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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1050799-1
DEPUTY PRESIDENT KOVACIC
C2014/5447 C2014/5449 C2014/5603 C2014/5614
s.739 - Application to deal with a dispute
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
and
Fonterra Australia Pty Ltd
(C2014/5447)
Fonterra (Echuca) Agreement 2013 Part II
(ODN AG2013/6765)
[AE402558 Print PR539241]]
s.739 - Application to deal with a dispute
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
and
Fonterra Australia Pty Ltd
(C2014/5449)
Fonterra (Maintenance Services: Cobden, Cororooke, Stanhope and Darnum) Union Collective Agreement 2013
(ODN AG2014/1003)
[AE408070 Print PR550486]]
s.739 - Application to deal with a dispute
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers'
Union (AMWU)
and
Fonterra Australia Pty Ltd
(C2014/5603)
Fonterra (Maintenance Services: Cobden, Cororooke, Stanhope and Darnum) Union Collective Agreement 2013
(ODN AG2014/1003)
[AE408070 Print PR550486]]
s.739 - Application to deal with a dispute
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers'
Union (AMWU)
and
Fonterra Australia Pty Ltd
(C2014/5614)
Fonterra (Echuca) Agreement 2013 Part II
(ODN AG2013/6765)
[AE402558 Print PR539241]]
Melbourne
10.08AM, FRIDAY, 17 OCTOBER 2014
Continued from 16/10/2014
Reserved for Decision
PN1018
THE DEPUTY PRESIDENT: Good morning, everybody. Mr Forbes, do you want to give me an update as to - - -
PN1019
MR FORBES: I can give you an update, Deputy President. You will recall yesterday during the course of Mr King’s evidence - and this is reflected in his witness statement - he refers to approval of, if you like, the .05 parameter at Nestle in Echuca in about 2002, and Bonlac. When he was giving his evidence and referring to the approval or acknowledgment by Bonlac in relation to the Four Sites Agreement, he named the persons involved, Peter Moran and Ted Eftimiadis. Mr Eftimiadis is here. I have spoken with him this morning and we would like to call him to give evidence. It’s in the nature of rebuttal evidence because the name had not come up. That’s what I would propose to do first. I have indicated to my friends just now that he is here and the nature of his evidence is - as I say, it’s in the nature of rebuttal evidence in relation to Mr King’s evidence.
PN1020
THE DEPUTY PRESIDENT: All right. Mr Reidy, Mr Vroland, do you have anything you wish to say about that particular approach?
PN1021
MR REIDY: No.
PN1022
MR VROLAND: No, it’s okay.
PN1023
THE DEPUTY PRESIDENT: I might say after initially Mr Forbes has had the opportunity to question Mr Eftimiadis, if you wish to seek a short adjournment to take some instructions, I’m willing to foreshadow that I’m open to that just in the circumstances, given that you’re caught short, for want of a better description, potentially, but I will leave that at your discretion to make that request at the appropriate time. We will proceed with calling Mr Eftimiadis.
PN1024
MR FORBES: Thank you. I call Ted Eftimiadis.
PN1025
THE ASSOCIATE: Would you please state your full name and address?
PN1026
MR EFTIMIADIS: Theodore Eftimiadis, but I’m known as Ted Eftimiadis by most of my associations.
PN1027
THE ASSOCIATE: And your address?
PN1028
MR EFTIMIADIS: (address supplied)
<TED EFTIMIADIS, SWORN [10.11AM]
THE DEPUTY PRESIDENT: Welcome, Mr Eftimiadis. Mr Forbes?
<EXAMINATION-IN-CHIEF BY MR FORBES [10.11AM]
MR FORBES: Mr Eftimiadis, what is your current occupation?---I’m semi-retired and do some part-time consulting.
PN1031
In what field do you do consulting?---Mainly industrial relations.
PN1032
Now, Mr Eftimiadis, prior to your semi-retirement, where did you work?---I worked for Pacific Brands just prior to my retirement.
PN1033
For how long?---13 years.
PN1034
Prior to Pacific Brands, where did you work?---I worked at Bonlac Foods Ltd.
PN1035
When did you start at Bonlac Foods Ltd?---1991.
PN1036
And how long were you there?---Till 2001.
PN1037
Prior to commencing at Bonlac, where did you work?---The Australian Chamber of Manufacturers.
PN1038
And how long were you there?---About 19 years.
PN1039
What did you do at the Australian Chamber of Manufacturers?---I was an industrial advocate.
PN1040
Did you have a specialty in any particular industry?---Yes. The food industry was one of my main portfolios.
**** TED EFTIMIADIS XN MR FORBES
PN1041
Now, when you worked at Bonlac between 1991 and 2001, what was your job there?---It was a combination of human resources and industrial relations. I suppose it was fifty-fifty, if you like, in HR and 50 per cent industrial relations.
PN1042
In relation to industrial relations, did you have responsibility for a number of worksites?---Yes. I had a responsibility for the negotiations that went on for enterprise agreements and the day-to-day inquiries that were coming in from the sites about award application or EBA applications and associated industrial relations matters.
PN1043
Bonlac’s sites, did they include sites at Cobden, Cororooke, Stanhope and Darnum?---Yes. They were some of them, yes. There was a lot more than that in the early days at Bonlac.
PN1044
This proceeding is being informed about an availability allowance in the context of the availability allowance?---Yes.
PN1045
Do you recall the circumstances where availability allowance was first raised in relation to the four sites I have just mentioned; that is Cobden, Cororooke, Stand hope and Darnum?---The availability allowance would have been raised, to the best of my recollection, about the mid nineties, and it would have covered all of the sites where maintenance people were employed.
PN1046
Are you able to inform the commission of the circumstances which gave rise to the availability allowance arrangement?---The availability allowance is something that the company was - not so much the allowance itself but the company was pushing for tradespeople to make themselves available for after-hour calls. There was a trial done on one site at least that I can recall where we had people on standby, which was turning out to be a very expensive way of actually having people available for after hours, and there was quite a few discussions with the sites and the maintenance people, and during the negotiation of the agreement during that period of the mid nineties - Damian King obviously was representing the maintenance people and there was negotiations that took place to strike an availability allowance and it was actually initiated by, if I remember correctly, the shop steward at Stanhope who came up - strike a figure and pushed Damian obviously to promote it.
**** TED EFTIMIADIS XN MR FORBES
PN1047
I will ask you just to keep your voice up so we can all hear. Now, are you familiar with what is referred to as the Four Sites Agreement?---I’m not aware of the Four Sites Agreement. I suspect it’s something that was done after my time.
PN1048
Do you recall the circumstances in which the availability allowance arrangement was negotiated into an enterprise agreement at Bonlac?---Yes. That would have been in the mid nineties where we did strike an availability allowance, as I said, after quite a bit of toing and froing with the shop stewards and Damian King.
PN1049
You have mentioned Damian King a couple of times. What was his role in discussions about the availability allowance?---Damian was the representative of the tradespeople, and in fact if I remember correctly, he had an authority to act on behalf of the ETU in those days because the ETU had a very small representation on the site so he used to assume that role as well, so he was the organiser of the AMWU and in all the time that I was at Bonlac, he always represented the tradespeople.
PN1050
Now, there has been evidence in these proceedings where Mr King has given evidence, and I would just ask you to listen to this, that, “During the negotiations for the Fonterra Echuca EBA, it was acknowledged by the company” - and I think we accept that’s Nestle in relation to Echuca - “that one of the considerations for the availability or call-back payment being made was a recognition from the company that due to their inclusion on the availability roster, an employee was required to stay below the blood-alcohol content driving limit of .05. It was understood by all parties that this requirement to stay below .05 was a lifestyle restriction on employees which extended beyond their ordinary hours of work,” and then he goes on and says, “The same acknowledgment was made by Bonlac management in the 1990s in relation to negotiations for the availability call-back arrangements covering Cobden, Darnum and Stanhope.” Now, in evidence to the commission, Mr King said that the Bonlac management that made that acknowledgment included you. What do you say to that?---That’s incorrect. I never ever had any conversation about blood-alcohol content. The availability allowance was provided for people to make themselves available and it was assumed that their availability would be on the same conditions as they are available for their normal, ordinary working hours and therefore they would have to be fit and proper for the job. There was no assumption that there would be consumption of alcohol before you get to work.
**** TED EFTIMIADIS XN MR FORBES
PN1051
You say they had to remain fit and proper to perform work. What did you mean by that?---Well, one would assume that, you know, if they consumed alcohol, they wouldn’t be coming to work.
PN1052
Now, Mr Eftimiadis, do you recall the basis upon which the union sought payment for the availability allowance?---Sorry? What was that?
PN1053
Do you recall the basis or the justification the union advanced for the payment for the availability allowance?---The justification was around the basis of an inconvenience allowance, if you like, because they would be disturbed after hours, and there was a lot of discussion in the time of these negotiations for the allowance that people would be, you know, denied, if you like, their social commitments; like some of the tradespeople were quite young and used to play footy in a social environment and some had, you know, family commitments or they had functions at pubs or whatever, and they would be denied that opportunity, if you like, by making themselves available to come to work.
PN1054
Do you recall drinking or alcohol factoring in that discussion?---No.
PN1055
Subsequent to the availability allowance being negotiated into the agreement, have you had any discussions with Mr King or anyone else about drinking or alcohol in the context of availability?---No.
PN1056
During your time at Bonlac, you have referred to an expectation that employees be fit and proper. Were there any mechanisms to assess an employee’s fitness or properness in relation to alcohol consumption or suspected alcohol consumption?---The only assessment you would carry out is obviously if a person had physical conditions, if you like, that gave that person away as not being fit to come to work, either by not standing up properly or blurred visions or, you know, having speech impediments, if you like, that alcohol tends to impart on people, and - because we had no actual scientific instrumentation or other capability, if you like, to actually test anyone.
**** TED EFTIMIADIS XN MR FORBES
PN1057
It may be put to you that employees on availability were required to drive in to work. What would you say to that?---Well, driving to work is not the same test as being at work. The risk associated with equipment and other people working alongside you - you will be increasing the risk tenfold as against driving, assuming under .05, between a place of residence and the factory.
PN1058
Thanks, Mr Eftimiadis.
PN1059
THE DEPUTY PRESIDENT: Mr Reidy?
PN1060
MR REIDY: Deputy President, if we could just take a short adjournment and seek instructions?
PN1061
THE DEPUTY PRESIDENT: 10 minutes, do you think?
PN1062
MR REIDY: 15 minutes would - - -
PN1063
THE DEPUTY PRESIDENT: Can I suggest we adjourn until 10.30? Thank you.
<SHORT ADJOURNMENT [10.24AM]
<RESUMED [10.39AM]
PN1064
THE DEPUTY PRESIDENT: Mr Reidy?
<CROSS-EXAMINATION BY MR REIDY [10.40AM]
MR REIDY: Mr Eftimiadis, I just have a few questions for you. Can you tell me who Peter Maren is?---Peter Maren was my predecessor at Bonlac Foods. He was the national employment relations manager before my time.
PN1066
Do you know off the top of your head when he was employed in that position?
**** TED EFTIMIADIS XXN MR REIDY
---Not really, no.
PN1067
But it was before your time?---Yes.
PN1068
And you started in 1991?---Yes, and that’s when he left.
PN1069
He left when you arrived?---Peter Maren left Bonlac Foods.
PN1070
In 1991?---Yes.
PN1071
Do you know when exactly you started in 1991?---April, I think it was. There was an overlap of a few months. Peter remained to finish off some work in that time and then he left; it might have been a month or two, maybe.
PN1072
Were you involved in industrial dispute before Commissioner Keogh of the Australian Industrial Relations Commission back in 1991?---No.
PN1073
Were you aware of that dispute?---Yes.
PN1074
And you were aware that it was about the availability roster?---That would have been about the Dandenong site, if I remember right.
PN1075
Are you aware that it was about the availability?---I don’t recall that.
PN1076
Were you given any handover notes or anything by Peter Maren at the time?
---No, he didn’t.
PN1077
I put it to you that there were negotiations arising from that dispute between Mr King and Mr Maren, and that they involved discussions around the .05 limit - - -
**** TED EFTIMIADIS XXN MR REIDY
PN1078
MR FORBES: This is entirely new and (indistinct) where are we going with this?
PN1079
MR REIDY: It was mentioned yesterday in Mr King’s evidence.
PN1080
THE DEPUTY PRESIDENT: I’m going to allow the question. If there was the subject of a dispute before the commission, certainly one of the options open to you - I’m not going to tell you how to run your case - is to actually produce material from that particular matter.
PN1081
MR REIDY: I’m talking about actual negotiations outside of the commission.
PN1082
THE DEPUTY PRESIDENT: I understand that, but was there some report back to the commission? I think the evidence of Mr Eftimiadis is that he is not aware of the specifics of that dispute other than a very general nature so unless there’s something that goes beyond that - I don’t want to go down a rabbit - I’m not describing it as a rabbit warren but if the witness is unable to answer the question, I would prefer not to see hounding, if I can put it that way, and I’m not suggesting that’s what you’re doing.
PN1083
MR REIDY: So your knowledge of that dispute is limited. You agree?---Yes, it is, and there was no record of any .05 in terms of any allowance or turning up at work in any other condition other than fit and proper.
PN1084
Other than what, sorry?---Fit and proper.
PN1085
How does that arise from my question?---Well, you’re insinuating that .05 was a standard of some sort.
PN1086
**** TED EFTIMIADIS XXN MR REIDY
I haven’t mention .05 at all?---You did; you just did when you mentioned the case. You said there was a conversation about .05.
PN1087
My last question to you was your knowledge about that dispute is limited?---It is limited and as I said, you’re inferring that the .05 was a standard, but there’s no standard of .05.
PN1088
So the fit and proper person test - is that what it was, the fit and proper person test?---The fit and proper test is what an ordinary employee would be presenting in the normal circumstances of coming to work, and that is fit and proper not just in terms of alcohol but in every respect.
PN1089
When was that introduced?---It was never introduced. It was always there.
PN1090
Can you explain to me what you mean by “it was always there”?---A person being able to do their job. It’s a standard that applies in any working place in this country.
PN1091
I’m sorry. I’m asking you a specific question about the sites that you were the HR manager for, and that is how were people told about this fit and proper person test?---They didn’t have to be told.
PN1092
So they weren’t told?---It is part of any person who presents in their employment to be in a fit and proper state.
PN1093
So they weren’t told. Is that right?---No, but - - -
PN1094
Do you agree with me that drug and alcohol policies were not as common back in 1991?---No. There was no drug and alcohol policy, no.
PN1095
**** TED EFTIMIADIS XXN MR REIDY
And you agree with me of course that the blood alcohol limit for driving back in 1991 is .05, or was .05?---I can’t confirm whether that, whether that was in legislation or not.
PN1096
But you have no reason to reject that proposition?---I have no reason to accept it or reject it because as I said, I’m not sure whether it was in legislation in 1991.
PN1097
You had some knowledge of the availability roster and how it operated?---Yes.
PN1098
I put it to you that you understood that employees when they were called to respond when they were on the roster, that they would have to obviously make their way to the plant to perform whatever breakdown service that needed to be done?---Yes.
PN1099
What was your understanding of how they made it to the plant?---They drive.
PN1100
So their drove their own vehicles?---Yes.
PN1101
But it wasn’t a normal insomuch as they weren’t on duty insomuch as it is with the ordinary hours of work, was it?---Why wouldn’t it be? Sorry. I don’t follow your question.
PN1102
When they were on the availability roster, it was different to when they were normally at work because they weren’t paid in actually carrying out work during those hours, were they?---Well, in terms of payment, it might be different, but in terms of the availability allowance it was, for want of a better word, an inconvenience allowance to make themselves available in the event that they are required to come into the plant after hours.
PN1103
You call it an inconvenience allowance because you create an inconvenience on their lifestyles?---Of course, yes, you do.
**** TED EFTIMIADIS XXN MR REIDY
PN1104
And part of that would be if you were required to be on availability and it was a weekend, that you could not drink to excess because you had to be able to drive a car in. Is that right?---Yes.
PN1105
So when you say “inconvenience” and you say it was never discussed, are you a hundred per cent sure about that?---Yes.
PN1106
And you can’t be sure that it wasn’t something that was discussed between Damian King and Peter Maren, can you?---No, I can’t. I just don’t know what was discussed between Peter Maren and Damian. I have no idea.
PN1107
Perhaps if I ask you at what stage were the negotiations around the availability roster and the allowance when you started working for Bonlac?---The only conversation that I recall is roughly in the mid nineties. The availability allowance was discussed.
PN1108
Had it been in operation before that time or - - -?---Not across all the plants, no.
PN1109
It had been in operation at some of the plants?---Dandenong, to the best of my recollection.
PN1110
And your negotiations or your meetings about in the mid nineties, what was the extent of those?---What was the extent?
PN1111
Yes. What was the nature of those negotiations? What was discussed?---The nature of the negotiations was around the quantum and, you know, of course we had the point of view of, you know, minimising the cost and the guys obviously wanted the best possible quantum out of it and we would strike a deal, if you like, on the amount.
**** TED EFTIMIADIS XXN MR REIDY
PN1112
But it was already in place, wasn’t it? You say it was put in place in the early nineties and then - - -?---Yes, but in place on one site.
PN1113
But was that a model that was followed for the other sites?---No, it wasn’t.
PN1114
In what way wasn’t it?---Because to the best of my recollection, the Dandenong one worked on a stand-by sort of arrangement rather than a fixed amount.
PN1115
I’m sorry. I thought it was an availability roster that was operating?---Not across all the sites. Yes, after the mid nineties there was some sort of arrangement on each site on how they would operate it.
PN1116
I’m sorry. I thought you said before in the early nineties that the whole subject of negotiations was to put an availability roster in place and that that applied at one site in the early nineties?---No. No, it didn’t. As I said, to the best of my recollection, it was mid nineties when the availability allowance was across the sites.
PN1117
I know you keep referring to “across the sites” but it was already in operation, wasn’t it?---Yes. The Dandenong site had a history of having a number of things that were different to the rest of the sites. That was, if you like, the main metropolitan site; the only non-milk plant, if you like. That was actually a processing plant on dried powder and packaging. It was not the standard plant of Bonlac. In fact, it even had a different legal entity for a period of time.
PN1118
But it didn’t use the availability roster?---I believe it did, yes, for that site only.
PN1119
That’s what I’m trying to get to. It seemed like you were saying else just before. So they did use an availability - - -?---It’s just that you said - you inferred that it was across all sites and - - -
**** TED EFTIMIADIS XXN MR REIDY
PN1120
No. I’m saying in the early nineties it was just that site?---Yes.
PN1121
There was an availability roster and an availability allowance was paid?---Yes.
PN1122
You agree?---Yes.
PN1123
And then later, in the mid nineties, it was spread out to other sites. Correct?
---Yes, but not in the same terms. It was different.
PN1124
THE DEPUTY PRESIDENT: Can I just be clear about that? So in terms of what you understood operated at Dandenong as of the early nineties, there was an availability roster. Did it have an availability allowance attached to it?---Yes.
PN1125
And what ultimately was implemented across other sites from the mid nineties as a result of the negotiations that you have referred to was something different to what operated - - -?---Yes. We negotiated the amount as well and, you know, there were discussions about, you know - very much along the questions that have been put to me at the moment, you know, “What if I’m not available? What if I’ve got a family commitment?” and that sort of stuff, and we always insisted that if they had commitments and they knew they had commitments, they had to advise at once so they can be exempt, because we didn’t expect them to actually come to work after a social function where they may be in a condition that may not be appropriate.
PN1126
Just to be clear, so ultimately the allowance - and the quantum may have been different but the concept that was negotiated for other sites, was that similar to the model that had been operating at Dandenong?---No. No, it wasn’t.
PN1127
In what way was it different?---Because we didn’t have a fixed roster for every site. They had an arrangement because they used to work to the skill base, if you like.
**** TED EFTIMIADIS XXN MR REIDY
PN1128
MR REIDY: So you had a different roster for each of the sites?---Each site had its own arrangement, yes. You know, nothing in the agreement actually prescribed a roster. Each site took it upon itself to roster its own people.
PN1129
I understand that, that each site will have its own variables in terms of the hours that need to be worked and so on, but in terms of the bare bones of it, there was a roster for availability and there was an allowance paid for people when they were on availability. Those two premises applied when it was rolled out to the other sites. Isn’t that true?---Yes.
PN1130
And though the unions may have made a claim in the mid nineties in terms of the availability allowance, it was already in place. It had been negotiated and put in place before that for the Dandenong site, you say, in the very early nineties. Is that correct?---I think it might have been - I don’t know exactly when it was negotiated. It was there when I joined the company.
PN1131
It was already there before you arrived?---Yes, as were a lot of other things at Dandenong, as I said, because they had a historical sort of arrangement. It was not standard to Bonlac.
PN1132
THE DEPUTY PRESIDENT: Mr Eftimiadis, is your recollection that the Dandenong arrangement was reflected in an enterprise agreement in the early nineties and prior to the concept being rolled out across other sites?---I believe so. I’m not - I just can’t recollect it off the top of my head but I suspect it was, but I’m not a hundred per cent sure.
PN1133
MR REIDY: When you were answering the Deputy President just before, you made mention of the fact that there were questions that were asked when in the mid nineties it was being rolled out to the other sites and some of those questions were around, “What if I’ve had too much to drink? What are the expectations in terms of me coming in?” Is that correct?---They didn’t go to expectations. They were to - actually, they were basically raising, “What if I’m not available?” because - actually, if I can go a step back, during the course of the negotiations, a lot of people were saying, you know, that they wouldn’t make themselves available because they just didn’t want to give up their leisure time, if you like.
**** TED EFTIMIADIS XXN MR REIDY
PN1134
I understand there would have been a consultation process. It was a voluntary thing to be on that roster?---Most of them were voluntary, even though - I would say I can’t recall of anybody ever not putting their hand up and I can never recall anybody actually complaining to me about having people not making themselves available, so to the best of my recollection, it was working.
PN1135
If I just take you back to that point about people raising concerns about expectations, or call it what you will, they’re saying, “What if I’ve had too much to drink? What do I do?” just in terms of the nuts and bolts of how it works. So that was raised but you say that nobody raised, “What is the BAC that I’m supposed to be at when I come to work?” Is that right?---They raised the fact that if they have a social function, would it be appropriate to come in. We didn’t discuss, you know, alcohol content or alcohol limits or any other sort.
PN1136
So it was more in the context of not negotiating an amount for the availability allowance but, “If I’m on the roster and I’m called, when shouldn’t I come in for the call because I’ve had too much to drink”?---Yes, “If I’ve got a family commitment and I’m like to, you know, have a late night or whatever, what happens?” and in most cases, the plant management would probably swap them with someone else.
PN1137
But the company never said, or you on behalf of the company never said, “Look, .05 is all right. You can come in at that level
if that’s where you’re at,” or - - -?
---No. We never discussed .05 because we knew that we had no way of actually establishing .05, to see someone physically looking
a bit drunk, if you like - you know, it wouldn’t stand up in a court of law. We knew that and therefore we could not pass
that judgment.
PN1138
So the company never put a position one way or another about BAC limits. Is that right?---We didn’t put any limits because we assumed that, as we would assume for anyone coming to work during their normal hours, that they would be, as I used the words, fit and proper.
**** TED EFTIMIADIS XXN MR REIDY
PN1139
But as you said before, fit and proper wasn’t something you communicated to the employees. Your understanding was they should just know that?---Of course. Yes, commonsense, yes.
PN1140
Thank you.
PN1141
THE DEPUTY PRESIDENT: Mr Vroland?
<CROSS-EXAMINATION BY MR VROLAND [10.58AM]
MR VROLAND: Mr Eftimiadis - - -?---Eftimiadis.
PN1143
I will try to be brief and not cover too much of the same ground. I did just have a couple of questions though that arose from all of that. It seems to me that your evidence is that there wasn’t any discussion about .05 as a specific figure but that a commonsense approach prevailed. That would be fair to say?---Yes.
PN1144
Extending from that, just because someone had had a drink, they would not necessarily be unfit for work. That’s fair to say, isn’t it?---It would be, yes.
PN1145
Conversely, as an employee relations manager, if someone had said to you, “Well, look, I was over the legal limit to drive,” then you would have thought they’re unfit to work. That’s fair to say, isn’t it, as well?---Not necessarily, but how would I know they’re over the limit of .05? I wouldn’t know. As I said, there was no scientific way of establishing the .05 in the first place.
PN1146
That much is clear. I think you said that you had no way of measuring it and that’s why you’re saying that there was no specific figure?---That’s right.
PN1147
I’m not sure that I fully accept that but that appears to be your evidence. I’m just saying, for argument’s sake, if an employee said to you, “On the way to work, I was tested by the roadside and I blew over .05 and then I came in to work and kept working,” you would have said, “No, you can’t do that,” wouldn’t you?
**** TED EFTIMIADIS XXN MR VROLAND
---You would, yes.
PN1148
So doesn’t that really lead - - -
PN1149
THE DEPUTY PRESIDENT: That’s an unlikely scenario though. I mean, they’re in the slammer as far as I’m aware.
PN1150
MR VROLAND: That may well be right, Deputy President.
PN1151
Perhaps I might say if an employee withheld that information but later it was found that that’s what occurred, you would have pretty unhappy with that employee, wouldn’t you?---Yes, that’s true, yes.
PN1152
It seems to me then really that implicit in all that, if not explicit, was an understanding that if you were below the legal limit to drive a car, all other things being equal, you would not necessarily be unfit for work. That’s fair to say, isn’t it?---Not, it wouldn’t be because, you know, individuals get affected differently by alcohol. You could have someone below .05 and be very fit, but conversely they could be very unfit as well. I have seen people - they’re one-pot screamers, you know.
PN1153
No question about that at all. You’re not answering the question that I asked. I’m saying just because you were somewhere between .00 and .05, all other things being equal, you would not necessarily be unfit for work?---No. I can’t make that - I can’t draw that conclusion. I think I have got a bit more commonsense than that.
PN1154
I think that’s the conclusion that you just drew because you said some people could be over .05 and - - -?---No. The point - the variation that exists - actually a prudent person would not default automatically to one conclusion. You know, you would have to have medical evidence to support it.
**** TED EFTIMIADIS XXN MR VROLAND
PN1155
You also said that during your time you were involved in some negotiations regarding the implementation of availability allowance and you did say that you never ever had any conversation about blood-alcohol content?---Yes.
PN1156
But you then later said that part of the justification for the inconvenience allowance or availability allowance, whatever you might call it, was that people said they might be disturbed, they might have to attend social commitments, et cetera, and you said that they might need to attend functions at pubs or whatever?---Yes. That’s the gist of some of the comments that some of the guys made; you know, “I could be down at a pub drinking with my mates, or could be at a footy function;” you know, “I might’ve had a late night because, you know, it was my grandmother’s ninetieth birthday,” or whatever.
PN1157
Are you really saying that there was never any conversation or question asked about, “If I’m right to drive, will I be
right to work?” I mean, regardless of your opinion of the answer to that question, are you saying that was never ever asked?
---No.
PN1158
No-one ever put that to you?---The only thing they put to us is that if they have a social commitment, they may not be inclined to have to come to work; you know, “Would I not get into trouble for not committing to the arrangement that I had previously committed to?” and my answer to that was, you know, “You need to actually bring it to the attention of your operational manager so you can be swapped or rearranged.”
PN1159
And you did say in that respect that in most cases, the plant management would probably swap them with someone else?---They would, yes.
PN1160
But implicit in that, not in every case?---Well, as I said, I can’t recall anyone ever complaining about not having enough people to be rostered or being available.
**** TED EFTIMIADIS XXN MR VROLAND
PN1161
Just one other question. It’s a little bit curious. I just want to see really how much you want to stick to this, what I call
an assertion. You said that your fitness for work is not the same as your fitness to drive to work and you said that drinking alcohol
would increase your risk tenfold in respect of your fitness for work?
---Yes.
PN1162
There’s no real basis for that assertion, is there?---There is and there’s - in fact, you know, if you care to actually visit the Ballarat University, the OH and S division there, they will probably support my assertion, if you like.
PN1163
Probably will; tenfold?---Yes, because the risks in a working environment - you know, you’re surrounded by risks a lot more than driving down a straight road in a country lane somewhere, in the dark where there’s hardly anyone on the road.
PN1164
I won’t labour the point but can you point to any particular study? I mean, I can go down to Ballarat and, you know, have a look around but - - -?---It has been a while since I have been there myself. I can’t give you the documentation because they’re not in my possession, but it is a known fact that if you are in an industrial environment with equipment, hazards and other people - you know, the risks of the other people are with you as well, and when you have got electrical work, it even increases even more.
PN1165
But you’re not an expert in that respect, are you?---No. I don’t assert to be an expert but I assert that the risks are a lot higher.
PN1166
But it is an assertion?---Yes.
PN1167
No further questions.
<RE-EXAMINATION BY MR FORBES [11.05AM]
PN1168
**** TED EFTIMIADIS RXN MR FORBES
MR FORBES: I have only got one question and it arises from what you were just asked, Mr Eftimiadis. You mentioned Ballarat University OH and S department. Why did you raise that organisation?---Because in my time at Bonlac, we partnered with that faculty of the university and they helped us develop all our policies, they helped us do all the preventative work on machinery, they helped us manage risk, they helped the OH and S committee training, they helped - a lot of risks, they were not known to the industry. They take a leading position by doing international research work for us, and in fact they used to assign a lot of their students, their second and third-year students, to do project work on our sites.
PN1169
Thank you.
PN1170
THE DEPUTY PRESIDENT: Thank you.
PN1171
You may stand down, Mr Eftimiadis?---Thank you.
PN1172
Thank you for making yourself available today.
<THE WITNESS WITHDREW [11.06AM]
MR FORBES: I just have one further witness and that’s Derek Woodworth.
PN1174
THE DEPUTY PRESIDENT: Thank you.
PN1175
THE ASSOCIATE: If you could state your full name and address for the records?
PN1176
MR WOODWORTH: Sure. Derek Woodworth. Address is (address supplied).
<DEREK WOODWORTH, AFFIRMED [11.08AM]
THE DEPUTY PRESIDENT: Welcome, Mr Woodworth?---Thank you, your Honour.
<EXAMINATION-IN-CHIEF BY MR FORBES [11.08AM]
MR FORBES: Your name is Derek Michael Woodworth?---Correct.
PN1179
Where do you live?---(address supplied)
PN1180
Are you currently the site manager of Fonterra at Echuca?---Yes, correct.
PN1181
How long have you held that position?---11 months.
PN1182
Have you been an employee of Fonterra prior to that site?---Yes, I have. So I was the site manager at the Stanhope facility for nine months, and previous to that I was part of the New Zealand business for approximately 10 years.
PN1183
For the purposes of these proceedings, Mr Woodworth, have you prepared a witness statement?---Yes, I have.
PN1184
Do you have a copy of that with you?---Yes, I do.
PN1185
Have you read that statement recently?---Yes, I have.
PN1186
Attached to your statement, is there one document?---Yes, correct. There’s one document as an attachment.
PN1187
Are there any changes you wish to make to your statement?---Yes, just one slight change to point number 34.
PN1188
**** DEREK WOODWORTH XN MR FORBES
Yes?---So the conversation or the statement there was actually relating to the instance where there would have to be a double call out or a double - two people called in. The average call-in for mechanical fitters at the Echuca facility would be around about one a quarter, so there’s 11 mechanical fitters on the availability roster, so roughly once a quarter, those people would be on the availability roster and they could be called one to two times over that week which they’re on the roster. For an electrician it is more often, so - because there is only four electricians on the availability roster, they are on that roster once a month and they could get, on average, between two or three calls over that week that they’re on the roster.
PN1189
If I can just capture the first comment in relation to paragraph 34 just to be clear, where you say that maintenance staff on the availability roster are called in one or two times a year on average, by that you mean that more than one maintenance employee is called in?---Correct. That was the conversation that that was relating to.
PN1190
THE DEPUTY PRESIDENT: Can I just clarify that, because you then went on to say, Mr Woodworth, that if an employee is rostered on
for a particular week, during that week they’re called in anywhere between one and three times?
---Yes, so that’s based on the average that the maintenance managers have told me, so for an electrical staff member, they may
get, you know, two to three calls over that week. A mechanical fitter is more likely to get one to two, so slightly less calls.
PN1191
MR FORBES: Subject to that change that you have just explained, is there anything else you want to change in your witness statement?---No.
PN1192
So subject to that brief discussion we have had, is the witness statement true and correct?---Yes.
**** DEREK WOODWORTH XN MR FORBES
PN1193
I tender the statement.
PN1194
THE DEPUTY PRESIDENT: I will mark that exhibit F5.
EXHIBIT #F5 WITNESS STATEMENT OF DEREK WOODWORTH, TOGETHER WITH ATTACHMENT
MR FORBES: I have no further examination-in-chief.
<CROSS-EXAMINATION BY MR REIDY [11.12AM]
MR REIDY: Mr Woodworth, you have only been with Fonterra a very short period of time, haven’t you?---For Fonterra? I have worked for Fonterra for coming up to 12 years.
PN1197
You say in your statement, unless I have got this wrong, that you were the site manager between March 2013 to November 2013?---At the Stanhope facility, yes.
PN1198
And then you have held your current position since November 2013?---Correct.
PN1199
Where were the other years? Was that in New Zealand?---Correct, yes, as part of the New Zealand business.
PN1200
THE DEPUTY PRESIDENT: I think Mr Woodworth mentioned before he had had about 10 years in New Zealand with Fonterra.
PN1201
MR REIDY: But you have only been in the Australian operations since March last year?---Correct.
PN1202
So you don’t have any knowledge about what was negotiated back in 1999, or even at the start of the nineties?---No, I would not.
**** DEREK WOODWORTH XXN MR REIDY
PN1203
What information do you have about the blood-alcohol limit that applied at the site, or applies at the sites that you have operated or that you managed? So if I take you back, you started in March last year at the Stanhope facility as the site manager?---Yes.
PN1204
What were you told about the blood-alcohol limit that applied at that site?---I guess what I knew was there was no drug and alcohol policy in effect at that time.
PN1205
So from that, did you reach a conclusion about what the blood-alcohol limit was?
---No.
PN1206
How about when you started at the Echuca site in November last year?---At that stage, it would have been the same; yes, it would have been the same, that there was no policy that was implemented at the time.
PN1207
Did you make any inquiries from other colleagues, higher management, the union, employees, or anyone at the sites about what the BAC was?---Not specifically around the BAC, no.
PN1208
What was it then that you investigated?---My questioning when I came into the Australian business was just if there was a policy, because I was used to a policy in operation in the New Zealand side of the business.
PN1209
You say at paragraph 13 of your statement on the second page at the very bottom there - you just refer to Fonterra having 96 weekly-paid tradespeople?---Yes.
PN1210
What sites are you talking about there for those 96?---So that was considering all of the Australian sites.
PN1211
**** DEREK WOODWORTH XXN MR REIDY
So the whole of Australia?---Yes.
PN1212
Do you know how many maintenance employees you have for the four sites that are relevant to this dispute?---No. I wouldn’t be able to work that out off the top of my head, sorry.
PN1213
You talk about the safety risks and at paragraph 19 of your witness statement, you say, “We have identified 18 critical, fatal risk at Echuca, and there are 21 at Stanhope”?---Yes.
PN1214
When you say “we”, who are you talking about?---I guess as a business, so the critical to a fatal risk program is something that’s rolled out globally; yes, so that would be the global business, and which we then pull down the critical to a fatal risk that is specific to our site.
PN1215
When I said “who” - I understand it’s a business but I’m talking about individuals, like named individuals. Who would they be?---Okay. So at the site, primarily that would be the health and safety manager for the site.
PN1216
Who is that?---So that’s Kim Lord at the Echuca facility and Pat Power at the Stanhope facility.
PN1217
When did the identification of those critical fatal risks take place?---So those were done over the last season, so the last - within the last 15 months I guess those were being worked on.
PN1218
So a 15-month period from - sorry. I just need starting from when and ending when?---I’m guessing the time frames now, but from today going back 15 months, there would have been a packet of work that was worked on over that time.
PN1219
**** DEREK WOODWORTH XXN MR REIDY
So starting in the second half of last year, or mid last year. Would that be about right?---Yes. I mean, I could get actual dates and confirm that but that’s my best estimate.
PN1220
And as far as you know, those risks - they would have existed at the Echuca site, the Stanhope site, for as long as those sites have been operated by Fonterra, wouldn’t they?---Quite possibly.
PN1221
What is your knowledge about injuries being caused to employees, maintenance employees, when they return to work because of the availability roster?---Because of the availability roster?
PN1222
So basically, do you know of any people that have been injured or incidents that have been reported where someone has returned to work because of the availability roster?---So in my time at Echuca, I don’t believe there has been any injuries that have occurred while the person has been called back on the availability roster.
PN1223
If I told you that the blood-alcohol limit that the employees have been following during that time was .05, do you know if that’s wrong or is that just knowledge that you don’t have?---I don’t think it’s knowledge that I have or something I have considered before.
PN1224
You refer to an incident in paragraph 21 involving Stuart Milgate where he was injured?---Yes.
PN1225
Was that where he had come back to work because of the availability roster or was that - - -?---I don’t believe so. I think it was a normal rostered day for Stuart that day.
PN1226
**** DEREK WOODWORTH XXN MR REIDY
There’s no issue there of alcohol being involved or drugs or anything like that?
---No. There was no indication of that in that event.
PN1227
You say at paragraph 24 of your statement that, “No employee is required to participate in the availability roster. The way it works under the Echuca EA, and the Four Sites EA, is that electricians and fitters volunteer to take part in the roster and receive an allowance for each week that they are rostered on.” If I told you yesterday that Mr Porter, who gave evidence for the union, and he works at the Darnum site - gave evidence that he has no choice but to be on that roster, could you contradict that?---No, I couldn’t.
PN1228
So you accept that that could be the case?---It’s possible. I haven’t been involved in the Darnum site specifically. It was my understanding that there was no requirement that people had to be on that roster. That was my understanding.
PN1229
So when you put that statement in, or that evidence in, was that based on information you have been given by another employee of Fonterra?---That information was taken from my involvement with Stanhope as part of the Four Site roster - Four Site Agreement, sorry, and part of the negotiations - - -
PN1230
So you thought the case at Stanhope where you’re the site manager - that’s the way it applies, it’s voluntary, and you have extrapolated from that that that’s the way it is at all sites?---That’s my understanding.
PN1231
You talk about - this is at paragraph 29 of your witness statement - people being on the availability roster?---Yes.
PN1232
At the start of the second sentence, you say, “The expectation is that while an employee is rostered on the availability roster, he/she should remain within commuting distance of the facility and be in a fit state to be able to travel to work and then perform work to a high degree of skill and proficiency.” I won’t read out the rest?---Sure.
**** DEREK WOODWORTH XXN MR REIDY
PN1233
Those employees on the availability roster, what is your experience of how they get to work when they’re called back in to work?---My experience? My understanding would be that they would, the majority of the time, drive in to the facility.
PN1234
Do you know of any time that someone hasn’t driven themselves to the plant?
---Not that I’m aware of, no.
PN1235
If I take you to paragraph 35 of your witness statement, you say there, “The need to call on tradespeople on the availability roster is a relatively rare occurrence at Echuca because there is usually adequate maintenance coverage.” Mr Hay gave evidence yesterday and said that he undertakes a considerable amount of availability call-backs?---Okay.
PN1236
Can you contradict that or explain why you have got one position and he has got another?---Sure. So all I can say is my comment related to over the week, so my comment was trying to make the point, and maybe it was poorly worded on my part, that the availability roster is used more on the weekend period of a Saturday afternoon, night, Sunday morning, so during the week there is not a lot of cause for using the availability roster.
PN1237
So in your second sentence, you say it is really Saturday nights and Sundays when the availability roster is most likely to be used?---Yes.
PN1238
What is your experience about the numbers or how often people are called in over those two days?---Yes. So, sorry, that was the update to my point 34, was that generally, looking at some of the averages of the call-ins for the availability roster for that period, a mechanical fitter would possibly get one to two calls over that week and electricians, two to three calls on average over that week.
**** DEREK WOODWORTH XXN MR REIDY
PN1239
You have some evidence you give at paragraphs 38, 39 and 40 about alcohol in the workplace. Are you qualified at all about occupational health and safety and the effects of alcohol in the workplace or is this more just your own view as a manager of sites?---Yes. That would be my view as a manager of manufacturing facilities over the years.
PN1240
And that would have been the case for as long as those sites have been operating, wouldn’t they?---I guess my comments there are from my experience at multiple sites rather than going back in history for any of the other sites.
PN1241
Is your understanding that the nature of the operation of the sites and machinery within the sites has changed very much over time, or you have no knowledge about that?---The technology used in a lot of our sites would have changed over time, and the risks would have changed over time with those, but not significantly.
PN1242
Would the workplaces have become safer over time with the introduction of new technology or would they have stayed about the same?---That’s a good question. I think, you know, that would be very specific to the facility.
PN1243
You say, starting at paragraph 42 of your statement, that you attended all the meetings for the Four Sites EBA?---Yes.
PN1244
You were still working at Echuca at that time. Is that right?---I had started the role at Echuca, yes, but I attended all of those meetings to finish off the negotiation period.
PN1245
You left in November. Have I got that right? You were at Echuca and you went to Stanhope?---Stanhope to Echuca.
PN1246
**** DEREK WOODWORTH XXN MR REIDY
So a month before the negotiations, concluded, you stepped out of them?---Yes. I changed positions to the Echuca role but I continued to attend those meetings to the last meeting to finish off the negotiation.
PN1247
Did you take notes at the first meeting on 24 September?---I would have taken notes at all of the meetings that I attended, yes.
PN1248
And you reviewed your notes when you made your statement?---Yes.
PN1249
Is there any reason why you didn’t put in paragraph 42 the date that the first meeting took place instead of just putting September 2013?---No. There’s no particular reason for that.
PN1250
Is there any reason why your notes of those meetings weren’t attached to this witness statement?---No, no reason in particular.
PN1251
You still have the notes?---Yes.
PN1252
How heavily were you involved in the negotiations? I understand from the evidence given yesterday by Kelly Sullivan that she was leading the negotiations as the HR manager?---Correct.
PN1253
So how heavily involved were you, considering she was taking on that role?
---Sure. So I was part of the negotiation team and I - it was actually my first negotiations that I was a part of, but you’re
correct that Ms Sullivan was leading the negotiation team.
PN1254
So that was your first EBA negotiation?---Correct.
PN1255
Did you find that an overwhelming experience as Damian went through the log of claims?---I found it a very interesting experience.
**** DEREK WOODWORTH XXN MR REIDY
PN1256
There would have been a lot of issues that had come up that you probably hadn’t dealt with before. Is that right?---There were some new topics that I hadn’t seen before so that’s why I found it an interesting experience.
PN1257
Can you say that in regard to every item on the union’s log of claims that you knew all the background to where that item had come from, how long it had been in place at the site, how it had been negotiated in the past?---When it was first discussed, I would not have known all of that history, but as part of the negotiation team, it’s definitely part of the role that we went and then investigated that information.
PN1258
But nonetheless, over the hour that the log of claims was explained to you - and when it got to point 16 in the log of claims, the availability, you were still attentive and you remember very clearly what was discussed about that?---I do remember well the negotiation meetings and the topics that were discussed.
PN1259
Do you know how much the increase is the union was after for the availability allowance?---I don’t remember that number specifically, no.
PN1260
But you remember that .05 wasn’t mentioned?---I can recall that there was no discussion around that matter.
<CROSS-EXAMINATION BY MR VROLAND [11.30AM]
MR VROLAND: Mr Woodworth, just a few questions. Mr Reidy took you to paragraph 29 of your statement. Do you have that in front of you?---Yes.
PN1262
You say there in the second sentence, “The expectation is that while an employee is rostered on the availability roster, he or she should remain within commuting distance of the facility and be in a fit state to be able to travel to work and then perform work to a high degree of skill and proficiency in accordance with all applicable health and safety requirements.” Your evidence so far is that no-one has ever really said anything about .05. That’s correct, isn’t it?---Correct.
**** DEREK WOODWORTH XXN MR VROLAND
PN1263
But you would agree with me, wouldn’t you, that being in a fit state really meant - it was a general understanding that being in a fit state meant staying below the legal driving limit for blood-alcohol content?---That’s not something that I had considered just because the risks at a site can be quite different to the risks driving a car.
PN1264
What do you mean then by “being in a fit state”?---I guess the roles that the mechanical fitters and electrical trades people find them in can be in real pressure situations, so generally when it’s a breakdown and the availability roster is used - you know, machines can be in an abnormal state, jammed, stuck, something that’s not working as it should be, so for me, you know, they’re really important roles and really important that people are very aware and in the moment because something, you know, can - when it goes wrong, it could go very wrong.
PN1265
So “being in a fit state” means being aware and in the moment?---I think it means - yes, so being aware, being able to follow procedure, being able to focus on very specific details and isolate equipment.
PN1266
It was never stipulated though, was it, that people had to maintain a .00 blood-alcohol limit in your experience, or it hasn’t been stipulated to that extent, has it, until - - -?---Until the procedure has been brought out.
PN1267
And you do acknowledge, I think, in your statement - at paragraph 49, you say that, “The limit under the policy would have an effect on availability roster tradesperson’s freedom to drink alcohol during the week when they are rostered on for call-backs.” You see it says that there?---Yes.
PN1268
Implicit in that would be your understanding that the current state, prior to the new policy, would be that they could have a drink?---Correct, because there was no policy in place.
**** DEREK WOODWORTH XXN MR VROLAND
PN1269
You say there was no policy in place but you also say that when you were in New Zealand, you were used to a policy being in place.
What was that policy?
---Correct. So there was a drug and alcohol policy that was in effect for the New Zealand operations part of the business.
PN1270
I understand that has changed recently. That’s the nature of how this has all come about, that Fonterra are trying to implement a global drug and alcohol policy. Is that your understanding as well?---I’m not sure about the global roll-out process but the New Zealand procedure would have been in place - like, I would be guessing on the dates exactly, but for around about three years.
PN1271
What was that policy?---That policy was a zero tolerance for drugs and alcohol in the workplace.
PN1272
You said “zero tolerance”?---Yes.
PN1273
But with respect to the blood and alcohol content that an employee might be - well, the parameters or the limit within which an employee
might be able to be considered to be in a fit and proper state, was there any specification about that?
---There was, but I would be - I would only be guessing what those details were, sorry.
PN1274
So you’re not sure of the detail of that policy?---I could find the detail out very quickly, but I’m not a hundred per cent certain of the number to give you right now, no.
PN1275
If I might show the witness a document? It’s obviously a copy of DB3.
PN1276
THE DEPUTY PRESIDENT: I was waiting for you to get to that document.
**** DEREK WOODWORTH XXN MR VROLAND
PN1277
MR VROLAND: I like to keep people in suspense.
PN1278
This document that you have before you, that’s part of Ms Denise Bergles’ evidence and her evidence is that this is a human resources guideline that was in place since 2008. I will just give you a minute to familiarise yourself with the document when you’re ready, Mr Woodworth. Take your time. Have you seen that document before?---The content is familiar so I believe so.
PN1279
Would that be the policy that you’re referring to?---No. No, it wouldn’t.
PN1280
You’re sure about that?---Yes, absolutely. The policy I would refer to was actually part of the collective agreement.
PN1281
Which collective agreement?---For New Zealand dairy workers.
PN1282
So you’re not sure if you have seen this document before?---The content is familiar so I believe I have.
PN1283
Ms Bergles says in her evidence that this, as I have said to you, a human resources guideline which was applicable within the Fonterra group of companies. Do you have any reason to doubt her evidence in that respect?---No.
PN1284
I might just take you briefly through this. You see the scope paragraph on page 1 of that document and you see that it applies to all Fonterra global operations, including Fonterra-owned and controlled businesses as well as joint ventures where Fonterra has management control. You see that?---Yes.
PN1285
So the company you work for would fall within that category, wouldn’t it?
---Currently?
**** DEREK WOODWORTH XXN MR VROLAND
PN1286
Yes?---Yes.
PN1287
If I just take you over the page, you will see there at the first dot point on page 2 it says, “In situations where alcohol provided, Fonterra will observe the following requirements.” I won’t read through everything but the fourth dot point down says, “People will not return to work under the influence of alcohol.” Do you see that there?---Yes.
PN1288
If I take you down to paragraph 6 under the heading Definitions, it says there, “Under the influence. As a guide, a person would be considered impaired to the point whereby they could not drive a motor vehicle and would be over the legal drinking limit.” Do you see that there?---Correct, yes.
PN1289
So if the scope of this document is as it says it is, Ms Bergles’ evidence is correct, and you would accept, wouldn’t you, that this document represents a written guideline applicable to the company you currently work for which deems that a person will be able to return to work in a situation where they are within the legal drinking limit for driving a car?---That’s a tricky question because the published date of this document is 2008 and I know there has been policies that have been implemented post that.
PN1290
I understand that and I don’t ask you to make any comment or observation about the currency of this document. That’s a matter that we can deal with elsewhere, but on the basis of this document - and it is Ms Bergles’ evidence that this is a current guideline?---Sure.
PN1291
MR FORBES: No. That’s not her evidence.
PN1292
MR VROLAND: The witness might need to - - -
**** DEREK WOODWORTH XXN MR VROLAND
PN1293
THE DEPUTY PRESIDENT: I don’t think we actually traversed the issue yesterday of how this document interacts with the policy that commence on 1 August.
PN1294
MR VROLAND: Well, that being the case, Ms Bergles’ evidence is that it was a current guideline at least up until the time that the current policy was in place so perhaps I can put it that way.
PN1295
THE DEPUTY PRESIDENT: I don’t disagree with that interpretation.
PN1296
MR VROLAND: So given that the crux of this argument is about whether or not the policy can be applied and whether or not the current
policy is actually something that can take effect - I won’t ask the witness to comment on that. That’s the key matter
about which submissions will be made, but up until this point, putting aside the current policy, Ms Bergles’ evidence is that
this is a guideline that was in place. That being the case, you would accept that an employee would be considered fit to work as
long as they were below the legal limit for driving a car, with respect to blood-alcohol content, would you not?
---I find it a hard one to answer because the drug and alcohol policy, I guess, has been put in place since.
PN1297
But I’m saying on the basis of this document - that would be the logical extension, wouldn’t it, from this document?---I’m a bit confused now of what I’m saying yes or no to, sorry.
PN1298
THE DEPUTY PRESIDENT: Try to put the question again, thanks, Mr Vroland.
PN1299
MR VROLAND: Yes. It was a little bit wordy. I think I have sort of stated the premise of the question sufficiently. Based on this document, wouldn’t your understanding be that an employee of Fonterra, the company you work for, would be considered to be fit for work as long as they kept below the legal limit for blood-alcohol content for driving a car?---Okay. So no, that would not be my understanding because the drug and alcohol policy is in effect for all employees in the Australian business now.
**** DEREK WOODWORTH XXN MR VROLAND
PN1300
THE DEPUTY PRESIDENT: I think what Mr Vroland is asking, prior to the implementation of that policy - so just put aside the policy that has been implemented as of 1 August. What he is saying is that based on the evidence that was given by Ms Bergles yesterday, the guideline, which is that document that you have in front of you, would have been the current sort of indication of Fonterra’s thinking in this area, guidance, and what Mr Vroland is asking, in those circumstances, is the reference to, I suppose, being fit to drive - would that be an indication that you are fit to work in circumstances where you are below the legal limit for driving a vehicle?---Okay. So yes. Until the procedure has been put in place - so prior to that, I would say yes, that’s the guideline that was in place.
PN1301
MR VROLAND: It’s the guideline that was in place and under this guideline, you would be considered fit for work as long as you were below the legal limit for driving a vehicle. You would agree with me?---Yes.
PN1302
Thank you. No further questions, Deputy President.
<RE-EXAMINATION BY MR FORBES [11.44AM]
MR FORBES: You said, Mr Woodworth, that when you were in New Zealand you were familiar with drug and alcohol policies at the sites at which you were - - -?---Yes.
PN1304
And I think you said that they were written into the collective agreement?---Yes, it was.
PN1305
Evidence has been given in these proceedings by Ms Bergles that there are three different drug and alcohol policies that apply to Fonterra’s operations in New Zealand, one for each of the main unions?---Okay.
PN1306
**** DEREK WOODWORTH RXN MR FORBES
Are you familiar with that?---I was only dealing with one of the unions at the time so that’s all that I can comment on.
PN1307
Can the witness be shown exhibit DB13, please? Does your Honour have a copy of that? It’s attachment 13 to Ms Bergles’ statement. Do you have one, Deputy President?
PN1308
THE DEPUTY PRESIDENT: I have got it. Thank you.
PN1309
MR FORBES: You’re familiar with that document, Mr Woodworth? Take a moment?---I’m not familiar with this one, no.
PN1310
Do you know the EPMU is?---I think it’s the electrical union out of New Zealand but I would need to confirm that.
PN1311
I apologise. Can I ask you to move through that document, please, to - - -
PN1312
MR VROLAND: Deputy President, I’m just a little concerned with where my friend is going here. The question has been answered as to whether or not the witness has seen this document. He is not familiar with it and - - -
PN1313
THE DEPUTY PRESIDENT: I take the point you’re making but I’m just going to give Mr Forbes the opportunity because I presume he is going to take us to a particular part of the document and I will be interested to see what the question is.
PN1314
MR FORBES: If you flick through the document, you will see a point at which the pages become two pages to a single page?---Yes.
PN1315
Down the bottom, there is page 106, 107 and following?---Yes.
PN1316
**** DEREK WOODWORTH RXN MR FORBES
Do you have that, Deputy President?
PN1317
THE DEPUTY PRESIDENT: Yes, I have got it.
PN1318
MR FORBES: Are you familiar with that document?---Yes, I am.
PN1319
What is that document?---So that is a drug and alcohol policy that related to the Dairy Workers Union in the collective agreement in New Zealand.
PN1320
I’m sorry. The confusion arose that there are three documents in that schedule.
PN1321
THE DEPUTY PRESIDENT: So is there a particular question you wish to ask about that document or is it just that - - -
PN1322
MR FORBES: There is.
PN1323
You referred to policies that applied in New Zealand when you were managing sites there?---Yes.
PN1324
Is that the document to which you were referring?---Yes, it is.
PN1325
That was the only question. Thank you.
PN1326
THE DEPUTY PRESIDENT: Thank you. Did you say you have concluded, Mr Forbes?
PN1327
MR FORBES: Yes, I have. Sorry, Deputy President.
PN1328
THE DEPUTY PRESIDENT: Thank you.
PN1329
**** DEREK WOODWORTH RXN MR FORBES
Thank you, Mr Woodworth. You may stand down?---Thank you, your Honour.
<THE WITNESS WITHDREW [11.49AM]
THE DEPUTY PRESIDENT: We now get to closing submissions, unless there’s any further witness.
PN1331
MR FORBES: No. There’s no further evidence. That’s the respondent’s case.
PN1332
THE DEPUTY PRESIDENT: Thank you. Mr Reidy?
PN1333
MR REIDY: Thank you, Deputy President. Deputy President, the subject matter of this dispute is the introduction of a change, we say, to the blood-alcohol limit that applies to employees who are members of our unions and who work on the availability roster. We say that there was a practice and there was a common understanding that led to our members operating on a basis that the blood-alcohol limit was .05 and that that practice has applied from the very origins of this allowance being brought in at the various sites relevant to this dispute today.
PN1334
I don’t think there’s any question that the enterprise agreements themselves and the relevant clauses - and those clauses are clause 35 of the Four Sites Agreement and clause 33 of the Echuca agreement which deal with the availability, call-back arrangements. There’s nothing in either of those clauses which actually explains why the allowance is paid. It’s simply a (indistinct) of some - depending upon the agreements, a bit of an explanation of what the roster is there for and then a kind of bold statement that, “And if you’re on the roster, you receive this allowance,” with no explanation of what the allowance is being paid for, so really the nub of our argument is that the practice - it’s a little tricky, but the fact that one of the reasons that the allowance is paid was the inconvenience caused to employees with being on a .05 limit when they’re actually off duty but on the roster.
PN1335
That’s not contained in the agreement but there is case law around this issue and how to deal with it, and I will just hand you a case. The case I have just handed you is SEA Hygiene Australasia v CEPU and the AMWU (2014) FWC 249, dealt with by Senior Deputy President Watson. In that case, the Senior Deputy President is confronted with a similar situation to the one we have here and he referred to - and I will just take you to paragraph 39 of that where he referred to the decision of Grey J in Health Services Union v Ballarat Health Services where it was held:
PN1336
There have been cases in which it has been held that a common understanding of a term used in an industrial agreement can be used to aid in the interpretation of that term. In those cases, the parties to such agreements have acted on a common understanding as to the meaning of terms in those agreements, and the terms have been repeated in successive instruments so that it can be said that the parties have entered into the successive agreements on the basis of their common understanding of those terms. Care is needed in approaching any suggestion of a common understanding as to terms used. In the first place, there must be positive evidence of a common understanding. Ordinarily, a failure to advance an argument as to the effect of a particular provision will not constitute such evidence. A failure to advance an argument is consistent with inadvertence, and common inadvertence is not common understanding.
PN1337
In this case, Mr King has led evidence about his involvement in the negotiation and what was discussed in those negotiations. As has been brought out by the evidence today, those negotiations took place back in 1991. At that time, Mr King was the organiser and he dealt with a representative from the company, Mr Maren, and they held the discussions around the .05. That’s Mr King’s evidence and there’s nothing to refute that evidence. That’s where this availability roster and the allowance that went with it really crystallised. There’s a common understanding between the parties. Mr Maren has moved on; he hasn’t shared that information for one reason or another.
PN1338
It is going back a number of years but the practice of .05 has effectively been set in place and it’s applied. There’s no evidence at any time from the company, starting from then and going right through to now, that it has gone to the union or the employees and told them, “.05 is not the limit. We don’t have that common understanding.” Instead, the company has simply avoided the issue until now so it has allowed the employees to operate under that assumption and we say that our employees had every right to operate under that assumption because that was the understanding and that’s what they were told. Once that understanding was reached, there were terms that were written up, an MOU, and we say that MOU and the terms that it set out were effectively the same as what is in the agreements today. Certainly in 2001 when it was first introduced into the - I think it was the Echuca agreement - sorry; the Four Sites Agreement - sorry. I had it right the first time, Echuca - - -
PN1339
THE DEPUTY PRESIDENT: Instructions on the run.
PN1340
MR REIDY: Certainly that was a predecessor to Fonterra itself but there have been successive agreements done and the clause has stayed the same. Fonterra has come in. It has taken over the operations. It has been responsible for negotiating its own agreements since 2008. There’s no evidence that has been put and our position is that those clauses stayed exactly the same in successive agreements so our members had every expectation and every right to believe that that .05 limit continued on. They hadn’t been told otherwise.
PN1341
We say that in this case we are dealing with what we say is an extra claim. You need to look to that history, the evidence given by Mr King and our other two witnesses about the practices, what his belief in the negotiations was, who he had those negotiations with, and the practice that flowed from that, and we say consistently all that evidence lines up and the company hasn’t been able to put anything to refute that. I suppose that’s our line in the sand; that’s our starting point.
PN1342
Now, from there, we have an enterprise agreement that has a no extra claims clause and those clauses, just for your reference, are clause 33 in the Four Sites Agreement and clause number - it’s in part 1, clause number 5 of the Echuca agreement. These clauses are in slightly different terms but they say - and I’m reading from the Echuca agreement:
PN1343
The parties to this agreement agree that they will not, for the life of this agreement, pursue any extra claims in relation to any matters except where consistent with the terms and conditions of this agreement.
PN1344
Just on that point, there’s no facility provisions within the agreement itself to say that the company can introduce or go through some sort of process where there’s a modification to the drug and alcohol policy or the introduction or change to such a thing as the BAC limit that applies on the site. In the case of the Four Sites Agreement, this is clause 33, the terms are:
PN1345
The employees and their unions and the company commit themselves to no extra claims in relation to wages and employment conditions, including matters covered by this agreement for the nominal period of the agreement.
PN1346
Now, I think we all know the purpose of no extra claims clauses. It is you go in, you put whatever you want to negotiate on the table, your claims, your demands, and all that. You go in and you do the deal. You negotiate and then you get an agreement at the end of it, and then the no extra claims clause is put in there so neither side comes back during the life of the agreement and says, “But we want something else. We want to change your conditions of employment,” unless it’s allowed to happen because of the facility provision within the agreement.
PN1347
Now, this is especially important from the union’s point of view because once the agreement is done - and as you will note, Deputy President, our ability - our, I suppose, big stick to negotiations, taking protected industrial action, is taken away from us for the life of the agreement. In this case, it’s not a situation where the unions are likely to take industrial action against Fonterra in regard to the Echuca agreement. I believe we filed an application and got protected action ballot order, although I don’t think action was taken, but we had taken steps, and in regard to the Four Sites Agreement, we had actually taken industrial action for that agreement, so we agreed to the deal. We took our action off, the agreement was approved, but it was on the basis of no extra claims just to avoid a situation like this.
PN1348
I will just hand up a copy of another case. I have just handed up a copy of the Full Court decision of Toyota Motor Corporation Australia Ltd v Marmara (2014) FCAFC 84. If I could take you to paragraph number 37 of the decision, Deputy President? Here, the Full Court is dealing with the decision of the interpretation to be given to a no extra claims clause and they endorse the decision of the primary judge, Bromberg J, in the approach he took to an extra claim. I won’t read through that paragraph there that’s extracted. I will leave that for you, Deputy President.
PN1349
Needless to say, what we say the company is doing here is we have got a condition of employment, .05 blood-alcohol limit. We have got an allowance that has been negotiated in the two recent agreements on the basis of that being .05. That was part of the consideration. We have got no extra claims clauses which say what they say. They cover terms and conditions of employment. There’s no doubt that a new policy which says if you were to come to work at a blood-alcohol limit over .2, you could be subject to disciplinary action, so that’s a condition of employment. That’s a change to the .05 limit.
PN1350
What the company is doing is clearly a case where they’re making a further claim within the life of the enterprise agreement. Having said that, I want to make this clear. We’re not saying that the company can’t introduce a drug and alcohol policy. I made this point yesterday but I think it’s important. We, I mean the union - it’s just as important for us, if not more so, that our members are safe when they go to work and we recognise that drug and alcohol policies are an important part of OH and S, but this isn’t so much about - well, it isn’t at all about us trying to stop that. It’s us saying, “Hang on. We’ve negotiated an allowance based on an assumption and you’re changing that assumption. You cannot do that.”
PN1351
In interpreting the no extra claims clause, as with all clauses of the enterprise agreement, it goes without saying - we have got the interpretation that’s taken in the Kucks case which you have probably had cited to you many times before, Deputy President. It’s always the case that we’re dealing with enterprise agreements. They’re not written by lawyers. They should be read broadly.
PN1352
Just on that point, if I take you to the availability allowance in the clause in the Echuca agreement, for example, so clause 33 - and this agreement was approved in 2013 and negotiated, I think, at the end of 2012. The terms of clause 33.13 - it says:
PN1353
Where, in accordance with clause 33.1.1, agreement has been reached to establish an availability roster -
PN1354
so it’s talking prospectively about a roster being put in place at a site where a roster has been in place for probably the best part of a decade, if not more, at the time the agreement was made so it’s not a case where the negotiating parties go back and have a look at every clause and put everything in there, or even clauses where they could update them. A lot of the time, these clauses are just rolled over and that’s just the nature of how negotiations take place and that’s why a very broad interpretation should be given and not the narrow type of interpretation that I think the company wants you to adopt in respect to the - I suppose to the dispute resolution process in the two agreements and that’s something that you should resist.
PN1355
Our submission is you should certainly resist that. Yes, there’s nothing in the agreements about .05 but that’s beside the point. There is an availability allowance. From the decision I handed up in SCA, it’s advisable for you to look behind the scenes and see what is going on and what underpins it instead of simply saying, “Well, there’s nothing in the agreement to explain how it got there and I’m not going to look and try and find out.” You need to go and look to find out exactly how that came about.
PN1356
It’s our submission it’s certainly about something that has to do with how the agreement applies, or the application of the agreement, and it absolutely requires that interpretation on how the availability allowance clause itself operates, the allowance that’s written into the agreement and the no extra claims clause - those are all matters that need to have you interpret in regard to application and operation.
PN1357
One final point. It’s in the interests and the objectives of the Act itself at clause 3 that once a bargain is done, it’s the object of the Act that that bargain remain and the company shouldn’t be allowed to reopen the bargaining. The company was in a position to be able to raise the drug and alcohol policy at the time that both these negotiations for the agreement were being undertaken. It knew from the start of 2011 that it was devising a policy. It could have very easily come to the unions in 2012 and said, “Look, this is what we’re doing. We haven’t got it finalised but we have a fair idea - or we think that it may be introduced during the life of this agreement. We’d like to put a clause in there and negotiate something so we’re able actually to facilitate the introduction of the clause.”
PN1358
They could have done that in the case of both of these agreements but it chose not to. Now, that’s no fault of the negotiators for the company, I admit that, because they don’t seem to have been actually aware of how far things had gone along. It was really the left hand didn’t know what the right hand was doing. It’s completely separate from that and it seems that the people who were devising a policy weren’t talking to the HR managers and then it, the policy, was finalised and it was just pushed out to the HR managers and said, “Right, you go and do this,” without any consideration of, “What about the enterprise agreements? What about the terms of those agreements and what they say about if this is possible or not?” and we say in this case it wasn’t possible for the company to just implement a change of this nature without something in the agreements allowing that to be facilitated.
PN1359
Sir, I might leave my submissions there. I understand my friend might have something to say about jurisdiction and that that I might want to reply to but - - -
PN1360
THE DEPUTY PRESIDENT: Certainly. You will have that opportunity. Mr Vroland?
PN1361
MR VROLAND: Thank you, Deputy President. I might just take a minute to get my notes in order, and some materials. Also, I might just take a moment, if that’s okay, to confer with my friend just about our submissions. There was an issue raised about that yesterday and there has been some correspondence.
PN1362
THE DEPUTY PRESIDENT: Sure.
PN1363
MR VROLAND: We haven’t actually had a chance to confer.
PN1364
THE DEPUTY PRESIDENT: If you wish, do you want to have five minutes to do that?
PN1365
MR VROLAND: Yes. Thank you.
PN1366
THE DEPUTY PRESIDENT: Just looking at that clock - my watch says five past at the moment, so if I say 10 past? Is that - - -
PN1367
MR VROLAND: Sure.
PN1368
THE DEPUTY PRESIDENT: Okay.
<SHORT ADJOURNMENT [12.11PM]
<RESUMED [12.25PM]
PN1369
THE DEPUTY PRESIDENT: Just before I throw to you, Mr Vroland, can I just ask a question, Mr Forbes? Do you have a sense of how long your closing submission is likely to be? The reason I ask is I have another matter listed at 2 pm this afternoon and if we’re going to sort of go beyond, or pretty close, I would like to notify the parties in that matter that we might start off a little bit late, so I just want to get a sense of timing if I can.
PN1370
MR FORBES: If you’re happy to sit into lunch - I will be relying largely on the written submissions. I won’t go into great slabs of that so I might be perhaps half an hour.
PN1371
THE DEPUTY PRESIDENT: All right. I think that’s doable and I’m happy to sit into lunch with a view to sort of meeting my time frame as well as enabling everybody to conclude the proceedings, so to speak. Over to you, Mr Vroland.
PN1372
MR VROLAND: Deputy President, just so you’re aware, I may be a little longer than my friend, perhaps half an hour, myself.
PN1373
THE DEPUTY PRESIDENT: That will take us to probably close to half past 1, and an opportunity for anything in reply. Just bear with me. That’s fine.
PN1374
MR VROLAND: Thank you, Deputy President. I will just touch briefly on this issue that was raised yesterday about the AMWU’s submissions. They weren’t filed properly, unfortunately, by my own error. I didn’t send them to our friends here. We have discussed that. I apologise profusely but my friends have very graciously indicated to me that they’re not going to take issue with that and they’re prepared for those submissions to be received.
PN1375
THE DEPUTY PRESIDENT: Fine.
PN1376
MR VROLAND: My friend has indicated that he may request some additional time to provide a written response. We of course don’t have any issue with that.
PN1377
THE DEPUTY PRESIDENT: Sure.
PN1378
MR VROLAND: Deputy President, I would say that our submissions are supplementary to my friend - the ETU’s submissions. In addition to those submissions, we endorse the ETU’s submissions. If I might summarise the question that you’re asked to determine, we say, for the AMWU’s part anyway, the question of whether the introduction of a drug and alcohol policy is an extra claim to the extent that it imposes a blood-alcohol content standard of 0.00 with, I think it’s acknowledged, a .02 per cent tolerance, and if so, we say if it is an extra claim, is the respondent thus prevented by the no extra claims clauses in the Echuca agreement, if I might summarise, and the Four Sites Agreement; I think everyone knows the agreements I’m referring to by this point. If it is an extra claim, is the respondent thus prevented from implementing the policy to the extent that it imposes blood-alcohol content limit of .00. We say those are the questions that you’re asked to determine. My friend has put some additional points to you and we endorse those.
PN1379
With respect to the question of what constitutes a claim, your attention has been drawn already to the Full Court’s decision in the Toyota matter, and my friend has given you the full citation of that case. I won’t go into too much detail here because our written submissions do deal extensively with the decision in Toyota and I just ask you to consider what we say in my submissions, and my friend has kindly agreed for those to go through. I just simply would draw your attention to paragraph 16 of our submissions in particular. In paragraph 16, we give a summary of what might be considered to be an extra claim and we say that on the basis of Toyota, the proposal of the respondent to introduce the policy may legitimately be viewed as an extra claim.
PN1380
Just to be clear there, we do support the ETU’s position, and it’s the same as our position now, which is that the company might introduce the drug and alcohol policy. We’re not opposed to that but it is the effect of introducing the new blood-alcohol content standard via that policy that we see as an extra claim and that is what we see as barred by the no extra claims clause. Our submissions might read a little bit differently but we concur with the ETU in that respect.
PN1381
We see there that Toyota distilled is a further claim or an extra claim, and we say they’re synonymous things, and amount to a contention or demand for something which the claimant regarded or asserted to be due or fitting; a proposal by one party to vary the outcome arrived at in a way which advances its interests; a proposal made by a party to the agreement to materially change the terms and conditions of employment set out in the agreement other than in a manner already provided for by the agreement; the real desires of actual people - or the advancement by one party to other parties of the need to make some presumptively advantageous alteration to the existing state of affairs.
PN1382
We say simply, and I won’t labour the point, that there can be no question that what is proposed does indeed amount to a claim and under the circumstances where the EBA has been negotiated, or two EBAs have been negotiated - sorry; I’m saying “EBA”, I should say “enterprise agreement” - that those claims are in breach of the no extra claims clause.
PN1383
My friend said in his opening submissions that all the company is doing is erecting signposts but the problem is that they’re changing what is on the signs, Deputy President, and therein lies the rub. It’s very clear on the evidence of the employees that what is proposed will have a material effect on the lifestyle parameters of employees, and in particular on the lifestyle parameters of those employees who are subject to the availability roster.
PN1384
You have heard the evidence of Mr King as to the history of this issue. We would say that that evidence is clear; it was convincing; it was compelling. You have heard the evidence of Mr Miller in support. Mr King gave evidence to the effect that originally the issue sprung out of an industrial dispute in the early 1990s, it’s there in his witness statement, and he says that born of that was a memorandum of understanding which dealt with these issues, but it’s the discussion around the genesis of that memorandum of understanding that he says that’s of considerable importance; it’s not the only important thing but he says during that discussion, this issue of the standard for blood-alcohol content was discussed.
PN1385
The company doesn’t have any witnesses who are able to directly refute that. You have heard the evidence of their witness this morning. I hesitate to pronounce his name without it in front of me; I’m not sure of what it was - Eftimiadis; not that difficult a name but I just didn’t have it in front of me. He said that he wasn’t actually around at the time of that original dispute but he accepted that that was in the time of his predecessor, Mr Maren.
PN1386
Essentially there is a difference in evidence though as to the understanding of what was said in the most recent negotiations. We would just submit to you that frankly, the evidence of Mr King was far more convincing and compelling in that respect. What you’re comparing there is the detailed and frank account of one of the most experienced and, without blowing Mr King’s trumpet too much, respected organisers going around as to how he goes about business. He said on the stand that the way that he does that is that he will construct a log of claims and then he will sit there and he will go through each log of claim and he will give background information. That’s what he said he did in relation to this particular claim. I will leave it to you to decide whether or not that was convincing but we certainly say that it was.
PN1387
Compared to that, Deputy President, you have the evidence - this is particularly in relation to the Four Sites Agreement of - Ms Sullivan. She says the availability allowance wasn’t even discussed. That’s in her witness statement. Now, I just don’t think that that’s really credible evidence, Deputy President, in the light of the way things proceeded but I will leave that to you to determine based on what you have heard and the statements that are before you.
PN1388
There is also a difference in view as to whether there was any understanding about the .05 blood-alcohol content being the accepted standard, below which, all other things being equal, an employee would not necessarily be considered unfit for work. We would say that the evidence of our witnesses is that the issue of .05, the figure, was discussed. That’s what you have heard from our side so far but we would also say that really it’s the same thing as a reference to the legal driving limit. Even if the figure isn’t specifically referred to, it amounts to essentially the same thing because it’s a matter of common knowledge that the legal standard for driving, at least for a fully licensed driver, is .05 in the state of Victoria, so we would say there’s no sort of real difference in those two concepts.
PN1389
You have the evidence of Ms Bergles and obviously I have made a fair bit of that during the witness testimony. I think you understand the point that we’re trying to raise there. The attachment to her witness evidence, DB3 - I have taken the witnesses, all of them, to that attachment. I think you get the understanding of our argument in that respect. Ms Bergles says in her witness statement that in respect of reviewing the various policies and procedures that were in place in or around July 2011 to December 2011 - that they reviewed existing policies at Fonterra Cooperative Group Ltd, Fonterra’s international holding company, including a 2008 HR guideline entitled Alcohol In The Workplace.
PN1390
There’s no evidence that I’m aware of that that policy has ever actually been retracted. I know my friend would say with the imposition of a new policy, it’s overridden, but this, as I said earlier, is about what is the pre-existing state of affairs. My friend made much of the fact in his opening that there was just simply no written evidence that the union could refer to to establish an understanding about the acceptable blood-alcohol content. Well, it’s there in their own evidence, Deputy President.
PN1391
As I say, I took the witnesses to that. All of their answers were fairly much the same. I won’t sort of labour this with the next position of exactly what they said. It’s on transcript and you can refer to that. Mr Carpenter did agree, and I think he is in a good position to agree given his experience, that the compliance with Fonterra’s policies and procedures is in fact a condition of employment and we would say - and this is relevant to later argument about the scope of the no extra claims clause - it’s beyond doubt really that compliance with the company’s policies and procedures is a condition of employment. Effectively it was a policy or a procedure or a guideline. It amounts to a written instruction to the employee so it would very curious if the company argued differently to that.
PN1392
Moving on from that - and I will just try and move a little bit more quickly through things so if you would bear with me for a minute?
PN1393
THE DEPUTY PRESIDENT: Sure.
PN1394
MR VROLAND: Essentially that’s all I have to say about that point. I will leave it to you to determine the relative weight that you can give to the witnesses’ evidence, but we would say given DB3, you can put down your glasses on that point. It’s very clear there was an understanding about what the blood-alcohol content was, the accepted standard or limit.
PN1395
I would like to turn to the respondent’s submissions because there are a few things that they arise which we haven’t put in written submissions about. They raise some jurisdictional arguments and various other heads of argument and I would like to address those briefly.
PN1396
Essentially, the respondent’s argument - and I might just get their submissions out if I might. The respondent says that really we should be jurisdictionally barred from bringing this argument to the Fair Work Commission. Their argument, I would have to say, is a little convoluted and difficult to follow. You have heard Mr Reidy and what he has said about other aspects of this dispute. The AMWU’s focus is on the no extra claims clause and really our submissions are quite simple. This is a dispute about the interpretation or application of the no extra claims clause. As Mr Reidy said, there’s quite a bit behind that but that’s what it boils down to. There’s no jurisdictional barrier to us bringing a dispute about a clause that is in the various agreements that’s true with respect to either agreement.
PN1397
The respondent says in its written submissions that the agreements in question and the awards don’t actually deal with the drug and alcohol policy and they say that the claimed nexus between drug and alcohol policies and the interpretation and application or process of implementation of the identified provisions - which is the other provisions in the agreement, the availability allowance, et cetera - is at best indirect and artificial. We’re not quite sure how they got to that argument for the reasons that we have already outlined. They are trying to implement aspects of a drug and alcohol policy; it’s in breach of the no extra claims clause. That’s simply as far as you need to go into that aspect of the argument. There is a sufficient nexus there between the no extra claims clause and the provisions of the agreement to jurisdictionally enliven this dispute.
PN1398
THE DEPUTY PRESIDENT: What about if I find in the alternative in terms of the no extra claims position that you put? In essence, that would be if I find - and I’m not suggesting that I will at this stage - that it’s not a claim in the context of the no extra claims clause. What do you wish to say around those jurisdictional arguments?
PN1399
MR VROLAND: Then we have lost the argument in respect of the no extra claims clause, but we really haven’t lost the jurisdictional argument because we say it’s legitimate to bring the argument under the banner of the no extra claims clause. What I say there is we have lost the argument on its merits rather than jurisdictionally.
PN1400
THE DEPUTY PRESIDENT: I get the point you’re making.
PN1401
MR VROLAND: As for the absence of a reference to the drug and alcohol policy, or a drug and alcohol policy, in either of the agreements, we say that this doesn’t matter. It doesn’t matter at all. The whole point of a no extra claims clause is to bar the parties from making a whole range of extra claims. Just by way of an example of how a no extra claims clause might work, if the union was to make a claim that we should be provided with a Christmas turkey every year - there’s nothing in the agreement about that but we would be barred because of the no extra claims clause. It’s as simple as that. It’s a sort of, you know, obscure kind of argument but I think it illustrates the point, and that point can be illustrated even further in the recent decision which I alerted the commission to, I alerted your chambers to, of Australian Municipal Administrative, Clerical Services Union v North East Water (2014) FWC 6922. I do have copies of that decision here for the bench and for my friends.
PN1402
Deputy President, I commend that decision to you. I think it’s on point and we would say to you that it’s certainly a recent decision of the commission which should be considered when you are making your deliberations in respect of the matters before you. There are a number of aspects of this decision that I would draw your attention to but in respect of this question - sorry; I will take a little step back. I suppose it’s appropriate for me to at least put on transcript what the relevant facts of this case were because this case is relevant because it dealt with North East Water’s proposal to remove an element of its vehicle policy whereby previously its employees were entitled, amongst other things, to a limited use category of vehicle use.
PN1403
There were a number of categories in that policy. The company said because of changes in the Fringe Benefits Tax, they wanted to remove that limited use category and a couple of employees and the union suggested that that would be in breach of the no extra claims clause because it was quite a material aspect of their employment. The commission indeed found that it was effectively a condition of employment. The agreement in that case, the relevant industrial instrument, didn’t contain any reference to the vehicle policy, and that’s dealt with at paragraph 30 of the decision and I just highlight it there for you.
PN1404
THE DEPUTY PRESIDENT: Did you say paragraph 30?
PN1405
MR VROLAND: Yes. I think we have got actually a wrong - sorry; it’s 36. I can’t read my own writing, Deputy President. It says there:
PN1406
There are no provisions of the agreement that deal directly with the provision of motor vehicles and so there is nothing to be taken account of in that regard.
PN1407
I won’t read out the rest of the paragraph for you for the sake of brevity, but just purely on that point, it’s clear that Commissioner Wilson, who eventually found that the company was barred from making this change because it would constitute an extra claim, definitely was, you know, aware of the fact that it wasn’t something that was in the current enterprise agreement that was applicable to those employees. I won’t take you chapter and verse through this decision, Deputy President. It’s a long decision and we would be here for a little while and - - -
PN1408
THE DEPUTY PRESIDENT: I’m happy to read it; don’t worry.
PN1409
MR VROLAND: You can make your own determinations about it but I will just take you to a couple of points that I think are of considerable import, and that is in particular at paragraph 61. It’s a long paragraph. I won’t read the whole thing out but essentially what it talks about is the evidence that was before Commissioner Wilson:
PN1410
The employees say that the vehicles were provided to them as part of their terms and conditions of employment.
PN1411
That was eventually accepted. In that second-last paragraph, you can see there that the Commissioner says:
PN1412
Although his prescribed value -
PN1413
which was Mr Piazza, one of the employees -
PN1414
is not agreed by North East Water, the point is that he saw the provision of the vehicle as having a value to him and that correspondingly, the withdrawal of the vehicle would leave him worse off.
PN1415
That is similar to the situation that you’re faced with in the current matter. The employees obviously see the current arrangements as having value to them. It might not necessarily be a monetary value although it is related to a monetary value because they have been compensated to reflect an established work-life balance. In this case, the evidence of the employees we presented, our witnesses, is that it’s of considerable value to them to be able to attend social functions, to go out into the garage, fix some scooters, have a beer, and, you know, still be within the limit to attend to a call-back if that’s what is required.
PN1416
What the company is effectively doing here is changing the playing field, by which - I mean, they say that the availability roster is a voluntary thing. I’m not sure that it’s as simple as that because the evidence that was before you was as well that the company would struggle in the event that people didn’t make themselves available, so I think there’s a real sort of practical element of this, that although notionally it might be argued that putting yourself on the availability roster is a voluntary thing, the practical reality is that the company needs it. There was a bargain struck about how that’s all going to work and the bargain was good. Employees were prepared to put themselves forward on that basis. As I say, the signpost has changed on that one. We say that those are relevant considerations as highlighted in Commissioner Wilson’s decision. What is the actual effect on the employee? That’s a very important consideration here and we say there is a sufficient connection between the remuneration of employees via the availability allowance and their lifestyle changes to enliven that point.
PN1417
Now, we accept the argument that the situation may be different with respect to the two different EBAs because the wording in the two different EBAs with respect to the dispute resolution clauses and the no extra claims clauses are slightly different. The respondent acknowledges that the dispute resolution clause in the Four Sites Agreement is broader than in the Echuca agreement. They say it’s confined to disputes about wages and conditions of employment.
PN1418
We say, as I have just said there, effectively this is a dispute to some extent about the wages and conditions of employment. Again, Deputy President, a reading of the North East Water decision will illustrate that point for you. I will highlight paragraph 58 of that decision with respect to that issue. Paragraph 58 of the decision deals with the phrase “in relation to” and that is with respect to the no extra claims clause that was considered in that dispute; it’s identified in paragraph 57.
PN1419
The restriction on making further claims in that case was on further claims in relation to salary increases or conditions of employment. The Commissioner has a look at the decision of Bromberg J in the case he identifies there, Walsh v Greater Melbourne Cemeteries Trust Number 2 and he says that the phrase “in relation to” was considered within the context of section 341(1)(c)(ii) of the Act, being the workplace right of an employee to make a complaint or an inquiry in relation to his employment, and he says that, at least with respect to that case, those words are of wide import, identifying that a relationship between the subject matter in employment as required and the nature of the relationship need not be direct and may be indirect, and where the subject matter of the complaint raises an issue with potential implications for the complainant’s employment, it is likely that the requisite nexus will be satisfied.
PN1420
It’s not directly on point in terms of the no extra claims clause but it is indicating Bromberg J’s reasoning that this question of a complaint in relation to an employee’s employment is a broad consideration and we would say that’s the same level of consideration that should be applied when you’re talking about these no extra claims clauses. I will just move forward a little. It is for those reasons that we say, Deputy President, that there should be no jurisdictional barrier to our application.
PN1421
The respondent then goes on to deal with the construction issue, or what they term to be a construction issue in their written submissions. I won’t spend too much time on this because they base pretty much everything in their argument on this assertion that the union’s case is flawed because we can’t show on evidence that there ever was any common understanding about .05 being an accepted limit in the circumstances before you.
PN1422
I have already explained to you what our view is of that. They’re simply wrong. They’re wrong on their own evidence and that really sufficiently deals with this question of construction that they raise. You will see it throughout their submissions there, that they rely heavily on this notion that there is no understanding. We just simply can’t accept that and we would say you shouldn’t, Deputy President.
PN1423
Just moving through the respondent’s submissions, they then do turn to this question of no extra claims, so moving beyond the jurisdictional issue. I don’t want to be repeating myself. You have got our submissions on whether or not this is a claim. Again, they say that our case is based on the flawed premise that .05 has always been the accepted standard; the premise is not flawed, as I have said. They repeat that there so it’s worth addressing.
PN1424
In 5.3 of their written submissions, they say that what they are seeking to do is not an extra claim but rather a reasonable exercise of management prerogative. The two things are not mutually exclusive, Deputy President. We don’t necessarily say, and Mr Reidy has said, that the idea of implementing a drug and alcohol policy is not necessarily an unreasonable thing to do, but what has occurred here is that the respondent has actually given up that aspect of their managerial prerogative because they have agreed to the no extra claims clause. Absent the no extra claims, well, we don’t concede but they might be able to do what they are seeking to do. The no extra claims clause bars them from doing so.
PN1425
At paragraph 5.6 of their submissions, they talk about the purpose of no extra claims clauses and they say this is not the sort of thing that a no extra claims clause is designed to prohibit. They don’t really provide a lot of legal argument in that respect. With respect to my friend, I would say that’s just a bold assertion and in fact, this is exactly the kind of subject matter that the no extra claims clause might legitimately consider. The North East Water is an indication of that, amongst others.
PN1426
They say there that Fonterra is not seeking to improve its position outside of the bargaining cycle. It’s seeking to fill a gap in its study of HS arrangements, which I assume stands for work, health and safety arrangements, and thereby make its workplace safer. That might be true. They might be seeking to improve this aspect of their business but they can’t escape the fact that it does change the work-life balance for employees. It doesn’t matter, as Fonterra says, that the new requirement doesn’t change any enterprise agreement provisions, and I have already drawn your attention to the North East Water case in that respect.
PN1427
The company then has a fourth section in their submissions which is headed Managerial Prerogative or the XPT issue. I don’t intend to make lengthy submissions about this aspect of their submissions because I think I have already dealt with it, Deputy President. I say they’re not mutually exclusive things. It’s simply something that can be curtailed by a no extra claims clause, legitimately. Deputy President, that’s the question ultimately though that you have to determine and I will close my submissions there.
PN1428
THE DEPUTY PRESIDENT: Thank you, Mr Vroland. Mr Forbes?
PN1429
MR FORBES: Deputy President, you have got a detailed outline from us and that has been addressed in part by the unions. It hasn’t been marked but I assume that you have got that and we would seek to rely upon that.
PN1430
We have identified four issues that we think are central to your determination of this matter, and we have called them the jurisdictional issue, which turns on obviously your power of arbitration derived from the enterprise agreements and the Act. There’s then the construction issue and what that issue focuses on is whether the enterprise agreements currently ought to be read in the way that the unions contend that you ought read them. In essence, what is contended is that the availability allowance provisions of the Act have imported into them these invisible words of “.05” or something to that effect, and I will deal with that, but we say that the provisions are not to be read in the way that they contend for.
PN1431
The third issue that we raise is the no extra claims provision, and it is the case that there are no extra claims clauses in each of the agreements, but we say that on any view, what the company is seeking to do here, which is to bring in a drug and alcohol policy which raises signposts as opposed to moving goalposts, and I hope that analogy makes some sense. What we say is that in erecting some signposts which provide guidance as to what “fitness for work” might mean, there is no essence of a claim being made by the company and that in seeking to define or put some parameters around what has always been required; that is, that an employee be fit for work, nothing is changing, nor is anything being taken away. The whole notion of things being changed or being taken away all stands or falls on the union premise that there is in place a .05 restriction. We say there’s not factually and therefore there is nothing being changes, there’s nothing being taken away.
PN1432
The final matter we raise is what we have called the XPT issue, simply because we rely upon the very well known principle arising out of the XPT case, that in the event that you find, and should find we say, that the introduction of a new drug and alcohol policy is an exercise of management prerogative, there is scope for the commission to intervene in that process, but only where we’re seen to be acting unreasonably or oppressively or unnecessarily, and we have sought to explain in the final part of our submission exactly why we’re doing what we’re doing.
PN1433
As far as the jurisdictional points are concerned, they’re set out in quite some detail, but if I can just sort of hit the high points, we note, Deputy President, that you have actually got four applications before you, one by each of the unions in relation to each of the two enterprise agreements. The two enterprise agreements don’t - they’re not identical and therefore, strictly speaking, the exercise of arbitral powers under the dispute settlement procedures have to be exercised in accordance with the jurisdiction that emanates from each of the agreements.
PN1434
You will see that under the Echuca agreement, what is required is a dispute, provided that your arbitration is limited to the specific interpretation, application or process of implementation of a term or terms of the agreement, so the arbitration is limited specifically to interpretation, application or process of terms in the agreement, so on its face, it’s not a dispute settlement procedure that allows the commission to deal with any dispute about employment or any terms and conditions but specifically those matters.
PN1435
Under the Four Sites Agreement, that’s also contained but less so. It does provide that arbitration can be exercised in relation to a dispute or claim as to wages and conditions of employment - I should say it arises out of the operation of the agreement as to wages and conditions of employment - I’m sorry, no. I have phrased that wrongly. It’s any dispute or claim as to wages or conditions of employment.
PN1436
I will speak about conditions of employment in a moment, but what we say about that is that conditions of employment does have to be read in a particular manner, and largely in the manner that’s actually contended for or arose in the North East Water case that Mr Vroland took you to a moment ago. Conditions of employment don’t apply to anything to do with employment. There is a distinction to be drawn between conditions of employment in the nature of rewards, benefits and so forth and what we talk about here, which is a policy. North East Water itself, and I will go to it in a little bit of detail shortly, actually assists in drawing this fine line.
PN1437
What we have set out in our submission regarding the jurisdiction of the Echuca agreement is that we say you need to find, Deputy President, a dispute about the interpretation, application or implementation of (1) the no extra claims provision, or the interaction between the Echuca agreement and the parent award, or the call-back provisions. They’re the three clauses in the Echuca award that the unions say are in dispute.
PN1438
Now, there doesn’t appear to be any dispute, from what we have heard, about the interaction between the Echuca agreement and the parent award so we can put that to one side. In our submission, you can’t find any dispute about the call-back provisions because the call-back provisions in the award largely are mechanical in nature. They provide that employees can be on a call-back roster; they get paid a certain amount of money for being on the call-back roster; they get paid a certain amount of money if they get called back, so there are prescriptions which are built around mechanical processes and in my respectful submission, there’s no dispute about those things here and therefore there’s not the appropriate foundational basis to say that there is a dispute which requires resolution.
PN1439
Insofar as the no extra claims clause is concerned, in our submission there’s no dispute about the no extra claims clause. It’s there and we acknowledge there’s a no extra claims clause there. There’s no dispute about that clause that requires any determination. What is really argued is that that clause ought to prevent the employer doing what it wants to do.
PN1440
Now, I will go to the Toyota case in a moment when I get into the no extra claims issue but our submission, Deputy President, is that - and I think Mr Vroland almost went to this point. The unions seem to be saying that, “Well, if we say something is a claim, then that gives rise to a dispute under the no extra claims clause.” That can’t be right because that would mean that basically the no extra claims clause becomes sort of this Trojan horse that gives the commission jurisdiction in relation to anything that someone says is a claim. It would mean that any issue that is brought to this commission under the guise of it being said to be a claim would vest the commission with jurisdiction. We say that can’t be right.
PN1441
If there’s a dispute about what the no extra claims clause means itself, then of course there’s jurisdiction for that, but it can’t be used as this hook to bring to the commission disputes of any kind simply because they’re asserted to be a claim. I have endeavoured to articulate these more in the written submissions and I would rely upon that, but that’s really the essence of what we say about Echuca.
PN1442
As far as the Four Sites Agreement is concerned, the dispute settlement procedure is wider, we concede that, and it does go to dispute about wages or conditions of employment, but what we submit is that there is no such dispute here because the implementation of a drug and alcohol policy does not give rise to a dispute about a condition of employment as properly understood.
PN1443
Can I deal with this issue of condition of employment and go to the North East Water case? We have got a bundle of cases for you, Deputy President, we would seek to hand up. The North East Water case - - -
PN1444
THE DEPUTY PRESIDENT: Tab 3?
PN1445
MR FORBES: Tab 3, yes. What happened in that case, Deputy President, as Mr Vroland touched upon, was that a number of employees enjoyed private usage of motor vehicles and what the evidence showed was that the - sorry; I will take a step back. North East Water had a policy regarding use of motor vehicles. That policy was broken up into a number of sections regarding full private use, that I think some of the executives had, down to very limited use of motor vehicles by tradesmen and so forth and everything in between. There was a concept or a notion of limited private use which had been conferred upon a number of employees and what the evidence showed in this case, and this is absolutely critical to the case, is that the limited private use enjoyed by the two employees who were the subject of this case, had been conferred upon them as a reward or as a benefit.
PN1446
The limited private use aspect of the policy is set out at paragraph 9 of the decision where it’s clear from the terms of that policy that limited private use can be approved as a reward for exceptional performance and that it confers a benefit. What happened was the evidence showed that the employees in that case had actually been granted limited private use upon promotion from one position to another and effectively in lieu of a pay increase. What happened was there was a Mr Piazza and a Mr Kelly and what occurred was that they got promotions but then rather than being rebanded into a higher classification, North East Water gave them a car, or let them use their car with limited private use. The giving of the car or the right to use it for limited private use in lieu of remuneration or in lieu of money or a salary increase was seen to be a benefit with valuable consideration, and that’s critical, and that’s referred to at paragraphs 68 and 72.
PN1447
Then what happened was North East Water decided to change its policy and the change in the policy meant that these two blokes couldn’t use their car the way they used to be able to use them. The ASU on their behalf said that change constitutes a change to conditions of employment and it’s an extra claim, or it has changed the conditions of employment which breaches the extra claims clause and ultimately, Commissioner Wilson found that that was so, but what North East Water does is that it does draw this distinction between that kind of policy change which takes away a benefit which had been conferred as part of employment terms and conditions and alters an employee’s position clearly to their detriment. It distinguishes that from circumstances where an employer exercises managerial prerogative to bring in a policy.
PN1448
There’s a discussion in the case about some previous authorities, namely Wagstaff Piling, and I have referred to that in our bundle - CFMEU v Wagstaff Piling. I don’t know whether you’re familiar with that case, Deputy President, but that was a case in which Wagstaff Piling brought in a drug and alcohol policy. The issue in Wagstaff Piling was effectively whether that constituted an extra claim and the Full Court of the Federal Court found that it didn’t. North East Water also refers to AMWU v Kraft Foods, a decision of Commissioner Gregory, which was a case involving Kraft where Kraft brought in a policy requiring employees to take off their wedding rings and jewellery and so forth while they were working on production lines. In that case, Commissioner Gregory found that that was the introduction of a, if you like, managerial prerogative endorsed policy regarding health and safety which was not an extra claim.
PN1449
I have also referred in our submissions to some other cases but there’s a distinction to be drawn between what we say is a policy which really has a neutral effect, a neutral impact, on employees but seeks to draw parameters around behavioural standards. What is contended for here is it’s said to be a claim by the company which is taking something away or changing the goalposts.
PN1450
At paragraph 63 of North East Water, Commissioner Wilson draws the distinction between these two types of cases and we say that that’s pertinent here. At paragraph 63 in the third line down, he says:
PN1451
The facts of this matter -
PN1452
that’s North East Water -
PN1453
are distinguishable from the cases referred to by North East Water -
PN1454
and he refers there to Wagstaff, Silcar and Kraft, and those authorities I think are in our bundle. We don’t quibble with the fact that Commissioner Wilson found that in that case there was an extra claim and that it was a condition of employment that was being tinkered with because there was a clear nexus between wages, reward, benefit, but this case before you, Deputy President, is on the Wagstaff Piling side of the line because we’re not taking anything away.
PN1455
In relation to the no extra claims clause - no; perhaps I will go in order and talk about the construction issue. I will deal with no extra claims in a moment, your Honour, but there is a link between our argument that there is no extra claim here and the jurisdiction. The link is that we say you couldn’t possibly find that there’s an extra claim, and I will go to Toyota, and because you couldn’t possibly find there’s an extra claim, then there’s no jurisdiction.
PN1456
I want to go to the construction issue. What we have said is that the union’s entire case is based on a false premise, and that is that there is in place a common understanding or an agreement or an acceptance or something else which has conferred upon employees some kind of benefit or prescription about .05 being the limit for the performance of work at Fonterra, and that being generally available, which seems to be sort of the general prescription in the two clauses, has been - that there are extra words imported into that, or extra prescriptions imported into that. In my respectful submission, there is just no evidence sufficient to satisfy you that there is such a common understanding.
PN1457
My friend correctly took you to a principle - I think Mr Reidy handed up the case of SCA Hygiene Australia and he referred you to paragraph 39. What paragraph 39 does is take you to a decision of Grey J in Health Services Union v Ballarat Health Services. That decision is part of a line of decisions from Grey J - a couple more of which I have got in our bundle of authorities - where he makes clear that one has to exercise a great deal of care in approaching any suggestion of a common understanding. He says:
PN1458
There must be positive evidence of the common understanding and a failure to advance an argument as to the effect of a particular provision will not constitute such evidence, and a failure to advance an argument is consistent with inadvertence and common inadvertence is not common understanding.
PN1459
That’s absolutely critical and kernel to this case. Common inadvertence is not common understanding.
PN1460
The cases tell us - and particularly the decision of Grey J there; also his decision in ALHMWU v Prestige Property Services from which this principle derives - that the commission should be extremely cautious before ever introducing words into an agreement which aren’t there, based on the notion of a common understanding. In my respectful submission, we start from the proposition that the enterprise agreements here say absolutely nothing about blood-alcohol limit. They don’t prescribe any limit or anything at all, it’s not referable to any policy directly, and the clause operates perfectly well without the requirement for these extra words, yet the entire union case proceeds on the premise that general availability - that it is implicit in the words “general availability” that there is a .05 limit.
PN1461
There’s no evidence at all that there is a common understanding to that effect. There’s no evidence, there’s not a single document which evidences an agreement. There is no consistency or no acceptance by the company witnesses that any agreement or position consistent with the union’s contention has ever been reached. There is a denial by company witnesses that blood-alcohol concentration was discussed at all in the 2013 enterprise agreement negotiations and there is a denial by company witnesses that this has ever been raised or agreed at other times.
PN1462
I have heard what my friends have said about the evidence of Mr King and I’m not going to suggest he is a dishonest witness or anything of that kind, but the fact of the matter is that the evidence does have to be looked at in terms of how it developed through the course of this case. First of all, we had a statement filed on behalf of Mr King which initially referred in the vaguest possible terms to - and this is at paragraphs 17 and 18 of his witness statement - negotiations for the Fonterra Echuca EBA in 2001 where he said it was understood by all parties that there was a requirement to stay below .05. Then he goes on to say the same acknowledgment was made by Bonlac management in the 1990s.
PN1463
Now, you had Mr Eftimiadis here, who was at Bonlac from 1991 to 2001. He was the person named by Mr King in his evidence. Mr Eftimiadis came along today out of semi-retirement, knowing nothing about this case, went into the witness box and gave the most truthful evidence you will ever get; a man who has got 30-plus years’ involvement in industrial relations, and he said there has never been a common understanding. No acknowledgment of the type contended for by Mr King has ever been given, and now it would appear that the predecessor to Mr Eftimiadis - - -
PN1464
THE DEPUTY PRESIDENT: Mr Maren.
PN1465
MR FORBES: Mr Maren, I’m sorry, who was there before 1991 seems to be the bloke who did it. With respect, it’s looking like a very desperate attempt to clutch at straws. If there was something before 1991, it applied at Dandenong, a totally different plant, and would have had nothing whatever to do with the negotiation of the Four Sites Agreement. In my respectful submission, on the evidence that you have before you, one can’t possibly be satisfied that there has been an understanding between the company and the unions that general availability imports the words “must be under .05”.
PN1466
DB3, the silver bullet - it now seems to be put that DB3 is the evidence of the common understanding. Well, DB3, Deputy President - if it was the evidence of the common understanding, it was not a document ever raised in the union’s case, not a document that was put to the union witnesses, not a document that has ever been relied upon in enterprise agreement negotiations, not a document identified or relied upon in the union case at all; most probably a document picked up by the union yesterday as they flicked through the evidence book.
PN1467
The evidence about DB3 is much, much narrower than really has been contended for. Ms Bergles said in her witness statement that as part of the process of reviewing Fonterra’s pre-existing policies and so forth - she said at paragraph 14(c):
PN1468
We reviewed existing policies of Fonterra Cooperative Group Ltd -
PN1469
Fonterra is an international holding company -
PN1470
including a 2008 HR guideline entitled Alcohol In The Workplace -
PN1471
and she said, “Well, we found it on the intranet.” The evidence is that Fonterra Cooperative Group Ltd is the New Zealand parent company. The only person who was able to actually identify it in fairly short terms was Ms Sullivan who said, “Yes, I saw it when I was being inducted in New Zealand.”
PN1472
The policy itself - if I can take you to it, please, Deputy President, because it seems to have been given very special significance in this case - is, with the greatest respect, a policy about drinking at work and it seems much more directed to social events at work or perhaps going out to a long lunch and coming back. In its very terms, this is a very confined policy:
PN1473
The intent -
PN1474
and I’m not seeking to introduce any evidence of this other than just ask you, Deputy President, to read it -
PN1475
is to outline Fonterra’s commitment to providing all employees with a safe and healthy working environment by minimising the hazards and risks that can arise from the use of alcohol in the workplace.
PN1476
The it goes on in the guidelines:
PN1477
Fonterra recognises the provision of alcohol at some company events and social occasions is accepted and appropriate for socialising and company morale -
PN1478
and then it goes on and talks about its business dealings, and it says:
PN1479
However, to ensure Fonterra meets its obligations to manage the risks associated with alcohol in the workplace, Fonterra has a policy to manage and control the use of alcohol at work-related and sponsored events.
PN1480
That’s what this is all about. It’s a policy and you will see, even when one goes through the balance of it, Deputy President, that Fonterra refers to its requirements relating to off-site social situations, business situations, situations where alcohol is provided:
PN1481
Fonterra will observe the following requirements.
PN1482
Your Honour, this is a policy which has not the least relevance to work by maintenance tradespersons who are on an availability arrangement at the four sites or Echuca and any attempt to give it that significance, in my respectful submission, is entirely misplaced and is entirely inconsistent with the words of the document itself. In my respectful submission, that really just deals with DB3 entirely and it can’t possibly be relied upon as evidence of any common understanding. Even, with respect, if it was found to be applicable, it doesn’t evidence a common understanding because nobody seems to have known about it.
PN1483
I’m very conscious of your time, Deputy President. How much time are you going to give me?
PN1484
THE DEPUTY PRESIDENT: I have put my next matter back to 2.30.
PN1485
MR FORBES: I will be finished in about 15 minutes. In the written submission, I have outlined in some detail the way in which the enterprise agreements should be construed. I have identified the relevant principles - this in part 4 of the submissions - and the relevant authorities, not all of which I have included in the bundle of cases. The principal authority for construing or interpreting enterprise agreements is Amcor, the High Court decision in Amcor, but I do draw to your attention, your Honour, the decision of Tracey J in TWU v Linfox. The reason I do that is that that’s probably one of the more recent aggregations of the relevant authorities.
PN1486
I draw your attention in particular to paragraphs 38 to 41 and the discussion there, your Honour, was that post-Amcor, it’s quite clear that one takes into account the surrounding circumstances and the vibe which give rise to provisions in enterprise agreements and you can take that into account in interpreting it, but one always has to be very cautious about interpreting things with regard to vague notions such as common understanding.
PN1487
Now, let’s put the unions’ case at its highest. It may well be that Mr King, the unions and all the employees had a particular belief or that they had conditioned their behaviour around a particular reference point that, “Well, if I’m right to drive to work, then I’m right to work.” That falls way short of there being an understanding. It’s quite possible, even putting their case at the highest, that you can have a sort of ships passing in the night phenomenon and we say at its highest, that’s what you got.
PN1488
It may well be that you believe everything the unions have said and you believe everything that we say. It’s quite possible that’s the situation. The reality, your Honour, is that what the evidence talks to, particularly Mr King’s evidence talks to, is something that happened in the mid, late 1990s, and then he talks about the most recent round of bargaining, but it’s just silent in between. It would appear that the gist of the evidence is that there has been nothing; nobody has talked about it; no issues have arisen; no-one has had cause to interrogate what “fitness for work” means or “general availability” means.
PN1489
Your Honour, I would submit that it would take an enormous leap on the evidence that you have before you to find that there’s a common understanding between the parties such that when you’re interpreting a clause, which has legal effect, for which parties can be liable for non-compliance, you would read into that clause something that’s there only on the basis of the evidence you have heard. That’s why Grey J and Tracey J reiterate this warning regularly in Federal Court cases about the care one takes and not to confuse common inadvertence or silence or anything of that kind with there being an understanding. Of course it doesn’t matter. The test of whether there’s a common understanding is entirely objective. It’s for you to determine on the evidence whether that exists. It’s not a matter of whether there was a belief, or even a strong belief, or total commitment on the part of one side.
PN1490
Now, I have touched upon other legal principles. We say that the commission should not read into a clause words that are not there if it’s not necessary to do so. The call-back provisions or the availability provisions work perfectly well without you needing to do that.
PN1491
Then there’s the extra claims issue. The extra claims issue pivots around the Toyota case. The Toyota case has got a fair bit of currency in recent times but I think one needs to be a little careful in not taking Toyota to the point where anything to do with employment that an employer might want to do becomes a claim. Paragraph 37 of Toyota is - it’s tab 9, and this paragraph is also cited in North East Water. Mr Vroland correctly said that what happened in Toyota was that the Full Court approved, or didn’t overturn, Bromberg J in relation to his construct of what a claim means.
PN1492
There is a very important nexus between claims and bargaining and agreements. What Bromberg J said is:
PN1493
In the context of the scheme for bargaining provided by the Fair Work Act, where agreements are made in resolution of claims pursued through bargaining, a proposal by one party to vary the outcome arrived at in a way which advances its interests is apt to be regarded as a further claim.
PN1494
Respectfully, there’s no proposal by the company here to vary the outcome that has been arrived at through the process of bargaining. You might find differently if you accept the unions’ case. If you accept the unions’ case that there’s a common understanding, then presumably you would find that we’re seeking to undo the deal, but we say that there’s no proposal to vary the outcome arrived at through bargaining, nor - and this is the important tag - is it being done in a way which advances the company’s interests. It advances everybody’s interests. Imposing a safety policy or bringing in a safety policy is not a matter where the company is seeking to chisel away a term or condition of employment or to advance its industrial bargaining interests to the detriment of the other side to bargaining.
PN1495
In my respectful submission, one has to be very careful in allowing Bromberg J’s decision to extend to any kind of change or initiative that might happen in the workplace because he goes on to say:
PN1496
This is particularly so where the proposed variations are significant and suggest and attempt to strike a new bargain.
PN1497
I won’t bang on about it but in my respectful submission, your Honour, what is sought to be done here by the introduction of a drug and alcohol policy - which again I note that the unions don’t oppose, other than one element of it - it’s not a claim. Can I say in fairness to them that I think there is an acknowledgment that it’s not a claim; that is, the only part of the whole policy that is said to be a claim is the blood-alcohol limit. There is, in effect, a concession that the rest of it is not a claim and doesn’t fit what one would ordinarily regard as so, and that’s consistent with Wagstaff Piling and Commissioner Gregory in Kraft, and there are other cases I have referred to. In my respectful submission, when Toyota is read properly, one can draw a distinction between the drug and alcohol policy, safety procedure, and something which the company is seeking to introduce to advance its own interests.
PN1498
We then move to the issue of management prerogative. Your Honour, we say that the introduction of a drug and alcohol policy is probably one of the clearest examples of an exercise of management prerogative and we have referred to the XPT case. Your Honour, what Fonterra is seeking to do here is - they’re not Robinson Crusoe. I mean, drug and alcohol policies have been introduced in many organisations.
PN1499
There have been disputes before the commission previously but in my submission, what ultimately it will come down to is whether the content of the policy is reasonable - or rather, unjust or unreasonable - and you should inform yourself about our position on that by having regard to the consultation which has taken place. This is not a fly in, drop a policy over everybody and say, “Take it or leave it.” There has been consultation. The degree of consultation, particularly with Mr King - and his evidence was very honest on the point, that the company has dealt with all the concerns save for this one outstanding matter that brings us here today, and that seemed to be also the evidence of the company witnesses.
PN1500
I won’t repeat what I have said in the balance of the submission because it really goes to the health and safety imperative. Your Honour, we say if there’s a common understanding to be found in this case, it should be that there is a health and safety imperative to keep employees safe at work and for the employer to discharge its obligations. There are statutory obligations to each other. One could hardly say that it’s an attempt to disadvantage employees. It may well be that from time to time, imposition of changes of this nature do have external consequences or impacts, and smoking is probably a good example of that and sometimes in the greater good, some people have to curb the way in which they live their lives. Our case really says that the policy goes no higher than that.
PN1501
There has been no change because the evidence is that employees have always been required to present themselves in a fit and proper manner, able to perform their work. We’re not changing that parameter; we’re not saying that has changed. We’re saying we have now got a way of defining it or measuring it so we all understand what it means. The evidence from Mr Woodworth - and I it was accepted by Mr King - is that the work done by maintenance tradespeople on a call-back tends to be work that’s done in urgent circumstances. There are pressures on; it needs to be done quickly, it needs to be done properly. Other people are affected by downtime and in my submission, that heightens the obligation on the part of the employer to ensure that there are proper parameters around what it means to be generally available for call-back work.
PN1502
Finally, we attached to our submissions a copy of a WorkSafe document which we went to in evidence. I submit that you’re entitled, your Honour, to take judicial notice of that document. It’s an alcohol in the workplace, guidelines for developing a workplace alcohol policy document, where WorkSafe itself says that a blood-alcohol level of about .03 is the point at which mental and motor functions are impaired. One can derive from that if that kicks in at .03, then .02, which happens to be the company’s policy, is the outer limit of safe. We would say you’re entitled to take that into account. Save for that, your Honour, I would seek to rely on our written submissions and those are my submissions.
PN1503
THE DEPUTY PRESIDENT: Thank you, Mr Forbes. Mr Reidy, do you wish to make any remarks in response?
PN1504
MR REIDY: Just some brief comments, yes. Just firstly on the jurisdictional issues that my friend raises, he outlines in his outline of submissions at points 4.3 and 4.4, which I don’t contest, the approach that the tribunal takes to the interpretation of enterprise agreements; that is, it shouldn’t be a narrow or pedantic approach, and they’re principles which I’m sure you well understand, Deputy President. Having said that, he then goes on and takes a most narrow and pedantic approach to the interpretation of the dispute resolution clauses in the agreements, trying to attach meaning to clauses which I’m sure the parties did not contemplate when they were making the agreement, which are commonly found in enterprise agreements. I endorse the points he makes about interpretation but I say that they are in absolute conflict with the points he makes about jurisdiction and the approach that should be taken.
PN1505
Just on that, it seems to be that my friend was saying that in terms of application, or which clause there could possibly be a dispute about, it’s only the no extra claims clause, it’s not the availability allowance or the availability clauses themselves - well, absolutely it is. This is where it started. We have got an availability clause. It doesn’t explain how you go from the clause and how we calculate the allowance itself. The company hasn’t offered any explanation of how that happened because it doesn’t know and it didn’t know, and that was the problem, but it says, “Don’t worry about that. You don’t need to know because we’re free to introduce this policy and there was no common understanding.”
PN1506
I just take you back to the decision I handed up in the beginning, the SCA case, to paragraph 39 on the top of that page and the quote there that starts in the second paragraph:
PN1507
Where the circumstances allow the court to conclude that a clause in an award is a product of a history out of which it grew to be adopted in its present form, only a kind of wilful, judicial blindness could lead the court to deny itself the light of that history and to prefer to peer unaided at some obscurity in the language -
PN1508
I won’t read the rest of it, I don’t think it’s terribly relevant, but I just make that point about this reference to “wilful, judicial blindness” and say for you to not investigate into those clauses on the basis of what we say is a common understanding about how the allowance came to be in those clauses and came to be calculated would be a case of judicial blindness.
PN1509
Just on that point, much as my friend made comments about Mr King’s evidence about there being a common understanding, which we say of course was supported by the two other witnesses that we called, and how they operated, and that fact that wasn’t contradicted at any time during the time that they have been employed by the company. Mr King did refer yesterday to Mr Maren and raised him as one of the people he had spoken to and the evidence today was supported by the company’s witness, Mr Eftimiadis, where he said that he came after that deal had been done, so the negotiation we say is - there’s negotiation between Mr Maren and Mr King; .05 is discussed there. Mr Maren leaves the company; Mr Eftimiadis comes in and he takes over, but the deal is already done, it has been put in place. That was his evidence - put in place at Dandenong.
PN1510
Then the company wants to introduce the same type of arrangement, the availability roster and allowance at subsequent sites. They just roll it out from that point. The model had been put in place. There was no need to go back and negotiate it and it - - -
PN1511
THE DEPUTY PRESIDENT: But equally, Mr Eftimiadis’s evidence was that he wasn’t aware that .05 had been agreed or it certainly wasn’t his understanding that it was either an implicit or explicit understanding of the arrangements.
PN1512
MR REIDY: That’s right. That was his evidence; absolutely that was his evidence, and it seemed to me that that wasn’t an issue that arose in his mind. He says that there was a fit and proper person test but he (indistinct) a comment that .05 was ever discussed. I accept that but all I say is the deal was done before him. He wasn’t aware of that. He was completely in the dark on that point so we say that there still was a common understanding. The fact that he wasn’t told about it, that surely should not be our fault because we acted in accordance with - - -
PN1513
THE DEPUTY PRESIDENT: I suppose the question I have is was it a common understanding in circumstances where Mr Eftimiadis’ evidence was that he certainly didn’t operate on the basis of there being any understanding about 0.05 and rather, the test that he understood and applied was the expectation was that people would present in a fit and proper state for work.
PN1514
MR REIDY: Yes. I suppose I just go back and say I understand that was his position and he gave evidence about his knowledge, but the agreement was done before that, and it wasn’t passed on.
PN1515
THE DEPUTY PRESIDENT: I understand the point you’re making about the Dandenong agreement - - -
PN1516
MR REIDY: Yes, and that’s probably all I can - - -
PN1517
THE DEPUTY PRESIDENT: - - - but equally, and please correct me if I’m wrong, certainly Mr Eftimiadis’ evidence was in terms of then how it was rolled out across other Bonlac sites and in terms of the issue of .05, as I said a moment ago, his evidence was to the effect that there was never any understanding around .05 and the test that he applied was one of people presenting in a fit and proper state to perform work.
PN1518
MR REIDY: Yes. That was his evidence but he didn’t really go into any detail at the same time to explain what the availability allowance had been paid for. He didn’t know. His evidence was what it was.
PN1519
THE DEPUTY PRESIDENT: I think he used language at one stage it’s an inconvenience allowance.
PN1520
MR REIDY: Yes, and he did broad the subject of social outings - - -
PN1521
THE DEPUTY PRESIDENT: Yes, I agree. Yes, certainly.
PN1522
MR REIDY: - - - and he broached about the fact that people, if they drank too much - they asked the question of what happens there.
PN1523
THE DEPUTY PRESIDENT: Just on that inconvenience issue - I mean, I understand that much of the case rests on, I suppose, the impact on those maintenance employees that are on the availability roster, but the drug and alcohol policy has universal application. Are there any issues that go to - I use the word “inconvenience” and I will use it advisedly - in terms of other employees?
PN1524
MR REIDY: I think it’s specific to this group of employees because all other employees, when they’re at work, they’re at work, and they know what the requirement is. It’s really the inconvenience is caused because the maintenance employees on that roster, they’re off duty but then, you know, they’re on the roster, so they’re caught in between and so it’s really just specific to them, if that answers your question.
PN1525
THE DEPUTY PRESIDENT: Okay.
PN1526
MR REIDY: In terms of the extra claim, it has been said that, “Look, there is no extra claim here. All the company is doing is trying to look after the health and safety of its employees by rolling out a drug and alcohol policy. What’s the big deal? Lots of companies do that.” That’s fine but it misses the point and that point is if it had been brought up during the negotiations, it would have been considered as a claim by the unions because we say that that allowance is paid in compensation partially because of the .05 limit, so if the company then reduces that .05 limit, then the union’s position would be, “All right. Well, you’re going to have to increase that allowance,” so there’s a disadvantage to our members, the fact that they are put out or disadvantaged because they cannot make that claim for compensation or remuneration which is referred to in - - -
PN1527
THE DEPUTY PRESIDENT: What do you say on the issue - the evidence yesterday indicated that the drug and alcohol policy, or at least the consultations around the policy, were a live issue at a time when the agreement for the Four Sites Agreement was yet to be made? I acknowledge the evidence was that the agreement had been agreed in principle in December of 2013 but in a technical sense, the consultations around the drug and alcohol policy were proceeding in parallel with the final stages of, you know, crossing the Ts and dotting the Is, and I think the evidence was that the agreement wasn’t formally made until either late March or April, from memory.
PN1528
MR REIDY: The agreement went out to the vote in April, I think. Our position is that that agreement had been done in December so everyone’s mindset is, “We have an agreement.” Then the company introduces a policy or starts negotiations or consultations in February. From our view, it would have been - well, we didn’t know where the policy was going to end or where we were going to end up. For us, it wasn’t practical to back to our members and say, “Look, hold up on the enterprise agreement until we get this sorted out,” because in reality - I mean, we’re in October, that was April. We had to say, “You’re not getting a pay increase for the next year - are you okay with that - while we work out this issue for a group of employees.” So for us, yes, it was raised but it wasn’t practical for us to hold up an agreement while we waited to see where things ended up.
PN1529
You know, that was in April. We had only just started talking. Every possibility could have been in our mind that the company would agree to .05 or the company would say, “All right. We’ll increase the availability allowance. We’ll deal with (indistinct) to deal with that,” but, you know, this is hypothetical obviously. We just couldn’t hold it up while - - -
PN1530
THE DEPUTY PRESIDENT: I understand the point you’re making but I think there was a comment you made there in terms of in the context of the consultations around the drug and alcohol policy and given - an important element of the submissions that are made both by yourself and also by Mr Vroland is that to the extent that it wasn’t raised in the enterprise agreement negotiations, it denied an opportunity to seek additional compensation for what is described as the additional inconvenience or disadvantage. Is that something that has been contemplated or raised in the conversations with the company around the implementation or the consultations on the drug and alcohol policy?
PN1531
MR REIDY: Was it brought up in the EBA negotiations?
PN1532
THE DEPUTY PRESIDENT: Not in the EBA negotiations, generally, I mean, because there are mechanisms in the Act where an agreement can be varied and, you know, I just want to get a sense of whether the notion of - and I’m using round figures. The availability allowance is currently about 240 per week from memory. Is there any suggestion as part of the consultations around the drug and alcohol policy, “If this ultimately gets landed, we actually want to have a conversation around the quantum of the availability allowance?”
PN1533
MR REIDY: I don’t believe so. I could seek instructions just quickly.
PN1534
THE DEPUTY PRESIDENT: Certainly.
PN1535
MR REIDY: No. That did not take place.
PN1536
THE DEPUTY PRESIDENT: That’s fine.
PN1537
MR REIDY: I’m sorry. I don’t have a copy of this decision, Deputy President, but it’s Wagstaff Piling Pty Ltd, the full bench of this tribunal, and I will give you the citation.
PN1538
THE DEPUTY PRESIDENT: It’s in the folder here.
PN1539
MR REIDY: I thought that was the Federal Court. This is a Fair Work - - -
PN1540
THE DEPUTY PRESIDENT: The earlier one, yes.
PN1541
MR REIDY: I have only got the one. It’s (2011) FWAFB 6892 from October 2011. My reference is just to the very last paragraph, which is paragraph 38. Having found that the drug and alcohol policy that the company was seeking to implement there - that the company was able to do that despite the fact of the no extra claims clause because the full bench said, “It’s reasonable for the company to do that so we’re not going to allow the no extra claims clause to stop that.” The tribunal did finish off by saying:
PN1542
PN1543
My point is that it’s one thing on the one hand to say, “You can have your policy.” That’s all fine; we’re not trying to stop that, but the actual terms of the policy itself is something that’s still subject to a dispute under the terms of an enterprise agreement. I make that point and I do so in order to avoid the proposition that - I suppose our case to this point in time, we have said - or the question that we seek determination about is does the no extra claims clause in the enterprise agreement stop the company from lowering the .05 limit for our members on this availability allowance. That’s really our, I suppose, starting position or the question we’re seeking a determination to but as an alternative, the question is - if you were to find yes, the company was allowed to lower that BAC limit, the subsequent question for determination would be are they able to do that without compensating our members through the availability allowance for the reduction in that BAC limit and the implication of the restriction that places on their social life.
PN1544
THE DEPUTY PRESIDENT: The argument is sort of - they’re intertwined, aren’t they, in the sense that a large part of your argument is that there was a common understanding around the blood-alcohol level, around .05, and that the evidence of Mr King and others was that the availability allowance was in part designed to compensate for the restrictions on normal social activities, whatever hangs off that. I suppose what I was musing on in my mind was if I find that there wasn’t a common understanding around the .05, does the issue around - I could find that the availability allowance in part was designed to compensate around the BAC level but equally I could find that it may not be that as well.
PN1545
MR REIDY: Yes. Essentially it would be if there’s no common understanding, then there’s probably no case there, but if you found a common understanding but said, “I still think it’s okay and the no extra claims clause doesn’t stop the company reducing the level,” then we go to the subsequent of if they do that, is the issue of compensation one that needs to be negotiated before the level - - -
PN1546
THE DEPUTY PRESIDENT: Yes. I understand the point you’re making there. I get that, yes.
PN1547
MR REIDY: I think those will be my submissions.
PN1548
THE DEPUTY PRESIDENT: Thank you very much, Mr Reidy. Mr Vroland?
PN1549
MR VROLAND: Very briefly. Thanks, Deputy President. I will really try to be mindful of time but my friend just did raise a couple of issues and you yourself raised from the bench this issue about the breadth of the dispute. Our position is slightly different to the ETU’s in that respect if they’re saying that it’s only with respect to employees who are covered by the availability allowance. We do say it extends to all employees. We represent members in the food production area and other areas. We say where it really bites is in respect of this availability allowance but effectively extended to its full breadth.
PN1550
Something has changed here and what has changed is that employees who could previously attend work having had a drink can no longer do so. We talk about this issue of a common understanding. There is a common understanding. It’s very clear on the evidence that there was a common understanding. Exactly what that common understanding was might be a little bit different between the two parties and perhaps the unions are - - -
PN1551
THE DEPUTY PRESIDENT: Is that an oxymoron in the sense of a common understanding which is disagreed between the parties?
PN1552
MR VROLAND: The point that I make is that whether or not there was an applicable limit that was really identified, there’s a clear, common understanding that employees could go to work having had a drink. They could have had a blood-alcohol content greater than 0.0 and would not be in breach of any workplace policy. That has changed and I think that at least is a common understanding. I just want to address this issue of DB3 which my friend tried to convince you has now work to do here, has limited utility, restricted in its application. He even said that no-one knew about it.
PN1553
THE DEPUTY PRESIDENT: I would be disappointed if you didn’t raise it, Mr Vroland. I’m sorry. I’m being cheeky there.
PN1554
MR VROLAND: We aim to please, sir. What I will say, I will say briefly. I will let you draw your own conclusions ultimately, but we would say this is a guideline at least which deals with the question of employees’ impairment. That’s what it does; employees’ impairment arising from alcohol consumption. There’s no question that that’s what it does. My friend might say it’s about alcohol provided in the workplace. What does it really mean? It means that Fonterra, maybe at their global level initially where the policy was derived from, did have an acceptance that an employee - sorry; I will take it back. What I was trying to say was that they cannot escape that Fonterra by that document clearly accepted that the legal limit for driving was an acceptable standard for determining whether an employee would be impaired as a result of alcohol consumption. There’s no way they can get around that.
PN1555
To say that no-one knew about it, it really beggars belief. Deputy President, if we tried that on in an unfair dismissal claim, I think you would give us short shrift. If an employee tried to say, “Well, I didn’t know about this policy,” the obvious retort would be, “It was there. Your contract of employment says you need to make yourself aware of these things.” It was on the intranet, that much was quite clear, and it was even used in inductions. Those inductions might have been in the New Zealand context, that’s true, but you can’t say that no-one knew about it.
PN1556
Fonterra - the holding company has its own corporate personality but it’s clear that in the scope of that policy, it required its subsidiary, daughter companies if you want to call it that - son or daughter companies; I don’t know what the correct term is but - - -
PN1557
THE DEPUTY PRESIDENT: Associated entities.
PN1558
MR VROLAND: Yes, associated entities, thank you, Deputy President - to apply that policy where they could. That’s what it required them to do and it seems that that document was, you know, in place, available for people, so we say there was a common understanding, Fonterra had that understanding, the employees had that understanding. You have heard the evidence of the employees. They both have the same understanding; it’s a common understanding, Deputy President. Notably, none of the witnesses tried to suggest that .00 was the standard, except perhaps with the exception of Ms Sullivan who said, “Well, look, that was just my assumption,” but she never tried to put it as high as saying that that was a definite standard.
PN1559
I would just ask you, Deputy President, to take a step back for a minute and say, you know, “In the light of all this, what would a reasonable person think?” A reasonable person who wasn’t aware of a policy - there might have been a policy in place but if they’re not aware of the policy, they don’t think there is a particular written policy. A reasonable person would think, “Well, if I’m right to drive a car, I’m right to go to work.” It’s not an unreasonable thing to think.
PN1560
Just moving on from that, my friends on either side have dealt with this issue of the Wagstaff case. I don’t intend to say too much about that but it does seem to me that this case dealt with the implementation of the new testing regime, despite the fact that the agreement in question already had a drug and alcohol policy regimen in it, but it didn’t deal with testing. In the Wagstaff case, the full bench determined, and ultimately the court determined, that they were entitled to introduce this new testing regime despite the agreement being silent on the matter.
PN1561
I would say a clear distinction would be that the testing regime in itself doesn’t affect the wages or remuneration of employees, so that was the narrow issue that was decided there. You have heard what we have had to say about it. My friends have a different view but we say there is a nexus here with wages. As I said, it bites most hard when you talk about the availability allowance. The principle could be extended though to say when you do a bargain, ultimately it’s about, “You get this much money. You get your take-home pay and these are the terms and conditions.” If the terms and conditions change, as is occurring here, you could say that the bargain has actually changed and arguably you could extend that to other employees. I won’t labour the point.
PN1562
A little bit further in our submissions, just to be clear, it’s not a concession that we make that the other aspects of the drug and alcohol policy are not claims. We just merely don’t seek to press the point. We simply say we’re not taking issue with those things, but changing the blood-alcohol content level changes the playing field. They’re our submissions, Deputy President.
PN1563
THE DEPUTY PRESIDENT: Thank you very much. I’m clearly going to reserve my decision on this one. I would just like to thank the three advocates for the respective parties for their assistance, and in particular the witnesses as well for not only your time but also your evidence. I think it has all been very, very helpful. I will reserve my decision, as I said, and I wish you all a very nice weekend. Thank you.
<ADJOURNED INDEFINITELY [2.20PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
TED EFTIMIADIS, SWORN PN1029
EXAMINATION-IN-CHIEF BY MR FORBES PN1030
CROSS-EXAMINATION BY MR REIDY PN1065
CROSS-EXAMINATION BY MR VROLAND PN1142
RE-EXAMINATION BY MR FORBES PN1168
THE WITNESS WITHDREW PN1173
DEREK WOODWORTH, AFFIRMED PN1177
EXAMINATION-IN-CHIEF BY MR FORBES PN1178
EXHIBIT #F5 WITNESS STATEMENT OF DEREK WOODWORTH, TOGETHER WITH ATTACHMENT PN1195
CROSS-EXAMINATION BY MR REIDY PN1196
CROSS-EXAMINATION BY MR VROLAND PN1261
RE-EXAMINATION BY MR FORBES PN1303
THE WITNESS WITHDREW PN1330
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