN442

Then you also said that meal breaks could not be taken as they were at the paint production site across the road?---Yes.

PN443

You know, where everyone went on the break at the same time, you said that?
---Yes.

PN444

Then you also said that breaks were sometimes not taken at all and you said that some breaks were sometimes taken at the start or at the end of the shift to fit in with the process, would you agree with that?---No, no. It fall, the lunch
break - what I say, yes, we work through lunch. That's supposed we knock off 12 for lunch. We be working there, but normally we work - we have our lunch before that, earlier than the boys across the road, or after. It all depends on where we are. That's what I say about being flexible. We're being flexible in that sense, okay. When I say, yes, we work through our lunch break, that's his lunch break across the road.

PN445

Then you also said to David that at other times, the lunch break was simply reading the paper in front of the control screen, do you agree with that?---Like I said, some of us be sitting down in front of the screen, yes.

PN446

And quite often any breaks that were taken were for less than 30 minutes as well?
---I doubt that.

PN447

Sorry?---No. I doubt that, no. Everybody else is normal half an hour break.

PN448

Are you saying that?---No.

PN449

I put it to you that's what you said today?---Well, I don't think so.

**** PETER ANDERSON XXN MR VERNIER
PN450

No, but you could have said that, right?---No, I don't think so. I said, yes, we have our lunch break, right? Lunch break that's half an hour, whatever, right? There's nobody have five, 10 minutes lunch break and go off and do work. I mean, which fellow would cut off their lunch break? Would you?

PN451

Sometimes the process may not allow you to take a lunch break, isn't that right?
---Yes, but I said the flexibility, before or after the process.

PN452

So you're saying you take some sort of break?---Yes. If I got to have my lunch break before the process, I have it. If I know that my process would be towards there, I work it out, I have it after the process. Normally process doesn't take more than one, two hours, what you believe actually manually got to do.

PN453

Then continue on with this conversation, all right?---All right.

PN454

David then said to you that he could not allow operators to work through their lunch break as he'd breached the EBA and the Workplace Relations Act and he had Occupational Health & Safety concerns about that as well?---Yes.

PN455

Do you remember him saying?---Yes.

PN456

He also explained to you that given the fact that they had incorrectly paid the overtime because you had worked through the eight hours and 16 minutes, remember he was saying that, that he would pay the operators for the extra half hour that correct double time rate, do you remember that?---Yes.

PN457

Right, so he's paid you that and you've testified to that already?---Mm.

PN458

Then he explained that despite not agreeing with the practice of working through the lunch, the back payments would be made as overtime, had been sanctioned at that time, do you remember him saying that?---Yes.

PN459

And I think you mentioned that Spiro Vassilakis should have been present, do you remember saying something like that as well?---He was there.

PN460

No. This was early in - - - ?---Yes.

PN461

Now then there was another meeting that took place. This was on 13 December. So it was prior to that note, that date put out about the date about unpaid meal breaks coming out?---Yes.

**** PETER ANDERSON XXN MR VERNIER
PN462

And in this meeting there was yourself, there was Spiro Vassilakis from the union?---Right.

PN463

And then there was Justin and David, do you remember that, do you?---I remember that, yes.

PN464

Again David did a lot of the talking, yes?---Yes.

PN465

And he said that it had come to his attention that operators were working through their lunch break, that it did not fit with either section 607 of the Workplace Relations Act or "our EBA", do you remember him saying that?---Yes.

PN466

And 607 is the meal break provision?---Mm.

PN467

Of the Workplace Relations Act. And then I think David, he showed how - he set up some - he drew some times as to how the shifts would operate, do you remember him doing that?---Yes, he did.

PN468

And he basically said that in order for you to get the overtime at the end of the day, you have to work through the whole process, do you remember him saying that?---Yes, he said.

PN469

And he also said that for Occupational Health & Safety reasons and the Workplace Relations Act and the EBA, that he wanted the operators to take their meal break, do you remember him saying that?---Yes, he did.

PN470

And then Spiro Vassilakis, the union representative, said that he could not support the process of operators working through their lunch break either, do you remember Spiro saying that?---Yes, he did say that.

PN471

And then David outlined the window of time within which to take the break. He said you can take the break within these times, where he - do you remember him talking about that?---He's basically - yes, the window he's giving is basically doing what I'm trying to say. We do it before and after.

PN472

I'm just talking about this conversation?---All right, well.

PN473

All right? So in that same conversation where there was you, Spiro, Justin and David?---Yes.

**** PETER ANDERSON XXN MR VERNIER
PN474

So David was outlining that the break had to begin, at the latest five hours after the shift started, which is what the EBA says in the Act, and commence at least five and a half hours before the shift finished. So that gives you a window in which to take a break, is that right?---Yes.

PN475

Then he said this makes the window 9.46 am to 12 noon for the day shift, do you agree with that?---Yes.

PN476

And then Spiro said he preferred the window to be 11 am to 12 noon for the day shift. Do you remember Spiro saying that?---Yes.

PN477

And then you also discussed the process that sometimes need to be covered by one of the other operators on shift so that the lunch break could be taken. Do you remember that?---Yes, he said that, yes.

PN478

And then you requested that the operators be able to determine when they take their breaks within the time windows nominated as they knew how to best get these into the process. Do you remember saying that?---Yes.

PN479

And David agreed to that suggestion?---Yes.

PN480

Then it was pointed out that if there were any problems with taking meal breaks in the time windows nominated, that this should be discussed with Justin so it could be assessed, do you remember that?---Yes.

PN481

Then it was also - did David also mention that the overtime was required to make up for lost fill-in time, that that would be a management issue?---Yes.

PN482

Do you remember that?---Yes.

PN483

Then you also discussed the back pay and you indicated that some operators would want to be paid to a different bank account, that their pay went into, do you remember saying that?---Yes.

PN484

David said that shouldn't be an issue and then it was agreed that from Monday the 17th the operators would begin taking their lunch break, do you remember that?
---That's what - yes, yes.

PN485

And Wattyl would pay the break for the following week, so they paid the break for the following week and then the unpaid rate commenced after the shut down period?---27 January?

**** PETER ANDERSON XXN MR VERNIER
PN486

Yes. So you agree with all of that?---Yes.

PN487

Good. Now, Justin Farrell also has given a statement in these proceedings and I've just got to put to you some of the conversations that he's mentioned in the statement?---Yes.

PN488

So start with one that occurred in August 2007, all right. So this was probably just after the time that Sean Franklin made his claim for overtime?---Yes.

PN489

So it was just after Justin started work there. Do you have any recollection of that?---Vaguely.

PN490

So Justin says - he was having this conversation with you, it was just you and him?---Mm.

PN491

And you said, "There's always been the practice at Colours and Chemicals of a half hour changeover between shifts paid at time and a half." Do you remember saying something like that to Justin?---Yes.

PN492

And then Justin said something like, "I'm concerned about Occupational Health & Safety issues without breaks"?---Yes.

PN493

And Justin also said, "My main issue is that you take a break," and then you responded, "This isn't about a lunch break. It's about the changeover"?---Yes.

PN494

And then I think Justin used the whiteboard to go through some of the time, the timing issue?---Yes, he was getting a lot of time.

PN495

You remember that?---Yes.

PN496

And then he said to you, "The fact that there is a changeover incidental", you said, "No, that's our changeover, otherwise we go home." Did you say that?---Yes.

PN497

So then Justin says, "You imply you get paid for lunch," and you said, "Yes, otherwise we finish at 2.46," is that right?---Yes.

PN498

Now, Justin also was involved in that conversation that I earlier discussed with you?---Yes.

PN499

With David Gresswell on 4 December?---Mm.

**** PETER ANDERSON XXN MR VERNIER
PN500

I just want to put what Justin has in his statement to you and see if you agree with it?---Yes.

PN501

So this is a meeting between yourself and David and Justin and you say, "The practice is that a half hour changeover is paid at time and a half. We have always been paid for the time we are here." Is that correct?---Yes.

PN502

Then David says, "This creates an Occupational Health & Safety issue. People need to take breaks after five hours work." Do you remember David saying that?
---Yes.

PN503

Then you say, "That may be difficult because the process may not always allow us to take the breaks. That's why we get paid time and a half for the last half hour. We don't want this at double time. Sean Franklin started this. There's always been a gentleman's agreement that overtime is paid at time and a half for the last half hour." Do you remember saying that?---Gentleman's agreement. I may have said.

PN504

Then you also said that, "The employees sometimes work the whole period of the day without formal meal break"?---No.

PN505

You don't remember saying that?---No. When I said those things, I said, "When the employees work through," like, it's just out of context, like, how we work around things, right? Right, "work through", I must be mistaken for saying, "but we work through without a break." Which anybody can tell you, nobody work without having a break. So I don't know how that got into there.

PN506

That's what Justin says you said?---All right.

PN507

Then you also went on to say, "And sometimes the operators will take a break when the process allowed them to do that"?---Mm.

PN508

"And never a fixed time and was often for less than 30 minutes." Do you remember saying that?---No, no. I said we had a break, but I didn't give any break minutes.

PN509

No, all right. "As a result because they worked around the process as best they could and did not take a fixed break at 12 pm, as per the paint site, the operators were somehow owed a half hour if they considered they were doing the business a favour by not ever stopping the process." Do you remember saying that?---No, no.

**** PETER ANDERSON XXN MR VERNIER
PN510

Are you sure?---Yes.

PN511

Did you say something like that?---Well, all I've ever said was, yes, we work through our process, yes, some of us don't have that lunch break like, across the road, right. That's as far as it goes. I don't know what else needs to be said, though. Where was that being said?

PN512

This was around about 4 December?---No, no. Because all I know is when I came back I received this - the guys, they hounded me at this and say, "Why did I agree all this?" I said, "I never have." Right? And all of a sudden now, this comes up. Well, what can I say? Right? But I'm telling you what I've always been saying, you talk about time breaks and all that. I guess I've said, yes, we work through our lunch break but that is - that 12 - we assume 12 o'clock, the lunch break, but all this - - -

PN513

Right. But you understand all of these questions that I'm asking you is in relation to the process that occurred prior to January this year?---Yes, yes.

PN514

And you've answered those questions on the basis that it's - this system of work that you had in place prior to January this year?---Yes.

PN515

Now, there was also another meeting that occurred, Justin's not sure, somewhere around December or January, between yourself, David, Spiro and this is what he says was said. So I'm going to tell you what he says and you can respond, okay?
---All right.

PN516

So part of the conversation you would say, "We've always worked around the process." Fair enough?---Yes.

PN517

Then Justin says, "I just want to reinforce the Occupational Health & Safety issues that that raises." So do you remember him saying something like that? You've got to answer?---Yes.

PN518

You can't nod. You've got to speak your answer?---All right. Sorry.

PN519

We can't record a nod?---Sorry.

PN520

Then you say, "Why not come to a gentleman's agreement as we've always done? You pay us time and a half for the last half hour and then we don't have to necessarily take breaks at these times on the memo and shut the plant down all the time"?---Well, when I said that, that is - was when - that claim put in for double time. I said, "Don't worry about it. Forget about double time. Because still stands is time and a half." We did not say something about shutting the plant down or what. We just want to stay as it is, okay, because we don't want double time. We just - as always has been, time and a half, that's all we wanted. Right? We want to follow what Sean did.

**** PETER ANDERSON XXN MR VERNIER
PN521

Yes. Then Spiro says, "Peter, I can't be a party to a deal like that. The times that David has mentioned are correct. Lunch breaks should be taken." Do you remember Spiro saying something like that?---He probably would have, yes, yes.

PN522

And then Justin said, "Well, how long has this been going on for?" And you responded, "As long as I've ever been here." Is that right?---Yes.

PN523

Now, just to go back on a shift, say, the night shift on a Sunday, that's the beginning of the shift roster, is that right?---Yes.

PN524

That commences at 11 pm?---Yes.

PN525

And that finishes at 7.16 the next morning, Monday morning?---Yes.

PN526

You get paid your half hour - - - ?---For Sunday night, what - - -

PN527

Do you get that?---Yes, half hour.

PN528

The only time you don't get it is on a Friday, is that right, when you work the last shift on the Friday because there's no changeover?---There's no changeover.

PN529

And I know that some of these conversations that we've been talking about, you want this gentleman's agreement for time and a half for that half hour?---Yes, because we - - -

PN530

Why don't you want double time?---No. We don't want to pursue what Sean did. Sean said we're getting done by not getting paid double time and we were thinking, it's been going on like that, we leave it as it is. That's what I thought. It's a gentleman's agreement. We don't worry about it. Go back to normal, everything just left as it is, but then all this was brought up, so that's it, that's - - -

PN531

But you know under the EBA - - - ?---Yes, it's double time, yes, but like I say, it's always been like that, as you say, we leave it as it is. We're not going to put no claim in, nothing, right? The only one that did, the guy who left, he's the one that put the claim in and I specifically told Mr Gresswell, "Are you going to pay Sean, you can't say you're not paying us, right, because others will be saying, 'Why?' But then if you want, we just leave it as it is. Company will not be out of pocket. Just leave it as it is." That's - you know, no claiming, but Mr Gresswell brought up this lunch and this handover, so that's where everything's, you know, confusing.

**** PETER ANDERSON XXN MR VERNIER
PN532

And the company changed your system of work since January this year?---Well, this was - this - nothing's changed. We're still doing what we're doing. We still working as per normal, what we been doing - what I've been doing since I went to the company, Wattyl has been to the company, or any new fellow that be in the company, we been doing it the same, same process, same thing.

PN533

But the company hasn't required you to work through lunch?---No.

PN534

Has it required you to work through lunch?---No.

PN535

No?---Right. We don't work through lunch. We have our break. We do have our break. But when I say we work through lunch, that's the time, yes, we don't stop there.

PN536

The company hasn't required you to work half hour of overtime at the end of the shift, has it?---Well, we always mistake for quarter past, we always have.

PN537

But it doesn't count as overtime because - does it?---Well, since January 27, we are told it's not being paid, at time and a half. It's stopped, everything, and - - -

PN538

And you would accept that the company can do this under the EBA, can't you?
---Well, no, because what's been happening from day one, and all of a sudden now it's changed, that you taking away our paid lunch, you're taking away our handover. Those are the things at which boost our salary. Now, you taking away, what, about six, seven grand a year, just - - -

PN539

But under the EBA the company can do that?---Under the EBA, yes, the company can do that, but we having this site custom and practice for so many years. And all of a sudden now it's, "No, you've not having it." Because why? Sean Franklin put a claim in that hurt the company and company said - look at it and said, "No. I'm taking away your paid lunch and your handover." So is that fair?

PN540

But David also mentioned to you, didn’t he, there was occupational health and safety reasons?---Yes, he did. He did emphasise five hours. Yes, but like I told David, yes it’s five hours, nobody works straight, but nobody at the working place worked five hours straight, from 7 o’clock till what? Five hours, nobody does that. No one. No one just don’t do lunch.

PN541

No, but you can take smaller breaks; you have tea breaks, don’t you?---Yes, we have tea breaks. Yes, we have a lot tea breaks(sic). For heaven’s sake, the lunch room is just two doors from our control room.

**** PETER ANDERSON XXN MR VERNIER
PN542

Do you take your tea breaks?---Yes I do. I take my tea break. I have my lunch. Gee, I bring in my lunch box with me. Sometimes they say I’m having a - like a picnic. We all do. So if you try and say that I worked through five hours, if I was to say yes, I’m lying. I do have my break but no process in our site that we work straight five hours. Anyone says that, I’ll be laughing at him because I know what - what it entails. But to us it’s to virtually stop the process. I mean, if you were to do that, if something happened to the process, we get blamed for it, all right? David knows. But the company say “Oh, don’t worry. We cover it”. But at the moment now nobody is to do overtime. Nobody is to do nothing.

PN543

Do you know a Lew Parrister?---Yes.

PN544

Who is that?---He’s one of the operators there.

PN545

If he ever takes a break is it always at the beginning of the shift; do you know that?---I don’t know.

PN546

You don’t know?---He’s - he’s from a different shift.

PN547

All right?---I don’t keep tabs on a lot of people on the other shift.

PN548

No, so when you say “As far as I know that all the other shift workers take breaks as well”, you don’t know about Lew Parrister?---Well yes, he probably has his break.

PN549

All right?---Yes.

PN550

But you don’t know?---He’s - no, no.

PN551

You don’t know about that, do you?---Yes. Yes.

PN552

Do you know about that?---Yes, I know him. He’s a worker.

PN553

Yes, okay?---Yes.

PN554

But you just said he’s in another shift so you don’t know about his breaks, do you?---Yes. Now listen, you - you trying to blow me up some. I said yes. The other shift workers they do what I do, right? But what he does on his shift I don’t know.

**** PETER ANDERSON XXN MR VERNIER
PN555

No?---All right?

PN556

You only know maybe what the people on your shift do; is that correct?---Yes.

PN557

Okay, so when you say “As far as I know this is also the case for all other shift workers at Colours and Chemicals, that they take a 30-minute break”, you’re talking about the shift workers on your shift?---Yes, on my site. Yes.

PN558

Yes, on your shift?---Yes.

PN559

Yes, which is how many; two others?---Yes.

PN560

There are nine all up?---Yes.

PN561

Okay, so you’re giving evidence that you know what basically three of you do
?---Yes.

PN562

Okay. You spoke to McTaggert recently?---Yes I did.

PN563

What did you say to him?---I told him about what’s happening here and I ask him can you confirm with me being the first production manager that employed me, and yes, he did - he sent me an email and said “Pete this is what it is”. So I forwarded it to - - -

PN564

Have you got a copy of his email in front of you?---Yes. Yes.

PN565

Do you see the second paragraph of that email? It says “To answer your question”?---Yes.

PN566

What was your question?---Well I asked him “Peter, can you confirm that we have a paid ones?”. He said “Yes you have”.

PN567

Okay?---That’s all.

PN568

Did you ask him about the changeover?---Yes.

PN569

You did?---Yes.

PN570

But you didn’t mention anything here about the changeover?---There’s a bit shift overlap(sic).

**** PETER ANDERSON XXN MR VERNIER
PN571

All right, that’s the changeover, is it?---Yes.

PN572

Did you ask him to confirm that there was never any specific time for lunch?
---Well I didn’t ask him that.

PN573

No?---All I did was I asked him can you confirm with me about the paid lunch and the - and all the - which he did. He sent me this email and I forwarded it to Yasser.

PN574

Okay, then you also had some recent conversations with Robert Larossi?---Yes I have.

PN575

What did you ask him?---I told him what’s happening.

PN576

Yes?---About this lunch break and all that. I said -Peter McTaggert gave me one, but he’s been there since - he left since 1996, right? And I said he would help because he’s the last boss of which Justin Farrell replaced.

PN577

Yes?---Right? And he said “Yeah, it will be no problem in giving evidence of what’s happening at work”.

PN578

All right, and he sent you an email?---Hey?

PN579

Robert sent you an email?---Yes, he did. Yes, he did.

PN580

You have read it?---Yes. I don’t have his email here with me.

PN581

No, I’ll read a bit out to you?---All right.

PN582

Robert says:

PN583

As I can remember, the normal procedure for lunch/meal breaks in handover at C and C during my period as production manager, which is from January 2000 to May 2007, was that the lunch/meal breaks were paid for and no time was deducted from the period on site.

PN584

Do you agree with that?---Yes.

PN585

“As it”, being the lunch break, “was taken if time allowed”?---Yes.

**** PETER ANDERSON XXN MR VERNIER
PN586

Do you agree with that?---Yes.

PN587

“Between processes so as not to permit any down time of the kettles/filling”?
---Yes.

PN588

Right, so Robert’s evidence is, according to this email, that if time allowed you took a lunch break?---Yes.

PN589

Great.

PN590

MS DUFFY: Commissioner, that’s not fair and that wasn’t his evidence, particularly as my friend has had the opportunity to put that to Mr Larossi in his oral evidence.

PN591

MR VERNIER: That’s his evidence in an email. He swore that as true and correct. What else are you meant to do?

PN592

MS DUFFY: Commissioner, he was asked specifically about what that meant and we may need to have this debate in the absence of the witness but my submission is it has been put out of context in the way that it has been put to Mr Anderson.

PN593

THE COMMISSIONER: It would have been desirable, I think, if the witness had a copy of the email. But I’ll come back to that when I read the transcript.

PN594

MR VERNIER: So you agree with what I’ve read out to you about - - -?---Yes.

PN595

Mr Larossi gave evidence that the changeover occurs 15 minutes at the beginning of the shift and 15 minutes at the end of the shift; do you agree with that?---What do you mean beginning of - when we take - yes, at changeover.

PN596

Yes?---Yes.

PN597

Do you agree with that?---When we come on the shift I take over from the big operator and then - let me talk you through it. Yes, the operator’s hand - hand-overing to me. That’s his 15 minutes, and when I hand over that’s my 15 minutes to give over, yes?

PN598

But you’re saying that the time and a half occurs for the last half hour of the shift, don’t you?---Yes.

**** PETER ANDERSON XXN MR VERNIER
PN599

Right. It doesn’t affect the first 15 minutes of the shift?---That is part of the shift that overlaps.

PN600

Yes?---But the shift that’s given to me, the same.

PN601

Okay?---Yes?

PN602

Nothing further, Commissioner.

PN603

THE COMMISSIONER: Thank you.

PN604

Ms Duffy?

<RE-EXAMINATION BY MS DUFFY [12.34PM]

PN605

MS DUFFY: Mr Anderson, do you still have your time cards in front of you; I think they might be marked B3?---Yes.

PN606

You indicated earlier in your evidence, some time ago now, that you wanted to explain the references to overtime. I think it was particularly in relation to the card from 14 February 2006?---Yes.

PN607

What did you want to say about that?---Well, when he was asking me about that Sunday - no, sorry, not - not the 14th. The 7th, where at 7.46 - - -

PN608

Sorry, I might have got mixed up?---- - - half an hour and half an hour. That time - double time, half an hour. That’s the Sunday night where we start the shift at 11. I don’t know. They - they work out the pay officer - if they pay us half an hour at double time that works out for that one hour on Sunday night. Being a Sunday night.

PN609

I have nothing further, unless there’s something else you want to say Mr Anderson?---No.

PN610

I have no further questions.

PN611

THE COMMISSIONER: Thank you.

PN612

Thanks Mr Anderson. You are excused?---Thank you.

<THE WITNESS WITHDREW [12.35PM]

PN613

MS DUFFY: Commissioner, that concludes the evidence for the union.

PN614

THE COMMISSIONER: Yes.

PN615

MS DUFFY: So we’re really in the Commission’s hands as to how you want to proceed from here.

PN616

THE COMMISSIONER: Is it an appropriate time?

PN617

MR VERNIER: Probably if we can just have an hour and then we’ll come back at, say, 1.30 and then probably wrap the whole thing up by the end of the afternoon.

PN618

THE COMMISSIONER: All right. Could I ask for some indulgence and we make it an hour and a quarter?

PN619

MR VERNIER: Absolutely, yes.

PN620

THE COMMISSIONER: All right.

PN621

MR VERNIER: I don’t know how long Ms Duffy’s going to be with my witnesses. Are you going to be terribly long?

PN622

MS DUFFY: It’s a little difficult to know, Commissioner. I should indicate that I spoke to Mr Vernier earlier today and neither of us thought it would run
over - well certainly to too much into tomorrow. So I suppose in the interests of not having everyone sit again tomorrow it would be good if we could get through matters today. I wouldn’t think that we have any - it will just be, I suppose, closing submissions really, Commissioner, that we may run out of time with.

PN623

THE COMMISSIONER: All right.

PN624

MS DUFFY: We can either truncate those or perhaps - - -

PN625

THE COMMISSIONER: Well we can sit later or you can put your final submissions in writing if you wish. We’ll play it by ear.

PN626

MR VERNIER: Yes, because we don’t have the transcript today.

PN627

THE COMMISSIONER: No. If it’s an advantage to have the transcript well then basing submissions in writing is available.

PN628

MR VERNIER: Yes, thank you.

PN629

MS DUFFY: Thanks, Commissioner.

PN630

THE COMMISSIONER: All right. I’ll adjourn until 1.50. Thank you.

<LUNCHEON ADJOURNMENT [12.37PM]
<RESUMED [2.05PM]

PN631

THE COMMISSIONER: I’m sorry about the delay.

PN632

MR VERNIER: That’s okay.

PN633

THE COMMISSIONER: Yes, Mr Vernier?

PN634

MR VERNIER: Yes, I think it’s the respondent’s turn now Commissioner so I’ll just open very briefly. What I would like to do is just to take you through some of the key provisions in the agreement, so I’m looking at the 2008 - or the variations that occurred in 2008 by an order made on 14 July 2008 by Commissioner Cargill. So I’ll look at that document. Obviously clause 6(b), which is the custom and practice clause, is the one which the union is relying upon to include a term or terms in the agreement. We say that if there is a custom and practice, which obviously we don’t admit, that the custom and practice cannot be inconsistent with the express terms of the agreement. So this agreement must take precedence.

PN635

Apart from clause 6(b) then I would like to take you to clause 24, Commissioner, which is the day work conditions. So clause 24(a), the second sentence says:

PN636

Such ordinary hours will be worked Monday to Friday inclusive in days of seven hours and 46 minutes each continuously, except for meal breaks between 6 am and 6 pm.

PN637

So clause 24(a) specifically excludes meal breaks as part of the hours of work, and that’s for your day worker. So we have two day workers in these proceedings, Mr Hussain and Mr Charlesworth. We know that Mr Hussain gets the benefit of the extra half hour at time and a half at the end of the day, or did get it prior to January of this year, and that’s in the evidence. So the specific provisions in this agreement prohibit him from doing further. If we go to 24(i) it says:

PN638

Except as provided for in clause 24(f) -

PN639

Which is up on Sunday and public holiday work:

PN640

Where Wattyl decides that it requires overtime to be worked on any given day it may determine the number of people it requires for operational needs. Overtime will only be worked at the express request of an authorised representative of Wattyl who would normally be a position equal to or more senior than supervisor. This clause takes precedence over existing customs and practices on all sites.

PN641

So the overtime provisions for the day workers in this case must automatically fail for the two day workers. They cannot receive the benefit of any orders that you may make, if any, in relation to this proceeding. You cannot have a custom and practice which is inconsistent with the terms of this agreement. The next clause is clause 26, Commissioner, which is the shift work provisions. There are two types of shift workers; the continuous shift workers and other than continuous shift workers. So it follows a fairly standard practice that a continuous shift worker has a paid crib rate, so that’s expressed in this agreement. Now the employees that we are talking about in this particular dispute are not continuous shift workers, because continuous shift is defined in appendix A, which is:

PN642

Any work carried out on the consecutive shift of employees throughout the 24 hours of at least six consecutive days.

PN643

So the work pattern here is not 24 hours of at least six consecutive days. They are other than continuous shift workers. So if you are a continuous shift worker this agreement expressly provides for your paid crib break; your paid meal break of 20 minutes, and that’s part of your ordinary hours. These employees fall into the next category which is clause 26(c), which is other than continuous shift work. The ordinary hours of the employees at Colours and Chemicals is set out by 26(c)(iv), which says:

PN644

Such ordinary hours will be worked continuously except for meal breaks at the discretion of the employer.

PN645

So the meal break is not included as part of the continuous work, so it cannot count as time worked under this particular agreement. then there’s the provision for rosters, so:

PN646

Shift rosters will specific the commencing and finishing times and ordinary working hours of the respective shifts.

PN647

So we say that what occurred in December, January this year was within the company’s power to dictate to the employees to say “Well, okay, maybe you’ve had your lunch break paid or you haven’t taken a lunch break. Now we require you to take a break. It will not be paid and we do not require you to work overtime for that last half an hour of the shift”. That is within the ability of this agreement, Commissioner, because overtime which is clause 27(i) is:

PN648

Wattyl may require any employee to work reasonable overtime.

PN649

So again overtime is at the discretion of the employer. We say that whatever the system of work that was occurring with the shift workers, Wattyl has the capacity to change that system of work. Wattyl has done that and really there is no order that you can make to change that because Wattyl has acted under this agreement and, with all due respect, there is really no order that you can make in this particular dispute. You cannot alter the terms of the agreement because there is only one way to do that and that is by the provisions in the Workplace Relations Act and we say that we’ve acted in accordance with the agreement. We can set the hours of work; we can set the times that they take a break; we can determine that the break is unpaid, because that’s what the agreement says; and we can determine when to offer overtime, and that has been done.

The meal provisions, they’re contained in clause 32 which basically tells you when you can take a meal break. But the fact that the meal break does not form part of the ordinary hours of work is in the shift provisions which I indicated earlier, Commissioner. So they’re the main clauses that we focus on in this case, out of the agreement. Our case is fairly simple. We say there is a lack of certainty in this process or in this system of work that was adopted by the Colours and Chemicals employees. We have heard evidence already this morning from the former managers and the most recent former manager to be there, which was Mr Larossi. His evidence was inconsistent with the evidence of the employees. The evidence of the employees themselves also is inconsistent in what they’re saying as to reasons why certain overtime - or why the half hour was paid at overtime rates and why it was only paid at time and a half and not double time. What we say is you cannot get around the express terms of the agreement by a custom and practice if that is proved. The agreement takes precedence.

PN650

Commissioner, we only have two witnesses this afternoon, Mr Gresswell and Mr Farrell, who will give evidence, and in light of that short opening I would seek to call Mr Gresswell.

PN651

THE COMMISSIONER: Thank you.

<DAVID IAN GRESSWELL, SWORN [2.14PM]
<EXAMINATION-IN-CHIEF BY MR VERNIER [2.15PM]

PN652

MR VERNIER: Mr Gresswell, just for the court record can you just please state your name, your address and your occupation?---My name is David Gresswell. My address is (address supplied) and my occupation is operations manager for Wattyl Paints.

PN653

Have you prepared a statement in these proceedings?---Yes.

PN654

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

PN655

Do you say that that statement is true and correct?---Yes it is.

PN656

Do you adopt that in the witness box?---Yes.

Your statement has five annexures to it from A to E; is that correct?---That’s correct.

PN657

You adopt those annexures?---Yes.

PN658

Commissioner, I tender the statement.

PN659

THE COMMISSIONER: Thank you.

EXHIBIT #B5 STATEMENT OF DAVID IAN GRESSWELL WITH FIVE ANNEXURES

PN660

MR VERNIER: Mr Gresswell, in relation to the proceedings that we are here for, you made a particular decision for the Colours and Chemicals site?---Yes.

PN661

In relation to the taking of meal breaks?---Yes.

PN662

Can you explain to the Commissioner why you made that decision
?---Commissioner, I made that decision based on the Workplace Relations Act and my reading of that, section 607 which says that no employee should work for more than five hours without an unpaid meal break. Our EBA does not allow us to pay people for a meal break and I had some safety concerns with people working through their break and not having that break that we should be giving them.

PN663

Was there any cost considerations in those - - -?---Well there are. The business, by my calculation, would stand to save around $60,000 per annum which is slightly more than one - what one employee would cost us for a year.

**** DAVID IAN GRESSWELL XN MR VERNIER
PN664

Is it your view that you acted within the terms of the agreement?---Yes.

PN665

Commissioner, I have no other questions.

PN666

THE COMMISSIONER: Thank you.

PN667

Ms Duffy.

<CROSS-EXAMINATION BY MS DUFFY [2.17PM]

PN668

MS DUFFY: Mr Gresswell, you say that this issue surrounding the lunch breaks came to light when an employee by the name of Sean Franklin left the company and suggested he had not been paid properly for overtime; is that right?---That’s correct.

PN669

So prior to that do I take it that you had no knowledge that employees were being paid for their lunch break?---That’s correct.

PN670

Is that something that you should have known? You have been the operations manager since 2002; should you not have known what people were being paid?
---I delegate my - to my manager to operate under the terms that they should.

PN671

So it’s the production manager, is it, who you say is responsible for paying employees correctly?---Well no. It - the production manager is not solely responsible, but I would choose to let him run the operation and bring to my attention anything that I need to know about.

PN672

So for approximately five years or something just short of that you really had no idea that the employees at Colours and Chemicals were being paid for their lunchbreak?---Until May 2007 that’s correct.

PN673

Perhaps I should ask you directly; did you have any knowledge of the arrangement whereby employees were paid time and a half for half an hour each day for what is called shift changeover?---Can - can you repeat the question please?

PN674

Did you know about that; that employees were being paid time and a half?---Not until the same time, May 2007.

PN675

Again, shouldn’t someone in your position know what overtime is being paid to employees?---No, I don’t believe it is - I need to know everything that’s happening all the time.

PN676

Did you have any understanding of why there were being paid time and a half for half an hour each day?---Well not prior to being made aware of this situation.

PN677

Again, you have only become aware of that in about May 2007?---That’s correct.

PN678

When you started to investigate this matter that Mr Franklin raised?---That’s correct.

**** DAVID IAN GRESSWELL XXN MS DUFFY
PN679

Once Mr Franklin raised that matter it led to quite a significant amount of back pay being paid to employees for overtime, didn’t it?---It did.

PN680

You were not happy about that, were you?---Sorry?

PN681

You were not happy about having to pay out that sort of amount of money?
---Well I’m not happy that the company has to pay money where it shouldn’t, but I’m not sure what you mean by I weren’t happy(sic).

PN682

Well, I mean, were you happy to have to pay out that money to employees?---I’m not - I’m not - - -

PN683

MR VERNIER: Commissioner, that’s a question that doesn’t really make sense. Whether Mr Gresswell is happy or not is irrelevant.

PN684

THE COMMISSIONER: I think it’s a reasonable question .

PN685

MR VERNIER: Whether he’s happy - - -

PN686

THE COMMISSIONER: I’m not sure where it’s leading to, but anyway.

PN687

MS DUFFY: Perhaps if I put it a different way.

PN688

Mr Gresswell, you have said that, for instance, there are significant savings in not paying employees for the lunch break?---That’s correct.

PN689

What did it cost you to make up these overtime underpayments?---I believe the number was around $50,000 to $60,000.

PN690

Given what you have said previously in your evidence, I think you indicated that you’re not happy about having to pay out money that you don’t think the company really should have, and that payment would have fallen into that category, wouldn’t it?---The back payment?

PN691

Yes?---Well again I’m not sure what - whether I’m happy or not - why I’m answering that question. I don’t - you know, I’m not sure what - what sort of answer you want me to give for am I happy about it?

PN692

MR VERNIER: That’s irrelevant, whether Mr Gresswell is happy or not. It’s either payment has to happen under the agreement or it does not. It’s not about him being happy or not.

**** DAVID IAN GRESSWELL XXN MS DUFFY
PN693

MS DUFFY: I cannot understand my friend’s objection, Commissioner.

PN694

MR VERNIER: It’s irrelevant.

PN695

MS DUFFY: I mean, I’m entitled to ask Mr Gresswell his view as to how these arrangements came into place and the history in relation to that. I might not be perhaps phrasing it as well as I can, but I’ve also got to be content with the witness’s answers.

PN696

THE COMMISSIONER: Yes, all right.

PN697

MS DUFFY: Mr Gresswell, are you aware of any system by which lunch breaks are recorded in the Colours and Chemicals area at Wattyl’s operations?---No.

PN698

That’s as it stands today, they’re not recorded, as far as you understand, is that right?---That’s correct.

PN699

They were not recorded prior to the change to the lunch break practice in January of this year?---No they were not.

PN700

I take it that your evidence is not that employees actually were no taking lunch breaks; you don’t believe that, do you?---No I do believe the employees were not taking their lunch breaks.

PN701

Your evidence to the Commission is that employees for a number of years, several years, did not take lunch breaks; they worked for eight hours and 16 minutes without a break?---That’s what I was told, yes.

PN702

Who do you say told you that?---The employees told me that.

PN703

Can you be a bit more specific about that?---In discussions that I had with Peter Anderson early in December, certainly my understanding of what I was told that employees worked through their lunch break at times. They had to work - they had to take their breaks around the process, which meant that sometimes they did not get a break and therefore worked through. It sometimes meant that they sat in front of their DCS computer control system, which to me is not having a break, and sometimes they had a break at the start - the very start of the shift or at the very end of their shift, because they couldn’t fit it in when it should have been their break time. I was told that they could not have breaks operate on the resin site the same as the paint site because of the process, and that’s why these practices were happening.

**** DAVID IAN GRESSWELL XXN MS DUFFY
PN704

But the difference between the paint site and the resin site is there were set times for lunch breaks, weren’t there, at the paint site?---That’s correct.

PN705

When you say that employees would take breaks at either end of the shift rather than at the lunch break, that’s really an issue of timing, isn’t it? You mean they’re not taking a break in the middle of the shift. They’re still taking a break, aren’t they?---They’re taking a break but they’re not taking a break with - by - they’re working more than five hours in that scenario to have a break.

PN706

So they might, might they not? But not in every case; depending on exactly when the break was taken?---Well if they take a break at the start or the end of the shift they have to work more than five hours.

PN707

So are you suggesting that people would effectively clock on and immediately take a half hour break?---That’s what I was told.

PN708

Did you observe any of these practices yourself?---No, not me personally.

PN709

Do you spend any time at the Colours and Chemicals part of the operation?---Yes.

PN710

Have you seen any employees actually taking lunch breaks?---I can’t be specific. I can’t answer that specifically, whether I have or haven’t.

PN711

You’re saying that you can’t recall ever seeing an employee take a lunch break, so sitting in the canteen for instance or the lunch room?---No.

PN712

The time and a half payment for the changeover of shift really had nothing to do with the issue of the lunch breaks, did it; it’s a separate payment is what I’m putting to you?---Can you repeat the question?

PN713

The payment for the time that people spent changing over shifts is really nothing to do with the lunch breaks, is it? It’s payment for time worked for a different purpose?---Well I don’t - I don’t understand how you get paid for a shift handover if you’re not getting paid for a lunch break.

PN714

Sorry, neither of us is understanding. I don’t understand your answer. What do you mean by that?---Employees in the system of work that was being - that people were being paid for, employees were being paid for eight hours 16 minutes per day and that included a handover between shifts. To get to eight hours and 16 minutes per day, because they started at 7 o’clock in the morning for a day shift, finished at 3.16 in the afternoon, which is eight hours 16, it means that for every minute, every hour they were at work they were being paid, which means they’re getting paid for a meal break.

**** DAVID IAN GRESSWELL XXN MS DUFFY
PN715

Well perhaps if I put it to you a different way, so that really the only relationship between that overtime payment for the last half hour and the paid meal break is that because employees were paid for the meal break or it was counted as time worked, it then pushed them into overtime for the last half hour; is that right?
---That’s how I understood it, yes.

PN716

I have no further questions.

PN717

THE COMMISSIONER: Thank you.

PN718

MR VERNIER: Nothing arising.

PN719

THE COMMISSIONER: Thank you, Mr Gresswell. You are excused.

<THE WITNESS WITHDREW [2.28PM]

PN720

MR VERNIER: I call Mr Farrell, Commissioner.

<JUSTIN CHARLES FARRELL, SWORN [2.28PM]
<EXAMINATION-IN-CHIEF BY MR VERNIER [2.30PM]

PN721

MR VERNIER: Mr Farrell, just for the record can you just please repeat your name, address and your occupation?---Yes. Justin Charles Farrell. I live at (address supplied). My occupation is production manager for the resins division at Wattyl Paints in West Footscray.

PN722

You have prepared a statement for these proceedings, haven’t you?---Yes I have.

PN723

Have you got a copy of that with you?---I do, yes.

PN724

Do you accept that your statement is true and correct?---I do, yes.

PN725

Your statement has a number of annexures to it. There are three annexures, A, B and C; correct?---Yes, I have all three. Yes.

PN726

Commissioner, I tender that statement.

EXHIBIT #B6 STATEMENT OF JUSTIN CHARLES FARRELL WITH THREE ANNEXURES

PN727

MR VERNIER: Mr Farrell, I just want to ask you a couple of questions. If you can turn to annexure A to your statement. Annexure A?---I’m sorry. Yes.

PN728

Do you recognise that annexure?---I do, yes.

PN729

That’s a letter from Mr Gresswell. Based on your observations what can you tell the Commissioner about the employees taking lunch breaks from January of this year at the Colours and Chemicals site?---The - the half an hour meal break?

PN730

Yes?---From - from my observations and - and obviously I only share one shift with - being a three - three rotating shifts, but my observations are that the meal breaks are being taken within - within the window, most likely the column on the right, the majority on the right. But they are being taken within that window, yes.

PN731

The employees, are they working their normal shift hours?---Yes, they are. Yes.

PN732

Do you require them to work any overtime?---As time - as it is required but,
yes - to cover other shifts sometimes, but yes.

**** JUSTIN CHARLES FARRELL XN MR VERNIER
PN733

Not within their normal shift?---Not within their normal shift, no. No.

PN734

No further questions, Commissioner.

<CROSS-EXAMINATION BY MS DUFFY [2.32PM]

PN735

MS DUFFY: Mr Farrell, you started with Wattyl towards the end of July, I think 23 July 2007; that sounds right?---That’s correct, yes.

PN736

I take it that before that time you would have had no knowledge of the practices of the site?---None whatsoever. No.

PN737

Soon after you started Mr Gresswell asked you to look into this issue in relation to paid lunch breaks and did he explain to you that the impetus for looking into that was a complaint that had been raised by a former employee about overtime?---The initial impetus was for me to check to see if meal breaks were being taken within a half an hour timeframe, within a five hour timeframe, and I - I subsequently found out that there had been a claim put in by a former employee as well.

PN738

So that wasn’t mentioned to you at the time that Mr Gresswell initially asked you to investigate the lunch breaks?---About - about a week after that it was, yes. But initially it was an OH&S issue.

PN739

As far as you’re aware the taking of lunch breaks is not recorded at the Colours and Chemicals site, is it?---It’s not, no.

PN740

It wasn’t recorded prior to January this year?---That’s correct.

PN741

It’s still not recorded now?---It’s not recorded, no.

PN742

So how can you say with any certainty when those lunch breaks are taken?---Only based on my observations in the - in the time that I work, which is approximately 8 am to 5 pm.

PN743

During the time that you’re present have you observed employees taking lunch breaks?---I have, yes.

PN744

I put it to you that was prior to January this year that you observed employees taking lunch breaks?---Yes, I did. I - - -

PN745

And that has continued post the change to the arrangement?---Yes.

PN746

So the real problem is, isn’t it, that the lunch breaks were counted and paid as time worked? It wasn’t that people were actually working for more than five hours?---I - I initially I don’t believe so. I - I believe there were instances of people working longer than five hours without taking any - any form of break.

PN747

Do you have any documents or other evidence to back that up, or was that just your observation?---Observation and conversation with operators at the time.

PN748

What is your understanding about the overtime payment for the shift changeover?---Well I - I don’t recall it as being necessarily a shift changeover. I’m of the - of the understanding that it was a paid lunch break.

**** JUSTIN CHARLES FARRELL XXN MS DUFFY
PN749

The shift changeover was a paid lunch break?---No, no, the half - the overtime payment was made for the lunch break that was paid, a paid lunch break.

PN750

Wouldn’t overtime though only kick in at the end of a shift?---It does but the fact that the lunch breaks hasn’t counted as time - as - hasn’t counted as time worked, then at the end of the shift half an hour would be overtime.

PN751

So really the relationship was that because the lunch break was counted as time worked, that then put the last half hour of the shift into overtime; that’s what you say?---Correct.

PN752

Mr Farrell, there are a couple of meetings that you go to in your witness statement. I think the first of them is a meeting on 4 December. It begins at about paragraph 15 of your witness statement?---Mm mm.

PN753

You didn’t take any notes during that meeting, did you?---I don’t recall if I took notes at that meeting.

PN754

So the words that you’ve set out at paragraph 15, for instance, that’s just from your memory, is it?---My recollection, yes.

PN755

When did you write that down for the first time?---About three weeks ago. The description of the meeting at paragraph 15, that's - at 16, sorry. To be fair, you go on at 16 - more than what you describe there happened at that meeting isn't it? It's not a complete recollection?---It wouldn't be a complete recollection, no.

PN756

I have no further questions.

PN757

MR VERNIER: Nothing arising.

PN758

THE COMMISSIONER: Thank you, Mr Farrell, you're excused.

<THE WITNESS WITHDREW [2.38PM]

PN759

MR VERNIER: I don't have any more witnesses, Commissioner. What I might do is just tender the copies of the enterprise agreements that I provided earlier on. I don't know if you want those tendered.

PN760

THE COMMISSIONER: It's not necessary to mark them, no. I'll take them in their print order.

PN761

MR VERNIER: Then that concludes our case.

PN762

THE COMMISSIONER: You don't wish to make any closing submissions?

PN763

MR VERNIER: Well, if we're going to go through the submissions, yes.

PN764

MS DUFFY: Yes, I have understood that my friend was concluding his evidentiary case, Commissioner. I think given the time we're probably not in any danger of running past a normal finishing time this afternoon. I'll try to, I suppose, be relatively briefly and then certainly not repeat any matters that I've gone to this morning or that are set out in our written submissions. Commissioner, it may be something, depending on what my friend says in relation to the determination or orders sought by the union. I may have to return to this issue because, as I said, I don't really understand what those submissions are or might be.

PN765

I did indicate this morning that I do, insofar as it's necessary for us to rely on the High Court decision in what's known as the private arbitration case. We do rely on that, particularly the paragraphs I think beginning at paragraph 30 through to 37, so I might hand a copy of that up at this stage and provide a copy to my friend as well. Commissioner, the other cases that are referred to in our submission, my instructor has copies of those as well and I might just - I'm not even sure it's necessary to tender them, but provide them to you and my friend as a bundle. I wasn't proposing to go to them in any detail.

PN766

Commissioner, if I could firstly go to the terms of the agreement itself, and it also deals with - I also propose to deal with some of the issues that my friend's raised by way of opening. Commissioner, clearly, as both of us have indicated to you, clause 6(b) of the agreement is a key provision in the matter before you. Now, my friend has made some submissions, Commissioner, that essentially even if there is a custom and practice in this case it cannot be inconsistent with the terms of the agreement. Now, to a great extent, Commissioner, the union accepts that, but we urge you to look carefully at the words of that clause 6(b). The terms of the agreement are that:

PN767

Existing site customs and practices not otherwise dealt with in this agreement will continue to apply having additional effect as a term of this agreement.

PN768

Now, Commissioner, it's my submission that that is not the same as saying that it cannot be inconsistent. The agreement specifically provides that a term that goes to an existing site custom and practice, in this case we say unpaid meal breaks, will continue as long as it's not dealt with in the agreement. And it's the union's submission, Commissioner, that there is no prohibition in the agreement on paid meal breaks. The meal breaks provision doesn't specify whether the breaks should be paid or not paid. I think the respondent's already taken you to that provision, but the meal break provision is at clause 32(b).

PN769

The Workplace Relations Act, Commissioner, at section 607 does specify that as a minimum entitlement an unpaid meal break should be taken for every five hours of work. But it doesn't prohibit that meal break being paid should an employer choose to do so. It is a minimum entitlement and it's clearly expressed as such.

PN770

THE COMMISSIONER: But the agreement wouldn't prohibit, say paying an employee $10,000 a week either would it? I mean, the agreement is the agreement. The agreement specifies when payment shall be made for a meal break in the case of a continuous shift worker for example. I'm not sure what you're putting there.

PN771

MS DUFFY: It doesn't, Commissioner, it doesn't deal with that issue directly. It talks about the continuous hours and the fact that the meal break shouldn't be counted as part of those continuous hours. That doesn't mean that it can't be paid as if it were worked. And that's really the difference between the parties today. It seems from Mr Gresswell's evidence that he seemed to believe that employees actually weren't taking the meal break and that's why they were being paid. But I don't think anyone else believes that. Mr Farrell doesn't believe that. He saw them taking meal breaks. The employees clearly have said they have taken meal breaks.

PN772

The real problem, or the problem for the company was that that custom and practice had become established whereby they were paid for those breaks as if it were time worked. It doesn't mean, Commissioner, that it is time worked. And the agreement, the enterprise agreement doesn't prohibit that type of practice. It doesn't say the employer cannot pay an employee for a lunch break as if it were time worked. Commissioner, I took you to the dispute settlement procedure this morning and I don't think it's necessary to traverse that again.

PN773

The next issue I wanted to turn to was the issue of this time and a half payment for the shift changeover. Now, Commissioner, the company seems to be trying to conflate those issues and claim that essentially it's part of a single work practice and that that should be a reason for you not to find that there was custom and practice of paying for the lunch break. Commissioner, it's my submission that really the changeover period and the way in which that was paid has nothing to do with the lunch break. The only relationship between it and the paid lunch break was that because the company was counting the lunch break as time worked it then put the last half hour of each employee's shift onto overtime rates.

PN774

Now, it seems that no one can really explain why that was at time and a half rather than double time and there just doesn't appear to be any sensible explanation for that again other than it was a long standing practice. Again, Commissioner, there was some, I guess some confusion about the evidence as to that time and a half rate being paid for the changeover. Now, clearly, Commissioner, the changeover occurred at each end of the shift. The reason that the payment at time and a half was made for the last half hour of the shift was because that would be when the overtime rates would kick in. Clearly you couldn't pay somebody an overtime rate for the first 15 minutes of their shift.

PN775

It's my submission, Commissioner, that essentially that issue is irrelevant to the determination as to whether a paid lunch break was a custom and practice that was established at the site. And that is picked up by clause 6(b) of the enterprise agreement. Further to that, Commissioner, it's the union's submission that this situation that's before you today where we say there is a long standing, going back to 1990 according to Mr Anderson's evidence, a long standing practice of being paid for that lunch break, is exactly the type of situation that clause 6(b) of the agreement is designed to pick up.

PN776

As I've already said, there is no prohibition in any part of the agreement on payment for a lunch break. There's not even any mention as to whether the lunch break should be paid or unpaid other than there must be a lunch break. It's clear on the evidence, Commissioner, that lunch breaks were taken by the relevant employees. There may be some issues surrounding exactly the time that they were taken, but Mr Anderson gave evidence that there was certainly a difference between the colour and chemical site and the paint site in that there wasn't a specific time for the lunch break. Mr Farrell's evidence concerned that. It's only Mr Gresswell that seemed to believe that lunch breaks were not being taken.

PN777

And it's my submission, Commissioner, that there just simply is no evidence that they were not taken. Mr Gresswell is unable to give that evidence. There's no documentary evidence. The company has not recorded the lunch breaks at any time in the proceedings either before or after the proposed change to the practice. The evidence before you, Commissioner, is that lunch breaks were taken and they were paid lunch breaks and counted towards the time worked.

PN778

Commissioner, the real issue with the lunch breaks - and the union understands what the company said about occupational health and safety concerns. The real issue about lunch breaks is that they must be taken. It's not whether they need to be paid - whether they're paid or unpaid. And it's our submission that the agreement is silent on that, and in that situation clause 6(b) of the agreement operates to enable you to find that the payment of lunch breaks was a custom and practice at the colour and chemicals site.

PN779

Commissioner, subject to any questions that you may have of me, and also subject to what my friend might say about the relief sought, I think I am content to leave my submissions there.

PN780

THE COMMISSIONER: Thank you. Mr Vernier?

PN781

MR VERNIER: I think, Commissioner, we've got to look at this case, you have to look at the whole system of work. You can't just pick out the lunch break, whether it is paid or unpaid, whether they took it or didn't take it. And that's the evidence primarily given by Mr Larossi and by Mr McDonald and even by Mr Anderson. I mean, this is not just, okay, we're going to pay your lunch break and you count it as time worked. The whole system is you've got certain shifts, there's eight hours and 46 minutes per shift, and during that shift if the process allows it, if the process allows it you take your lunch break. You take a break around the process, right, and at the end of it because we'll count that as time worked you get overtime for the last half an hour.

PN782

That's if there is a custom and practice. It's the whole thing. It's not just one little bit of it, right. It's either the whole thing or it's nothing. And even if it's the whole thing, why can't the company change it in accordance with the terms of the agreement? The LHMU has failed to address the ability of the company to change this practice that they argue exists, right. This practice ceased in January this year. There is nothing to say that what the company has done was outside of the scope of the agreement. The company can direct the employees that it does not want them to take a paid break. It tells them your break will be unpaid therefore the last half hour is within the ordinary time.

PN783

The only way, the only way you get an overtime for the last half hour of the shift is if the lunch break counts as paid. Counts as time worked, sorry, counts as time worked. The fact that it's paid, I mean, the company in its discretion can pay a lunch break but that doesn't mean it counts as time worked, right. They're assuming that it counts as time worked. It has to count as time worked if you count the last half hour as overtime. It's the only way it works. So you can't just simply look at the lunch break or the ability to take a lunch break.

PN784

It's this whole process that is an issue here, right, because they never had a set lunch break. They never had one. They took a lunch break, if they took one at all, around the process, and then when they took one the evidence is that sometimes it was less than 30 minutes. Sometimes they took it at the beginning of the shift, sometimes they took it at the end of the shift, sometimes they took it in front of the computer. It was never necessarily a real break. And the penalty for the company for making these employees or for allowing this system is at the end of the day, at the end of the shift they got this half hour at time and a half. That's what the practice, if there was a practice, was.

PN785

Now, you look at the evidence, you look at Mr Larossi. His evidence was the reason why they got the extra changeover was the 15 minutes at the beginning of the shift and the 15 minutes at the end of the shift. That's the changeover and that's why they got the extra half hour at time and a half. The evidence of Mr McDonald and Mr Anderson was that they got the overtime, that's the half hour at the end of the shift, because of wash up and changeover. So the evidence is not even consistent.

PN786

The evidence of Mr Larossi is on a Friday - and this is important, because on a Friday he says they finish at 11 pm. Mr Anderson and Mr McDonald said no, they finish at 10.46 because there's no changeover. So you don't get paid for your overtime or the overtime component on a Friday. That doesn't work. So in order for a custom and practice to exist you need certainty. Some of the cases that have been quoted in the submissions, you know, it's got to be notorious and it's got to be well known. So there's no real certainty.

PN787

I mean, the company is disadvantaged in this claim because it doesn't really have any witnesses that have seen the actual what goes on at the site. I mean, we've got Mr Gresswell, Mr Farrell who give evidence of conversations which have basically been accepted by Mr Anderson, who was the main person involved with these conversations. So most of the evidence or the key evidence comes from the union witnesses which themselves are inconsistent. The evidence isn't consistent. Now, to have a practice it needs to be certain. It needs to be reasonable and cannot be inconsistent with the agreement.

PN788

In this case here we have evidence that a Mr Hussain Hussain, a day worker, was also in receipt of, you know, this extra half hour of overtime at the end of the day and the paid meal break as well. Yet we have express provisions in the agreement relating to day workers that you can only have overtime if the company gives it to you, and custom and practice doesn't apply in relation to that. And that's clause 24(i) where it says:

PN789

This clause takes precedence over existing customs and practices on all sites.

PN790

Now, I'm assuming, is the union abandoning its claim for Mr Hussain? They haven't dealt with that issue, Commissioner, and it is part of this whole system. So he must be out. He cannot - there's nothing that you can do in relation to Mr Hussain unfortunately, Commissioner, because you'd be going contrary to clause 24(i). Now, there is evidence here from, say Mr McDonald, where he says he was told about this system of work when he first joined the company. Now, with all due respect, Commissioner, that is not a custom and practice.

PN791

In relation to Mr McDonald that potentially could be terms of his contract of employment, not terms of the EBA. And if that is the case then you have no power to make any orders under section 170LW if these terms are part of Mr McDonald's contract of employment. Now, Commissioner, there's a decision which I unfortunately did not make a copy of to hand up, but it's the Australian Rail, Tram and Bus Industry Union v Rail Infrastructure Corporation (2007) AIRC 15, it's by Senior Deputy President Hamberger, and it was decided on 22 March 2007. And all I want to do is quote one small paragraph in that decision which is paragraph 146, and there his Honour says:

PN792

Under section 170LW the Commission has jurisdiction to deal with disputes over the application of the agreement.

PN793

Which is correct:

PN794

It does not have jurisdiction to make finding determinations about the employees' contractual rights.

PN795

You cannot deal with anything in relation to an employee's contractual rights. This is about the agreement and only about the agreement. So in relation to Mr McDonald his evidence was clear that when he first started he was told a whole lot of things about the ability to work, that your lunch will be paid, that you take your lunch at an appropriate time if the process allowed. He also gave evidence that at times people wouldn't take breaks. So it's not a firm yes, I always took a break. The evidence from Mr McDonald is yes, sometimes people didn't take breaks and sometimes they took short breaks, they took breaks around the system.

PN796

Now, you can understand if that system of work continues then yes, maybe it's like you're a continuous type of shift operation where you work right through and as a reward you get the one and a half times for the last half hour. But the company doesn't need that. The company has directed the employees to take an unpaid break. The company is entitled to do that under the agreement. There has been nothing put to the contrary on that, and the company doesn't require any overtime for the last half hour of the shift. And that's within the powers of the company to dictate under the agreement, and there has been nothing put by the union to say that that's wrong.

PN797

Now, I mentioned earlier that Mr Hussain Hussain was a day worker. He wasn't called as a witness, Commissioner, so you only have the evidence basically of the company that he is a day worker, and he cannot under the terms of the agreement obtain any benefit under this alleged custom and practice that's been put up by the union. So he cannot be rewarded in any respect. The same with Mr Charlesworth. I mean, if you have a custom and practice it has to be certain and consistent. Mr Charlesworth, day worker, didn't receive a paid meal break, didn't receive the time and a half at the end of the day. And that's from the time cards which I've tendered and from the evidence of Mr Farrell. So that's in evidence, uncontradicted.

PN798

Mr Hussain the same, day worker, did receive a paid break, did receive the time and a half at the end of the day. Why? The same as Mr Charlesworth. Where's the consistency? No evidence to refute that. Mr Hussain was not called as a witness and he is an employee and member of the union I assume so he was available, so nothing was called. And you can draw a negative inference on that under the rule in Jones v Dunkel that his evidence wouldn't have helped the union's position. Next, you have the evidence of Mr McDonald who says sometimes he didn't take a break. In fact he said, when asked a question by his own counsel, it was once a week if he didn't take a break. That's 20 per cent, 20 per cent of the time. Contradicts his own evidence in the statement which says he always took a break, admits - all witnesses admitted that it's the whole process that's involved.

PN799

It's the shifts, it's the time that the lunch break is actually allowed if the process allows it. If the process allows it, you know, if there is time to do it. They don't take a lunch break like across the road where they do break at 12 o'clock, which is the factory that makes the paint. And then at the end of the day to be rewarded because of virtually consistent work you get the overtime. That's the only logical explanation for it. Now, the evidence of Mr Larossi, which is very telling because he was one of the managers of the company and gives evidence for the union, and in his email he's very clear about this and he accepts that this email is true because he verified it under oath, he says that the lunch/meal break was to be taken if time allowed.

PN800

So there was never a requirement to take a lunch break in this system of work. And that appears at exhibit RL1 to the statement of Mr Larossi - sorry, the attachment RL1 to the statement of Mr Larossi. So if time allowed. They're the key words. They were accepted by Mr Larossi. They were also accepted by Mr Anderson. When I put that paragraph to him he said yes, he agreed with that if time allowed. So that's the whole system. You can't pick one bit of it and say, well, we want that to be maintained. If the union's case is accepted that there be a paid lunch break then the last half hour of the shift has to be overtime. You don't give that up. It has to be overtime because you've actually worked seven hours and 46 minutes.

PN801

That's why this case, you know, the union's case has to fail on all the fundamental points. The union seeks an order that the Commission makes a finding that the respondent has acted contrary to the terms of the agreement. What terms has it acted contrary against? It changed a particular system of work. It paid everyone back pay once it found out that they weren't being paid double time for the overtime at the end of the shift. Then it requires the employees to take a lunch break that is unpaid and tells them to work within that direction. Where has the respondent actually breached the terms of the agreement? It hasn't. Because now the employees are working under the direction given by the company pursuant to the agreement.

PN802

Then the union seeks an order that the respondent reintroduce the custom and practice of providing the group with a paid meal break. I mean, where do you have the power to do that, to vary the terms, the express terms of the agreement where clause 26(c)(iv) says:

PN803

Such ordinary hours can be worked continuously except for meal breaks.

PN804

With all due respect, Commissioner, this requires you to actually vary the express terms of the agreement which, in my respectful submission, you cannot do. And this is a dispute over the application of the agreement. This not a dispute over a variation to the agreement. The company has applied the agreement to the letter of the agreement. That's why this particular dispute has to be dismissed. There is no order that you can make, with all due respect, within the ambit of the application of the agreement. Even if you find that there is a custom and practice there is no power within the Commission to order that the company not change that custom and practice.

PN805

The company can direct the employees to take a lunch break, which it has the power to do at clause 32. The lunch break doesn't have to count as time worked, which is under clause 26(c)(iv). So the company can do all that. And then in relation to rosters the company can vary a roster, you know, to include the particular ordinary working hours in that roster. So it can give the direction to the employees pursuant to clause 26(d) and (e) to say that we only require you to work seven hours and 46 minutes in this shift, you will take a half hour unpaid lunch break.

PN806

There is absolutely nothing wrong, nothing contrary to the agreement with that particular direction that was given in December 2007. The other evidence that we have before you that I'd like to take you to is, there's a set of emails, Commissioner, that's attached to both Mr Gresswell's and Mr Farrell's statements. I'll take you to Mr Gresswell's statement, which they appear at annexure E, which is the last annexure to Mr Gresswell's statement. Now, this is an email that was sent by Simon O'Hara, who is the national legal officer of the LHMU, it was sent to Mr Gresswell and Mr Farrell, amongst others, on 22 January 2008. The second part of that email reads as follows:

PN807

The nuance of section 607 is that an employer must not require an employee to work more than five hours continuously. It leaves open the option of an employee choosing to work that lunch hour voluntarily, which is the case, as I understand it, in Victoria.

PN808

That is the union's understanding, Commissioner, that the employees were working voluntarily through the lunch break. So if that is the union's understanding at that point in time, you know, this is about working through lunch, that's what this whole case is about. Because if you work through lunch and it counts as time worked the last half an hour must be overtime. So even the union itself has to concede that it is a case where the employees were working through the lunch break. The company is entitled to rely upon that email because that is the understanding of one of the, you know, the senior officers of the union.

PN809

And I might add that no officer of the union has given any evidence in this case. Mr O'Hara has not been called to clarify what was said in that email. There was no evidence put on in reply when the company served its evidence on the union. Mr Bakri hasn't given evidence of any conversations that he has had. Mr Spiro Vasilakis hasn't given any evidence in relation to the conversations that the company has put in evidence. So you can draw a negative inference in relation to that, that their evidence would not have helped the case. And that's the rule in Jones v Dunkel, which I'm sure you're very familiar with, Commissioner, and this Commission does apply that rule.

PN810

Further, when I put to Mr Anderson the key conversations that took place on 4 December and on 13 December 2007, and Mr Anderson virtually accepted the terms of those conversations in the evidence put forward by the company. So the conversations were contained in the statements of Mr Gresswell and Mr Farrell and virtually the entire conversations were accepted by Mr Anderson. So that the evidence of the company is fairly strong in that this is a process about potentially working through lunch breaks or if you did take a break it wasn't necessarily a lunch break as such, you know, it's worked around the process, which resulted at the end of the day in the employee receiving overtime for the last half hour.

PN811

Now, prior to 2003 the overtime provision at Colours and Chemicals was time and a half I think for the first two hours from - and that's in one of the agreements that I've handed up, Commissioner, which is the 2000 EBA. I can give you the actual clause reference if you so wish. In the 2000 agreement the overtime clause is at - it's in clause 15, shift work. There's an overtime provision about two pages on from clause 15, shift work.

PN812

THE COMMISSIONER: Yes. It's also mentioned in clause 14, hours of work, too.

PN813

MR VERNIER: That might be for the day workers, Commissioner.

PN814

THE COMMISSIONER: Yes.

PN815

MR VERNIER: Yes, that's day workers overtime. And then there's a provision for overtime for shift workers, that's a time and a half provision I think for the first two hours if I'm correct, and double time thereafter, which is your fairly standard type of provision. In 2003 that was changed. So in the 2003 agreement, which is again clause 15, which starts at page 15 of 45 if you look at the top right hand corner of that document I handed up, that's your overtime - well, that's your shift work provision, and your overtime at the Colours and Chemicals site appears at page 19 of 45. You will see that in the middle of the page there's a clause (o). So if you get the 2003 agreement, go to page 19 of 45 at clause (o) in about the middle of the page you will see that that's when the double time for all overtime work applied for the Colours and Chemicals site.

PN816

There's no reasonable explanation as to why it was only time and a half for the last half an hour apart from probably being some sort of special deal that was done. Who knows? But at the end of the day the company has, once it found out, it has made the back payments that are up to 2003, the February 2003, for the double time for overtime. And obviously that clause has continued under the 2005 agreement, it has continued when the agreement has been varied, which is the current agreement that we've been working off.

PN817

Commissioner, I've put in some submissions already in writing which sets out for you the requirements that need to be met regarding this custom and practice. I think it's fairly clear that there was something there but it wasn't necessarily a custom and practice because of the inconsistency between the evidence as to why certain things were paid. Mr Larossi's evidence is not consistent with the evidence of Mr Anderson, and Mr McDonald, we have the evidence of Mr McDonald who was actually told at the time that he started work what would be his terms and conditions. So potentially that is a matter of his contract of employment, it is not a matter of an EBA. If it's a matter in relation to his contract of employment then he has to deal with that in another avenue and, unfortunately, you cannot deal with it in these proceedings. And I rely upon the case of Senior Deputy President Hamberger that I quoted previously.

PN818

Orders have to be made, or if you make any orders they have to be in relation to over the application of this agreement. And I think I've quoted a case in my submissions from one of the senior members of this Commission, if I can find my submissions. It was a Full Bench decision of the Seven Network, paragraph 15 of my submissions, Commissioner:

PN819

If a dispute is found to exist over the application of the agreement the terms of any arising order must be reasonably incidental to the application of the agreement to which the dispute relates.

PN820

So it has to be - it's got to do with the application of the agreement. Here, if it is a custom and practice and you find that it's incorporated into the agreement, then what order do you make? You can't make an order that the company reinstate a paid lunch break because that would be contrary to the express terms of the agreement and contrary to the ability of the company to make changes to conditions. The changes made by the company are consistent with the agreement so you can't, with all due respect, make the order that the LHMU is seeking.

PN821

And it's not just about the paid lunch break, because if you put in the paid lunch break then you've got to make an order that they take the lunch break when the process allows. You can't really make that order, Commissioner, because it's all part of the whole factual matrix. You can't just say okay, we're going to take our lunch break between 11 and 12 and we're going to get it paid. That's not what was occurring on the site prior to January this year. You can't pick one little piece out of the puzzle. It's either all or nothing. Or even if it's all the company can change it, and that's what it's done.

PN822

So I adopt my submissions that I've put in writing, Commissioner. Just to finalise, to conclude, you know, there is a case that I've quoted, and I've got copies of these cases just to save you the trouble of having to print them out, Commissioner. I've handed up two cases which have been referred to in the submissions primarily. The first one was the dispute between AIS v FIA re Furnace Demolishers, which is by Beattie J of the New South Wales Commission (1960) Arbitration Reports 670, and the other case was the dispute re Metal Manufacturers by Sheehy J (1965) Arbitration Reports 310, and I've referred to those cases in my submissions.

PN823

The other interesting case is the case referred to by the LHMU in its submissions which is a case by Watson J. Certainly if I go to the submissions of the union, the actual citation is incorrect, which is at paragraph 18 of the union's submissions. The citation, Commissioner, it's the case of the Australian Fertilisers case by Watson J of the Industrial Commission of New South Wales, it is (1977) Arbitration Reports at 17, and the quote appears at page 22. And by what the union has taken, the quote says:

PN824

In discussing custom and practice the issue arises whether it is shown to exist in such a way that it is part of the contract of employment and if so not inconsistent with the award.

PN825

What you take that to me is that if there is a custom and practice it cannot be inconsistent with the agreement. So you cannot incorporate a custom and practice into the agreement if it is inconsistent with the express terms of the agreement. That is one of the cases that the union relies upon. The time card entries are fairly clear on their face, Commissioner, where it shows that one particular day worker was receiving the benefit of the half hour of overtime, another day worker was not, and it shows the other operators such as Mr Anderson and Mr McDonald, they were seeking the benefit of the time.

PN826

So again on the face of the evidence of the time cards there is an inconsistency in the practice which is also an inconsistency with the express terms of the agreement. Just in conclusion, Commissioner, I think that there is no order that you can make in these proceedings even if you do find a custom and practice, because what the company has done is if it is a custom and practice it has been changed in accordance with the terms of the agreement and you cannot, with all due respect, deny the company the right to make that change. In light of that we ask that the application be dismissed. Thank you, Commissioner.

PN827

THE COMMISSIONER: Thank you, Mr Vernier. Ms Duffy?

PN828

MS DUFFY: There are just a few matters by way of reply, Commissioner. I'm having some trouble understanding part of my friend's submissions because the way that the union puts the case today, in my submission, is very clear and it's clearly set out in our written submissions. The company is saying that the Commission can't interfere with their ability to change this practice of whether lunch breaks are paid or unpaid, and that we have not put anything to suggest to you that it's outside of the scope of the agreement or anything that would suggest that we have a contrary view.

PN829

Now, Commissioner, we're here today because we have a contrary view. We say it offends clause 6(b) of the agreement, and that is the way in which the union's case is put. If there is a site custom and practice, and clearly that's a matter for you to determine in this case, it forms a term of the agreement. It can't be unilaterally changed by the company. There really is no doubt, Commissioner, in my submission that that is what clause 6(b) of the agreement means. And that's precisely why we're here, because we do take issue with the company making unilateral changes to that practice.

PN830

It's clearly a significant change to terms and conditions, but the real issue here, Commissioner, is that we say it is a custom and practice that falls within clause 6(b). The custom and practice, again, the union set this out very clearly at paragraph 1(b) of the submissions, the custom and practice is providing a paid meal break. It's providing payment for that meal break. It doesn't go to anything else. It doesn't require that overtime be paid for the last half of the shift. The custom and practice that the union ask you to find exists is simply to make a payment for that meal break.

PN831

As a matter of logic, Commissioner, if the meal break, if the time is not actually worked overtime is not necessarily payable for the last half hour of the shift. It seems that it's a bit of a mystery to everybody as to why that last half hour of the shift was paid as overtime and certainly at the rate that it was paid at. That just seems to be some sort of anomaly that really nobody can explain. Now, Commissioner, there's another submission made by my friend which again I can't quite understand. The union makes it very clear at paragraph 10 of its submissions that the present dispute, that is the dispute before you today, is confined to the shift workers that are employed in the Colours and Chemicals department, not the day workers, and in the preceding paragraphs we've spelt that out. We've said there are 11 workers, two of them are day workers, but the workers we're concerned about today are the nine shift workers.

PN832

So I don't think, Commissioner, I need to go to what Mr Vernier said about suggesting that you should make some sort of Jones v Dunkel inference in relation to Mr Hussain. He is not relevant to the case that the union's run, but notwithstanding that there's nothing to suggest that he's necessarily in our camp either in the Jones v Dunkel sense. There's certainly no evidence that he's a union member.

PN833

THE DEPUTY PRESIDENT: Is the answer to the mystery that you pose as to why overtime was paid simply because the lunch break was regarded as - the meal break was regarded as time worked and therefore by the time people got to the end of the shift they'd moved into overtime?

PN834

MS DUFFY: I think that's right, Commissioner. I mean, I can't really offer an explanation but that seems to be the company's reasoning. It's not coming from the union. That because it was counted as time worked, or regarded I think the word you used, that's why overtime was paid. Now, it seems to have been paid at an incorrect rate for at least part of the relevant period but, again, that's not really relevant in my submission. The point, and I've made it before, is the time - well, it's the union's case, and I think the respondent's evidence even confirms this, is that the time wasn't worked, it was treated and paid for as if it were worked. In my submission they're two very different things.

PN835

Now, Commissioner, I think I had dealt with this earlier today so I won't say much about this, but I disagree with what my friend has said about Mr Larossi's evidence in relation to the email. The transcript will obviously indicate whether that's correct or not because he was taken to that email in cross-examination and clarified that in his oral evidence in my recollection. The only other point I wanted to make about that though, Commissioner, is that that part of the email to which Mr Vernier refers has got to be read in the full context. And it goes on after the bit that he's quoted, it's attached to Mr Larossi's statement, Commissioner, where he says that the lunch meal break was paid and no time was deducted from the period on site as it was to be taken if time allowed.

PN836

That's where Mr Vernier has stopped his description of the email. My submission is, Commissioner, you've got to read beyond that. It's if time allowed between the processes so as to not permit any downtime. That doesn't necessarily equate to a suggestion that it was not to be taken at all if time didn't allow. It was to take the break between the processes. Now, Commissioner, I think I've already gone to this, I won't go to it again. Certainly the orders that the union, or the determination that the union seeks you to make doesn't require any variation to the agreement. It relies entirely on there being a power for you to settle a dispute over the application of the agreement, and in this case it's over the application of clause 6(b).

PN837

It's well established, Commissioner, the Commission may do whatever is necessary to settle such a dispute unless it's limited by the terms of the dispute settlement clause itself. And in this case, Commissioner, you'll see that it's not. The dispute settlement clause just allows the Commission to determine the dispute. The only exception to that is, as my friend rightly points out, you can't make a finding declaration as to contractual rights. But that's not what's being sought here. Commissioner, in relation to Mr O'Hara's email all I can really say is I urge you to look at that email. We disagree with the view that's been taken by my friend. It's simply almost a hypothetical situation where Mr O'Hara says that neither the Act nor the relevant agreement requires or prevents an employee from voluntarily working through their lunch break.

PN838

What it requires from the employer is that the employer can't require them to work through the lunch break. It doesn't put a prohibition on that. Commissioner, I have no further submissions.

PN839

THE COMMISSIONER: All right, thank you, Ms Duffy. Thank you for today, thank you to the witnesses. I'll reserve my decision.

<ADJOURNED INDEFINITELY [3.35PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

ROBERT VITO LAROSSI, SWORN PN37
EXAMINATION-IN-CHIEF BY MS DUFFY PN37
EXHIBIT #D1 WITNESS STATEMENT OF ROBERT VITO LAROSSI PN49
CROSS-EXAMINATION BY MR VERNIER PN65
EXHIBIT #B1 TIME CARDS OF ANDREW CHARLESWORTH PN122
EXHIBIT #B2 TIME CARDS OF HUSSAIN HUSSAIN PN131
EXHIBIT #B3 TIME CARDS OF PETER ANDERSON PN134
EXHIBIT #B4 TIME CARDS OF WARREN MCDONALD PN137
RE-EXAMINATION BY MS DUFFY PN162
THE WITNESS WITHDREW PN169
WARREN MCDONALD, SWORN PN170
EXAMINATION-IN-CHIEF BY MS DUFFY PN170
EXHIBIT #D2 STATEMENT OF WARREN MCDONALD PN177
CROSS-EXAMINATION BY MR VERNIER PN188
RE-EXAMINATION BY MS DUFFY PN278
THE WITNESS WITHDREW PN289
PETER ANDERSON, SWORN PN291
EXAMINATION-IN-CHIEF BY MS DUFFY PN291
CROSS-EXAMINATION BY MR VERNIER PN320
RE-EXAMINATION BY MS DUFFY PN604
THE WITNESS WITHDREW PN612
DAVID IAN GRESSWELL, SWORN PN651
EXAMINATION-IN-CHIEF BY MR VERNIER PN651
EXHIBIT #B5 STATEMENT OF DAVID IAN GRESSWELL WITH FIVE ANNEXURES PN659
CROSS-EXAMINATION BY MS DUFFY PN667
THE WITNESS WITHDREW PN719
JUSTIN CHARLES FARRELL, SWORN PN720
EXAMINATION-IN-CHIEF BY MR VERNIER PN720
EXHIBIT #B6 STATEMENT OF JUSTIN CHARLES FARRELL WITH THREE ANNEXURES PN726
CROSS-EXAMINATION BY MS DUFFY PN734
THE WITNESS WITHDREW PN758