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Australian Industrial Relations Commission Transcripts |
1764 
, Transcript of Proceedings [2003] AIRCTrans 1907 (21 May 2003)
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
Tel:(08)8211 9077 Fax:(08)8231 6194
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT O'CALLAGHAN
C2003/ 1764
APPLICATION TO STOP OR PREVENT
INDUSTRIAL ACTION
Application under section 127(2) by The
Australasian Meat Industry Employees Union
for an order in respect to the employer
taking industrial action against Mr A. Mallard
ADELAIDE
3.05 PM, TUESDAY, 6 MAY 2003
PN1
THE SENIOR DEPUTY PRESIDENT: Good afternoon. Could I have some appearances, please?
PN2
MR SMITH: Good afternoon, Commissioner. I appear for the AMIEU. Ms Jelohovtseva will also be along directly. She is caught up in a conciliation conference at the moment but she will also be making an appearance in due course.
PN3
THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Smith.
PN4
MR DASAN: If it pleases the Commission, I appear for T & R Murray Bridge. I seek leave to appear, if it pleases the Commission.
PN5
THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Dasan. Mr Smith, is there any objection to Mr Dasan's application?
PN6
MR SMITH: No objection.
PN7
THE SENIOR DEPUTY PRESIDENT: Very well. I grant leave, Mr Dasan. Mr Smith, before you commence - - -
PN8
MR DASAN: Sorry, Senior Deputy President. Should the matter go to the taking of evidence, I also seek leave from the Commission to have Mr Strong, who is my instructor in relation to this matter, also remain within the Court room.
PN9
THE SENIOR DEPUTY PRESIDENT: Yes. Is there any objection to that approach, Mr Smith?
PN10
MR SMITH: No, no objection, sir.
PN11
THE SENIOR DEPUTY PRESIDENT: Very well. Now, Mr Smith, before the matter begins, this application follows a not dissimilar application before me last week. The thought has occurred to me that the parties may only feel comfortable conducting their negotiations in a Court room.
PN12
MR SMITH: That is - no, that is not correct.
PN13
THE SENIOR DEPUTY PRESIDENT: Can I be assured that this matter has been the subject of negotiations, which negotiations have failed? Do you want me to allow you time to negotiate?
PN14
MR SMITH: Senior Deputy President, we had two employees with two completely different sets of circumstances, and we deliberately notified them apart so they wouldn't be confused. The differences between the matter that was heard on Friday, and the matter that is before you today is that one is clearly being defended on the basis or argued on the basis that it is protected action within the meaning of the Workplace Relations Act. The case on Friday was a completely different situation.
PN15
THE SENIOR DEPUTY PRESIDENT: But leaving aside the question of the extent of the difference between the two, what is the position relative to discussions with the employer? Can I be assured that this matter has been the subject of endeavours aimed at trying to resolve it prior to today's hearing?
PN16
MR SMITH: Yes, absolutely, sir.
PN17
THE SENIOR DEPUTY PRESIDENT: Very well. Mr Smith, I am in your hands.
PN18
MR SMITH: Thank you. The application that is before you today is framed in relation to section 127 of the Workplace Relations Act, and relates to Mr Allan Mallard who has been locked out of his employment by T & R, Murray Bridge as they attempt to compel Mr Mallard to sign an AWA which, you would have thought under normal circumstances, is not out of step with the framework of the legislation, but we say that under particular circumstances, a lock-out that may have been authorised under the Act at one particular time comes to a point where it becomes illegitimate industrial action.
PN19
We will be referring to some decisions as we go along in that respect. The jurisdiction that is afforded to the Commission in this particular matter was considered originally in the case of O'Connor v AMIEU in print S0987. In that particular matter, there was some - - -
PN20
THE SENIOR DEPUTY PRESIDENT: Do you have a copy of that matter for me?
PN21
MR SMITH: I do, sir. This matter was considered by Bolton J in this particular set of circumstances and at page 7, which is paragraph 17 of the decision, his Honour concludes that:
PN22
I am satisfied that there is no jurisdictional prohibition on the making of an order under section 127 in relation to AWA industrial action, whether or not such an order falls within the terms of the immunity in section 170WC.
PN23
This decision was appealed and the appeal was dismissed and the finding in this matter was left intact. Mr Mallard did originally have an Australian workplace agreement between himself and the company, and that Australian workplace agreement was terminated on 28 January in an application before yourself, sir. There is a matter that I need to address and that is that we have actually, in our application, made an incorrect reference and I should do that first of all. In our application, at point 5, we said that Mr Mallard has been locked out of work since January 2003.
PN24
That actually is incorrect. He has actually been locked out since 3 March 2003. What we will be calling on the Commission to do in this particular matter is to look at the circumstances surrounding what has transpired in the past that has brought us to this particular place, the attempts to settle this particular dispute and what we say is the absolute stalemate that we now face that does not seem to be able to be resolved between us. We will be relying on the particular objects of the Act.
PN25
We will also be getting submissions in relation to duress and as I say, sir we will simply be calling Mr Mallard to give evidence in a minute. I intend to deal with this matter by witness evidence and as I say at the conclusion of that we hope to convince you to exercise your discretion to end this lock-out and allow Mr Mallard to return to work. In the matter before you on Friday I started to make some submissions in respect to Section 127 of the operation of the Workplace Relations Act in respect to the power of the Commission to issue an order in the circumstance.
PN26
I don't think it is probably necessary to repeat those other than say that we are certain the Commission does have the power under this Section to issue the order if it so feels the discretion to do so. That is all I intend to put across the bar sir. It is my intention to call Mr Mallard to give evidence unless Mr Dasan has some other course he intends to follow. In that case I will call Mr Mallard.
PN27
MR SMITH: Mr Mallard, you are an employee at T & R?---Yes, that's right.
PN28
How long have you been there?---Since about 1999 or was it 8 I believe It was the day they opened the beef chain there.
PN29
Are you currently a member of the AMIEU?---Yes, I am.
PN30
How long have you been a member?---Virtually the whole time I've been at the plant from my memory of it but I was obviously a member before I went to work at that plant, so I have been a member of the AMIEU over a lot of years and this time, most of the time I worked at the plant, maybe the first 2 or 3 months I may not have been, I don't remember.
PN31
Does the union call meetings with its members?---Yes it does.
PN32
Do you attend those meetings?---I've missed two over all the years I think. Yes I do attend meetings.
PN33
Where are those meetings generally held?---Recently they have been held at the Murray Bridge Community Club or the Darts Club on the outskirts of Murray Bridge.
PN34
Do you know why the meetings are held off the plant?---I believe the company will not allow the meetings to be held on the plant.
PN35
During the course of last year, Mr Mallard, were any meetings held that you attended?---Yes.
PN36
What would you say those meetings predominantly focused on?---They focused on the upcoming negotiations with T & R for a new AWA and the attitude of union members to the upcoming negotiations or the end of the old AWA and what would happen at the roll-over point.
**** ALLAN MALLARD XN MR SMITH
PN37
What basically happened at those meetings?---We decided a range of things that we would like to be in an upcoming agreement. The nature of the agreement as preferred by all the union members was to be an enterprise bargain but this was not the way it ended up going. The company stone-walled that one and insisted that it desired only an AWA and at this point we entered into some negotiations through the union with the company on the basis of leaving to one side from what we would call the agreement and try to negotiate an acceptable agreement.
PN38
Do you know how those negotiations were conducted from that point?---I believe, or it is my understanding that negotiations were held between the union representatives, the company and other people from the plant. I've heard that the HR offices of the time, and the manager may have at times been involved. The - I'm not quite sure how you want that answered.
PN39
That is fine as you have answered it. From those meetings with the company how would you get information back from them?---The union would report back to the meeting as to what the current state of company offers was. We would get printed outputs typically of where the company currently stood so we actually got to read what the information was, so it wasn't just the subject of a verbal report and it was fairly fully rounded out and subject to questions if anybody wasn't clear on exactly where any particular matter stood. So we were fully reported to and the reports were subject to full questioning.
PN40
When did those negotiations end?---They ended at the point where the company decided that it could go or would go no further and they issued an AWA for people to have the opportunity to sign despite the fact that negotiations had not really been resolved from our position at all. The company just said: that's enough and that was it. They offered the AWA on the basis of where they had gone to.
PN41
Okay. Were you satisfied with the outcome of that?---In a word, no.
**** ALLAN MALLARD XN MR SMITH
PN42
Why is that?---Well, as it was put by the union to the company in one of their latest submissions that I can remember the wording of, there were a number of threshold issues remaining to be negotiated. The threshold issues were areas that, so far as I was concerned, were built into the core of where I stood in relation to the award versus the AWA or what I would prefer to see any future enterprise bargain. Do you wish me to actually enumerate the conditions as I found them to be inappropriate in the offered AWA?
PN43
Yes, certainly if you want to, yes?---Right. Well I actually have to get my glasses out so I can make sure I can read these but I just put a few down here just to make sure that I didn't miss anything out that I felt was important of the list of objections I had to the - it started off:
PN44
The AWA offered, overtime at time and a quarter and time and a half.
PN45
The award on any previous arrangement I've worked on offered time and half and double time - so a considerable reduction on the degree of penalty payments.
PN46
The number of days of sick pay was somewhat less than under the award and under any previous agreement I have worked under with that...
PN47
or at that plant because I used to work at that plant with the previous owner of the plant.
PN48
The number of hours of work went up from 38 to 40 instead of being on a 38 hour week on the award it would be on a 40 hour week under the AWA.
**** ALLAN MALLARD XN MR SMITH
PN49
The AWA mandates, albeit with a period of notice of 2 working days I believe it is, mandates weekend and public holiday work. So whatever days that the company desires you to work, if they give you the required notice under the AWA you have to work those days regardless. That is mandatory. Under the AWA you lose one public holiday a year. Butchers' Picnic, the first Monday in March is no longer a public holiday. This is as in comparison with the award. A payment of overtime under the AWA as specified to be until your shutdown leave bank which you cannot access for some period after having earned it. Currently the current company is discretionarily sort of allowing you to access other than that but the actual AWA specifies that that is where the money must go. So you don't even get your overtime. Your overtime has to go, and I suppose I should be addressing the Commissioner. The overtime must go into your shutdown leave bank meaning that the money is effectively tied up and it sounds like a political statement. There's an interest-free company loan for the duration of that instead of my being able to use it for my purposes, thereby imposing extra costs on me. Well, because I don't have the money in my pocket which is where it should be, I don't get to have the advantages of having that money and I don't agree with the argument that the company is implying by that that it's actually making things better for you when your shutdown - if unexpected long shutdowns come by managing your company for you. The basic pay rates. The pay rates are such that I worked at a similar-level-of-difficulty job back in 1990 at the Noarlunga Metro Meat Plant and I was earning more money than I am now or I was at the point of termination with the - when the company locked me out. So the pay rates have gone backwards by about 12 or 13 years and there's an additional matter, sort of wording of some features in there. The job that I was doing is actually specified as a level other than which the company is paying it at. The level that it's specified as is in the actual AWA it specifies my job to be a level 4 job but the company realised very quickly because of job consolidation and misappropriate positioning of that job that it was actually much more difficult than could be done by any employee or than one would justify the low payment of level 4 and they then positioned that job or they've paid that job since day 2 on the job. They come up to me and told me: from this point on we'll pay this job as a level 3, which involves somewhat more money, well actually a considerable amount more money. This allocation under the AWA allows the arbitrary removement of that overpayment which they had threatened the employee working immediately beside me, doing the job next to me who was being paid - - -
**** ALLAN MALLARD XN MR SMITH
PN50
MR DASAN: I raise an objection, Commissioner. I mean I can sit down here and let Mr Mallard go on for another hour or so but the issue down here is now it is clearly to the area of hearsay about what other people on his gang may or may not have been told and I don't think that he is actually speaking from any knowledge of his own. I raise that an objection.
PN51
THE SENIOR DEPUTY PRESIDENT: Yes. I will note your objection, Mr Dasan. Now, Mr Smith, I'm going to allow the witness to continue with the information he is providing to the Commission but obviously I will have to have regard to that which is directly within his knowledge as distinct from that which is hearsay.
PN52
MR SMITH: Yes, your Honour, I will take it as it goes. The issue that was just raised - no, I won't continue with that.
PN53
Mr Mallard, you will need to continue with only those things that you have direct knowledge of?---All right. So I cannot in any way refer to that. Well, in any case overpayment agreements made verbally with the company outside of the AWA are not covered by the AWA and therefore at any time they can legally be - - -
PN54
MR DASAN: If I may raise another objection, your Honour?
PN55
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Dasan.
PN56
MR DASAN: The question as I understood it from the outset which started this process of Mr Mallard making his statement currently while I understand and appreciate the Commission attempting to provide some form of latitude here, concerns what Mr Mallard - it has been most informative - that Mr Mallard found wrong with the document that was actually offered to him. If he has got a grip about a whole range of other things then I would suggest that my friend should actually ask the appropriate questions because I have no idea where this is going.
**** ALLAN MALLARD XN MR SMITH
PN57
THE SENIOR DEPUTY PRESIDENT: Yes. Mr Smith, if my memory serves me correctly, the question that prompted the answer that Mr Mallard is now giving me went to what provisions he considered to be inappropriate in the T & R AWA proposal. I think Mr Mallard is now starting to talk about things that are outside of that AWA.
PN58
MR SMITH: The question that was actually posed to Mr Mallard was whether or not he was satisfied with the outcome of negotiations and from that point he has informed us what he saw wrong and I agree that this should probably remain within the realms of exactly what problems with the AWA occur and I'm happy with that.
PN59
I once again ask, Mr Mallard, if you can just stay within the - precisely within the terms of the Australian Workplace Agreement that you - - -
PN60
THE SENIOR DEPUTY PRESIDENT: Perhaps you could repeat the question for Mr Mallard.
PN61
MR SMITH: Sorry, sir?
PN62
THE SENIOR DEPUTY PRESIDENT: You could repeat the question you now want Mr Mallard to answer.
PN63
MR SMITH: Yes, I will do that. Mr Mallard, just to finish answering that question can you just tell us exactly which provisions within the T & R proposed AWA that you have some concern with and why that prevents you from reaching agreement with the company?---All right. Well, I won't go back over all the area I went to until I stepped outside to the hearsay section. There is one provision which I believe is effectively there or not there. There's no long service leave provision in the AWA. Now, this - - -
**** ALLAN MALLARD XN MR SMITH
PN64
MR DASAN: If I may, your Honour, either Mr Mallard has - understands or that he is actually referring to a part of the document or he is not, I mean the issue of what he may believe to be in or not in the document is not an issue here. The question is fairly specific: what clauses in the award does he actually have a problem with, not what he thinks may or may not be in the document.
PN65
MR SMITH: In that case, sir, I mean this is getting very picky over the precise question. I mean I have tried to confine the evidence that Mr Mallard has given to the terms of the AWA but in fact I wasn't intending to put Mr Mallard on the spot where he is to draw from his memory every last clause from the T & R AWA. So I think it is a very unreasonable objection from the other side. What Mr Mallard believes and what he understands - - -
PN66
THE SENIOR DEPUTY PRESIDENT: I don't know whether he is doing it from his memory. Mr Mallard seems to be working from some notes in that regard, Mr Smith.
PN67
MR SMITH: Well, he appears to be, sir, yes. I don't know whether it is in fact the case that he has gone through the T & R AWA. In fact I might ask him.
PN68
THE SENIOR DEPUTY PRESIDENT: Well, yes. I must admit I'm working very much in the dark at this stage so you are going to need to help me with the provision of a substantially greater amount of information than that which I have now.
PN69
MR SMITH: So once again the question was simply in relation to what was preventing Mr Mallard from reaching agreement with the company and Mr Mallard is attempting to explain that and we are now getting into the realms of asking Mr Mallard to quote specific provisions from the AWA.
**** ALLAN MALLARD XN MR SMITH
PN70
Mr Mallard, have you in fact got a copy of the AWA in front of you?---I don't have one in front of me but I - this in fact is a series of notes which was made in your office prior to coming here just so that I would not forget any of my objections but it was not done with a copy in one hand. No, I don't have a copy in front of me.
PN71
In that case, Mr Mallard, can you just give me a simple answer as to whether or not you are prepared to sign the AWA now?---No, I'm not prepared to sign it.
PN72
Okay. Sir, could I ask that the witness be handed a document which I will tender directly?
PN73
THE SENIOR DEPUTY PRESIDENT: Yes, certainly.
PN74
MR SMITH: Mr Mallard, can you just tell us what that notice says and what that piece of paper says at the top where it is underlined?---"Notice of protected action under section 170WD of the Act."
PN75
And can you tell me who that is addressed to?---The notice is addressed to me from my employer T & R Pastoral.
PN76
PN77
MR SMITH: Mr Mallard, can I just take you down to the fourth paragraph on that page which commences with the words "the lock-out"?---Mm.
**** ALLAN MALLARD XN MR SMITH
PN78
Can you just read that to us please?---
PN79
The lock-out will commence on Monday, 3 March 2003 and continue indefinitely until: (1) the employee is directed by the company to return to work or (2) the employee signs the attached AWA which has the nominal expiry date of 3 years from the date it becomes operative.
PN80
Were you given a copy of this notice?---I was given a copy of this notice attached to an AWA copy as the section says.
PN81
What do you understand that notice to be telling you?---The long and the short of it is from 3 March you are locked out until you sign the attached document. That is what I understand it to mean.
PN82
And you have just said that you won't sign an AWA?---That's it. I'm not going to sign that document.
PN83
So where do you think the lock-out will end?---Well, as I told the company manager, making sure he was quite clear that I would never sign. I told him hell would freeze over before I'd sign and in fact that's my stated position, albeit as an atheist. Hell would never freeze over so I'm never going to sign. Never, full stop. The document is unconscionable.
PN84
But, Mr Mallard, isn't it your understanding that the lock-out according to this notice will only be ended when you sign an AWA?---Well, that's the way the notice is worded, yes.
PN85
Is this lock-out having any effect on you currently?---Well, obviously it's meant a considerable drop in income. Yes, it is having an effect.
**** ALLAN MALLARD XN MR SMITH
PN86
Can you describe what sort of effects it is having?---Many of the purchases that I had intended to make have simply had to go on the backburner. I've had to reorganise my house loan so it draws from overpayments I've been making because I can't afford to pay that any longer. I've cut back on every essential or non-essential extra that I've been indulging with, disconnected an internet-provider service sort of - have the telephone cut off shortly. Such is life.
PN87
Do you think that this lock-out will have the effect of compelling you to sign the AWA?---No.
PN88
Do you think there is any prospect of reaching agreement in relation to this AWA?---Absolutely not. Utterly clearly not from previous negotiations between the union and the company and the company has gone as far as it will go. There is no further they will move and how far they would have to move for me is - no, no prospect.
PN89
Do you want to return to work at T & R?---Yes, I do.
PN90
And how soon would you like that to happen?---Tomorrow morning would be good.
PN91
Thank you. No further questions.
PN92
PN93
MR DASAN: Mr Mallard, you have just given us evidence that you began working for T & R since about 1999, August 8?---That or thereabouts. I can't - it's within - at this plant. Yes, I did actually work for a T & R company previously at the Gepps Cross plant as well but at that plant I began that job, my previous job having been terminated by closure of the previous plant.
**** ALLAN MALLARD XXN MR DASAN
PN94
Okay. Let us take you back to that time then. You worked for T & R at Gepps Cross you say, initially?---That's right.
PN95
What document did you work under while you were employed there?---It was an AWA at the time but I never looked upon - no, I can't say that. That's an extra. It was an AWA.
PN96
It was an AWA? What work were you actually doing while you were employed at Gepps Cross?---Predominance at the time I was packing in the mutton boning room on the night shift.
PN97
Did you do any trimming work while you were there at Gepps Cross?
PN98
MR SMITH: Objection, Senior Deputy President. I fail to see the relevance of the employment in another factory in this matter.
PN99
THE SENIOR DEPUTY PRESIDENT: Mr Dasan?
PN100
MR DASAN: Your Honour, the door was in fact opened by Mr Smith himself in relation to his working history. I am entitled to ask and to know what instrument Mr Mallard has worked under previously.
PN101
THE SENIOR DEPUTY PRESIDENT: Yes, I will allow the question.
PN102
MR DASAN: So when you started work at Gepps Cross you worked under an AWA?---Yes.
PN103
And what did you do prior to that, prior to Gepps Cross let me ask?---Prior to Gepps Cross I worked at the T & R - not at T & R - the Metro Meats Murray Bridge Plant.
**** ALLAN MALLARD XXN MR DASAN
PN104
And what instrument did you work on when you were working for Metro Meat?---Enterprise bargaining.
PN105
On an enterprise bargaining agreement?---That's right, enterprise bargaining with Metro Meats.
PN106
Right. So you started off on that enterprise bargaining agreement pursuant to the state award or the federal award would you know?---No, it was an enterprise bargain, not an award at all. There previously may have been a plant award but I can't actually remember the details of what preceded the enterprise bargaining. Now, there may have been a plant award struck previously. I'm just not clear on that. The agreement I worked under with Metro Meats was an enterprise bargain.
PN107
So it is an enterprise bargaining agreement. So after that you started working for T & R Gepps Cross and you had - you worked under an Australian Workplace Agreement?---That's right. I looked upon that as being bridging because I knew that the plant at Murray Bridge would reopen and I needed some income during the period concerned and a friend working at the plant said: look they're looking for people - - -
PN108
No, I just asked you what instrument you were working under, Mr Mallard?---Okay, okay, right.
PN109
I mean so you were quite happy to work under the AWA at that time?---Only because I knew it was a very short-term job.
PN110
Right. So - - -?---Just a few - it was a few weeks to a matter of 3 months at the outside and 3 months it was it ended up being.
PN111
Right but you signed an AWA because it was a short-term job, is that what you were saying?---That's right.
**** ALLAN MALLARD XXN MR DASAN
PN112
So you didn't have an objection to it being an AWA?---I had objections to what were in there but one can put up with a lot on a short-term job that one would not put up with if one had to do it for longer.
PN113
Is that right? Okay, so you did have what you may term to be - no, I withdraw that. So who was your bargaining agent at that time, Mr Mallard?---No bargaining agent was involved. Because I went in under a short-term AWA it came also under the casual pay rates for that period meaning that shortcomings in the AWA were compensated for by the short-term pay that I got during the period I expected to be there.
PN114
Right. So effectively you saw the money, you liked the money, you signed an AWA. Is that what you are telling us?---No. I needed bridging in between being made redundant by Metro Meats Murray Bridge and the time that I expected the Murray Bridge plant to reopen and it's not a case of liking the money. The money was not good but because it was only short term and because I was able to work hours at which I - - -
PN115
Could I just put this question to you? Are you suggesting to me you don't have a philosophical objection to an Australian Workplace Agreement?---I have no philosophical objection to Australian Workplace Agreements. It's what is contained therein. An agreement is what is contained within that agreement, not what the name of the agreement is. You can have an agreement such as an award which could contain theoretically precisely the same conditions as in an AWA and if they were precisely the same then not necessarily an objection. I have an objection to this particular offered agreement.
PN116
Right, okay. You finished up at Gepps Cross and somewhere on or about August 1999 you applied to work T & R Murray Bridge did you not?---That's right.
PN117
Right. At that time what document or what employment relationship were you offered?---An AWA.
**** ALLAN MALLARD XXN MR DASAN
PN118
Right. Did you have any problems with the contents of that AWA, Mr Mallard?---Yes, I had many problems with the contents of that AWA but like a lot of the other employees there I bit the bullet knowing that after 3 years the agreement could be exited.
PN119
Well, Mr Mallard, so in other words what you are saying to me or you are saying to the court at this stage is that you were happy to sign that, even though you didn't like the agreement?---I was not happy to sign it but I had no choice but to sign it. It was offered to me on the condition of: sign this or no job.
PN120
But, Mr Mallard, if you didn't like the contents of the agreement you still proposed to sign it so that in 3 years' time taking from what I gather you are saying to us that you could choose to accept or not accept whatever else the employer put to you?---Right, that's probably close to my present position, yes.
PN121
Right. So effectively sometimes AWAs are okay and other times they are not?---No, I don't agree with that statement. That AWA was not okay. I had no choice but to sign it. I signed it however knowing that in 3 years' time I would not have to sign the next one.
PN122
Right. So can I put this to you, Mr Mallard? Do you - if I was to say that - do you actually believe the employer has a right to set its employment practices as it sees fit?
PN123
Would you like me to repeat - - -
PN124
MR SMITH: Your Honour, perhaps if that could be put a little clearer to the witness. That was rather an ambiguous question.
PN125
MR DASAN: Subject to certain - let me just rephrase that for you, Mr Mallard. Subject to fulfilling certain minimum requirements subject to the law, does the employer as you see have the right to set its terms and conditions as it sees fit?---Subject to the law, yes.
**** ALLAN MALLARD XXN MR DASAN
PN126
Right. So just to carry on from there, if the employer says: I want this business run by the organisation of my work subject to stage one, two and three, as opposed to three, four and five, you say the employer has the right to do that don't you?---I'm not quite clear on what you are saying.
PN127
Well, if the employer says: this is how I wish to run my production line and this is how I usually run my production line, would you say that the employer is entitled to do that as long as they are fulfilling the minimum conditions as set out by the law?---So long as the employer complies with the law on running the internals of the plant, the employer has the right to run the internals of that plant within the law.
PN128
Thank you, Mr Mallard. So following on from there, you have worked since 1999 under an AWA, like it or not. You thought you'd take it because you thought in 3 years' time: well if I don't like it, I can give the employer a hard time with it if I want to, correct?---That's not - I - interesting way you phrased that. No, I did not enter into it intending to give my employer a hard time. I entered into it in good faith knowing that at the end of the 3 years if the next agreement I did not like, I did not have to sign it because I would at that point have employment rights.
PN129
Mr Mallard, let us just go back here. You are suggesting to me that you may not have liked the first AWA but you signed it anyway?---It was that or no job.
PN130
Well, Mr Mallard, what if I put this to you then? If in fact you didn't like the terms that are currently being offered, you could always find employment elsewhere couldn't you?---It is possible for me to get a job elsewhere but I'm sure that the Act doesn't intend to allow the company to sack me because I will not sign the agreement.
PN131
Has the company sacked you, Mr Mallard?---No, not yet.
**** ALLAN MALLARD XXN MR DASAN
PN132
Has the company offered you terms and conditions less than the award pursuant to the law?---I can argue that point in that I disagree with some of the provisions that the employment advocate has okayed in the agreement but allowing the employment advocate to be the - - -
PN133
Can I stop you there, Mr Mallard?--- - - - arbitrator of the law, no.
PN134
Can I stop you there, Mr Mallard?
PN135
THE SENIOR DEPUTY PRESIDENT: Can I stop you for a minute? What your job in this particular circumstance is is to simply answer the question. So that you know what will happen, there will be an opportunity extended to Mr Smith once Mr Dasan has completed his cross-examination of you and given his substantial experience in this area Mr Smith will have the opportunity to follow up with you issues that you consider to be or that he considers to be requiring a further and better explanation of your position. But your job in this instance is simply to answer the questions that you have been or that you are being asked?---Okay.
PN136
MR DASAN: Thank you, your Honour.
PN137
Mr Mallard, just going back to the question I asked you, do you pursuant to the law and any advice that you may have taken either from your bargaining agent or anybody else, has anyone said to you that taken as a whole, which is the terms used by the Act, is this agreement inferior to the award?---I believe that under the law it has been arbitrated as being not inferior.
PN138
So this document is not some illegal document floating around the place is it?---No, it is not.
**** ALLAN MALLARD XXN MR DASAN
PN139
So this is not a document that the company has put forward to you on the basis of: nudge nudge, wink wink, if you want a job, here. The conditions are not as good as the award but if you sign we'll all be happy. That is not the case is it, Mr Mallard?---The company has offered me the document for signing with no further commentary.
PN140
Okay. Mr Mallard, you started on an Australian Workplace Agreement in August 1999. We are not precise about the date. You have already given evidence about that and we will accept that for the moment. So in other words I take it that your current AWA would have - its nominal expiry date would have ended some time in August 2002, am I not correct?---That's right.
PN141
Right. Under what agreement or terms of condition have you been employed under since August 2002?---Up to I believe the 15th or thereabouts of March which was after the point at which I was locked out, I was paid and employed under the conditions of a pre-existing AWA which had signed.
PN142
Right. Over that period of time between say August 2002 to the time of your lock-up, how many times would you say you or you and your representative - let us just start with you. How many times have you gone up and seen company management about the contents of the document?---Me personally? Who do you mean by "management?" If you mean foremen, I have talked to some of my foremen.
PN143
Well, hold on. The offer is being made by the company. You in most cases as I understand it, and if I'm wrong please correct me, the offer was made by the human resources department wasn't it?---Yes, I actually refused to accept the copy of the offer when they took me down the office to take that copy.
PN144
So technically every time the offer was made to you, you never actually came and picked up the document did you?---That's right.
**** ALLAN MALLARD XXN MR DASAN
PN145
So you never for some time actually knew what the contents of the document was did you, Mr Mallard?---I did not have in my possession a copy that the company had given to me. I did however have in my possession a copy from one of the other employees so I did know what was in the document, yes.
PN146
So you wouldn't accept the document given by the company?---That's right.
PN147
Right. So you are here telling the Commission here today that you were actually attempting to negotiate in good faith with the company were you?---I simply told the company, I made clear to the company at every point that I would not sign the offer, the offered AWA.
PN148
Mr Mallard, that is not my question. That is not my question. Earlier in your examination-in-chief, that is the time when Mr Smith was asking you questions, you said you did not believe that the company was negotiating with you in good faith. I'm paraphrasing the question but that is what you put to the Commission did you not?---I believe since you've worded it that way that that may have been the way the submission went in.
PN149
Yes, but now you are telling the Commission that at no time, that every time the company attempted to give you this document you refused to accept it?---The union had previously entered into on my behalf - - -
PN150
Mr Mallard, I've asked you a direct question. Did you refuse to accept the document that the company was attempting to give you?---Yes, I did.
PN151
Did you refuse to accept the document that was also being distributed to all other employees on site? Let me rephrase that. Were you aware that that was the same document being offered to the other employees on site?---That was the same document. Everybody was offered the same AWA, all those whose AWAs had expired.
**** ALLAN MALLARD XXN MR DASAN
PN152
So, Mr Mallard, you are saying to me that while in your earlier submissions that you put to the Commission that you believe that the company was actually not negotiating in good faith, in reality at no stage were you ever going to put yourself in a position where (1) you never sighted your own document? Am I correct to assume that?---I had sighted a copy of it. I was - as the union was acting as my bargaining agent and I had attempted to negotiate through the union with the company, I did not wish personally to come under the up-front pressure of dealing with company representatives personally. I negotiated through my union at every step to the point at which the negotiations broke down after which I refused to accept a copy of this document which I had attempted to negotiate a better version of but which the negotiations for had fallen over.
PN153
Mr Mallard, let us go through that again. Mr Mallard, you have said to us that you never accepted a document from the company?---That's right.
PN154
Right?---Until they served this notice on me which was - - -
PN155
I'm coming to that, I mean, that is clear enough, I'm coming to that, I'm just going back to what happened at the front end. I'm trying to build a bit of a picture here about what actually happened at the plant, Mr Mallard, and I'm hoping that you will help us do tat. When did you tell the company, as you were capable of doing, when did you tell the company that the AMIEU, or rather Mr Graham Smith of the AMIEU, was your bargaining agent?---The AMIEU did that on my behalf at an earlier stage of the proceedings. Or, they - or if they did not specifically identify me, they identified that they were acting for all union members and the company was aware, I believe, that I was a union member.
PN156
Why do you assume that the company knew you were a union member, Mr Mallard, have they ever asked you whether you were a union member?---I believe I told Paul Strong on one occasion I in the union.
**** ALLAN MALLARD XXN MR DASAN
PN157
Well - - - ?---So Paul Strong would have been - or should have been aware - - -
PN158
We will put that to Mr Strong at the appropriate time. Mr Mallard, pursuant to the act, did you in form the employer that the AMIEU was your bargaining agent?---If you mean, did I specifically contact the company and specifically personally notify them that the AMIEU was acting as my bargaining agent, no, I did not, but the AMIEU had a signed document which they, I believe, would fulfil the requirements of by presenting to the company, showing that they were in fact authorised to be my bargaining agent and the union has, in fact, knowingly been negotiating with - the company has been knowingly negotiating with the union representatives as my bargaining agents recently.
PN159
Mr Mallard, you are aware of what an AWA is, aren't you? Aware that it is an individual agreement between you and the company?---Yes.
PN160
Mr Mallard, knowing that, did you at any stage tell the company that you had somebody negotiating this agreement for you? It is a simple "yes" or "no", Mr Mallard. You remember, I must say, a lot of detail, but I'm asking you a very direct pointed question here, "yes", or "no", did you tell the company, or an official of the company that the AMIEU was your authorised bargaining representative?---Put in those precise terms, I probably personally did not, having been unaware that it was required, if in fact it is required.
PN161
Well, you were quite evidently taking advice from the AMIEU at that stage, weren't you? They were your bargaining agent, you tell us?---They were my bargaining agent, I believed, from - well, my assumption at that point had been that filling out of the bargaining agent form and returning it to the union was all that was required for the union to step in as my bargaining agent.
**** ALLAN MALLARD XXN MR DASAN
PN162
So in other words you are not sure whether you, or the union ever informed the company that you had a bargaining agent?---I believe - I'm virtually certain that the union at one point informed me that - well, they have been negotiating with the company as my bargaining agent so, therefore, they must have informed the company that they were my bargaining agents and I believe I have documentation somewhere that will show that the - it is just at what stage in the proceedings I'm not sure. They have been - - -
PN163
Well, I mean, you don't really know, Mr Mallard, do you?---I don't know the precise timing of it, but I would be certain that the union has informed the company they are acting as my bargaining agent because they had been acting as my bargaining agent recently and, therefore, if they are acting as my bargaining agent, to do so, they have to inform the company of that.
PN164
So when did you sign off on a slip of paper that says that: you appoint the union as a bargaining agent, Mr Mallard?---Probably 1999, I do believe.
PN165
Right, so you never actually gave them an authorisation in relation to this round of enterprise bargaining negotiations, did you?---The authorisation that I actually gave them was resigned at one point was - I had actually made an error on the original form and - over another matter that the union was acting for me with the company on my behalf. I did have to resign, so I'm not sure what date that was resigned. That was probably in the year 2000 sometime, which is not the original form I signed but - - -
PN166
So you would agree at some vague time you signed off on a bargaining agents notice - - - I have - - -
**** ALLAN MALLARD XXN MR DASAN
PN167
- - - to allow the union to act on your behalf?---That's right. Actually, the matter I think was presented to us again at the point, at the beginning of the negotiations for the AWA, the new one, I think the thing was represented at that time. Whether it was - whether those - I don't remember whether I signed a new one at that point, but I did understand at that point that my pre-existing form, if I did not sign a new one at that point - and I'm not clear on - I don't think I did sign a new one then - I understood that my pre-existing form gave full authorisation for the union to be my bargaining agent. It didn't state in the matter as to what, it just so far as I was concerned when I signed that, it referred to anything and everything.
PN168
Right, so from that point on you have no idea whether the union actually negotiated on your behalf, or not?---The union negotiated on the collective behalf of all members and reported back to meetings on that basis.
PN169
Hold on, hold on, can I stop you there, Mr Mallard. Again, I'm asking you a very direct question. You were offered - you agree and you previously agreed that you were offered an individual AWA to yourself. The offer was made to you directly. You say at some vague time in the past you may, or may not have given authorisation to the AMIEU and its authorised officer to act on your behalf. Am I not correct about that, that is the evidence you have been giving us in the last 15 minutes or so? You signed something - Mr Mallard, if I may help - - - ?---On - on a couple of occasions I signed a bargaining agent form for the union. On the second time, which is the one that I believe to be valid through until and including the current situation, I did sign a bargaining agent form which I intended to apply for everything, as far as I was concerned, I didn't see that I needed to sign an individual form on each case, because the form itself was not that restrictive, it simply appointed the union as my bargaining agent, not in relation to any matter, but in relation so far as I was concerned the way the form was worded to everything.
PN170
I take it you handed your life over to your bargaining agent in relation to your employment contract?---I attended all meetings, grilled the representatives that were negotiating on my behalf where required. Suggested changes in direction, specific areas which concerned me that should be dealt with. I didn't hand my life over, they were my - the union is my employee, they work on my behalf, that is how I used them.
**** ALLAN MALLARD XXN MR DASAN
PN171
Right. So you don't know whether the union ever went and saw the employer in relation to your contract, do you - specifically?---Specifically, and in relation to my now cancelled AWA, the old one, aspects of it they have dealt with. The new negotiated one, they acted collectively. I don't know whether the company was informed of everybody who they were acting on behalf of. Only the union could inform me of that, I have not actually asked. I had assumed that they were acting on my behalf, because I had requested on that form for them to do so and attended meetings at which I stated and continuously gave them approval to do so.
PN172
Mr Mallard, if I put to you that the company, until very recently, did not and does not have any notice of the AMIEU acting on your behalf, what would you have to say about that?---They were present at the negotiations meetings for the AWA on the collective behalf for everyone - of everyone who was a union member and stated in that notice - I think they would have stated they were acting on behalf of union members. They may have chosen not to identify who the individual members were so, yes, that could be correct.
PN173
So no-one would actually know about any of the objections that you have raised in the first half an hour that we have been before the Commission here, would they?---My bargaining agent was informed of all of the objections and attempted to resolve those during the negotiating period, as any bargaining agent would be expected to, that is what I pay them for.
PN174
Mr Mallard, did you ever check to see whether your individual concerns were raised with the company?---I did not personally go and check with the company myself.
PN175
That is pretty careless on your part, isn't it, Mr Mallard?---I rely on my union to honestly report to me, they are my employee. I rely on them doing what I pay them to do.
**** ALLAN MALLARD XXN MR DASAN
PN176
Mr Mallard, we have heard submissions here today from your representatives that you are suffering hardship. Don't you think that your actions over the last 3 months was fairly careless in relation to your main source of income?---My actions are in protection of my personal rights. I consider the AWA to infringe excessively, as I explained before with the onerous conditions in it, on my personal employment rights, under the award I gained many of those rights back. I am currently dealt with by the award. I am not currently an AWA employee, so the nature of my employment is governed by the award.
PN177
You are not currently working?---I'm not currently working because I'm locked out.
PN178
Yes?---But if I was working I would have to be covered by the award provisions, because I had my old AWA struck down, which was always my intention from day one at the end of its operating period.
PN179
So in other words you are saying to us, you never actually considered at any stage about signing your AWA this time around, did you?---I looked at the conditions in it and I - - -
PN180
Can I hold you there, Mr Mallard?---I looked - - -
PN181
You looked at the conditions. Did you actually come up and - you have just told us that you never actually formally accepted the document at any stage?---I - - -
PN182
Which version are you putting to the Commission now?---I looked at the conditions that were in the document that the company finally offered at the end of the aborted negotiations with my bargaining agent and could not sign that document.
**** ALLAN MALLARD XXN MR DASAN
PN183
So the first time you saw the document was when they gave you the lock-out notice, is that what you are saying to the Commission?---No, I had seen the document some months before, I believe it was in December. I gained a copy from - which I had a look at to check on some specific provisions from one of my co-employees.
PN184
So why didn't you just pick up the document from the front office, Mr Mallard, which you were instructed to do?---That was - that was a statement to the company that I was not prepared to sign the document. It was simply effectively me stating to the company: I will not sign this document. I won't even touch it.
PN185
Well, Mr Mallard, in that case I put to you that you were careless about your employment conditions. You had no regard about bargaining in good faith, did you Mr Mallard?---I bargained in good faith through the union. The company aborted the negotiations - - -
PN186
Mr Mallard, let me put this to you again? You refused to pick up the document on offer to you on the basis that you believe it was substandard, that is what you just currently put to the Commission, did you not?---Yes.
PN187
Following on from there, you said that you were negotiating in good faith, did you not just say that two seconds ago?---I had negotiated through my bargaining agent in good faith. The negotiations reached the point at which I believe the general manager said that: they had gone as far as they could go and that was it, that they were putting out an AWA. At that point - - -
PN188
Mr Mallard - - - ?---- - - I was not satisfied.
PN189
THE SENIOR DEPUTY PRESIDENT: Mr Dasan, I think Mr Mallard is trying to answer the question. I'm happy to let him complete his attempt to answer the question.
**** ALLAN MALLARD XXN MR DASAN
PN190
MR DASAN: If I may, your Honour.
PN191
Let me put the question to you, Mr Mallard. You have no idea whether any submissions on your personal behalf was ever made to the company?---With my name nailed to them specifically, no, but the union was there negotiating on behalf of all of its members and I was at meetings which voted on and drew up lists of the points which the union negotiator was to put to the meeting, so the union put - through my bargaining agent, they put my submissions, my points, my disputes to the company, so the company was aware through my bargaining agent that these were my concerns and they went so far and then said: no further, and printed a document which did not meet a range of the things which my bargaining agent had been attempting to gain. At that point, there was no further I could go so that I could not sign a document which failed to meet the conditions which my bargaining agent had been attempting on my behalf, although collective perhaps - he was still acting on my behalf even though he may not specifically have nailed to the floor: yes, I am acting on behalf of this particular person.
PN192
Mr Mallard, I have already put to you that the company has got no record of any submissions being put on your behalf. Are you then aware, Mr Mallard, that after the lock-out notices were issued by the company, which is tagged AMIEU1, that there was some correspondence between your bargaining agent and the company?---Yes, I'm aware that they corresponded, they sent me copies of that correspondence.
PN193
Right. If I may send some documents. Can we tender them? Mr Mallard, in the first instance going back to the correspondence I have just had forwarded to you, correspondence dated 10 February 2003 and addressed to you, do you remember receiving this correspondence, Mr Mallard?---Dated 10 February, this may - this would have been attached to an agreement which I refused to accept a copy of.
PN194
But you got this letter?---I saw it. I don't know whether this was also - no, this was attached - this here - if you look at the way:
**** ALLAN MALLARD XXN MR DASAN
PN195
T & R would like you to take the agreement and consider the conditions offered over the next 14 days. You do not have to sign the agreement. Please return the agreement signed, or unsigned to the HR office on 24 February 2003.
PN196
This I believe was the copy that I looked at and read, which was on the top of the agreement which I refused to accept.
PN197
So you read this letter, which is addressed to you, but you took the rest of the stuff on it and rejected it, did you?---I did not take it.
PN198
You didn't take it. But you quite evidently knew what was on the inside of the document, did you not?---At that point I had already seen a copy of it, even though I was refusing to accept a copy of it, as my personal statement that I considered the document to be unconscionable.
PN199
Mr Mallard, you didn't even open the document, did you?---On that particular occasion, no, but I had previously seen a copy of it. In fact, I had read through a copy of it in December. This is dated February so - I - I obtained a copy elsewhere from one of the other employees. I was fully aware of what the whole thing said.
PN200
Sorry, Mr Mallard, just for the record. An offer was made to you by the company dated 10 February 2003. Got that offer and you did not bother to open the document, did you?---I did not need to open the document. The document was exactly the same document as the document which I had previously seen. I knew what was within the documents. The documents contents were unconscionable. No, I did not open that document. I'm going around in circles - - -
PN201
Right. Yes, Mr Mallard, I take it that you didn't read any of the information provided by the Office of the Employment Advocate, also attached to that document, did you?---I read nothing, apart from the covering top there to make sure that what - what I was being offered. I did not read any covering information from the Office of the Employment Advocate, no.
**** ALLAN MALLARD XXN MR DASAN
PN202
Then, I go to the final paragraph down there, if I may quote:
PN203
T & R recommends that if you need clarity on the terms and conditions offered that you either contact the undersigned or the OEA, or both.
PN204
?---Right, well, I did not need - I read - I had read that line. I did not need clarification on any of the terms in there. I knew precisely what was in the document. It was something that I could not sign, so there was no point in going any further. Looking at the Employment Advocates, they act as an arbitrator as to whether a document has been - is valid and has legitimately been signed. I could not sign the document. Whatever they - input they had on it was of no relevance.
PN205
Mr Mallard, I take it from your answer that you have just given us that at no time the list of grievances that you put up in relation to the AWA, were ever put by you or your representatives to the company, were they?---We're going back around to the beginning.
PN206
Mr Mallard, this is a very direct question. It concerns an offer made by the company on 10 February 2003, Mr Mallard?---In relation - if you are going to confine things precisely to this letter here, I am not aware of the union as my bargaining agent approaching the company and making them aware that this document was substandard. I did not consider this needed to be done, since they - the bargaining had already broken down earlier and this document was the result of an - an aborted period of bargaining, which simply had gone to a position that I could not take. Could not stand, could not sign.
PN207
Mr Mallard, you would accept that this was a fresh offer, was it not?---This was a re-offer of the same document.
**** ALLAN MALLARD XXN MR DASAN
PN208
Right. You did not take up the recommendation from the company to discuss your concerns with it, did you not?---Other people had already by that point signed. The company had made it clear in negotiations through my bargaining agent that they had gone as far as they would go. There is little point in trying to address the conditions in there which were unconscionable because the company through my bargaining agent had already said to me in respect of those conditions which I disputed, no.
PN209
So you treated the process like you would in a collective agreement sense, did you?---I treated the process as having been negotiated for me by my bargaining agent. As an individual employee I feel a lot of pressure brought to me by the structure of individual bargaining and I took the legal option that I understand I have, which is to take one step back and let a bargaining agent do that negotiating for me.
PN210
Right, but you have already given us evidence that you never actually opened the document in relation to any of the offers put by the company to you?---I have given you evidence that I had previously seen a copy of the document from elsewhere so, no, I did not open the specific documents the company gave me but, yes, I had read and understood through the entirety of the contents of that offer document.
PN211
PN212
MR DASAN: If I may. Mr Mallard, you were just handed a piece of correspondence under the letterhead of the Australasian Meat Industry Employees Union, dated 7 April 2003. Have you seen this correspondence before - - -?---7 April, this is dated 17 March. The piece I have in front of me, have you given me the right document?
**** ALLAN MALLARD XXN MR DASAN
PN213
Could I just have a look at that again please. That is fine, it is my mistake, Mr Mallard. That is still correspondence on your letterhead. Have you ever seen a copy of this correspondence - - -
PN214
THE SENIOR DEPUTY PRESIDENT: On Mr Mallard's letterhead, or on the AMIEU letterhead?
PN215
MR DASAN: Yes, on the AMIEU letterhead.
PN216
Have you ever seen this correspondence before?---Yes, I have seen this, the union sent me a copy with blazoned across it in red letters "COPY", so I have seen this document.
PN217
PN218
MR DASAN: Mr Mallard, attached to that document can you tell us what that attachment actually is?---The attachment is the bargaining agent form officially point the union as my bargaining agent. I note it is signed June 2000, 21st, I can't remember the exact numbers on the document there. So it was the second one I signed, I signed a previous one to that but - I resigned at that point.
PN219
Right. 2000?---I believe that was in, that was specifically resigned in relation to another event when I found that I had made an error on the first form I had filled out.
**** ALLAN MALLARD XXN MR DASAN
PN220
So what if I put to you, Mr Mallard, that that is the first time that the company actually knew that your union was your bargaining agent?---The union - I can only give the same answer I have already given. The company may well up to that point not have been aware that the union was acting for me, specifically individually, but under a collective umbrella under which I believe the individual notice may not have been given. They acted on - they're statements that I have seen previously had the statement of: on behalf of our members, sort of, or words to that effect in them specifying who they were acting for.
PN221
I tender that document.
PN222
THE SENIOR DEPUTY PRESIDENT: Well, I have marked the document T&R2.
PN223
MR DASAN: Yes, you have, sir.
PN224
THE SENIOR DEPUTY PRESIDENT: Yes.
PN225
MR DASAN: Thank you. If I may, another piece of correspondence before - actually could I tender that document first and then have that handed to the witness please?
PN226
THE SENIOR DEPUTY PRESIDENT: Well, I will receive it on the basis that Mr Smith is not raising an objection.
PN227
MR DASAN: Yes, it is actually correspondence from Mr Strong.
**** ALLAN MALLARD XXN MR DASAN
PN228
PN229
THE SENIOR DEPUTY PRESIDENT: Do you want my copy of this to be provided to the witness?
PN230
MR DASAN: If it is possible, sir.
PN231
THE SENIOR DEPUTY PRESIDENT: Yes.
PN232
MR DASAN: Mr Mallard, this piece of correspondence, were you aware that the union had sent this on your behalf to the company?---Yes, I was. I received a copy of this document with, once again, in red letters across it the word: copy. So I was aware that this was sent and as the document itself elicited some - Graham had been, Mr Smith had been in contract with me.
PN233
Certainly. As your representatives, would you agree that the letter was telling the company that you would never sign a new AWA?---That was my understanding of the reading of it, yes.
PN234
Could I take you to paragraph 5, where it says, if I may quote:
PN235
With your new AWA well and truly entrenched by virtue of threats of lock-out it seems absurd to try to contain damage, Mr Mallard, for the sake of a political view point. We are talking about one person out of a workforce of some 600.
**** ALLAN MALLARD XXN MR DASAN
PN236
Can I put to you that you never negotiated with the company at any point in relation to your AWA. You were never going to sign any AWAs, isn't that true, Mr Mallard?---Through my union I negotiated to the point at which the negotiations broke down. I was never going to sign that AWA. It would not have been impossible for an AWA to have been produced presided - provided it has precisely the same conditions as the award or conditions that, in my judgment, were no worse than, that I could've signed them. This document I could not sign.
PN237
Mr Mallard, going along the same lines with having documents provided to you, you say, from the union, if I may hand another document up. Could I just hand it to the Commissioner, in the first instance, to be tendered.
PN238
THE SENIOR DEPUTY PRESIDENT: Well, once again, I will receive the document on the basis that Mr Smith is not raising an objection relevant to it.
PN239
PN240
MR DASAN: Have you seen a copy of this letter previously, Mr - sorry?
PN241
THE SENIOR DEPUTY PRESIDENT: I'm not sure that the witness has got the letter yet.
PN242
MR DASAN: No, I apologise, sir.
PN243
THE SENIOR DEPUTY PRESIDENT: It is yet to leave my hands, Mr Dasan, and I am working my way through it. So bear with me, since there seems to be such a paucity of documents.
**** ALLAN MALLARD XXN MR DASAN
PN244
MR DASAN: You have seen this document previously, have you not?---I'm not sure, no, I don't believe I actually have seen this precise document, but having read it I may have received a summary of the situation which was that the company was not prepared to move. I think I received a summary document, I don't think I actually received a copy of it. So no, I have not seen this.
PN245
On the basis that you may not have seen this, right?---I may not have seen the document, but I believe I have received a summary.
PN246
Now, that you have had an opportunity to read it, Mr Mallard, do you see anything in this letter that says that the company was not willing to negotiate with you?---
PN247
In T & Rs view there is no stalemate in the lock-out action. We again encourage Mr Mallard to discuss his employment conditions either through his bargaining agent or directly with T & R.
PN248
My position is clearly known by my bargaining agent who is there and authorised as per the previous attachment that was attached to a previous item to carry out those negotiations for me. So one would assume that the situation that this exchange of letters amounts to, at least, the prelude to negotiations and I believe that the union, I believe I read a summary to the effect which said that.
PN249
Mr Mallard, you have to agree, there is nothing in this letter that says that your employer had stopped, or wished to stop talking to you, isn't that correct?---There's nothing in the letter to state that the employer wished to stop talking to me, but I come back to the previous situation which is the whole over-arching situation which was the company manager stating this is as far as we can go and that's where it ends. Now, as my understanding - - -
**** ALLAN MALLARD XXN MR DASAN
PN250
Mr Mallard, the question I think was fairly specific. Can I just encourage you, Mr Mallard, that we are not talking about what happens to the rest of the 600 employees down there, we are talking about you, all right? I just want to stick to that point for the moment. On having received, or having discussed this did you actually say to your bargaining agent, even if you didn't want to do this, did you say to your bargaining agent, maybe I will paraphrase:
PN251
Could you please go and see the employer and put this following points to him in relation to my objections.
PN252
Did you ever say that to your bargaining agent?---What I said to my bargaining agent was that my positions were well laid out in the previous outcome of the meetings at which I participated fully and vigorously. My position was known and the union was made aware that there were points on which I was not prepared to draw back and the union being in a position acting for me after the lock-out as my bargaining agent the correspondence illustrates that the prelude to negotiations, that no actual negotiations have occurred on the basis of my quibbles, well it all comes back to the point that the company already said enough.
PN253
That is your opinion, isn't it, Mr Mallard?---That's my opinion.
PN254
That is right, because I can't see any of what you have just said to us in the final correspondence that I have just put up. Wouldn't it be right to say, Mr Mallard, from our point of view that you have been callous about your employment conditions?---I am acting in protection of my employment conditions. Callous is what I would describe the attached AWA though - or the AWA which the company is trying to induce me to sign by locking me out.
PN255
Mr Mallard, has the company done anything illegal in your eyes in relation to this offer of employment?---No.
**** ALLAN MALLARD XXN MR DASAN
PN256
Mr Mallard, would you say that the company had every right to lock you out in relation to the law as it currently stands?---As I have read the Workplace Relations Act, yes, they do have a right to lock me out.
PN257
Mr Mallard, do you say that the employer has a right run its employment activities in a manner that it sees fit and proper?---Within the law, yes.
PN258
Mr Mallard, you have at this stage told us that effectively you knew at that point where you chose not to sign the agreement that you would be locked out, isn't that not correct?---Yes, I was aware of that.
PN259
You knew at the point where the lock-out occurred that you would not be paid, is that not correct?---That's correct.
PN260
Mr Mallard, you also knew that the lock-out could have been indefinite, did you not?---Yes.
PN261
So why are we here today, Mr Mallard? You made the choice, did you not, Mr Mallard?---I made a choice not to sign, but that does not give my employer the right to effectively dismiss me which means - which is the effective of locking me out forever.
PN262
Mr Mallard, you knew what the effect of your non-signing would have been, is it not?---Yes.
PN263
You knew after a protected amount of time which you say you were negotiating with the company that this would have been the principal effect once the lock-out started, would it not?---I'm not quite sure of the point you're making.
**** ALLAN MALLARD XXN MR DASAN
PN264
Mr Mallard, you knew that you would stop getting paid legally?---That's right, yes, yes.
PN265
You knew that that could go on indefinitely, I put that question to you as well just now, didn't I?---Yes.
PN266
And you knew, you said: yes, you knew what the effect of that would be?---Yes, I knew - I knew the action as stated is indefinite but - indefinite and perpetual.
PN267
Mr Mallard, you are aware that about 99 per cent of all the employees at T & R Murray Bridge have signed this document, have they not?---Yes.
PN268
So you would be one of the few last standing employees who have chosen - that does not have, in effect, an AWA at this point in time, does it not?
PN269
MR SMITH: Objection, your Honour, Mr Mallard wouldn't have a clue.
PN270
MR DASAN: I withdraw that. Mr Mallard, I put to you and - I will withdraw that. Mr Mallard, if I was to say to you that 99 per cent of the people working on the plant have signed an AWA and for you to remain on another instrument would mean that the employer would have to set up things differently for you. I put to you that you are a major inconvenience for the company from an employment stand point. What is your reaction to that?---Under the law I understand I do not have to sign an AWA. I have the right to be under the award if I so choose. This cannot be a major inconvenience for the company because by their own statements they believe that they are paying more to employees who are on the AWA than those under the award. I have not refused to carry out any work which would have been requested of people on AWAs anyway even though an award employee and traditionally over the years I have worked all the extra hours which they can mandate under the AWA, but my objection is to it being mandatory. If I have the choice, it means given the required circumstances I can say, "No". I don't see that this is a major inconvenience for the company.
**** ALLAN MALLARD XXN MR DASAN
PN271
Thank you, Mr Mallard. Mr Mallard, the aware is mandatory, isn't it not?---If you are not covered by any other form of agreement I believe under Australian Industrial law you automatically fall back under the award. That's my believe, I can't state that from a legal point of view.
PN272
Thank you, Mr Mallard. Mr Mallard, one of your duties when you were working at T & R Murray Bridge, was as a trimmer, was it not?---Yes.
PN273
Under your old AWA which used to cover your employment, what time did you start, Mr Mallard?---What time did I start on the day?
PN274
Yes?---Normally the animals would reach me somewhere between 7.20 and 7.25 am.
PN275
Mr Mallard, I asked you what time you actually got to the work, what time you got to work and what time that you started getting paid?---I was start - the start of pay commenced effectively at the moment at which I was standing on my station and the first animal arrived.
PN276
And usually what time would that be, Mr Mallard?---As I already said, 7.20, somewhere between 7.20 and 7.25 am, it depends on vagaries of the day.
PN277
And what time would you normally finish, Mr Mallard?---Around 4.25 pm.
PN278
Could you say that again, Mr Mallard?---Around 4.25 pm would be when the last animal on a full run day would normally arrive at me, because it's a chain situation and things stop and start. That that's the actual - I think 4.25 is the calculated point at which the work day has done its 8 hours under the terms of the AWA.
**** ALLAN MALLARD XXN MR DASAN
PN279
Mr Mallard, the day before you were locked out, or the Friday before you were locked out on the Monday, you were working pursuant to an AWA, weren't you?---Yes.
PN280
In the middle of that day you would normally have a break, wouldn't you not?---Yes, I'm normally allowed 30 minutes break for lunch for which you are not paid.
PN281
What about your smoko breaks in the middle of the day, Mr Mallard?---The smoko breaks, there's under the AWA or under the way that the chain was actually run the smoko breaks typically began at around 9.15 and ended at 9.35, 20 minutes, 9.15 to 9.35.
PN282
Mr Mallard, I put this to you that you usually got a 20 minutes break at about 10 am in the morning, did you not?---9, 9.15 and our particular section - - -
PN283
Right, but it was an unpaid break, was it not, Mr Mallard?---An unpaid break, yes.
PN284
You probably got another unpaid break at about 12.45 for about half an hour or thereabouts was it not?---Unpaid break coming at around 12.45 for 30 minutes, yes.
PN285
Mr Mallard, you also had another two unpaid breaks usually for about 5 minutes in the afternoon, did you not?---One in the morning, one in the afternoon. When a day ran considerably over 8 hours there would be another one later in the afternoon. So there was normally one unpaid break around 11 o'clock in the morning and another unpaid break at 3 o'clock from memory and another one at 4 if we were going to run to half past 5.
PN286
Mr Mallard, you say that you were involved in the various negotiations and the various issues handled by the AMIEU?---Yes.
**** ALLAN MALLARD XXN MR DASAN
PN287
In relation to T & R, did you not?---Mm.
PN288
So you would have been aware that sometime after - a couple of months ago that T & R and the AMIEU would have been in the Commission arguing the matter of paid and unpaid breaks in this place, would you not?---Yes, I - I am aware that that was before the Commission.
PN289
And what did you think the outcome of that was, Mr Mallard?---As I understand in the short term it was pushed sideways, that the breaks were ruled for award employees not to be paid, but that not been fully pursued. The action I believe - more action can be taken, it is not yet over.
PN290
Mr Mallard, do you believe that the employer has a capacity. No, I may rephrase that. Mr Mallard, pursuant to the award as currently applies you would have to be paid for those unpaid breaks, wouldn't you, with the current unpaid breaks under the AWA?---I believe that actually is the situation, although that is currently, as you have just stated, under dispute. I don't - I believe - - -
PN291
Mr Mallard, I mean, let me just correct you there. There is no dispute. The Commission has held against you on that point, right. So let us just stick - - -?---Right, okay.
PN292
- - - to the detail there, right. We have had a 127 action in this place and the Commission has held against you. So let us just go back, do you expect now for all of those breaks to be given that you will have to be paid for all of those unpaid breaks which your other colleagues will take on the production line?---As I stated before the Commission has held against, but I don't believe the action theoretically is completely over. I believe the award - my personal belief is that the award actually gives the right to those breaks but currently there are decisions going the other way which need to be pursued.
**** ALLAN MALLARD XXN MR DASAN
PN293
Well, Mr Mallard, can I just hold you there?---Yes.
PN294
Are you aware - - -
PN295
THE SENIOR DEPUTY PRESIDENT: Perhaps I will interrupt you there, Mr Dasan. Mr Mallard, once again you will just need to answer the questions as a "yes" or a "no" or a reasonably concise answer. There is that opportunity available to Mr Smith or Ms Jelohovtseva to follow up on any issues that they consider important.
PN296
MR DASAN: If you went back to work, being covered by the relevant award, would you expect to be paid for those breaks, Mr Mallard?---If the Commission has found that I should not be then I would not expect to be paid for them.
PN297
Mr Mallard, I'm asking you pursuant to the award?---If, under the award, the Commission has found that I should not be paid for those breaks then I would not expect to be paid for those breaks.
PN298
What if I put to you, Mr Mallard, that pursuant to the award you would have to be paid for those breaks?---I would agree that that is my understanding of the award.
PN299
PN300
Yes, so let us not be selective, Mr Mallard, I asked you this question fairly directly and you fudged it. So my view is this, that at the end of the day you are well aware that this matter has been ventilated time and time again in this place. On your evidence, you have been involved with the MIU in discussing these issues, as you put it?
PN301
MR SMITH: Objection. Mr Dasan has asked the question in relation to one specific matter before the Industrial Relations Commission and now we are in - - -
**** ALLAN MALLARD XXN MR DASAN
PN302
THE SENIOR DEPUTY PRESIDENT: Yes, I have a feeling this is perhaps the only matter that I successfully managed to avoid so far, Mr Smith and Mr Dasan. I'm really not going to be able to help you all that much other than to perhaps suggest that Mr Dasan might make his question a little more specific given that I - I have been very fortunate in avoiding a dispute between the two of you. It now looks like I will pay the price for that.
PN303
MR DASAN: The purpose of this line of question - if I may, your Honour, the purpose of this line of questioning is to effectively raise the issue of having a complete re-run of every other matter we have had in this Commission in the last 6 months, but I will get to that more specifically.
PN304
THE SENIOR DEPUTY PRESIDENT: It is going to take some time, Mr Dasan.
PN305
MR DASAN: Well, I mean, unfortunately I think, unfortunately it is either now or never. It is effectively, from my instructions, got to that point. Mr Mallard, apart from the breaks you would also concur that under the award that you would finish earlier, that is if overtime was offered, than all of the other of your colleagues that work on the production line, wouldn't you?---Yes.
PN306
Right, so effectively let me put this to you, Mr Mallard, you are well aware that should you go back to the award, you would be the odd man out as far as the operations of the employer goes, wouldn't you?
PN307
MR SMITH: Once again, I object, Mr Mallard wouldn't know who is and who is not covered by the award in the Meatworks.
PN308
THE SENIOR DEPUTY PRESIDENT: Indeed, Mr Dasan, you will need to rephrase that.
**** ALLAN MALLARD XXN MR DASAN
PN309
MR DASAN: We accept that. I will re-phrase that. Mr Mallard, hypothetically, if all of your other colleagues on the production line have signed an AWA, and if you went back to the award, you would be the odd person out wouldn't you, in relation to your start and finish times?---Only theoretically, taking the latitude that has already been taken in the asking of the question.
PN310
Yes, yes, let us investigate that a little bit more. But let me say for the purposes of this discussion - no, I withdraw that. Mr Mallard, looking at the application that you have before us today, you have said that you would like to return to your terms and conditions that applied to you before you went up on the lock-out? What do you think - - -?---That is not exactly what I said.
PN311
Mr Mallard, just give me a moment and let me find your application if I may?---When I was locked out, the quibble I'm making here is that when I was locked out I was still theoretically on the AWA - - -
PN312
Mr Mallard - - -?---- - - and I'm now on the award.
PN313
Mr Mallard, if I may - does the Commission have a copy of the actual application? I must say that I'm sorry about the paucity of the - - -
PN314
THE SENIOR DEPUTY PRESIDENT: I do have a copy of the application, yes.
PN315
MR DASAN: - - - of the paperwork, sir, it was effectively - it was basically served on us this morning, we were able to get a forward copy from the Commission, through your good officers yesterday evening and thank the Commission for that. Could - - -
PN316
THE SENIOR DEPUTY PRESIDENT: Yes, I have a copy, are you asking me to give a copy to - - -
**** ALLAN MALLARD XXN MR DASAN
PN317
MR DASAN: I was wondering if I could actually hand that copy across to the witness?
PN318
THE SENIOR DEPUTY PRESIDENT: Mr Dasan, I will do that. What I'm going to do though, because of the time, I'm going to break for five minutes. During that time I'm going to ask the parties to individually give some thought to how much longer they are going to need to complete their various cases and I'm aware that you have yet to commence your defence to the action, Mr Dasan. So that when we come back we might spend a few minutes then just talking about the issue of programming. But I will break for five minutes, that will give Mr Mallard the opportunity to read the document being the application of this matter.
PN319
MR DASAN: If it pleases the Commission.
PN320
THE SENIOR DEPUTY PRESIDENT: Mr Mallard, whilst I'm breaking, I do need to advise you that whilst you will have the opportunity to read this application, you are still in the witness-box so that I need to caution you not to engage in discussions on this matter during that time. I will adjourn the matter for a five minute period.
SHORT ADJOURNMENT [4.54pm]
RESUMED [5.05pm]
PN321
THE SENIOR DEPUTY PRESIDENT: I have now ensured, Mr Dasan, that the man carpeting my office does not carpet over the top of my desk. On that basis, perhaps before we recommence your cross-examination of Mr Mallard, can you give me an idea on estimated time frames?
**** ALLAN MALLARD XXN MR DASAN
PN322
MR DASAN: I would suspect, sir, that I have at least another half hour of questions for Mr Mallard. I have had some discussions with my friend as well, I'm pretty much in the Commission's hands. Should the Commission choose to adjourn the matter until tomorrow morning - or tomorrow afternoon, sorry, or Thursday morning.
PN323
THE SENIOR DEPUTY PRESIDENT: Look, I would be optimistic that we could complete Mr Mallard's evidence before we adjourn.
PN324
MR DASAN: Well, I'm optimistic of that as well, sir.
PN325
THE SENIOR DEPUTY PRESIDENT: And I expect to do so there afterwards. Mr Smith, are there other witnesses you propose to call in this matter?
PN326
MR SMITH: No, sir, however we do have a fair amount of material that we do want to put before the Commission and so I suspect that there will be some time in Hearing.
PN327
THE SENIOR DEPUTY PRESIDENT: Yes, all right, and Mr Dasan, are there witnesses that the employer proposes to call in this matter?
PN328
MR DASAN: Only one, sir, Mr Strong.
PN329
THE SENIOR DEPUTY PRESIDENT: All right, well, look I propose once we complete Mr Mallard's evidence to adjourn the matter to Thursday 8 May at 9.30. Now, on that basis, I'm happy for you to proceed with your continuing cross-examination.
PN330
MR DASAN: Thank you, Senior Deputy President. Mr Mallard, before the adjournment, a little while ago, I took you to the application that has been put forward in relation to this matter?---Yes.
**** ALLAN MALLARD XXN MR DASAN
PN331
The first paragraph involved which is the order being sought by the AMIEU in relation to this matter, and this matter entirely concerns you, so would you mind reading it into the Court record please, as to the order that has been sought?---
PN332
For an order under subsection 127(2) of the Act and the following terms. T&R Murray Bridge Proprietary Limited, the employer is to desist taking any industrial action against Mr Allan Mallard and that Mr Mallard is to work under the same terms and conditions that applied immediately prior to the company commencing industrial actions.
PN333
What were the - Mr Mallard, what were the terms and conditions that you were employed in on the day before you went - you were locked out the employer?---I was on the old original AWA at that point.
PN334
Mr Mallard, you have already put to us that you believe that should you return to work for the employer, you expect that your employment conditions would be covered by the award, would you not?---That is right.
PN335
So, I take it from your answer that the order being sought in this case, is totally impractical, is it not?---As I pulled up on before, yes, it does not take account of the fact at that point I was actually the - it is drafted as if I was on the award at that point, but while my award was struck down on the 28th, it was post-dated and did not actually get struck down - my AWA got struck down on 28th January, did not actually expire until 15th March so I was on the AWA but with a ticking clock against it at that point.
PN336
So you take it that the order being sought is not something that could ever be enforced, could it, Mr Mallard?---To the precise nuts and bolts of it, the order being sought appears not to cover the point I have just made that my - - -
PN337
Thank you, Mr Mallard. Mr Mallard, let me take you to the grounds of the application as it currently stands. If I may, and accepting the amendment already made at point 5 which changes the date January 2003 to 3 march 2003, under point 6 where it says and I quote:
**** ALLAN MALLARD XXN MR DASAN
PN338
The union legislator led illegitimate pressure is being placed upon Mr Mallard.
PN339
Mr Mallard, you have already concurred with me previously that the action that the employer has undertaken is legitimate pursuant to the Act is it not?---Yes.
PN340
Thank you, Mr Mallard. Mr Mallard, following on from there on point 7, you would also have to then agree with me that this tactic as it called, is not illegitimate, is it, Mr Mallard? By that I mean that the employer is entitled to carry out - - -?---The employer is entitled to locking out - - -
PN341
- - - the lock-out, if I may finish, Mr Mallard. The employer is entitled to carry on with its lock-out pursuant to the Act, is it not?---Yes.
PN342
Thank you, Mr Mallard. Mr Mallard, in relation to point 8, Mr Mallard, the application alleges that the lock-out notice was flawed and therefore illegitimate. Could you tell the Commission as to where you see the lock-out notice being illegitimate or flawed, Mr Mallard?---I'm not a lawyer, I cannot answer that question, I would have to get Graham to answer that - Mr Smith to answer that question for me.
PN343
Thank you, Mr Mallard?---I'm not - I could not answer the question.
PN344
Mr Mallard, in relation to point 10, it states; that the continuation of this lockout, if I may quote:
PN345
Is contrary to the principle objects of the Act.
PN346
Mr Mallard, would you be prepared to Commission as to which part of the lockout is actually against the principle objections of the Act, Mr Mallard?---The part of the lockout where it continues for ever. If it continues for ever, I'm not actually an employee, I've been dismissed, I'm albeit defacto.
**** ALLAN MALLARD XXN MR DASAN
PN347
Mr Mallard, can you tell me from your knowledge of the Act, where it actually says that, Mr Mallard?---I cannot tell you that it actually says that there is any time limit to the company's actions, no, because I have not - I have not read the whole Act and no, I can't.
PN348
In reality, you don't know, Mr Mallard. You just made that up, didn't you, Mr Mallard?---I did not, well - - -
PN349
THE SENIOR DEPUTY PRESIDENT: Mr Dasan, this notice is Form R9 was signed by Mr Smith. Whilst I appreciate that it refers to Mr Mallard, I am operating from the premise that Mr Smith was the author of the document and not Mr Mallard.
PN350
MR DASAN: Sir, having said that, Senior Deputy President, this is an application in relation to the removal of - an application for the removal of a lock-out notice filed on behalf of this particular person that is in the stand here today.
PN351
THE SENIOR DEPUTY PRESIDENT: Yes, I'm accepting that, I'm simply pointing out that I'm working from the premise that the actual author of the document is Mr Smith and not Mr Mallard and therefore I need to advise you that I accept that Mr Mallard may not be aware of all of the bases and foundations for the various grounds that are made out.
PN352
MR DASAN: We accept that, Senior Deputy President.
PN353
THE SENIOR DEPUTY PRESIDENT: I think you will have to.
PN354
MR DASAN: Mr Mallard, I will take you to point 12 where the application asserts the union, the only practical effect of this lock-out is to deny employment to Mr Mallard. Do you believe you have been dismissed, Mr Mallard?---If the Act is effectively operated in the manner which you have just been describing, that the lock-out can in fact never end, then effectively I will have been dismissed.
**** ALLAN MALLARD XXN MR DASAN
PN355
Mr Mallard, I will ask you the question again. Has the employer ever put to you that you have been dismissed from your employment, Mr Mallard?---No.
PN356
Thank you, Mr Mallard. Mr Mallard, should you return to work at T&R, you accept that the only document that could cover your employment at that time, would be the Federal Meat Processing Award 2000, would it not?---And subsequent amendments, yes.
PN357
Well, Mr Mallard, on that basis, would you expect that your terms and conditions of employment would mirror the terms and conditions of what I say is the vast majority of employees on the production line, Mr Mallard, would you expect it to mirror the employment conditions, Mr Mallard?---No, they are AWA employees, I would be on the award.
PN358
Mr Mallard, would you be expecting as has previously been argued in this place, to be paid for your breaks?---I would be expecting to be paid under the precise decided interpretation of the conditions as written in the award. I would expect the award to apply to me.
PN359
So if I was to put to you, Mr Mallard, that the award says that those rates should be paid, you would be - you would expect to be paid if you took those breaks, would you not?---Yes.
PN360
Right, Mr Mallard, if pursuant to the award, you were sent to work in another part of the production shed while your colleagues took a break, would you expect that to occur?---If that was a correct interpretation of the award, yes.
PN361
So you would be quite happy to be reassigned to another part of the plant while your colleagues took an unpaid break?---If that was the correct interpretation of the award, yes.
**** ALLAN MALLARD XXN MR DASAN
PN362
So what is your interpretation of the award, Mr Mallard?
PN363
MR SMITH: Senior Deputy President, we have actually been around this ground several times, and Mr Dasan, I think is possibly starting to confuse the witness. He has put to him theoretical positions about if I, you know, if you put to him that the award applied this way, would he agree with that and now we are asking for interpretations of the orders - the award, as Mr Mallard sees it. I think that the witness is becoming confused by this, your Honour. I think that the line of questioning is unreasonable and has already been answered on a number of occasions previously.
PN364
MR DASAN: If I may, Senior Deputy President.
PN365
THE SENIOR DEPUTY PRESIDENT: Mr Dasan?
PN366
MR DASAN: I do not believe the line of questioning is in fact unreasonable or confusing. Mr mallard, has already provided evidence that he has thought long and hard about the contents of the AWA, which he had previously worked under in some shape or form and he is also provided evidence here today, that he is aware of what conditions he would like to go to if he was to come back to work at T&R. And on that basis, I think it is important for both the Commission, the employer and the employee, to be clear about what those terms and conditions will be on the simple reason that this is in fact a 127 application pursuant to the Act.
PN367
And the application we say, is an attempt to the ask the question of the Commission to attempt to stop either impending - present impending of future industrial action. We say that the line of questioning that we are using is entirely complementary to our current situation simply because of the past history of industrial disputation at this plant. And what we are saying is that these are the same issues that we have visited previously in this Commission and it is the view of the employer, should that these questions not be ventilated at this time, it could be an effective re-run using Mr Mallard as a stalking horse for a considerable long period of industrial action being taken against the employer over the months to come. Well, this is our application and we say we have a right to actually defend that application.
**** ALLAN MALLARD XXN MR DASAN
PN368
THE SENIOR DEPUTY PRESIDENT: Mr Dasan, I will allow the line of questioning to continue, but I will ask you to re-phrase that last question in that we did spend some time debating what was or what was not, the outcome of the loan matter that I didn't have to determine over the last six months and so as to avoid confusion, I will ask you to re=phrase the question so that Mr Mallard is simply being asked to determine something that is within or to respond to a matter that is within his area of specific knowledge.
PN369
MR DASAN: Well, your Honour, shall I say that it is within the specific area of his knowledge because Mr Mallard contends that he should be allowed to return to work, post the lock-out. Not based on his application of course, but based on his belief that he is covered by the appropriate industrial instrument which in this case is the award. I'm simply testing his knowledge about the terms and conditions of his employment as contained within that document.
PN370
THE SENIOR DEPUTY PRESIDENT: Yes, well, as I - perhaps you misunderstood me, I'm allowing you to continue this line of questioning, I'm simply asking you to ensure that the next question that you ask of Mr Mallard does not lead us down the same confused path associated with some proceedings before another member of the Commission go to issues such as the extent to which breaks can be paid for or not paid for.
PN371
MR DASAN: Certainly, thank you, your Honour. Mr Mallard, currently as it stands, please excuse me. Mr Mallard, as you have provided evidence to us, you are currently - your employment and the payment for the employment as it currently stands are actually now attract a performance bonus, do they not?---They did when I was on the AWA.
PN372
They did on the last day that you were actually - - -?---On the last day I was employed, yes, they did.
PN373
Thank you. Would you expect those payments to continue should you return to the award, Mr Mallard?---If the award states that they should continue, then I would expect that to be the case. If it does not - subject to the law, subject to the award.
**** ALLAN MALLARD XXN MR DASAN
PN374
Mr Mallard, what if I put to you, that those bonus payments have never been paid to an award employees, Mr Mallard?---I am aware that that is the case.
PN375
So would you expect those bonus payments to be paid to you, Mr Mallard?---If the award allows them.
PN376
Mr Mallard, it is a yes or no question, I mean seriously, let us not dance around this issue. Would you expect to be paid those bonuses, or would we expect to be before this Commission in another dispute, Mr Mallard?
PN377
MR SMITH: Objection, again, this is - this is purely speculative now. Mr Mallard has answered the question that basically to the effect of what ever the award says applies and he has been continuously answering and, you know, giving that same answer during the course of these proceedings. If Mr Mallard, does not have specific knowledge of exactly what the award says in that avenue, then I don't see how Mr Mallard can be placed into a situation of answering that as a yes or no. He has given his answer.
PN378
MR DASAN: Senior Deputy President, Mr Mallard has not - has never said to us in evidence here today, that he has no understanding of what is in that award that he chooses to return to.
PN379
THE SENIOR DEPUTY PRESIDENT: Well, maybe Mr Dasan, it might be appropriate for you to explore that issue a little more before you endeavour to repeat your question. That is to what extent - I'm uncertain as to what extent it has been established before me that Mr Mallard has knowledge of the award and the provisions of it.
PN380
MR DASAN: Thank you, Senior Deputy President. Mr Mallard, are you - you have provided evidence to the Commission here, that you have been employer pursuant to the award and enterprise bargaining agreement and an AWA previously in your working life, have you not?---Yes.
**** ALLAN MALLARD XXN MR DASAN
PN381
I take it that you fully understand the purpose of an award and the terms and conditions in which it offers to employees, do you not?---I have a broad understanding of what is in there, I know much of the detail, I cannot claim to know all of the detail, that is a very complicated document.
PN382
Thank you, Mr Mallard. Mr Mallard, at least let us go to the issue of what you would expect to be paid should you leave the AWA, Mr Mallard, and go to the award. You would have at least, in relation to the award, have some understanding, I put to you, about what your monetary benefits would be should you return to the award, would you not?---Yes, yes, I have.
PN383
So I put this question again to you, Mr Mallard, having said that, do you say or do you believe that you would continue to receive performance bonuses should you return to be employed pursuant to the award. We are talking about the Federal Meat Industry (Processing) Award 2000?---I understand what my hourly rate should be under that agreement. I - - -
PN384
THE SENIOR DEPUTY PRESIDENT: Under the agreement or the award?---Under the - under the award, sorry. I understand what my hourly rate is or should be under the award. I know the classification I come under the award. I cannot answer the question insofar as the bonus goes because I do not actually know enough of the details of how the award works to understand whether that payment is due or not. I cannot answer that question. I don't know.
PN385
MR DASAN: So, Mr Mallard, from your answer, are we to understand that you are prepared to go back to the award even if you don't know what you will get paid at the end of the day?---I know what I will be paid at the end of the day, because the company has to this point, not been paying the incentive bonus to award employees.
PN386
That is not my - - -?---So I do know precisely what I will be paid, not necessarily what I should be paid.
**** ALLAN MALLARD XXN MR DASAN
PN387
Mr Mallard, if you were to work a straight 7.6 hour day, what do you say - what do you think that the award says in relation to what you should be paid?---It has a set amount of money in there which equivocates in my personal case before today, when I believe a annual of the low paid thingummy came into it and that gives an extra $17 a week. But up until today, the amount was a whole $12.47 an hour.
PN388
Right, do you see any obligation on the part of the employer to provide you with any formal overtime pursuant to the award?---The award specifies that I should work reasonable overtime, it does not specify what amount of overtime the company should provide.
PN389
So in other words, you would accept that the employer says that if you go back to the award, for example, you won't be given any overtime hours, you would accept that?---I would have to accept that, that is the employer's right.
PN390
Thank you. Mr Mallard, I put to you that part of your non-acceptance of an AWA is part of a wider strategy discussed with the AMIEU in relation to further industrial action, is it not?---No, it is not.
PN391
So you have never discussed the concept of wider industrial action with you as a stalking horse?---No.
PN392
Mr Mallard, given the entirety of your evidence which you have provided to us today, I put to you that the moment you chose not to sign the AWA offered by the company, you knew what the outcome would be, did you not?---No.
PN393
Mr Mallard, the moment you got the lock-out notice, you fully understood what the implications of that would be, did you not?---I understood what the document said, I understood what the company said they were going to do via the document. I understood it's implications fully. I did not necessarily believe that they would follow through to the end on it.
**** ALLAN MALLARD XXN MR DASAN
PN394
Yes, but you effectively took your employment and your life in your own hands, did you not?---I have to defend my employment conditions. This is the way - the only way that is open to me to do it.
PN395
But you are well aware, at the time the lock-out notice was served upon you, that there was a probability that you would be - you could be locked out for a long period of time, did you not?---Yes.
PN396
Right. So we could say, for the purposes of the Commission here today, you didn't start this process of going into the lock-out process with your eyes closed? You knew the full impact of what you were doing?---I - I understood exactly what I was doing at each step, I was - - -
PN397
Thank you, Mr Mallard. Have you been working anywhere else since the lock-out, Mr Mallard?---I have obtained casual work in the interim, yes.
PN398
Mr Mallard, did you discuss at any stage, the effect of the lock-out notice with your bargaining agents?---I'm not sure, yes.
PN399
Mr Mallard, going back to the earlier issues that were raised by the examination-in-chief by Mr Smith, you said that you worked out, as I understand it, "some threshold issues", if I may quote you. Can you provide any evidence as to when that you are aware of, these threshold issues in relation to yourself were actually given to the company as part of the negotiations?---I have seen reports back from the union of the points that they raised with the company during the AWA negotiations. The threshold issues included, for example, time and a half and double time on the overtime front, as against the company's offer of time and a quarter, time and a half. For me that was always a threshold issue. I discussed that with the union. We - every union member discussed that with the union at meetings which it was decided that those were not negotiable.
**** ALLAN MALLARD XXN MR DASAN
PN400
Right. To your knowledge, Mr Mallard, did any other union member sign the AWA?---I have been - this is hearsay of course - I have been told by other members that they have - by other union members that they have signed. All of them were reluctant. Most felt they had no choice.
PN401
Mr Mallard, let's go back to the statement that you made in relation to weekend and public holidays work. If I understood your evidence properly, you have said that the AWA as it currently stands mandates that you have to work, if directed to, on all weekends and all public holidays, is that your understanding of the document?---As a general statement, yes, that is my understanding.
PN402
Mr Mallard, have you ever worked every public holiday in the last AWA that covered your employment?---We worked some public holidays, not all of them.
PN403
I asked about yourself, Mr Mallard. Were you directed to work every public holiday?---I was not directed to work every public holiday.
PN404
Were you directed to work every weekend, Mr Mallard?---No.
PN405
Mr Mallard, what if I put to you that the document - as in the previous document - that you could only be mandated to work on certain public holidays, say, four public holidays a year, as opposed to all public holidays, which is your evidence?---As I said, as a general understanding, you can be mandated to work on public holidays. It may not have included all of them, but the new AWA does have a restriction of which I'm aware that there are lists on all of them involved. I am not sure of what the old one had in it, whether there was such a restriction in that one, I don't remember.
PN406
So this is the AWA you picked up from a friend of a friend?---No, this is the new one I believe does not mandate working all public holidays, but simply - - -
**** ALLAN MALLARD XXN MR DASAN
PN407
Yes, yes, but this - - - ?---- - - simply limits the number, but it is still some of them.
PN408
Mr Mallard, this is the document that you picked up from a friend of a friend who works on the production, that was your evidence - - -
PN409
MR SMITH: Argumentative, Senior Deputy President. Mr Mallard has given previous evidence that he has in fact been served with a copy of that document.
PN410
THE WITNESS: Yes, I have a copy of the document.
PN411
MR DASAN: Senior Deputy President, I think we are entitled to ask - - -
PN412
THE SENIOR DEPUTY PRESIDENT: Mr Dasan - - -
PN413
MR DASAN: I mean, what - - -
PN414
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Dasan, can I indicate you can ask again from whence Mr Mallard obtained his copy, that is a slightly different question to the one that you were asking earlier, appertaining to the friends of Mr Mallard's friends.
PN415
MR DASAN: Well, Mr Mallard's evidence of this point, if I may Senior Deputy President, is that he has never actually quote opened up, or sighted the AWA that was offered to him, this time around. The document that he had actually sighted was the one that somebody gave him, or he managed to look at it on the production line.
PN416
THE SENIOR DEPUTY PRESIDENT: Yes, I'm accepting that, Mr Dasan. I'm simply indicating that you can ask from whence he received the copy, but that is a different question to asking Mr Mallard to accept that he had received a copy from a friend of a friend.
**** ALLAN MALLARD XXN MR DASAN
PN417
MR DASAN: I accept that, Senior Deputy President. I will rephrase the question.
PN418
Mr Mallard, I will rephrase the question along these lines. Mr Mallard, you have never actually looked seriously at that document that was offered to you by the company, have you?---I have looked in the document that was offered to me by the company.
PN419
When was that, Mr Mallard?---After receiving the document when it was finally served on me.
PN420
Well, Mr Mallard, previously you said that you took the lock-out notice, you took the other documentation, but you refused to take the AWA, wasn't that your evidence a little while ago?---No, my evidence a little while ago referred to a previous occurrence where I read the top notice that was on there and refused to take any part of it. When I was delivered with the notice which that lock-out notice which the Court has received - the Commission has received - was delivered to me, it was clipped to a copy of the AWA. At that point I had in my possession a copy which I did not state to the best of my belief that I had not looked at since. The previous copy I refused to take, not the second offering, because that was effectively served on me.
PN421
Thank you, Mr Mallard. I put to you that you were never going to sign this AWA, regardless of what the contents of the document was, were you?---Not correct.
PN422
If I can just remind you, in fact, your quote was:
PN423
Hell would freeze over before I sign.
**** ALLAN MALLARD XXN MR DASAN
PN424
Isn't that correct?---Before I sign an AWA with this company, but that was based on the long history of the company's, in my opinion, bad faith negotiations which had ended up with a document as an AWA which was unconscionable. It is not impossible for an AWA to have conditions which mirror the award.
PN425
Mr Mallard, if you think - and as you have said to us in your evidence now - that this is such a bad employer who negotiates in bad faith, who - - -
PN426
MR SMITH: Objection. Mr Mallard did not say at any time that T&R was a bad employer. It is not on the record.
PN427
THE SENIOR DEPUTY PRESIDENT: Yes, you will need to rephrase your question.
PN428
MR DASAN: Well, let me rephrase that.
PN429
You say that this employer did not negotiate in good faith, did you not Mr Mallard?---I did not state that precisely. What I will state is this, they came to us with an offer which, despite a lot of negotiation on the end of the day when subjected to a union spreadsheet which showed what was happening with the money, did not at any point effectively change to any extent at all. The things just got shuffled round and round in circles and the totality of the document remained the same as their initial offering. Does this constitute "bad faith", or does it just constitute, "bloody minded negotiation"?
PN430
What do you say to that?---They did not negotiate in - well, they moved little bits, but the totality of what was in the agreement remained the same as their initial offer.
PN431
Mr Mallard, I heard you say that the employer was negotiating in bad faith, that is the question I put to you?---That's not the question. I did not state that the employer was negotiating in bad faith. I simply stated that the employer - - -
**** ALLAN MALLARD XXN MR DASAN
PN432
THE SENIOR DEPUTY PRESIDENT: We could spend some time - sorry, Mr Mallard - we could spend some time here debating this issue. Mr Dasan, for the sake of clarifying the issue, perhaps you could rephrase the question in terms that would allow Mr Mallard to answer "yes" or "no".
PN433
MR DASAN: Okay.
PN434
Mr Mallard, you would agree that T&R has a successful operation at Murray Bridge?---I'm not privy to the company's accounts, but the business is running. More than that I cannot say, it is speculation on my part.
PN435
Thank you, Mr Mallard. Mr Mallard, do you accept that the employment terms and conditions that have been offered to you are the same terms and conditions from your knowledge that have been offered to all of the employees at the plant?---Yes.
PN436
Mr Mallard, you have provided evidence to us today that you are unhappy with those terms and conditions of employment?---Yes.
PN437
Mr Mallard, I then put to you as to why you would want to consider continuing to work for this employer?---I believe that the award validly covers me at present. The company is preventing me from working under my valid agreement, which is the award.
PN438
Mr Mallard, let me ask the question again. If you don't like the terms and conditions which are on offer, why do you persist in wanting to work for this company?---Those terms and conditions supersede terms and conditions by which I am already covered. I am happy with those terms and conditions. I am happy with the terms and conditions under which I am currently employed by the company.
**** ALLAN MALLARD XXN MR DASAN
PN439
Mr Mallard, would you accept that you have never been covered by the relevant award while working for T&R, Murray Bridge?---I would accept that the award conditions only came to apply to me after the lock-out began.
PN440
THE SENIOR DEPUTY PRESIDENT: Mr Mallard, the question was very clear. I just need you to answer the question. The question went to whether or not you have ever been covered by the award provisions in your employment with T&R?---The answer to that literally is, no.
PN441
Thank you.
PN442
MR DASAN: That would be the end of my cross-examination, sir.
PN443
PN444
MR SMITH: Yes. I will just deal with that last question first, Mr Mallard. Are you currently employed by T&R?---Yes. Well, I'm locked out but surely I'm not - my employment has not - this is why I couldn't understand and couldn't answer precisely the previous question. I'm still employed by them, I'm under the award, so I'm locked out, yes, I'm still employed.
PN445
Thank you. Mr Mallard, did you agree with the way that the union went about representing you during the negotiations for the AWA last year?---Yes, I did. At every point on which there was any difference, I raised it, yes, I was fully involved with negotiating everything with the union as my agent.
PN446
You said in answer to a question by Mr Dasan that you were given reports in writing by the union of the status of negotiations?---Yes.
**** ALLAN MALLARD RXN MR SMITH
PN447
Were the objections that you raised as threshold issues canvassed in those reports?---Yes. The company stonewalled all of them.
PN448
But you actually saw reports - - - ?---Yes.
PN449
- - - of the negotiations?---Yes.
PN450
In those reports the issues that you raised were contained?---The reports covered the issues I was raising.
PN451
Thank you. You also said that you refused to accept the AWA on the first offering. When in fact was the AWA first offered to you?---I could not put a precise date on that. I believe it was at the beginning of December - no, hang on that can't be right. I can't put a date on that one, I'm sorry.
PN452
Well - - - ?---December-ish anyway, it may have been the end of November - November/December.
PN453
All right, let me put it to you another way. Was it presented to you before the negotiations had been completed, or after the negotiations had been - - - ?---After the negotiations had been completed. After the negotiations had terminated.
PN454
You said that you had a copy of the new AWA in your possession now?---Yes.
PN455
Have you read it?---I have not read through the whole document word-by-word, but it appears to be identical to the document which I have read through in its entirety, which is the one that I previously referred to that I received from another employee. And I have not been - - -
**** ALLAN MALLARD RXN MR SMITH
PN456
Having seen that document, have you changed your view as to whether or not you wish to enter into that arrangement?---It's unconscionable. No, I do not wish to enter into - enter into such an agreement. I have not changed and will not change my views.
PN457
Mr Mallard, you agreed with Mr Dasan at one stage that it was your understanding under the Workplace Relations Act that you could be locked out indefinitely. Do you recall that?---Yes. I understand that the - well, the actual lock-out notice I believe, used the word "indefinitely" in it and the company has been interpreting it, obviously, that this is a possibility that the lock-out can and is indefinite and - - -
PN458
Well, can you tell me where in the Workplace Relations Act it contains provision of whether your employer can lock you out indefinitely?---No, I cannot.
PN459
Mr Mallard, can I just take you back to the application that brought on this matter, it is the Form R9 that was given to you earlier?---Okay, I've lost the page - yes, got it.
PN460
You were just taken to a couple of points by Mr Dasan. The first of those was point 7, where it says:
PN461
The union alleges that the tactics being utilised by the company have failed.
PN462
Do you agree with that?---Well, I'm not going to sign. They're using the tactics to try and get me to sign and I will not sign and made it clear to them from the beginning, so their tactics have failed - will fail.
PN463
Point 9 in that particular document says, in the second part of the sentence after the comma that:
**** ALLAN MALLARD RXN MR SMITH
PN464
The continuation of the action will not result in an agreement being reached.
PN465
You agree that is the case?---Yes.
PN466
Thank you. Mr Mallard, did you actually commence this lock-out process?---No, I did not lock myself out.
PN467
Thank you. You were asked a series of questions related to the operation of the award and in particular incentive bonuses and things. Can I just ask you, Mr Mallard, whether it makes any difference to you - - -
PN468
MR DASAN: Pardon me, I object. There is an objection, the word "incentive" payments were never used in relation to any of the questions in the cross-examination, if it pleases the Commission.
PN469
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Smith, you might need to rephrase your question.
PN470
MR SMITH: I think in fact the words used were "bonus payments", and I will rephrase the question to that.
PN471
You were asked whether or not you expected bonus payments to apply, and can I just ask you, Mr Mallard, whether the application of "bonus payments" as such would make any difference to your decision not to sign the AWA?---No, it wouldn't. I won't sign it anyway. Whether or not I get the payments.
PN472
You were also asked whether you expected to be paid for smoko breaks and relief breaks. Would the payment, or non-payment of those smoko breaks make any difference to your decision not to sign the AWA?---No, not at all.
**** ALLAN MALLARD RXN MR SMITH
PN473
I have no further questions, your Honour.
PN474
THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Smith. Mr Mallard, you are released from the witness-box?---Right. I don't have any documents that the Court wishes to have back?
PN475
You may well have. We will pursue you to the end of the earth if you do?---Take - take both of those.
PN476
PN477
THE SENIOR DEPUTY PRESIDENT: Was there anything further this evening. I understand that you have yet to close your case, Mr Smith, and that on Thursday you would propose doing so and that Mr Dasan would propose calling a witness and presenting his case.
PN478
MR SMITH: Yes, I concur with the comments that Mr Dasan made earlier. I am happy to stop here and finish the case on Thursday.
PN479
THE SENIOR DEPUTY PRESIDENT: All right, is 9.30 am Thursday convenient to you?
PN480
MR SMITH: Yes, your Honour.
PN481
THE SENIOR DEPUTY PRESIDENT: I can give you some three hours on that day.
PN482
MR SMITH: Yes, 9.30 is fine, thank you.
PN483
THE SENIOR DEPUTY PRESIDENT: Very well. Mr Dasan.
PN484
MR DASAN: That will be fine with us too, sir.
PN485
THE SENIOR DEPUTY PRESIDENT: Very well. I will adjourn the matter until 9.30 Thursday, 8 May.
ADJOURNED UNTIL THURSDAY, 8 MAY 2003 [5.55pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
ALLAN MALLARD, AFFIRMED PN27
EXAMINATION-IN-CHIEF BY MR SMITH PN27
EXHIBIT #AMIEU1 NOTICE OF PROTECTED ACTION DATED 25/02/2003 PN77
CROSS-EXAMINATION BY MR DASAN PN93
EXHIBIT #T&R1 CORRESPONDENCE TO MR ALLAN MALLARD FROM T & R MURRAY BRIDGE DATED 10/02/2003 PN212
EXHIBIT #T&R2 CORRESPONDENCE FROM THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION TO MR P. STRONG OF T & R MURRAY BRIDGE DATED
17/03/2003 PN218
EXHIBIT #T&R3 CORRESPONDENCE FROM THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION TO MR STRONG OF T & R MURRAY BRIDGE DATED
7/4/2003 PN229
EXHIBIT #T&R4 CORRESPONDENCE FROM T & R MURRAY BRIDGE TO MR SMITH OF THE AMIEU DATED 8/4/2003 PN240
RE-EXAMINATION BY MR SMITH PN444
WITNESS WITHDREW PN477
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