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Fair Work Commission Transcripts |
TRANSCRIPT
OF PROCEEDINGS
Fair Work Act
2009
1052692
COMMISSIONER JOHNS
C2015/4477
s.739 - Application to deal with a dispute
Australian Workers' Union, The
and
Treasury Wine Estate
(C2015/4477)
Treasury Wine Estates Vintners Ltd Karadoc Enterprise Agreement 2012
(ODN AG2012/14351)
[AE899252 Print PR533012]]
Mildura - Magistrates Court
10.08 AM, MONDAY, 9 NOVEMBER 2015
PN1
THE COMMISSIONER: Yes. Appearances please?
PN2
MS F KNOWLES: Commissioner, my name is Knowles, initial F.
PN3
THE COMMISSIONER: Thank you, Ms Knowles.
PN4
MS KNOWLES: I understand that permission for me - - -
PN5
THE COMMISSIONER: Has already been granted. Yes.
PN6
MR DALTON: Yes, and I appear for the respondent.
PN7
THE COMMISSIONER: Thank you, Mr Dalton. Ms Knowles.
PN8
MS KNOWLES: Commissioner, I have had some discussions with my learned friend. In relation to witnesses my friend doesn't seek Mr Ball for cross-examination so that statement will be tendered. It's proposed to be tendered without his appearance, with one correction.
PN9
THE COMMISSIONER: Is there a correction in that, did you say?
PN10
MS KNOWLES: Yes.
PN11
THE COMMISSIONER: Can we go to that?
PN12
MS KNOWLES: Yes. Page four.
PN13
THE COMMISSIONER: Yes.
PN14
MS KNOWLES: At the bottom.
PN15
THE COMMISSIONER: Yes.
PN16
MS KNOWLES: "If I decide to leave tomorrow", with the insertion of the words "will" - "Will the company honour my redundancy?"
THE COMMISSIONER: So what I will do is I'll mark the applicant's outline of submissions as exhibit A1.
EXHIBIT #A1 APPLICANT'S OUTLINE OF SUBMISSIONS
THE COMMISSIONER: And then the witness statement of Aaron Ball as exhibit A2.
EXHIBIT #A2 WITNESS STATEMENT OF AARON BALL
PN19
MS KNOWLES: Mr Parker is not available today and in circumstances where the respondents do require him for cross-examination we won't rely on his statement.
PN20
THE COMMISSIONER: Yes.
PN21
MS KNOWLES: But otherwise, Commissioner, if you're happy to proceed to the witnesses I would seek to call Bernadette Billington.
PN22
THE COMMISSIONER: Yes. Can I just ask is Mr Ball the only person who has been affected by this?
PN23
MS KNOWLES: My instructions are that there is one other person who has resigned since the - what we say is the notification of the intending redundancies.
PN24
THE COMMISSIONER: Right.
PN25
MS KNOWLES: But, Commissioner, you would have noticed in the orders that the union seeks - we seek orders in broader terms so that in the event that the matter were found in the union's favour that those orders would be applicable to other employees.
PN26
THE COMMISSIONER: Prospectively. Yes, I understand. All right. And who are we hearing from first?
PN27
MS KNOWLES: Ms Billington.
PN28
THE COMMISSIONER: Thank you. Just for my own assistance, in terms of the respondent's witnesses who's being called? Are all four coming?
PN29
MR DALTON: Two of the witnesses are not required for cross-examination.
PN30
THE COMMISSIONER: Who are they?
PN31
MR DALTON: They are Brett Thurman and Varal Karacurt. Peter Milton and Kent Robinson, the two managers, who conducted the employee briefing sessions are required for cross-examination. They're here outside of the hearing room.
PN32
THE COMMISSIONER: Sorry, maybe we could have the witness just leave again. I just want to raise something with counsel. As I understand it the task before me is to interpret the agreement and appendix 2. How is anything that was said on the 31 March relevant to that?
PN33
MS KNOWLES: Commissioner, we say that what was said on the 31 March was the notification of the intending redundancies within the meaning of clause two of appendix 2 and that's how - - -
PN34
THE COMMISSIONER: Sorry. Let me confine that then. In the witness statements there is some evidence being about people asking, "Well, if I leave, do I get my redundancy?" And it's suggested that it was said, "Yes, you would." Or "We'd look after you." Or something like that. Surely, any of that evidence can't be relevant to the question before me?
PN35
MS KNOWLES: Well, only to the extent that it might reflect the understanding of the parties of what appendix 2.
PN36
THE COMMISSIONER: Well it might reflect the understanding of what those people thought on the 31 March.
PN37
MS KNOWLES: Yes, I accept that, Commissioner.
PN38
THE COMMISSIONER: It doesn't go any stronger than that, does it?
PN39
MS KNOWLES: In terms of the purpose of your sort of interpretation of appendix 2 we'd say it has some relevance but accept it has limited relevance.
PN40
THE COMMISSIONER: Yes. All right. Thank you. The witness can be called.
PN41
THE ASSOCIATE: Please place your right hand on the Bible. Face the Commissioner and state your full name and address?
MS BILLINGTON: Bernadette Billington, (address supplied).
<BERNADETTE BILLINGTON, SWORN [10.15 AM]
EXAMINATION-IN-CHIEF BY MS KNOWLES [10.15 AM]
PN43
MS KNOWLES: Ms Billington, have you prepared two statements for these proceedings?‑‑‑I have.
PN44
You've got copies of them there?‑‑‑Yes.
PN45
And have you read them recently?‑‑‑Yes.
PN46
And I take you to the first statement which is dated 5 October 2015. That's your first statement?‑‑‑I'm not sure.
PN47
One of them, I think, is headed "Reply statement" and the other one is headed "witness statements"?‑‑‑And witness.
PN48
So the one that is witness statement? Are the contents of that statement true and correct?‑‑‑Yes.
PN49
I'll tender that.
THE COMMISSIONER: Yes. I'll mark the witness statement of Bernadette Billington, dated 5 October 2015 as exhibit A3.
EXHIBIT #A3 WITNESS STATEMENT OF BERNADETTE BILLINGTON DATED 05/10/2015
PN51
MS KNOWLES: And your second statement - the reply witness statement dated 30 October 2015?‑‑‑Correct.
PN52
Are the contents of that statement true and correct?‑‑‑Yes.
PN53
I tender that.
*** BERNADETTE BILLINGTON XN MS KNOWLES
THE COMMISSIONER: The reply witness statement of Bernadette Billington dated 30 October 2015 is exhibit A4.
EXHIBIT #A4 REPLY WITNESS STATEMENT OF BERNADETTE BILLINGTON DATED 30/10/2015
PN55
MS KNOWLES: No further questions.
THE COMMISSIONER: Thank you. Mr Dalton.
CROSS-EXAMINATION BY MR DALTON [10.16 AM]
PN57
MR DALTON: Ms Billington, you attended the employee briefing at 8.00 am on the 31 March at the Karadoc site?‑‑‑Yes.
PN58
And that briefing was attended by packaging employees coming off nightshift and the incoming dayshift?‑‑‑Yes.
PN59
Packaging employees? Correct?‑‑‑Yes.
PN60
And Mr Robinson and Mr Milton - senior managers of Treasury Wine Estates - attended to give a presentation to the attendees at that briefing session?‑‑‑Correct.
PN61
And do you remember that they conducted that presentation by way of a slide show?‑‑‑Yes.
PN62
And there were about five slides and they presented the information by reference to the text of the slide show?‑‑‑There was a number of slides but I can't remember how many.
PN63
So do you remember that they started with a summary of the key decisions that they had announced that day?‑‑‑Restructuring of the company.
PN64
Yes?‑‑‑Yes.
PN65
And one of those of course was a decision to close the Karadoc Packaging Centre and the warehousing function there?‑‑‑Correct.
*** BERNADETTE BILLINGTON XXN MR DALTON
PN66
And they set out some financials to explain why that decision was being made. Do you remember that?‑‑‑Correct.
PN67
Yes. And they explained that the closure was a decision that had been taken in light of a decision to set up and expand packaging - state of the art packaging facility at Wolf Blass in the Barossa Valley. Do you remember them explaining that?‑‑‑Yes.
PN68
And they also explained that one of the things they were going to do was move the K6 Bottling Line from Karadoc to Wolf Blass?‑‑‑Correct.
PN69
And they explained that the consequence of this would be that all of the positions at Karadoc in the Packaging and Warehouse Departments would no longer be required upon the closure of those areas?‑‑‑Made redundant.
PN70
Yes. And questions were asked by employees, understandably, as to when this was going to happen?‑‑‑Correct.
PN71
And
as best you recall, you can confirm can't you, that the company didn't give a
date but they indicated that the packaging department
would close in around
February 2016?
---Correct.
PN72
And that the warehouse would be closed at some stage after that?‑‑‑Yes.
PN73
Yes. And at paragraph six of your statement, if you could just look at that? Here - - -
PN74
THE COMMISSIONER: This is the first statement?
PN75
MR DALTON: Yes, it is, Commissioner. Here this is an attempt by you to reconstruct what was said on the day? You've used quoted text and that's as best you remember the thrust of what Mr Robinson said when he was explaining what was going to happen? That's what you're trying to do in paragraph six. Correct?‑‑‑Correct.
PN76
Yes. And the second - where you've got a "dot, dot, dot" - what you're trying to do here is set out what you regard as relevant to the extracts of what you recall Mr Robinson saying by way of explanation of the changes?‑‑‑Yes.
*** BERNADETTE BILLINGTON XXN MR DALTON
PN77
Yes. And the second paragraph, there's that indication of around February 2016 and then Mr Robinson explaining that it will take time to build a shed in South Australia. It will take times to organise permits. I assume that's a reference to planning permits for the extension to the Wolf Blass facility?‑‑‑Correct.
PN78
And move operations over there. I assume that's a reference to the K6 Bottling Line being moved from Karadoc over to Wolf Blass?‑‑‑Correct.
PN79
Yes. "And we are keeping the cellar open". That's a separate part of the Karadoc business. Yes?‑‑‑Correct.
PN80
Okay. Do you remember that he also mentioned that it was going to take time for the Karadoc Packaging and Warehouse Operations to build up the inventory levels to a point that they could handle the transition from - - -?‑‑‑Correct.
PN81
Sorry?‑‑‑Yes.
PN82
Yes. All right. So those three things were put forward by Mr Robinson as reasons as to why it was going to take time for these things - for these changes to be implemented. That is, time to build the extension to the Wolf Blass facility, time to arrange for the transfer of the K6 Bottling Line from Karadoc to Wolf Blass and time to build up inventories at Karadoc so that that change can take place without interruption to the supply chain?‑‑‑Yes.
PN83
And towards the end of the meeting, after Mr Robinson had given those explanations a question was asked by an employee whose name you can't recall. You can't recall, specifically, who asked the question but a question was asked, "Well, would we get our redundancy pay if we resign to take up alternative employment before the closure."?‑‑‑Yes.
PN84
That was a question asked towards the end of the meeting, after Mr Robinson had explained the changes that were going to be made and the reasons why they were going to be made and the fact that it was going to take time for those changes to be implemented?‑‑‑Yes.
PN85
So you understood when that question, towards the end of the meeting was asked, and answered by Mr Robinson, that the company still required packaging and warehousing employees for at least another 11 months?‑‑‑Yes.
*** BERNADETTE BILLINGTON XXN MR DALTON
PN86
The preparation of your statement for this proceeding it's dated - I think - the 5 October. So you prepared it, presumably, in the days leading up to that? You prepared this statement, didn't you?‑‑‑Yes.
PN87
This statement is a product of your - you have given that information to your union?‑‑‑Yes.
PN88
Yes. And what was that over a phone call or a meeting?‑‑‑The date is.
PN89
Or did you type it up?‑‑‑The date is when I typed it up, yes.
PN90
You typed it up?‑‑‑Yes.
PN91
Okay. So you've prepared that on the 5 October?‑‑‑Yes.
PN92
And that's about six months after the briefing session occurred?‑‑‑Yes.
PN93
And
so you did that - you know - trying to reconstruct what was actually said based
on your independent recollection?
---Yes.
PN94
You weren't assisted by any notes that you had personally taken of that briefing session at the time, were you?‑‑‑No.
PN95
Or anyone else's notes?‑‑‑No.
PN96
So you did your best, relying on your independent memory six months down the track to construct "what you think best reflects the thrust of what was said"?‑‑‑Yes.
PN97
Okay. And when you used quotation marks you introduced that by saying, "Well he said words to the effect of", or "words along the lines of". They're the expressions that you use in your statement and you're doing that to indicate that you're not pretending to capture precisely the words used. Is that a fair description?‑‑‑Yes.
*** BERNADETTE BILLINGTON XXN MR DALTON
PN98
Do you see when you use the words before the quotes, you're saying, "Along the lines of" or "to the effect of". What I'm putting to you is that it's clear from that statement you're not pretending to capture perfectly what was actually said. Because it's six months down the track and you don't have a perfect memory?‑‑‑Correct.
PN99
Yes. And Mr Ball and Mr Parker were at the same briefing session. Do you recall that?‑‑‑Aaron was - yes, Donald would have been there too, yes.
PN100
Would have been there too. But they were packaging employees. Mr Ball working nightshift on that occasion and Mr Parker in his statement that was filed in the Commission says that he was on the incoming dayshift?‑‑‑Yes.
PN101
Yes. And you know that they've also prepared statements for this proceeding?‑‑‑Yes.
PN102
Have you had a chance to look at those statements?‑‑‑No, I haven't actually.
PN103
But it wouldn't surprise you to know that they have also made an attempt to set out in quotations that their best recollection of what was said at that employee briefing session?‑‑‑Can you repeat that, please?
PN104
They have also given their account of what was said in the employee briefing session. Are you aware of that?‑‑‑Yes.
PN105
Yes. And do you know that they both recall something being said along the lines of, "We will look after people as best we can."?‑‑‑Yes.
PN106
And that's not as definitive or as unqualified as you recall the things that were said? It's different from the quotes that you have used?‑‑‑Yes.
PN107
It's less definitive. It's a bit qualified, do you accept that?‑‑‑I don't fully understand your question.
PN108
Yes. Well, they've done their best. They've approached the exercise no differently from you. And what I'm suggesting to you is that their words are not as definitive or qualified as you?‑‑‑They have a - - -
PN109
Do you understand that?‑‑‑They have a different opinion.
*** BERNADETTE BILLINGTON XXN MR DALTON
PN110
Or a different memory?‑‑‑Different memory. Yes. Correct.
PN111
And your memory - of course you're not pretending that it's perfect - and their recollection may be more accurate than yours. Do you accept that?‑‑‑No.
PN112
Do you have any reason why you think that your memory would be better than the memory of two individuals, including Mr Ball who's got a direct interest in the outcome of this proceeding?‑‑‑I'm not saying they didn't say they would look after them. They did.
PN113
Yes. And do you know that the recollections of those two men is very similar to the recollections of Mr Milton and Mr Robinson who recall that they used expression along the lines of "We will work with you."?‑‑‑Yes.
PN114
None of the witnesses recall an unqualified "Yes" being given by Mr Robinson or Mr Milton in response to the question that was asked by the employee at the end of the meeting. So, in light of that do you accept that your memory may not be accurate on that particular point?‑‑‑No. No.
PN115
All right. Now, then you had a meeting at 10.00 am on the 31 March. That was the union meeting. Do you remember that? The meeting between Mr Robinson and Mr Milton, on the one hand, and you and Mr Algate on the other?‑‑‑Yes.
PN116
Do you remember that meeting?‑‑‑Yes.
PN117
Am
I right in saying that that was after the employee briefing session was around
mid-morning? Around 10.00 am?
---Yes.
PN118
Yes. Right. And, again, you have attempted to capture the essence of your exchange with Mr Robinson in relation to this particular issue of whether employees would be paid redundancy pay, if they decided to resign before closure? That's what you have done?‑‑‑With alternative employment.
PN119
With alternative employment, yes?‑‑‑Yes.
PN120
Yes. And, again, you've done that relying on your own independent memory, not assisted by any notes of the meeting?‑‑‑No.
*** BERNADETTE BILLINGTON XXN MR DALTON
PN121
Sorry. When you say "No", you agree with the question that I have asked?‑‑‑Yes.
PN122
At paragraph 7 you set out there in quote marks again, not pretending to be perfect on the words, I take it, just saying well look, as best I remember, this was the effect of the exchange that I had with Mr Robinson about that particular point?‑‑‑Excuse me, are you talking about the whole paragraph?
PN123
Yes, paragraph 7, yes?‑‑‑That's correct.
PN124
That's not capturing the whole meeting, that's just capturing your recollection of a particular exchange you had with Mr Robinson on the particular point in question?‑‑‑Correct.
PN125
You don't remember whether it was Mr Robinson or Mr Milton who gave the final answer that's at the last line of your paragraph 7. Do you see that?‑‑‑Yes.
PN126
That's why you've got KR and/or PM?‑‑‑Correct.
PN127
So you don't remember it was one of them in particular, or both of them, so again, we're dealing with six months down the track, your memory and the quality of your memory has been compromised by that period of time?‑‑‑We were talking to both men, so I could not remember that one said this and one said that. We were talking as a group of people.
PN128
Words were exchanged fairly quickly as a discussion?‑‑‑Between the four of us, yes.
PN129
Particularly where there's differences of views. You're concentrating on what you're going to be saying next and you're trying to listen as best you can to what Mr Robinson and/or Mr Milton are saying to you in response at that time, yes?‑‑‑Correct.
PN130
You didn't make an immediate record of that exchange, so you're trying to reconstruct it six months down the track?‑‑‑Correct.
PN131
And there are obviously limitations as such that go with that?‑‑‑Limitations with anybody's memory, yes.
*** BERNADETTE BILLINGTON XXN MR DALTON
PN132
Yes, of course. Now you see at the end there, you say that one or both of them said "we will let employees go with their entitlements if they find alternative employment". Again, what your setting out there would appear to be an unqualified and definitive statement by the company that in all circumstances, they will pay an employee redundancy if they leave the company's employment to take up alternative employment between that point in time and closure?‑‑‑Correct.
PN133
Again, can I suggest to you that Mr Robinson or Mr Milton's response as you record there, was not as definitive and unqualified as you make out. Do you accept that?‑‑‑Sorry?
PN134
I'm putting to you that the response that you received in the course of that exchange was not as definitive and unqualified as you make out in your statement?‑‑‑In my statement I have said that they said it and I stand by that.
PN135
Do you know that Mr Algate has given a statement setting out his recollection of an exchange that you had with Mr Robinson on this very point?‑‑‑Yes.
PN136
Do you know that his recollection is that in response to the question that you asked for confirmation about whether the company would pay redundancy, Mr Robinson's response, according to Mr Algate was "Yes, but on a case by case basis". Have you seen that?‑‑‑I haven't seen that.
PN137
Have you heard that?‑‑‑I don't remember that being said, no.
PN138
Having heard that you'd accept of course, that if his recollection is accurate, that is a statement that is qualified by that reference to case by case. It's not an unqualified statement, that yes in all cases, we're going to pay redundancy pay. Did you see the difference there?‑‑‑I see the difference. I stand by my statement.
PN139
Alright. Again, I'll need to ask you, do you have any reason why your memory would be better - or why you believe your memory would be more reliable than Mr Algates?‑‑‑Because it affects me. It affected me going out to search for another job, so I remember what was said.
*** BERNADETTE BILLINGTON XXN MR DALTON
PN140
Mr Milton and Mr Robinson - sorry I'll break this down so it's clear and it's accurate. Mr Milton in his statement gives evidence that on his best recollection Mr Algate's account is generally accurate. So he generally agrees with the substance and effect of Mr Algate's account which would include of course, this reference to the case by case. And Mr Robinson confirms that he used the words case by case. Again, you see you're somewhat on your own. You've got a number of people who giving evidence about the same exchange and the same point, have a different memory from you and again, it's less emphatic. The language is qualified, not as unqualified as you make out. So again, I'm putting to you, in light of that, do you accept that your memory may not be quite accurate on that particular point?‑‑‑No.
PN141
Do you accept the possibility that it may not be accurate?‑‑‑No.
PN142
Alright. Now, presumably you have spoken with Mr Algate about the employee briefing session and what was discussed in that briefing session?‑‑‑Yes.
PN143
Did you speak to him straight after the briefing session and before you guys had the meeting with the company?‑‑‑I'm sorry, can you repeat it?
PN144
Remember the meeting with the company, that you and he participated in was at 10am?‑‑‑Yes.
PN145
I assume there was a bit of a break between the 8am employee briefing session. Did you speak to - Mr Algate was not at that briefing session?‑‑‑No, I had to wait for me to arrive.
PN146
When he arrived, did you speak to him about the employee briefing session that you'd been at and what you recalled?‑‑‑I explained what was said, yes.
PN147
On 11 May there was an update briefing session conducted by Mr Milton that you attended at the Karadoc site. Do you remember that?‑‑‑Yes.
PN148
Again, you give an account of what Mr Milton said at paragraph 8 of your first statement. Do you want to have a look at that? See it starts at the bottom of page 3. You've got a heading there, staff meeting at 18 on 11 May?‑‑‑Yes.
PN149
You say Mr Milton and the packaging manager came to the site and they addressed the packaging employees. They spoke about various things going on, gave you an update and then you again quote "words to the following effect". Again you're saying that Mr Milton in this instance is giving an unqualified confirmation that people will be able to leave and be paid their redundancy in answer to a question from an employee along the same lines as the question that was asked at the end of the 31 March employee briefing session.
PN150
THE COMMISSIONER: Sorry to interrupt Mr Dalton, but just in light of the discussion I had with Ms Knowles earlier, how relevant is all of this?
*** BERNADETTE BILLINGTON XXN MR DALTON
PN151
MR DALTON: Well, I made the submission in our written submissions that it's not. I've got another minute with this witness and I won't be long. Then we'll just address it in submissions.
PN152
THE COMMISSIONER: Yes.
PN153
THE WITNESS: Could you repeat the question please?
PN154
MR DALTON: Again, so here at page 4 where you're setting out that quote, again, you're not pretending to be perfect word for word, you're saying well best as I remember, this was the effect of the exchange in relation to that particular question about redundancy. Do you see that on page 4 of your statement? You've got a quote. You've got employee and then you've got PM?‑‑‑Yes.
PN155
So again, just consistent with the questions I've asked you earlier, here what you're trying to do, unassisted by notes of the meeting, based on your own recollection, some five months after this particular update briefing session, you are setting out words to the following effect were exchanged?‑‑‑Yes.
PN156
The same question was asked by an employee as had been asked at the end of the 31 March employee briefing session?‑‑‑Yes.
PN157
In relation to redundancy pay?‑‑‑Yes.
PN158
Again, your saying that Mr Milton is saying in unqualified terms, that yes people will be able to leave and be paid their redundancy?‑‑‑Yes.
PN159
Again, you say it's unqualified language?‑‑‑I don't understand what you mean by unqualified.
PN160
Just saying yes in all cases, that people can resign to take up employment elsewhere and we'll pay them redundancy pay?‑‑‑Yes.
PN161
Mr Ball was at that meeting, do you remember?‑‑‑Don't remember.
PN162
He would have been, wouldn't he, because he's a packaging employee and as you say, this was an update briefing session for packaging employees?‑‑‑He may have been, I can't remember whether Aaron was there, because we're on separate shifts.
*** BERNADETTE BILLINGTON XXN MR DALTON
PN163
Mr Ball has given a statement and he confirms that he was present at that briefing and he's given an account of what happened in that briefing. Before I take you to it, you'd accept of course that Mr Ball, like you, was directly affected by this?‑‑‑Of course.
PN164
So he had good reason to have as strong a recollection as you do in relation to these things?‑‑‑Correct, maybe.
PN165
You wouldn't have any reason to suggest that your memory would be more reliable in relation to what was said on 11 May meeting as compared with Mr Ball's recollection, would you?‑‑‑No, each person has a separate interpretation of what they hear.
PN166
Exactly. Alright, and Mr Ball, his recollection is that the answer given by Mr Milton in relation to that question was not nearly as unqualified as you wish to make out. Can I take you to paragraph 14 of his statement? Or would you like me to read it out to you?‑‑‑If you like.
PN167
Mr Milton then proceeded to discuss further issues such as the amount of bottles that were produced by the business. Following this, there were further discussions with words along the lines of: ME - If I decide to leave tomorrow, will the company honour my redundancy? PM - It depends on the situation of the individual. The circumstances will be reviewed and a decision will be based on that. As you can understand, we can't let all of you go, because we still have a factory to run, but in saying that, we will still try to help you as much as we can. We understand that people have commitments and we'll try to accommodate them as much as we are able. We can employ casuals to cover your tasks if needed.
PN168
Then he refers to Mr Milton giving a reference to a case in point in relation to the New Zealand Winery. Do you remember the discussion going along those lines?‑‑‑Yes, and if you have a look at my statement - - -
PN169
Well I'm not asking you to give a further explanation, do you remember the discussion going along those lines?‑‑‑Well how can I answer that if you don't let me elaborate on my statement?‑‑‑
PN170
Well, it's a simple question. I've read that out to you, do you remember Mr Milton giving an answer to the question along those lines?‑‑‑Along those lines, yes.
*** BERNADETTE BILLINGTON XXN MR DALTON
PN171
Have you had a meeting with the company in relation to mitigation measures such as transfers from packaging to cellar roles if cellar people take voluntary redundancy, retraining issues, those sorts of issues being discussed with the company, haven't they?‑‑‑Yes.
PN172
You participated in at least one of those meetings occurring in late July at the Karadoc cellar?‑‑‑Yes.
PN173
Those discussion are still ongoing, aren't they?‑‑‑Yes, with (indistinct).
PN174
No more questions.
THE COMMISSIONER: Thank you Mr Dalton. Ms Knowles.
RE-EXAMINATION BY MS KNOWLES [10.44 AM]
PN176
MS KNOWLES: Ms Billington, I have some questions about the preparation of your statement and you mentioned that you typed some more information up?‑‑‑Yes.
PN177
You mentioned that you provided some information to the union?‑‑‑Yes.
PN178
When did you first start typing up the information which you gave to the union?‑‑‑Most likely about six weeks after. Only for my own record at home.
PN179
When you say six weeks after, after what?‑‑‑After the first meeting.
PN180
You were taken before to Mr Ball's statement and read something out, and you said that you wish to elaborate in response to that on something in your statement?‑‑‑Yes.
PN181
What did you want to elaborate on?‑‑‑Well I have got in my statement that Kent said that we can't let all key operators go at once and I've got that we understood this and a number of staff said they would stay until the end.
PN182
How many times was a question about people being able to leave and be paid their redundancy, how many times was that asked in that meeting?‑‑‑In the first or the second, sorry?
*** BERNADETTE BILLINGTON RXN MS KNOWLES
PN183
The second meeting?‑‑‑The second meeting, at least three times.
PN184
That's all.
THE COMMISSIONER: Thank you. Ms Billington, can I thank you for your attendance here today and for your evidence. I've been greatly assisted and you're now excused?‑‑‑Thank you.
<THE WITNESS WITHDREW [10.46 AM]
PN186
THE COMMISSIONER: Mr Algate?
MS KNOWLES: Yes.
<ADAM ALGATE, AFFIRMED [10.46 AM]
EXAMINATION-IN-CHIEF BY MS KNOWLES [10.46 AM]
PN188
MS KNOWLES: Mr Algate, have you prepared two statements for these proceedings?‑‑‑Yes.
PN189
Have you read those statements recently?‑‑‑Yes.
PN190
You've prepared one that's dated 5 October 2015?‑‑‑Yes.
PN191
Which has four attachments?‑‑‑Yes.
PN192
Are the contents of that statement true and correct?‑‑‑Yes.
PN193
I tender that, Commissioner.
THE COMMISSIONER: The witness statement of Adam Algate dated 5 October 2015 will be exhibit A5.
EXHIBIT #A5 WITNESS STATEMENT OF ADAM ALGATE DATED 05/10/2015
*** ADAM ALGATE XN MS KNOWLES
PN195
MS KNOWLES: Then you prepared a second statement, it's dated 30 October 2015?‑‑‑Yes.
PN196
Are the contents of that statement true and correct?‑‑‑yes.
PN197
I tender that Commissioner.
THE COMMISSIONER: The reply witness statement of Adam Algate dated 30 October 2015 is exhibit A6.
EXHIBIT #A6 REPLY WITNESS STATEMENT OF ADAM ALGATE DATED 30/10/2015
PN199
MS KNOWLES: No further questions.
THE COMMISSIONER: Thank you. Mr Dalton.
CROSS-EXAMINATION BY MR DALTON [10.48 AM]
PN201
MR DALTON: Mr Algate, you didn't attend any of the employee briefing sessions at the Karadoc site on 31 March, is that correct?‑‑‑Yes, that's correct.
PN202
But you attended a meeting with the company on site at 10am that day?‑‑‑Yes.
PN203
The attendees at that meeting were Peter Milton and Kent Robinson, two senior managers of the Treasury Wine Estates on the one hand and yourself and Bernadette Billington the site delegate for the union on the other, correct?‑‑‑Yes.
PN204
Your first statement, you have set out your best recollection of the most relevant parts of the discussion that occurred in that meeting, correct?‑‑‑Yes.
PN205
You prepared that statement, I take it, on the day or shortly before the day that that statement's been filed on 5 October 2015, correct?‑‑‑Yes.
PN206
Did you personally type this witness statement up, or have you sat down with someone and given them the information?‑‑‑It was with Fiona, but they are my words that I have typed.
*** ADAM ALGATE XXN MR DALTON
PN207
You've sat down with the barrister, and together you have compiled this typed statement, based on your input?‑‑‑Yes.
PN208
Of course, sitting down with the barrister, understanding that a statement from you is being taken in relation to this proceeding, you approached that matter seriously and conscientiously?‑‑‑Yes.
PN209
You understood that your account of this meeting needed to be comprehensive and accurate?‑‑‑Yes.
PN210
So you were careful to ensure that before you approve and signed off on the statement to be filed in the Commission, that it was an accurate and complete description of the relevant discussions that occurred in that meeting?‑‑‑To my best recollection at that time.
PN211
You took your time to ensure, and you read through your statement carefully to satisfy yourself that what you've set out there was everything that you could recall about what was discussed in that meeting, accurately and completely?‑‑‑yes.
PN212
You consulted your hand written notes of the meeting?‑‑‑Yes.
PN213
They were in effect, of only limited assistance to you because they really only captured take away points, as it were?‑‑‑Yes.
PN214
You largely had to draw upon your independent memory and you approached that exercise carefully?‑‑‑Yes.
PN215
In your statement, you set out, in particular, the substance of the discussions in relation to two topics of particular relevance to this case. One, the timing of the closure, discussion about the timing of the closure, and secondly the issue of redundancy pay for those who resign before the closure to take up alternative employment, correct? You've addressed those two issues in particular?‑‑‑Yes.
PN216
You set it out in quotes. You're paying careful attention here to capture, as best you can the words that were used and who said what in relation to each of those particular topics, correct?‑‑‑Yes.
PN217
As to the first topic, the indication as to timing was given as February 2016 for packaging?‑‑‑Yes.
*** ADAM ALGATE XXN MR DALTON
PN218
And some time after that for the warehouse?‑‑‑Yes.
PN219
The company was not in the position to give you a date for the redundancies, for either packaging or warehouse at that time?‑‑‑Yes.
PN220
That's correct?‑‑‑Yes, that's correct.
PN221
As to the second topic, that's the subject of an exchange between Ms Billington and Mr Robinson. Do you recall that? That is that Ms Billington asked for confirmation as to whether employees in the relevant situation resigning to take up employment elsewhere before the closure, would be paid redundancy pay. You recall her asking that question?‑‑‑Yes.
PN222
You recall Mr Robinson giving a response?‑‑‑Yes.
PN223
Again, careful to capture what you best recall to be his response, you've set that out in your statement?‑‑‑Yes.
PN224
You say "yes, but on a case by case basis", yes?‑‑‑Yes.
PN225
That is your best memory of what he said in response to Ms Billington's question?‑‑‑Yes.
PN226
That's not an unqualified yes, in response to her question, is it? He's saying case by case? He's not saying yes to every case, is he?‑‑‑There was obviously a lot more discussion around that, but - - -
PN227
You captured completely and accurately that particular exchange, didn't you?‑‑‑To the best of my recollection at that time.
PN228
Of course, yes. Can I take you to attachment 3 of your statement? This is an email chain. Do you remember you had an email exchange with Chris Ramage, Treasury Wine Estates Human Resources Manager about the impending changes and the position of the company. You wanted clarification of the position of the company on these matters, yes?‑‑‑Yes.
*** ADAM ALGATE XXN MR DALTON
PN229
Page 2 of this email chain, if I could take you to that, you will see that you've sent him an email on 11 May at 4.27pm. Have you got that?‑‑‑I don't actually have it with me, but I do recall the email chain.
PN230
I need to take you to it. I'll give you a folder where all the statements are. Your statement is at tab 2. So go to tab 2 and then go to attachment 3 and the second page of that email chain?‑‑‑Attachment 3?
PN231
Second page. Have you got your email of 11 May there?‑‑‑Yes.
PN232
I'll just give you a moment to look at that and refamiliarise yourself with that communication. Then I want to draw your attention in particular to the fourth paragraph down, starting with the words "during the shift meeting". So the first few paragraphs you're saying well, it looks like TWE has made a definite decision in relation to this and so I want to clarify that that's the case. Then at the fourth paragraph, you're saying "During the shift meeting our members were also informed by Kent Robinson" etcetera. Then this is the issue about resigning to take up alternative employment before closure and whether you'd get redundancy pay. Your reference to during the shift meeting of course is a reference to the employee briefing session that was conducted at 8am on 31 March?‑‑‑Yes.
PN233
That's a meeting that you didn't attend?‑‑‑Correct.
PN234
Whatever you're setting out there, would be based on information that you received from Ms Billington?‑‑‑Correct.
PN235
Here you want to make the point to the company that the company has indicated to you guys that it will pay redundancies in this situation, yes?‑‑‑Yes.
PN236
In support of that, you're referring not to your meeting that you had with the company, but to the employee briefing session, based on what Ms Billington has told you?‑‑‑Yes.
PN237
What I'm going to put to you is I suggest to you, if you were in fact told in unqualified terms, in your meeting with the company, that the company was going to pay redundancy in all cases, you'd have put that straight back at them in that 11 May email. Do you accept that?‑‑‑Obviously not.
PN238
Yes. Your reply statement, who asked you to prepare that reply statement? Someone approached you?‑‑‑Yes.
*** ADAM ALGATE XXN MR DALTON
PN239
And asked you to prepare a reply statement in those terms. Was that something that you drafted or did someone draft it for you?‑‑‑I wrote that.
PN240
You wrote it yourself, did you?‑‑‑I - - -
PN241
Can I suggest to you, that someone has written that for you and you've read it and then signed off on it?‑‑‑No - well I wrote that document and then it was sent - - -
PN242
Did you? Come on Mr Algate?‑‑‑Well I actually wrote it and then there was some - - -
PN243
Did someone ask you to read Ms Billington's statement?‑‑‑No.
PN244
So you've read Ms Billington's statement after you'd done your first statement?‑‑‑Yes.
PN245
And so you read Ms Billington's statement and then you file - you approve a reply statement to be filed in the Commission where you say, well I've read her statement and now I agree with what she says. That's basically what you've done here, isn't it?‑‑‑Because I recalled what she said to be true.
PN246
Mr Algate, really, the case is this, isn't it? The product of your true recollections is what's set out in your first statement, correct? You've answered all those questions that I asked you, that you approached that matter carefully and that's your best recollection. What I'm putting to you now is that this reply statement is just a simple attempt to piggy back off an account that's given by somebody else and it's not based on your memory, it's based on Ms Billington's position?‑‑‑It is based on my memory after it being prompted.
PN247
No more questions.
THE COMMISSIONER: Thank you Mr Dalton. Ms Knowles.
RE-EXAMINATION BY MS KNOWLES [11.01 AM]
PN249
MS KNOWLES: Mr Algate, you were asked some questions about when you finalised your first statement with me and you mentioned that you'd typed up some information. So when did you first type up the information that later became the final statement?‑‑‑This is the first one?
*** ADAM ALGATE RXN MS KNOWLES
PN250
Yes?‑‑‑Some days prior, approximately a few days prior. I can't recall the exact date.
PN251
You were taken to your file note which is attachment 1 to your first statement. When did you make these notes?‑‑‑That was made on 31 March. Are you referring to the hand written notes?
PN252
The hand written notes?‑‑‑Yes.
PN253
When, on 31 March?‑‑‑At the meeting had with the company at about 10am.
PN254
If I take you to the sixth dot point down, see that there, it says "Staff will get redundancy if they leave early". Why did you make that note?‑‑‑Because that was what was said in the meeting.
PN255
THE COMMISSIONER: Mr Algate, then in your statement on page 3, you have there about half way down, you have Mr Robinson saying "yes, but we will deal with it on a case by case basis". How am I to reconcile what you say there you said, and what's in your file note?‑‑‑The discussion was - the answer was yes, but there was further discussion that it will have to be looked at. There was a comment that there was case by case basis, but the answer was certainly yes, they would pay that.
PN256
MS KNOWLES: No further questions.
THE COMMISSIONER: Mr Algate thank you for your attendance here today and your evidence. I've been greatly assisted and you are now excused?‑‑‑Thank you, Commissioner.
<THE WITNESS WITHDREW [11.03 AM]
PN258
MS KNOWLES: That's the evidence of the union.
PN259
THE COMMISSIONER: Thank you. Mr Dalton.
PN260
MR DALTON: I call Kent Robinson. We might have to wait just a moment. My associates - - -
*** ADAM ALGATE RXN MS KNOWLES
THE COMMISSIONER: If the witness can - we'll deal with this.
<KENT PHILLIP ROBINSON, SWORN [11.05 AM]
EXAMINATION-IN-CHIEF BY MR DALTON [11.05 AM]
PN262
MR DALTON: Mr Robinson, could you please state for the purposes of the transcript recording, your full name and work address?‑‑‑Kent Phillip Robinson and the work address, 78 Penfold Road, McGill.
PN263
You're employed by the respondent in the position of General Manager Winery and Packaging Operations?‑‑‑That's correct.
PN264
You've prepared a statement for the purposes of this proceeding?‑‑‑Yes, I have.
PN265
Can I ask you to go to tab 6 of the folder that's in front of you. Are you able to identify that that's your statement dated 19 October 2015 running to 30 paragraphs?‑‑‑Yes that's the one I signed.
PN266
I understand that you want to make a typographical correction to paragraph 23?‑‑‑Yes I do.
PN267
Could you take the Commissioner to that?‑‑‑So in paragraph 23 the paragraph states that we would be interested in using casual labour and the second part of it says we wouldn't. That's contradicting the first statement, so the word not - - -
PN268
THE COMMISSIONER: Which sentence do you want to change?‑‑‑The word not should be removed. The company would be willing to train new casual employees, so the word not should be removed.
PN269
In the final line there?‑‑‑That's correct. That just means that those statements say the same thing.
PN270
MR DALTON: With that correction, are the contents of your statement true and correct to the best of your knowledge?‑‑‑Yes, this is the one I wrote, yes.
THE COMMISSIONER: The statement of Kent Robinson dated 19 October 2015 will be exhibit R2. Exhibit R1 will be the outline of respondent's submissions.
*** KENT PHILLIP ROBINSON XN MR DALTON
EXHIBIT #R1 OUTLINE OF RESPONDENT'S SUBMISSIONS
EXHIBIT #R2 WITNESS STATEMENT OF KENT ROBINSON DATED 19/10/2015
PN272
MR DALTON: No questions.
THE COMMISSIONER: Ms Knowles.
CROSS-EXAMINATION BY MS KNOWLES [11.07 AM]
PN274
MS KNOWLES: Mr Robinson, if I could take you to paragraph 16 of your statement?‑‑‑Yes.
PN275
Actually, paragraph 4. Sorry that's a mistake on my part?‑‑‑Alright.
PN276
At the end of that paragraph you're talking about you went through bullet points of a presentation?‑‑‑Yes.
PN277
In that paragraph it says "the company is announcing it will be closing Karadoc packaging and warehouse operations and consolidating these functions at Wolf Blass packaging centre"?‑‑‑That's what it says there, yes.
PN278
And you told that to the staff at that briefing?‑‑‑Yes.
PN279
When the packaging and warehouse operations close at Karadoc, those positions will become redundant, won't they?‑‑‑Yes they will.
PN280
It's intended that on closure of those operations, those positions will become redundant, isn't it?‑‑‑Yes.
PN281
At that meeting, you told people that on the closure that their positions would go?‑‑‑Yes, we did.
PN282
Those positions would be made redundant?‑‑‑Yes.
PN283
There's a difference, isn't there Mr Robinson between a position changing and it ceasing to exist, isn't there?‑‑‑Yes.
*** KENT PHILLIP ROBINSON XXN MS KNOWLES
PN284
At paragraph 2 of your statement, in the first sentence you say that you're going to - words to the effect that you notified employees of proposed changes. But that's not the whole story, is it? You notified them of more than just changes to their position, didn't you?‑‑‑In the context of the question, it said it's necessary for management - across various sites, Karadoc was one of a number of sites that was affected by those changes. So this statement is about just they are going to be impacted or affected by the announcements we were going to make.
PN285
Yes, but you told them that their positions were coming to an end?‑‑‑Yes.
PN286
So you told them about more than just change to their position, didn't you?‑‑‑Further on we told them that their jobs were going to become redundant, yes.
PN287
Then if I take you to paragraph 13 and you say in the second sentence that you said effectively to employees that you would work with them to try and help them secure other employment. Do you remember that?‑‑‑Yes.
PN288
You said that because their positions were going to become redundant, didn't you?‑‑‑Yes.
PN289
Then I take you to the meeting that you had with the union later that day. At paragraph 21 of your statement, in the second sentence, you say that you thought that the focus of the meeting was on how the company would assist employees to gain other employment. That's right, isn't it?‑‑‑Yes, that was one of the things that we covered in that meeting.
PN290
You talked of - in fact I take you to Adam Algate's statement which should be in your folder, I'm not sure which tab.
PN291
MR DALTON: Tab 2.
PN292
MS KNOWLES: Thank you. Tab 2, page 3. Then the paragraph just above paragraph number 10, Mr Algate says that there was a discussion about a support program for staff including retraining, resume writing and financial planning. That was talked about, wasn't it?‑‑‑Yes, it was.
PN293
That was because those employees' positions were becoming redundant?‑‑‑That's correct.
*** KENT PHILLIP ROBINSON XXN MS KNOWLES
PN294
You talked about what assistance the company could provide those employees in those circumstances?‑‑‑Yes.
PN295
Mr Milton has said that he generally agrees with what - first of all I'll ask have you read Mr Algate's statement before?‑‑‑I have.
PN296
And have you read Mr Milton's statement?‑‑‑No, I'm not entitled to. I haven't seen it.
PN297
Mr Milton says that he generally agrees with what Mr Algate says about the meeting and you generally agree with what he said, don't you?‑‑‑Yes.
PN298
If I take you back to paragraph 20 of your statement. In this context that the employees were going to become redundant and what assistance the company might provide, you talked about career transition (indistinct) didn't you?‑‑‑No I didn't. I think Peter did. I used the word we in the context that we as the company said we would do that.
PN299
In the context that the employees were becoming redundant and what assistance the company could provide, you and Mr Milton, whether you used those words or not, talked about career transition?‑‑‑Yes we did.
PN300
And that was one of those forms of assistance?‑‑‑Yes.
PN301
You're familiar with the enterprise bargaining agreement, aren't you?‑‑‑I have some familiarity, I'm not very familiar with it.
PN302
Are you aware of appendix 2 to the enterprise agreement?‑‑‑No, I would not be, using that reference, no.
PN303
If we go to paragraph 22 of your statement, you say you disagree with Ms Billington's account of what she says you said at the meeting. You say that you disagree with the suggestion that either you or Peter agreed unconditionally to let employees resign with redundancy pay, but you did talk about what would happen when employees, if they left early, didn't you?‑‑‑Yes, we did have some conversations about the likely scenarios.
PN304
I take you back to Mr Algate's statement that you were just looking at before and he attaches a file note of that meeting which is attachment 1. You mentioned that you'd read Mr Algate's statement before?‑‑‑Yes.
*** KENT PHILLIP ROBINSON XXN MS KNOWLES
PN305
Have you read this file note?‑‑‑I will now, just to make sure, I can't recall. Yes.
PN306
That's an accurate summary of what was discussed at the meeting?‑‑‑Yes. No sorry, it's accurate but not complete.
PN307
Okay?‑‑‑What's there was actually said at that meeting, but there were some things that have not been said in that statement.
PN308
I'll take you to the sixth dot point down where it says "staff will get redundancy if they leave early". So that was one of the things that was discussed at the meeting, wasn't it?‑‑‑We discussed those, but in context of other requirements that the business requires in order for people to leave early and that's the bit that's not mentioned there.
PN309
But the issue of whether they got their redundancy was discussed, wasn't it?‑‑‑Yes, it was. We talked about that.
PN310
So paragraph 21 of your statement, when you say "I do not recall specifically whether the question of whether employees would be entitled to redundancy pay if they left before the closure was discussed at this meeting" you do in fact recall, that it was one of the things that was discussed, as you've just indicated. That's right isn't it?‑‑‑Yes.
PN311
So the first sentence in paragraph 21 is not accurate, is it?‑‑‑No, probably not.
PN312
At paragraph 15 of your statement, you say that you used - this is in response to people asking about whether they would get their redundancy pay at the one of the staff briefings, you said words to the effect "we will try and look after you". Remember that?‑‑‑Yes.
PN313
What you meant there was that you would try and pay them their redundancy pay?‑‑‑No.
*** KENT PHILLIP ROBINSON XXN MS KNOWLES
PN314
That's not what you meant by looking after them?‑‑‑No, not at all. I'll explain what I meant. What I meant was that we will try to endeavour for these people to find alternative employment and work with them to enable things like early release. Once we got close to the closure of the plant, so when we started to get close - and that's missing from all of this. Once we got closer to the closure of the plant, we'll work with these people to enable them to be released and able to find another job. Because it's very important for us for them to find another job if we can, rather than have them just leave the company and not have a job. So, that was what that was about. We will try to look after you and help you if you have an opportunity as we get closer to closure.
PN315
If I take you back to the power point presentation.
PN316
THE COMMISSIONER: Sorry Mr Robinson, are we closer to closure?‑‑‑Yes, we are.
PN317
Has there been a date determined yet?‑‑‑We haven't locked in on a specific date, but we expect certainly before Christmas we'll have a specific date.
PN318
You'll have a specific date for some time?‑‑‑To be able to notify all of the people of a date when we would expect the place to close.
PN319
Do you still anticipate that will be February next year?‑‑‑I still anticipate that will be February next year. For the packaging, specifically, yes.
PN320
Then warehousing a few months after that or something?‑‑‑I still don't understand how that's going to operate yet.
PN321
MS KNOWLES: Just to take you back to that power point presentation which was attachment 1 to Mr Milton's statement?‑‑‑He was in tab 4, tab 2 was he?
PN322
Tab 5?‑‑‑Yes.
PN323
Attachment 1, page 5, it's the last dot point. It says "We will provide regular updates as the plan becomes more settled and throughout the transition period". You told the employees that, didn't you, at the staff briefing?‑‑‑Yes we did.
PN324
But you haven't been involved in another update since 31 March?‑‑‑No, I haven't.
PN325
No further questions.
PN326
THE COMMISSIONER: Thank you. Anything arising Mr Dalton?
PN327
MR DALTON: No.
*** KENT PHILLIP ROBINSON XXN MS KNOWLES
THE COMMISSIONER: Thank you Mr Robinson for your attendance here today and your evidence. You're now excused?‑‑‑Thank you very much.
<THE WITNESS WITHDREW [11.21 AM]
PN329
MR DALTON: I call Peter Milton.
THE COMMISSIONER: I should mark the other witness statements which are going in without the need for cross-examination. So the statement of Brett Thurman will be exhibit R3
EXHIBIT #R3 WITNESS STATEMENT OF BRETT THURMAN
THE COMMISSIONER: The witness statement of Varelle Kirkgard will be exhibit R4.
EXHIBIT #R4 WITNESS STATEMENT OF VARELLE KIRKGARD
<PETER JOHN MILTON, AFFIRMED [11.22 AM]
EXAMINATION-IN-CHIEF BY MR DALTON [11.22 AM]
PN332
MR DALTON: Mr Milton, could you please state for the purposes of the transcript recording, your full name and work address?‑‑‑Yes, Peter John Milton and my work address is 78 Penfold Road, McGill, South Australia.
PN333
You're employed by the respondent in the position of Global Human Resources Director, Supply?‑‑‑Correct.
PN334
You've prepared a statement for the purposes of this proceeding?‑‑‑I have.
PN335
Can I ask you to go to tab 5 of the folder that's in front of you?‑‑‑I have that.
PN336
Can you confirm that the document at tab 5 is the statement that you've prepared for this proceeding? A statement running to 32 paragraphs, signed and dated by you 20 October 2015 with three attachments?‑‑‑Yes, that's correct.
PN337
Are the contents of that statement true and correct to the best of your knowledge?‑‑‑They are.
*** PETER JOHN MILTON XN MR DALTON
PN338
I tender that.
THE COMMISSIONER: The statement of Peter Milton dated 20 October 2015 is exhibit R5.
EXHIBIT #R5 WITNESS STATEMENT OF PETER MILTON DATED 20/10/2015
PN340
MR DALTON: No questions.
THE COMMISSIONER: Ms Knowles.
CROSS-EXAMINATION BY MS KNOWLES [11.24 AM]
PN342
MS KNOWLES: Mr Milton I'll take you to attachment 1 of your statement which is the power point?‑‑‑Yes.
PN343
There's a series of dot points that start on page 2?‑‑‑I have that.
PN344
Under the second paragraph there's a dot point that says "closing Karadoc packaging and warehouse operations and consolidating these functions at Wolf Blass packaging centre". So the employees at the staff briefings were told the information that's in that dot point, that's correct, isn't it?‑‑‑That's correct.
PN345
When those operations closed, those positions will become redundant, won't they?‑‑‑That would be the natural consequence of closing that site, yes.
PN346
It is intended that on the closure of those operations that those positions will become redundant, isn't it?‑‑‑That's correct.
PN347
At the staff briefings the employees were told that their positions would go. That's correct, isn't it?‑‑‑We said there would be impacts to roles and that there would be a process that we would work through, envisaging perhaps some of the conversations that we're now having with the AWU regarding voluntary processes to try and exchange employees who would have been impacted by the packaging and warehousing closure with the winery site that's still operating and will continue to operate into the future.
*** PETER JOHN MILTON XXN MS KNOWLES
PN348
Well, Mr Robinson, who just gave evidence before, agreed with me that at that meeting, that the employees were told that their positions would go. They were, weren't they?‑‑‑Yes, ultimately those roles would no longer be required.
PN349
They were told that, weren't they?‑‑‑They were.
PN350
Mr Robinson agreed with me that the employees at those briefings were told that their positions would become redundant. And they were told that weren't they?‑‑‑I don't think we used the word redundant at all. We said there would be role impacts and that we'd have to work through the consultative processes required by the agreement to arrive at how that would happen. So there was a number of questions yet to be answered, particularly around timing and how those impacts would materialise before we could be clear about that. So the way you're putting it is slightly - - -
PN351
It's not the way I'm putting it, Mr Robinson who was at that meeting agreed with me that the employees were told that their positions were going to become redundant. I put it to you that they were told that, weren't they?‑‑‑No, I'll answer the question again. I don't think I used that term - I certainly didn't use that term and I can't recall Mr Robinson using that term. We use the term impacts.
PN352
You've agreed that the positions are going, haven't you?‑‑‑That's correct.
PN353
The position ceasing to exist, that's more than an impact, isn't it Mr Milton?‑‑‑It could be characterised as an impact.
PN354
Yes. I take you to paragraph 20 of your statement?‑‑‑Yes I have that.
PN355
So you say there that you've read paragraph 9 of Mr Algate's statement dated 5 October 2015 and I agree that the general substance and effect of the discussion was as he describes. That's right, isn't it?‑‑‑Can you take me to paragraph 9 of Mr Algate's statement. Which tab is that?
PN356
Yes, that's tab 2. You've read Mr Algate's statement though at the time that you made your own statement?‑‑‑Yes I had.
PN357
When you made this statement it was accurate, wasn't it?‑‑‑Indeed.
*** PETER JOHN MILTON XXN MS KNOWLES
PN358
If we go to paragraph 9, the last paragraph, it's not in quotes but it precedes paragraph 10. Mr Algate says "There was also a discussion about a support program for staff including retraining, resume writing and financial planning". So those things were discussed, weren't they?‑‑‑Indeed. Sorry, where are you reading from?
PN359
Page 3, just a paragraph above paragraph 10?‑‑‑Yes, I have that.
PN360
First sentence. "There was also a discussion about a support program for staff including retraining, resume writing and financial planning"?‑‑‑Yes.
PN361
And you've just agreed, those things they were discussed at the meeting?‑‑‑Yes indeed, that's correct.
PN362
In fact, in Mr Robinson's statement he says that he felt that the focus of the meeting was on helping employees to gain new employment. The company helping the employees to gain new employment?‑‑‑Yes.
PN363
That was discussed at the meeting what assistance the company could provide in helping employees gain new employment. That's correct, isn't it?‑‑‑That's correct, yes.
PN364
Mr Robinson says that the issue of whether to use the company's career transition provider or the unions was discussed. That's correct, isn't it?‑‑‑Yes, Mr Algate offered the services of union endorsed company to provide those outplacement services. We advise that we had an arrangement with another outplacement provider who we'd used over the years and that we'd intended to use that company.
PN365
That's assistance that the company is providing the employees to gain new employment, isn't it?‑‑‑Correct, yes.
PN366
And the company's also assisting the employees in gaining new employment by helping them with resume writing. That's happening, isn't it?‑‑‑That's right. There've been a number of workshops held at the site. There'll be some more to follow and that's one aspect of the workshops, is developing their CVs and interview skills and the like.
PN367
You're familiar with the enterprise bargaining agreement, aren't you?‑‑‑Not in great detail, but familiar enough.
*** PETER JOHN MILTON XXN MS KNOWLES
PN368
You're familiar with the redundancy provisions of the enterprise bargaining agreement?‑‑‑Yes.
PN369
You're the human resources manager, aren't you?‑‑‑Indeed, but I have a human resources manager that deals directly with that site, I have a number of sites under my remit and of course I can't be across the detail of all agreements at all the sites.
PN370
THE COMMISSIONER: Mr Milton, you went to make a presentation to employees about - you didn't consult, you didn't think to look at the redundancy provisions in the agreement to cover the employees you were about to go and talk to?‑‑‑No, I was familiar enough I think to present at that stage, given that a lot of the detail was yet to be worked through. The only reason why Mr Ramage, who's present today, wasn't there, he was at another site and so I attended in his stead.
PN371
Before the meeting did you go and look at the redundancy provisions?‑‑‑No, I did not.
PN372
When did you last look at them?‑‑‑It might have been a number of months before that. I was based at the site for a number of years, so I'm familiar with the construct and it's fairly similar to other agreements that we've got in our company.
PN373
Sorry Ms Knowles.
PN374
MS KNOWLES: There is an appendix 2 of the enterprise agreement that relates to redundancy provisions. Maybe it might help if you were actually given a copy?‑‑‑Thank you.
PN375
You see up the top, the heading, appendix 2 redundancy provisions?‑‑‑I see that, yes.
PN376
So the matter that's in dispute is essentially clause 2, the entitlement of this agreement?‑‑‑Yes.
PN377
I'll take you to clause 4, assistance. "The company undertakes to assist all such employees in gaining new employment by liaison with other employers and the local employment network". The assistance that you just referred to before that the company is undertaking in assisting employees in gaining employment such as with resume writing and career transition service providers, that's consistent with the company's obligations under this clause, isn't it?‑‑‑Indeed it is.
*** PETER JOHN MILTON XXN MS KNOWLES
PN378
If I take you back to your power point presentation, which is attachment 1 to your statement?‑‑‑I have that.
PN379
The last dot point on page 5?‑‑‑Yes, I have that.
PN380
It says "We will provide regular updates as the plan becomes more settled and throughout the transition period"?‑‑‑Yes.
PN381
The employees were told that at staff briefings, weren't they?‑‑‑They were.
PN382
But you haven't had a meeting with the staff since 11 May 2015, have you?‑‑‑That's right. I returned after the initial announcement on 31 March, on 11 May to provide an update as best we could at that time.
PN383
Is it your position that the company still, in November, hasn't notified the employees of the intending redundancies and their position?‑‑‑Correct.
PN384
Are you aware that some submissions have been filed in these proceedings on the company's behalf - legal submissions?‑‑‑Yes, I am.
PN385
Have you read those?‑‑‑Yes I have.
PN386
You would have seen in there that what the company is asking the Commission to do is to interpret the provisions of the agreement that that notifying employees of the intending redundancy should equate to notice of termination of their employment, or their retrenchment. Do you understand that?‑‑‑Sorry, I think that's the reverse of what we've submitted.
PN387
THE COMMISSIONER: I wouldn't say you were dealing with it well enough.
PN388
MR DALTON: I don't understand the relevance of the question for a start, so I object to it. Asking the witness about his understanding of a written submission that's been filed on behalf of the company doesn't appear to be anything that could be of assistance to the Commission.
PN389
THE COMMISSIONER: Ms Knowles, maybe cut to the chase.
*** PETER JOHN MILTON XXN MS KNOWLES
PN390
MS KNOWLES: If you go back to appendix 2 of the agreement, clause 7, notice of retrenchment?‑‑‑Yes I have that.
PN391
It says all such employees will receive a minimum of four weeks' notice of termination of employment or payment in lieu thereof?‑‑‑Yes.
PN392
If the employees were only given notice of the intending redundancies by payment of four weeks' notice in lieu, that would subvert the company's obligations to provide them with assistance.
PN393
MR DALTON: I object to the question. It's just an argument about what these provisions mean being put to the witness and can't possibly be of assistance to the Commission. The Commission has to decide that. A witness' opinion about what the clause means is irrelevant.
PN394
THE COMMISSIONER: How is this going to assist me Ms Knowles?
PN395
MS KNOWLES: Mr Milton and Mr Robinson are the managers who are here giving evidence on behalf of the company about what they say the implementation of these provisions means. I think this witness can answer the question. He's a human resources manager.
PN396
THE COMMISSIONER: I heard the witness say that he didn't even bother reading it before he went and spoke to the employees about it, oddly enough as the global HR person.
PN397
MS KNOWLES: Alright, I'll withdraw the question. No further questions.
PN398
THE COMMISSIONER: Any re-examination?
PN399
MR DALTON: No, Commissioner.
THE COMMISSIONER: Mr Milton, you are now excused, thank you.
<THE WITNESS WITHDREW [11.38 AM]
PN401
That's the evidence of the respondent. Alright will we take a short adjournment and come back for our oral submissions. Alright, we'll adjourn until noon.
*** PETER JOHN MILTON XXN MS KNOWLES
SHORT ADJOURNMENT [11.38 AM]
RESUMED [12.04 PM]
PN402
THE COMMISSIONER: Thank you, Ms Knowles.
PN403
MS KNOWLES: Commissioner, when Treasury Wine Estates made the decision to close the operations at the packaging and warehouse at Karadoc, it made a definite decision that those positions would become redundant. It was at that point that there was an intending, objectively speaking, an intending redundancy of those positions. That was notified to staff and the union on 31 March this year. That notification was given at the staff briefings and at the meeting with the union and by writing from Mr Ramage to the union on the same date.
PN404
In cross-examination the respondent's witnesses accepted that on the closure of those operations those positions would become redundant. They accepted that it was intended that those positions would become redundant and the staff were notified that the operations would cease and either that their positions would go or that they would become redundant or no longer required. That is not the precise words, the effect of what they were told was that their positions would become redundant on the closure of those operations.
PN405
In appendix 2 of the agreement, of the critical clause is clause 2. Clause 2 doesn't require that the notification be in writing and in my submission, intending redundancy is obviously something quite different from notice of retrenchment in clause 7 that specifically refers to notice of termination.
PN406
THE COMMISSIONER: Ms Knowles, just for the present purposes, if I'm with you, what occurred on 31 March falls within the first eight words of section 2, how does that help you if there hasn't been a nominated redundancy date which seems to be a requirement at the end of that sentence?
PN407
MS KNOWLES: Well, we say that the nominated redundancy date was February 2016 for packaging.
PN408
THE COMMISSIONER: Well the clause is the nominated redundancy date. Doesn't that require a definite date? February 2016 isn't particularly definite.
*** PETER JOHN MILTON XXN MS KNOWLES
PN409
MS KNOWLES: No, my submission Commissioner, it doesn't require a definite date for two reasons. One is what we're talking about here is simply intending redundancy. It is something that is future oriented, it is something that is intended by - the nature of an intention, rather than something definitive it's not going to be precise.
PN410
THE COMMISSIONER: No, that deals with intending redundancy, so it might be said that what occurred on 31 March, everyone was told it's our intention to make you redundant. That might satisfy the first eight words, but then at the end it says, the nominated redundancy date. Isn't that a difficult for you?
PN411
MS KNOWLES: Well, in my submission that clause needs to be read as a whole, so it's the nominated redundancy date of the intending redundancy for one, and secondly nominated means something less than precise. It doesn't need to be a calendar date. In my submission, nominated includes a designated date, but that doesn't require a calendar date either. I had a look in my concise Oxford and the definition includes "a time at which a thing happens, or is to happen. A time at which a thing is to happen". In my submissions that doesn't require an actual calendar date. It doesn't fit within clause 2 to require such a specific date, as opposed to, we acknowledge, obviously, that notice of retrenchment, notice of termination of employment would require a specific date.
PN412
THE COMMISSIONER: If you're reading is right, then what could happen in a practical sense is all of the employees in packaging and warehouse could resign and leave the respondent with no employees to do the work that it needs them to do through until February. That can't have been the objective intention of the parties, surely, when they constructed this that as soon as you mention the word redundancy, everyone gets to bail.
PN413
MS KNOWLES: The consequences of the bargain that is struck are a different thing to what was the deal that actually struck. Now, in my submission - - -
PN414
THE COMMISSIONER: No, I'm entitled to have regard to what would have been the objective intention of the parties as at January 2013, aren't I? I must be allowed to have regard to what would be the implications of the various constructions put before me.
PN415
MS KNOWLES: On doing that, then the flip side is that simply by not actually nominating a calendar date, the respondent can avoid its obligations, that it clearly signed up to. It's clearly signed up to a process. If you look at appendix 2 as a whole, it's a whole agreement of various steps that once the notification of intending redundancies has been given, it will offer various forms of assistance, such as time off for interviews, assistance in gaining new employment. It's a process that leads up to the eventual notice of retrenchment. So, in looking at its purpose and the objective intention, it can't have been the intention which is what the respondents are asking you to find, that they can wait right up to the end and then give their notification, because then clause 3 and clause 4, they'd have in terms of assistance, they'd have no work to do.
PN416
That is precisely my submission what's at play here. A lot of the company's material is that it doesn't like the fact that if people left, even though they've made the decision that the positions are going to become redundant, if people left before they actually stopped needing them, that it would be inconvenient to them. But that again, is a different thing as to whether this is the bargain that they struck. There's no evidence anyway of any flood gate in terms of the company's operations.
PN417
THE COMMISSIONER: Well, is that right? I mean there's this email that details of how many people are going to be affected by it. There's the email from Mr Ramage at attachment 4 to the first statement of Mr Algate that some 68 employees are going to be affected.
PN418
MS KNOWLES: In my understanding is that about that many employees will eventually be retrenched.
PN419
THE COMMISSIONER: Yes, so it must be open on your construction if those 68 employees, if the decision goes the AWU's way, 68 employees to bail once they know they're going to get their redundancy as well.
PN420
MS KNOWLES: Again, whether they had one employee or whether they had 68 is not actually going to affect the meaning of the bargain that was struck.
PN421
THE COMMISSIONER: Sorry, you said to me there's no evidence of flood gate. I'm saying there's a potential flood gate of 68 people, and that is the evidence before me, isn't it?
PN422
MS KNOWLES: Yes.
PN423
THE COMMISSIONER: Thank you.
PN424
MS KNOWLES: I mean, I think that if we're looking at the practicalities, all the evidence about the discussions around people leaving has been in the context if people find alternative employment and there has been evidence led from Ms Billington about the difficulties of finding alternative employment in the Sunraysia region, and on my instructions, and I don't think that this is contested, there's only two employees that have left since the announcement. We're now getting pretty close to the estimated closure date.
PN425
In response to some of the things which were in the respondent's outline of submission, they talk about how there's a distinction between the definite decision to make a position redundant and the retrenchment. In my submission, the intending redundancy is something that just fits in between. It is an unusual clause, but that doesn't mean that it's just not the deal that has been struck in these circumstances. It doesn't neatly fit with the ordinary TCR type redundancy process of the definite decision, the usual consultation processes and the retrenchment. Appendix 2 though is specific and it is particular, and even if it is peculiar, it is what has been agreed to and it sits in between the decision to make a position redundant and the retrenchment.
PN426
The respondents have made various submissions about what the meaning of the word such employees means in appendix 2. Their submission is that it means an employee whose current position becomes redundant as referred to in clause 1. In my submission, that's not tenable. Clause 1 clearly just applies to transfer, where an employee's current position becomes redundant, that is it's actually becoming redundant, they may be offered an alternative position, and as such, that employee accepting a new position, won't be entitled to redundancy payments as it's set out in that clause.
PN427
In my submission, in clause 2, all such employees means all such employees who have been notified of the intending redundancy. That fits in with the rest of appendix 2 because in clause 3 we have all such employees shall be entitled to reasonable time off to attend job interviews etcetera. So that clearly doesn't refer to those employees referred to in the transfer provision who have been offered an alternative position. The rest of appendix 2 is referring to employees who have been notified that they're positions are going to be redundant. So then in clause 4 the company undertakes to assist all such employees in gaining new employment etcetera.
PN428
The evidence from the respondent's witnesses today was that the efforts the company have made with resume writing, career transition etcetera, were assisting employees in gaining new employment because their positions were becoming redundant and the way that the company was acting was consistent with its obligations in appendix 2. Again, all such employees are referred to in clause 6 about superannuation benefits, clause 7 notice of retrenchment and in clause 8, repeatedly about the redundancy payments that they will receive. So clearly, they are not the employees who are referred to in the transfer position, because they are not entitled to redundancy payments if the conditions of clause 1 are met.
PN429
As I mentioned earlier, appendix 2 read as a whole provides a scheme of a gap, a significant gap between notification of intending redundancy, a process of assistance and ultimately notice of retrenchment. That is what we have had here. We have had notification of intending redundancy at the end of March and then there have been various things that have happened in terms of assisting employees to find alternative employment.
PN430
If, as the respondents have submitted, that notification of intending redundancy means notice of termination of employment, or notice of retrenchment, then effectively the remainder of appendix 2 would have little work to do, because notice of retrenchment can be given by payment in lieu. There would be no gap between the notice of the intending redundancy and the actual retrenchment and there would be no process of the other obligations that the company has signed up to, whether they're aware of it or not.
PN431
As I said earlier, a lot of the respondent's materials simply complain that it would be inconvenient to them if an employee left before they had finished requirement of that employee. But clearly, clause 2 gives the employee the right to elect to terminate early and not forego redundancy payment. In my submission, looking again at the purpose, hard fought for bargained redundancy entitlements that in the context of a situation here, where operations are closing down in the Sunraysia region, it's difficult to find other alternative employment, the Commission should lean towards an interpretation that would not deprive any of the employees who left early, their redundancy pay.
PN432
THE COMMISSIONER: Do you say therefore it should be interpreted in a beneficial way?
PN433
MS KNOWLES: Yes. And in Mr Ball's case, we say he meets the criteria. He was given notification of the intending redundancy, the nominated redundancy date was February 2016, he elected to terminate his employment earlier because he was fortunate and he received another job. You'll see from the statement of Mr Ball about how he was reeling after the announcement. He'd just bought a house; he had to look for other work.
PN434
THE COMMISSIONER: But isn't one possibility here that in the meeting that occurred on 31 March, Mr Robinson and Mr Milton, it's obviously a highly emotional meeting and there are some questions put on the spot a bit, and is it possible that they ran ahead of their instructions, putting it in our language. But by 13 May, this email come from Chris Ramage which makes it very clear what the company's position is. It's not until 3 June that Mr Ball asks about am I going to get my redundancy if I leave. Then isn't it possible that Mr Robinson, Mr Milton, were a bit lose in their language, but by 13 May the company has made it very clear what their position is. What's the implication of that?
PN435
MS KNOWLES: Mr Robinson and Mr Milton were the company representatives at that meeting. They were there to make the relevant announcement. Mr Robinson says that he was notifying in his statement, he was notifying employees of changes, but he agreed in cross-examination that it was more than that.
PN436
THE COMMISSIONER: I accept that, I have no doubt that Mr Robinson used the word redundancy and to the extent that Mr Milton can't recall that, I think Mr Milton must be wrong. Isn't it possible that Mr Robinson was wrong was he said that and the company recovered its position on 13 May?
PN437
MS KNOWLES: In my submission, they were there as the company representatives. They said what they said and if - - -
PN438
THE COMMISSIONER: What are you saying at no time can an employer say that he made a mistake, even though they are our senior representatives, what they said on that date was absolutely wrong? This is the truth now.
PN439
MS KNOWLES: If the criteria of clause 2 is met, there's no capacity for them to withdraw. They were acting with ostensible authority and if they said what they said, and the Commissioner finds that they notified the employees of intending redundancy then in my submission, they can't withdraw that. There's no ability. It might be that higher up management didn't like it later on, but that's too bad.
PN440
THE COMMISSIONER: I think Mr Algate is lower down the track, but it might be that he actually read the agreement.
PN441
MS KNOWLES: I couldn't comment on that. In conclusion we submit that the Commission should make the orders that the union has sought. Particularly in relation to Mr Ball and the more general order that would make a finding that in essence, the elements of clause 2 have been met.
PN442
We have prepared a document on what are my instructions were the Commission to make an order that Mr Ball be paid his redundancy entitlements pursuant to clause 8 of the agreement, we've prepared a table as to what they are. I gave a copy to my learned friend this morning. Sorry it's still got draft on it, but we weren't able with the flights and things to remove the draft mark, but it is our position.
PN443
Essentially, the evidence of Mr Ball's payments is all in the attachments to his statements, his final weekly pay. I don't understand the length of service to be in contention. In Mr Ball's witness statement he gives an estimation of what he understands his accrued personal leave to be. A termination of employment, we didn't have any reply to that in the respondent's material, so these figures are based on that information.
THE COMMISSIONER: Subject to what Mr Dalton has to say, I'll mark the calculation of redundancy payments as A7.
EXHIBIT #A7 CALCULATION OF REDUNDANCY PAYMENTS
PN445
MS KNOWLES: Unless Commissioner you have any further questions, they're the submissions of the applicant.
PN446
THE COMMISSIONER: Thank you Ms Knowles.
PN447
MR DALTON: Commissioner, I take it that you've read our written outline and I don't propose to dwell on it in any detail. The battle ground, as it were, in terms of the competing positions of the parties, we've attempted to summarise at page 3 of the written outline. In substance the AWU is contending that on 31 March by way of the ASX announcements and the briefings to the employees and the AWU at the Karadoc site, that it had one, made a definite decision in the relevant sense. Two, notified employees of intending redundancies, as that expression is to be found at the start of item 2 of appendix 2. Thirdly, had nominated the redundancy date as during the first half of 2016 and that Mr Ball had elected to resign from his employment prior to that nominated redundancy date and therefore he's entitled to full redundancy payments.
PN448
The company resists that, basically on the basis that what it did on 31 March 2015 is indicate a timeframe for the closure of the packaging area as being around February 2016.
PN449
THE COMMISSIONER: But it was saying on 31 March, wasn't it, your jobs are all going to go?
PN450
MR DALTON: Yes it was.
PN451
THE COMMISSIONER: It was communicating a definite decision to get rid of their jobs. It just hadn't told them when the date was.
PN452
MR DALTON: That's right, yes.
PN453
THE COMMISSIONER: They had made a definite decision that the jobs of packaging and warehouse employees would no longer be done.
PN454
MR DALTON: Yes, upon the closure of the packaging plant and also the warehouse a month or so later. At the time that Mr Ball resigned, he'd not been notified of a redundancy date, he'd not received a retrenchment notice or anything that identified a date upon which the position that he held, was no longer required by the company. So, you have this time lag where the company, we would say in essence, has provided early notification to employees of a significant change. Really, we're in the heart of clause 20 of the enterprise agreement. Do you have a copy of the agreement?
PN455
THE COMMISSIONER: I do.
PN456
MR DALTON: If you go to clause 20. This is the significant change notification/consultation clause that we're all well familiar with. Commissioner you'll note that significant change includes termination of employment. It specifically refers to significant change to structure and organisation that's likely to have significant effects on employees and that includes dismissal. The 31 March announcement and notification in the briefing sessions were in the middle of clause 20 in my respectful submission.
PN457
If you go to clause 21.1, the next clause, that's what I've described in the written outline as the TCR style provision which is again, a clause that we're all well familiar with which are the equivalent notification and consultation provisions in a particular context, namely a redundancy situation.
PN458
In my respectful submissions clause 21.1 describes a narrower set of circumstances compared with clause 20. Because 20, once you've made a definite decision that you're going to make changes to your organisation and structure in a way that's likely to have significant effects on employees, including dismissals, you have to start that notification and consultation process. So 31 March the company had an obligation under the agreement and what it was doing was complying with that obligation under clause 20.
PN459
Question, was it obliged on 31 March to notify and consult with employees because there was a redundancy situation in the sense that's described in clause 21.1? As I said 21.1 describes a situation in narrower terms than clause 20 because it refers to the making of a definite decision that you no longer require a job to be done by anyone. Here's where the time lag comes in, because of course, the company did require these positions to be carried out for at least another eleven months, but it had made a decision that at that point in time in the future, didn't know exactly when, but gave a best estimate that it could at that time, that it wouldn't be requiring them from that point.
PN460
You'll see in the written submissions that I've taken some time to put an argument that 21.1 was not in fact in play on 31 March. In fact, it's unlikely to be in play - - -
PN461
THE COMMISSIONER: Until before Christmas.
PN462
MR DALTON: Until just before Christmas, that's right. Now of course there is nothing to stop employers starting the process of consultation earlier. In fact, it's in their interests to do that, because it means that the time lag between the making of the relevant definite decision in 21.1 and giving effect to any retrenchments that might be necessary, could be shortened. There will be a point in time where you are obliged to consult specifically in the context of the redundancy situation. If you've not done it earlier, before you've made the definite decision, there will be a time lag between when those positions are currently excess to requirements, you don't require them to be done by anyone, but you haven't engaged in the consultation and you can't dismiss people, you can't retrench anyone until you've done that. That's the crucial protection for people who are facing redundancy because 21.1 requires the company to consult with the employees and the union representatives to specifically address in context, mitigation measures that might be undertaken that will potentially change the number of people, reduce the number of people who are to be retrenched.
PN463
Ultimately, you probably don't have to resolve that question, because when you go to item 2 in appendix 2, the words are tolerably clear, in my respectful submission, that more is required to trigger the entitlement to redundancy pay under item 2, than being in a consultation phase under clause 20 or 21.1. Even if we assume, in the union's favour that on 31 March we were in a clause 21.1 as well as clause 20 scenario, and that therefore employees such as Mr Ball were qualifying employees for the purposes of appendix 2, the biggest weakness in the union's case is that they don't grapple with the concluding words in item 2. That's the clearest textual indicator that more is required than just being in the consultation phase.
PN464
THE COMMISSIONER: Those last four words.
PN465
MR DALTON: The last four words, that's right. So the use of the definite article and the use of the word date. My learned friend has pointed to a meaning in the dictionary for the word date. Of course there's a direct meaning in the dictionary for the word date that we would say is clearly the most appropriate here and that is "a particular day of the month or year specified by a number". So, 28 February. That would be consistent with the - that would be the primary meaning from a dictionary viewpoint in my respectful submission.
PN466
It would also be the meaning that accords with case law, dealing with notifying someone of redundancy, retrenchment. You have to specify a date. Notice is not effective unless you've identified a date, a particular day. Thick Broom is a Federal Court decision to that effect. If you have a look at the cases that I've cited at footnote 19 they make that proposition out. It's not enough to provide effective notice in this context, simply to identify an estimated time frame by reference to a month or sometime after a particular month.
PN467
We say that the words are tolerably clear. Clear enough to ensure that the union's construction point is rejected. We also make some additional submissions, Commissioner, in our written outline going to evident industrial purpose. One needs to read the notification and consultation obligations in clause 20 and 21.1 in the enterprise agreement, harmoniously with appendix 2. A situation where you have to pay severance pay in these unqualified terms as the union would suggest, does not best achieve that harmony. What it would require of the company would be that it pays severance pay, effectively at the election of any employee as soon as consultation obligations are triggered under clause 21.1.
PN468
You have a situation where the employer would be liable, at the election of an employee to pay an employee severance pay before the company and the union had had the opportunity to engage in the consultation over mitigation steps including volunteers, transfers, retraining and things of that nature where you start to narrow the focus on particular individuals and numbers of individuals and you can start to land on a date and then you can start to notify the employees affected. We say that the construction that best promotes the harmony between those consultative provisions and obligations to pay severance pay in this particular scenario would be a construction that would allow the employer to continue to run its operations without being liable to pay severance pay effectively at the election of employees, but also to allow employees who are notified of a redundancy date, whether that be by way of a retrenchment notice or just simply a notice before Christmas saying that on 28 February, you're position is no longer going to be required.
PN469
For those employees to have sufficient notice to explore and to take up alternative employment, and in that situation, having been notified of the date, the entitlement under item 2 appendix 2, would arise. That strikes the most appropriate balance. It's the one that most accords to industrial common sense and most closely reflects these provisions which have a history, the TCR provisions the severance obligations, the provisions around severance pay and entitlements in the immediate lead up to termination events.
PN470
We've made some submissions briefly in relation to what, if anything, you should make about the evidence in relation to representations. That's at paragraphs 50 and 51 of the written outline. We say it's irrelevant. We also would adopt the observation that you've made just earlier that even if Mr Robinson and/or Mr Milton said something that would justify an interpretation that the payment of redundancy pay would be made in all cases, that was not the position of the company in writing on 13 May. In that email from Chris Ramage to Adam Algate, the position of the company could not have been clearer. Really, it's a dead end from an evidentiary view point, in any event.
PN471
We maintain the position that on the evidence, the most consistent evidence, the most consistent recollections of the various witnesses, is that the company was giving the message to employees that it would do what it could to support an help employees. But it wasn't given as a guarantee or in an unqualified fashion.
PN472
We're dealing with communications to employees about how the company will approach this particular issue and how it might apply it, and that's 18 months into the life of the agreement, where of course the enquiry that the Commission must be focussed on, is what objectively was the intention of the parties at the time that the agreement was made.
PN473
Lastly, in relation to the redundancy payment calculations, my learned friend has provided me with today, we will confirm instructions and perhaps if we could notify your chambers of whether that's accurate and we will do that within the next few days.
PN474
Those are the submissions of the company.
PN475
THE COMMISSIONER: Thank you Mr Dalton. Ms Knowles.
PN476
MS KNOWLES: Commissioner if we just go back to the plain words of clause 2 of appendix 2, on this issue of the nominated redundancy date, the first few words of the clause are important because the entitlement to the employees kicks in from the date of notification of intending redundancy. So it's from the date of the notification of intending redundancy that the employees are entitled to full redundancy pay, if they make that election. So my submission, the nominated redundancy date has got to be read together with notification of intending redundancy.
PN477
THE COMMISSIONER: Yes, so why does it necessarily follow that the first eight words expand the meaning of the last four? Why don't the last four narrow the construction you put on the first eight?
PN478
MS KNOWLES: Because what the nominated redundancy date has got to be understood in the context of what is a notification of intending redundancy and intending redundancy is something vaguer - - -
PN479
THE COMMISSIONER: Than actual.
PN480
MS KNOWLES: Than actual. So whatever the nominated redundancy date, it's got to be about an intending redundancy, not an actual redundancy. In my submission then, it doesn't lend itself to an interpretation that requires an actual calendar date. Reading that clause in its whole, because the right to the employees kicks in straight away at that point, as soon as they've been given notification of the intending redundancy.
PN481
The other steps that follow are also not consistent with the idea that at that point you've got an actual calendar date, because you've got this process, which could be lengthy, about time off for interviews, assistance in new employment. Some submissions have been made that somehow that the union and the company shouldn't be deprived of having the opportunity to consult with the overlay of the entitlement in clause 2, well in my submission, it's an additional right of the employee. So the usual consultation processes can continue, but in this case, what appendix 2 does, is give an extra and to my knowledge, unusual right to the employee to make that election.
PN482
In terms of any balance in interpreting the agreement, if the company's submission were accepted, effectively it could wait right up until the end to give notification of an actual calendar date. That would subvert the intention - firstly, the clear meaning of the plain words, reading appendix 2 as a whole, and if those words make sense, then that's really where it ends. But even so, if you want to look at the broader purpose, there is a clear purpose here that employees have been given an option, if they leave early that they'll still get their redundancy pay.
PN483
It can't be the case that an interpretation should be favoured which would allow the company to wait right up till the end before giving an actual calendar date and notice of that retrenchment because that would deprive the main part of appendix 2 of the work that it clearly intended to do. I think that unless you want to ask me anything further, that's it.
PN484
THE COMMISSIONER: No, thank you. Ms Knowles and Mr Dalton I've been assisted by your submissions. It will be necessary for me to reserve my decision, I do so. We are adjourned.
ADJOURNED INDEFINITELY [12.46 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #A1 APPLICANT'S OUTLINE OF SUBMISSIONS....................... PN17
EXHIBIT #A2 WITNESS STATEMENT OF AARON BALL......................... PN18
BERNADETTE BILLINGTON, SWORN.......................................................... PN42
EXAMINATION-IN-CHIEF BY MS KNOWLES.............................................. PN42
EXHIBIT #A3 WITNESS STATEMENT OF BERNADETTE BILLINGTON DATED 05/10/2015................................................................................................................. PN50
EXHIBIT #A4 REPLY WITNESS STATEMENT OF BERNADETTE BILLINGTON DATED 30/10/2015................................................................................................................. PN54
CROSS-EXAMINATION BY MR DALTON..................................................... PN56
RE-EXAMINATION BY MS KNOWLES........................................................ PN175
THE WITNESS WITHDREW............................................................................ PN185
ADAM ALGATE, AFFIRMED.......................................................................... PN187
EXAMINATION-IN-CHIEF BY MS KNOWLES............................................ PN187
EXHIBIT #A5 WITNESS STATEMENT OF ADAM ALGATE DATED 05/10/2015 PN194
EXHIBIT #A6 REPLY WITNESS STATEMENT OF ADAM ALGATE DATED 30/10/2015................................................................................................................................. PN198
CROSS-EXAMINATION BY MR DALTON................................................... PN200
RE-EXAMINATION BY MS KNOWLES........................................................ PN248
THE WITNESS WITHDREW............................................................................ PN257
KENT PHILLIP ROBINSON, SWORN............................................................ PN261
EXAMINATION-IN-CHIEF BY MR DALTON.............................................. PN261
EXHIBIT #R1 OUTLINE OF RESPONDENT'S SUBMISSIONS................. PN271
EXHIBIT #R2 WITNESS STATEMENT OF KENT ROBINSON DATED 19/10/2015 PN271
CROSS-EXAMINATION BY MS KNOWLES................................................. PN273
THE WITNESS WITHDREW............................................................................ PN328
EXHIBIT #R3 WITNESS STATEMENT OF BRETT THURMAN.............. PN330
EXHIBIT #R4 WITNESS STATEMENT OF VARELLE KIRKGARD...... PN331
PETER JOHN MILTON, AFFIRMED.............................................................. PN331
EXAMINATION-IN-CHIEF BY MR DALTON.............................................. PN331
EXHIBIT #R5 WITNESS STATEMENT OF PETER MILTON DATED 20/10/2015 PN339
CROSS-EXAMINATION BY MS KNOWLES................................................. PN341
THE WITNESS WITHDREW............................................................................ PN400
EXHIBIT #A7 CALCULATION OF REDUNDANCY PAYMENTS........... PN444
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