PR938689 PR938689 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.99 notification of industrial dispute Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Mildura Fruit Juices Aust Pty Ltd (C2003/4268) Food, beverages and tobacco industry DEPUTY PRESIDENT HAMILTON MELBOURNE, 30 SEPTEMBER 2003 Section 170LW Dispute Settling Procedure - KPIs on Oranges and Lemons - Ban on Smoking DECISION Introduction [1] Mildura Fruit Juices Aust Pty Ltd uses `KPI's 1 , or production targets sometimes linked to wage increases, in making chocolate sauce or processing oranges and lemons, mandarins, and grapefruit. Its General Manager, Paramjeet Thaker said: `But then because we process a lot of different products there, and we do things even like chocolate sauce, and you cannot compare chocolate sauce production with citrus production, you cannot compare a lemon with an orange. Each has got different yields, and all that. And in the past we had [an] equivalent in litres calculation, where one litre of sauce is two litres equivalent of orange. But what we have started doing is this, is tracking down exactly how many man hours are required for a process, so that we can say sauce is so much percentage if you achieve less than 500 litres per man hour." 2 [2] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (`the AMWU') has applied to this Commission to remove a ban on smoking introduced at Mildura Fruit Juices on 25 June 2003. It asks the Commission to settle what it says is a dispute about a clause in the certified agreement concerning `KPI's , by determining: "That Mildura Fruit Juices Aust Pty Ltd remove the no smoking ban and threats of disciplinary action against their employees and desist from making any other changes to policy that will have an effect on the ability of workers to fulfil `KPI's covered by the Mildura Fruit Juices Aust Pty Ltd Certified Agreement 2002/2003 without agreement from the majority of employees covered by the Agreement." [3] Mildura Fruit Juices says it introduced the smoking ban because the flammable composition of the company buildings (including polystyrene) , led insurers to demand measures to reduce the risk of fire. Without them insurance premiums would escalate significantly. International standards are exacting, and one potential customer was lost after seeing cigarette butts on site. It helps employees quit smoking through limited payment of medical expenses, including patches, and possibly even hypnotherapy 3 . Quitting smoking is good for their health. It consulted with employees. It opposes the application. The alleged connection between the June 2003 ban on smoking and `KPI's is a `long bow' , and there is no jurisdiction . [4] A `KPI' is a `key performance indicator' , and both acronym and term are commonly used, and useful if unnattractive, items of human resources jargon. [5] Both the AMWU and Mildura Fruit Juices are bound by a certified agreement, the Mildura Fruit Juices Aust Pty Ltd Certified Agreement 2002/2003. The AMWU seeks a determination pursuant to the dispute settlement procedure in that agreement, which relevantly provides: 17 AVOIDANCE OF INDUSTRIAL DISPUTES In the event of any matter arising from this Agreement to give cause to a potential industrial dispute, the parties shall observe the following: This procedure is to allow and enable all parties to discuss and resolve all matters, which are the subject of grievance and dispute. ... During any dispute, the state of affairs existing immediately before such dispute will continue. Work will proceed without stoppage or the imposition of any ban, limitation or restriction. ... Should resolution prove impossible, the parties may refer the matter to the Australian Industrial Relations Commission for conciliation and arbitration. ...' [6] Clause 15 of the agreement was relied on by the AMWU and does in fact provide for `KPI' s: `[Clause] 15 CONFORMANCE TO POLICIES AND PROCEDURE The Consultative Committee will continue the undertaking given in the Site Certified agreement 1999/2001 to include a KPI to assess the conformance to documented policies and procedures in the workplace. A method of assessment and measurement will be agreed upon and in place by the end of May 2002 and will be graphically reported each meeting. Consideration will be given to including this as part of the bonus payment system.' [7] It is a matter of agreement that clause 15 has not been complied with. The consultative committee has not included a `KPI' to assess conformance to documented policies and procedures in the workplace. A method of assessment and measurement has not been agreed, and was not in place by the end of May 2002, and has not been graphically reported each meeting. Consideration has not been given to including this as part of the bonus payment system. It is difficult to find anything that has been done pursuant to clause 15. [8] This matter arose out of a notification lodged by the AMWU of an alleged industrial dispute 4 : "Concerning the removal of smoking facilities" [9] A conference took place in an attempt to settle the matter by conciliation. The matter was not settled and the matter was set down for arbitration, at the request of the applicant 5 . Submissions of the AMWU [10] The Applicant, the AMWU submits in respect of the jurisdiction of the Commission that: · The Commission has the power to publicly arbitrate, to resolve a matter in dispute, pursuant to s 111 (1)(b) of the Workplace Relations Act 1996 (`the Act') 6 ; · The issue in dispute is an allowable matter as it applies to the ability of workers to achieve their bonus under their KPI (as set out in clause 15 of the agreement) and is therefore covered by s 89A (2)(d) 7 ; · The dispute (in respect of working conditions) falls within the extended operation of the Act in Victoria by way of s 493 and therefore need not be an interstate dispute 8 ; · In the alternative, the Commission has jurisdiction in accordance with the private arbitration power given to it by the parties in clause 17 of the agreement and pursuant to s 170LW 9 ; · The dispute is in relation to the application of the agreement as the dispute relates to the ability of employees to achieve their productivity bonuses pursuant to clause 15 of the agreement 10 ; · The operation of clause 15 draws the company policies and procedures into the agreement to the extent that if at some stage those KPIs are assessed and put against bonuses, then that becomes a part of the way in which employees can achieve bonuses within the operation of the agreement 11 ; · The Respondent has followed the settlement of disputes procedure and has therefore accepted that the settlement of disputes procedure would be the process by which this dispute should be resolved 12 ; [11] And in respect of the merits the Applicant submits that: · Any decision of the Respondent to change any policy without the agreement of the majority of employees covered by the agreement is a fundamental breach of the agreement because of clause 15 of the agreement which provides a KPI for the conformance to policies and procedures 13 ; · When the employees to be covered by the agreement voted to accept the agreement they considered the degree of difficulty in relation to achieving the wage increases or bonuses available by achieving the KPIs 14 ; · Changes to any of the policies and procedures during the life of the agreement decreases the ability of employees to achieve the promised bonuses or wage increases 15 ; · The change to the no-smoking policy has imposed an unnecessary hardship on those smokers who either wish to continue to smoke or who are unable to give up smoking 16 ; · In order to ensure the fairness of the agreement, policies that the company had at the time that the agreement was made should be frozen at that point until the agreement is up for re-negotiation or until a valid majority of employees who made the agreement agree to the change in policy 17 ; and · The wording of the agreement is clear in that it reflects that it covers the conformance to policies and procedures and is not restricted only to the ISO 2000, 9002 and HACCP. In the alternative, if the Commission finds that it is not clear what the parties intended from the wording of the clause, then the intention of the parties should be considered 18 . Mildura Fruit Juices Submissions [12] However, Mildura Fruit Juices Aust Pty Ltd submits in respect of jurisdiction that: · The Commission does not have jurisdiction to arbitrate the matter 19 ; · The Commission does not have jurisdiction pursuant to s 111 (1)(b) of the Act as the matter in dispute is not an allowable matter under s 89A (2)(d) or any other sub-section of s 89A 20 ; · The banning of smoking has never been the subject of discussion between the parties in relation to employees' ability to earn bonuses or wage increases under the current (or any previous) agreement 21 ; · Clause 15 does not therefore incorporate all the policies and procedures that the Respondent has put in place. Rather, clause 15 provides that a consultative committee will continue an undertaking given to include a KPI to assess the conformance to documented policies and procedures 22 ; · The KPI referred to in clause 15 relates to issues of quality/HACCP only 23 ; · In the event that there was a policy that was being reviewed with the effect of placing KPI on it, then that would be agreed between the parties before it was implemented 24 ; · The linkage between smoking and bonuses is extremely remote, in that it was never contemplated by the parties and was never subsequently discussed, this is borne out by the intention of the parties and the wording of clause 15 25 ; · In respect of s.170LW, the issue in dispute is not covered by clause 15 or any other clause in the agreement 26 ; · In the event that the dispute is found to be a matter in relation to the application of the agreement, after stage 3 the agreement requires the consent of both parties to approach the Commission to attempt to resolve the issue 27 ; [13] And submits in respect of the merits that: · Employees have had the opportunity to have some input and to discuss the issue for a substantial period 28 ; · The Respondent took the decision to ban smoking on site for reasons which included, pressure from the Respondent's insurers to reduce the risk of fire, occupational health and safety concerns of both smoking and non-smoking employees, and food hygiene requirements 29 ; and · In any event, the Respondent was entitled to unilaterally make the decision to implement a policy of this sort 30 . Consideration of Jurisdictional Submissions [14] As a Full Bench of the Commission said in SDA v. Big W Discount Stores 31 : `Section 170LW authorises agreed dispute resolution provisions that have been incorporated into a certified agreement to empower the Commission to exercise a power of private arbitration and make decisions as to the legal rights and liabilities of the parties to the agreement. In that sense the section authorises the Commission to `settle disputes over the application of [an] agreement' and its powers are limited to disputes of that kind. It is necessary for the Commission, where it is asked to deal with a matter arising under the dispute settling procedure in an agreement, to ascertain the character of the dispute that is before it in order to determine whether the matter is a dispute over the application of the agreement. ... Although the referral of a dispute over the application of the agreement is narrower than the referral considered in Heyman v. Darwins, what comprises a dispute over the application of the agreement should not be narrowly construed ; to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.' [15] Perhaps three related questions must be answered in considering whether there is jurisdiction to make the determination sought in the present matter: the nature and scope of the power conferred on the Commission by the particular agreement dispute settling procedure, the nature and scope of the enabling provision in s.170LW, and whether the dispute properly characterised falls within the scope of power. [16] In relation to the first question, the dispute settling procedure confers on the Commission the power to deal with: ` any matter arising from this Agreement to give cause to a potential industrial dispute'. [17] In relation to the second question, section 170LW provides: `170LW Procedures for preventing and settling disputes Procedures in a certified agreement for preventing and settling disputes between the employer and employees whose employment will be subject to the agreement may, if the Commission so approves, empower the Commission to do either or both of the following: (a) to settle disputes over the application of the agreement; (b) to appoint a board of reference as described in section 131 for the purpose of settling such disputes.' [18] Finally, is this a dispute `arising from this Agreement' or about `the application of the agreement' within the dispute settling procedure and s.170LW? What is the nature of the matter? What Does Clause 15 Do? [19] In this matter the AMWU relies primarily on what it sees as a connection between a determination ceasing the operation of the anti-smoking policy and clause 15 of the agreement. [20] There is an anti-smoking policy 32 . Mark Hancock, the Group Managing Director of Mildura Fruit Juices said `A total smoking ban was introduced at MFJA effective 25th June 2003.' 33 [21] In considering clause 15 it is in my view necessary to consider what the legal operation of the clause is, what it concerns and what it requires or provides. Clause 15 deals with ` `KPI''s , as we have seen an unnattractive acronym for ` key performance indicators '. There is however no ` `KPI'' about the anti-smoking policy. Clause 15 does not establish a `KPI' about anti-smoking. Nor does it compel the consultative committee to establish a `KPI' about that policy. At best it compels the consultative committee or the parties to the agreement to establish a `KPI' which may, or may not, include within its scope part of or all of the anti-smoking policy depending on the construction of the term `policies' . That is the connection at best, and in my view it is not enough to enable the dispute to be reasonably characterised as one concerning the application of the agreement. [22] Mildura Fruit Juices does not in fact consider that the policies referred to in clause 15 include policies such as the anti-smoking policy. Their intention in insisting on inclusion of clause 15 in the agreement was to ensure that performance standards in the business manuals that underpin the operations and quality systems should be looked at on a monthly basis, which does not include the anti-smoking policy. 34 Put simply Mildura Fruit Juices wanted a ` KPI' to identify any problems in operating performance before loss of various forms of formal and internationally recognised accreditation occurred, at which stage it would be too late. As Mark Hancock, Group Managing Director, said: `Clause 15 in the EBA was intended to regularly focus management and employee attention on aspects of operations that could lead to a failure of a quality/HACCP audit ... Failure of such an aduit could see valuable business and customers lost ... Many customers have ISO/HACCP accreditation as a mandatory supply condition.' 35 [23] His evidence is consistent with that of Craig Williams, AMWU shop steward, who was involved in negotiating the agreement, and said about clause 15: `Now, the intention of clause 15 there was to monitor compliance to - you mention HACCP and ISO, and those sorts of policies, wasn't it? - Yes.' 36 [24] There is ambiguity in clause 15. Having regard to the evidence of the parties I accept that the policies referred to in clause 15 do not include the anti-smoking policy 37 . That being the case, the application must fail. The dispute has nothing to do with the agreement. Maintaining the Status Quo Prior to No Smoking Ban [25] Even if clause 15 policies did include the ban on smoking, the result would be the same. The AMWU points to the status quo provision of the dispute settling procedure, which provides: `During any dispute, the state of affairs existing immediately before such dispute will continue.' [26] Is there a sufficient connection between this provision and the determination sought to bring the matter within jurisdiction? The determination sought seeks to return the workplace to the status quo that existed prior to introduction of the anti-smoking policy. The AMWU seeks to, in the words of its proposed determination, ` remove the no smoking ban and threats of disciplinary action against their employees ..' . The words of the determination proposed also provide some sort of connection to `KPI' s, in providing that Mildura Fruit Juices ` desist from making any other changes to policy that will have an effect on the ability of workers to fulfil `KPI's covered by the Mildura Fruit Juices Aust Pty Ltd Certified Agreement 2002/2003 without agreement from the majority of employees covered by the Agreement ." Does the anti-smoking policy have an effect on the ability of workers to fulfil `KPI' s? It does not. There is no `KPI' with respect to that policy, nor is there an obligation on the consultative committee or parties to the agreement to establish a `KPI' with respect to that policy. All `KPI's can be fulfilled without any reference at all to the issue of anti-smoking. There is, again, not in my view a sufficient link between the determination sought and any clause of the agreement. Status Quo Until Clause 15 Implemented and KPI Established? [27] Can it be said that the determination should be implemented and remain in place until a `KPI' under clause 15 is established, even if that `KPI' does not deal with smoking? In other words, is it the case that the AMWU is seeking the establishment of `KPI' s pursuant to clause 15, and the dispute about the application of the agreement is about that 38 ? The AMWU has not asked that clause 15 be implemented 39 . The AMWU was not supportive of clause 15 when the agreement was under discussion 40 . Both the AMWU and employees are aggrieved by a ban on smoking, and both the AMWU witnesses called essentially had the objective of continuing the ability of employees at Mildura Fruit Juices to smoke during working hours, for example during work breaks. 41 They wished to ensure that nobody would be disciplined for smoking. That was the almost exclusive focus of their evidence. The AMWU and its members do not want to measure achievement of the anti-smoking policy through a KPI. They do not want a KPI with respect to the anti-smoking policy. They wish to end that policy or halt its implementation for as long as they conceivably can. A Paper Dispute About Clause 15? [28] Has perhaps some sort of paper dispute about clause 15 been generated? There is before me a considerable amount of evidentiary material and claims about clause 15. That material does not amount to a call for the implementation of clause 15, or the establishment of a KPI measuring progress in implementing Mildura Fruit Juices' anti-smoking policy. It cannot in my view be fairly characterised, even at best, as the generation of a dispute about clause 15 by the AMWU, analogous in nature to the generation of a `paper' industrial dispute by the service of a log of claims and letter of demand. Even if it could be so characterised, the determination sought by the AMWU has nothing to do with the operation of clause 15. Clause 15 is, as we have seen, about the establishment of `KPI's with respect to policies and procedures. It is not about regulating what those policies and procedures are. It takes them as a given. The determination sought is about effectively ending or postponing implementation of a policy, which has nothing to do with clause 15. It is not for example about measuring progress towards implementing the anti-smoking policy. [29] If a dispute can be generated in this manner simply because a subject matter is mentioned in a clause of the agreement, even for example in a leave reserved list, the scope of s.170LW will in practice be widened well beyond the scope of what was intended by Parliament, and the conferral of power will extend well beyond that intended by the parties to the agreement. In the Big W Discount Stores 42 decision, a dispute over anti-fatigue matting was clearly part of the general issue dealt with in the agreement of an obligation on the parties to work towards and maintaining a healthy and safe work environment. There were obligations in the agreement, and the dispute properly characterised fell within the scope of those obligations. It was not a case where a word or phrase occurred in the agreement in a completely different context which was seized on as a source of jurisdiction. Conclusion [30] The material before me on clause 15 is in my view a very ambitious, not to say tortuous, attempt to bring these proceedings within the scope of the agreement, when the reality is that the dispute has nothing to do with clause 15. Assessing questions of degree can be difficult, and the scope of powers should not be `narrowly construed ', but if this is sufficient I doubt that many disputes will in future fall outside the phrase `application of the agreement' . Both Parties Required to Agree to Arbitration? [31] I might add that I reject the submissions of Mildura Fruit Juices that the use of the phrase `the parties' in the relevant dispute settlement procedure means that both parties must apply for arbitration. That would be an unduly narrow construction, in my view. The phrase has at least two possible meanings, one being either party, and one being a requirement that both parties apply. It seems to me likely that the first, perhaps more colloquial, meaning of either party was intended. It is, however, unnecessary for me to decide this issue to finality. Consideration of Merit Submissions [32] Even if I had jurisdiction, on the material before me I would not exercise it to issue the determination sought, or any determination. Insurance and Other Business Considerations [33] The Group Managing Director of Mildura Fruit Juices, Mark Hancock, has given evidence that: `3. A total smoking ban was introduced at MFJA effective 25th June 2003. The reasons for implementing such a policy were: a) Insurance i. Buildings on MJFA site contain high levels of Expanding Polystyrene (EPS) panels. EPS is highly flammable. We were notified by our insurers in 2002 that our insurance premiums would escalate significantly and that without remedial action being taken (replacement of panelling as well as improved fire detection and fire fighting equipment) they would not continue to offer insurance ii. During last year's insurance risk assessment and in other site reviews we have been advised to take all possible steps in the meantime to minimise the possibility of fire on site. A major issue was to reduce to an absolute minimum the instances of naked flames on the site. Where they are unavoidable extra supervisory steps are required iii. MFJA is still grappling with the option to replace EPS as well as the substantial costs. In the meantime, insurance premiums have effectively doubled and are foreshadowed to rise again. iv. MFJA is considering self insuring as an ISO and HACCP accredited food factory b) Commercial i. MFJA's business is currently highly dependent on a few large customers - one in particular that is contracted to MFJA for a number of years ii. MFJA is a manufacturer of bulk juices and wholesale supplier to its existing customers iii. MFJA is endeavouring to expand its customer base especially overseas. Many of these potential customers have very exacting requirements for their supplies including ISO/HACCP and Good Manufacturing Practice iv. MFJA has already lost one potential customer after the customer saw cigarette butts on site v. MFJA's future is dependent on being a world class, best practice, efficient manufacturer and smoking on site does not fit with that image or reality c) OH&S i. MFJA is concerned about the health and welfare of its employees, both those who smoke and those who don't ii. Permitting smoking on site is not good for employees generally and exposes MFJA to risks of litigation. These are risks that Directors are not prepared to accept 4. If smoking was re-introduced on site it could have severe ramifications for the future sustainability of MFJA's business from both insurance as well as business retention/growth perspectives" 43 [34] That evidence was not challenged in any real way by the witnesses for the AMWU or in cross examination of Mr.Hancock or Mr.Thaker, the Mildura Fruit Juices managers. I accept that evidence and am persuaded by it that the introduction of an anti-smoking policy by Mildura Fruit Juices was a legitimate business decision. This Commission would not lightly overturn such a decision of management. The evidence does reasonably raise the very real likelihood that if the Commission made the determination sought by the AMWU there would be adverse consequences, likely to be of a substantial nature, to the business. In my view that evidence cannot simply be ignored but must be given substantial weight. In my view the employees at Mildura Fruit Juices would also be well advised to give it very careful consideration. The employment, job prospects and future terms and conditions of employment of employees, after all, depend on the sustainability of Mildura Fruit Juices as a business. Consultation with Employees [35] I am also satisfied that Mildura Fruit Juices has engaged in sufficient consultation and discussion with employees about the policy. Mr.Sherlock, Mildura Fruit Juices employee, for example, acknowledged that many information memorandums had been circulated or put on notice boards about the subject 44 . The issue was discussed at the occupational health and safety committee. That committee was concerned to ensure that measures were implemented to assist employees who wished to quit smoking. It did not oppose the introduction of a ban on smoking. Mr.P.Thaker, the General Manager, gave evidence that: `The committee members agreed that smoking was an occupational health and safety issue, and said as long as we managed it by introducing Quit programs, they are quite happy.' 45 Paid Breaks [36] It is a matter of agreement that breaks are paid so that employees remain near machines to ensure continuous operation in the event of a breakdown 46 , with the practical consequence in my view that they cannot absent themselves during the breaks to go outside the Mildura Fruit Juices property, or probably some other place on the premises, to smoke. Helping Employees to Quit [37] It is also agreed that the company has taken other measures to assist employees, such as offers of help to assist employees to quit smoking, including limited payment of medical fees and for patches, and possibly even hypnotherapy 47 . Submissions of AMWU [38] I also have regard to the evidence and submissions of the AMWU in favour of the determination sought by them. It would perhaps be better that the ban on smoking was introduced with the agreement of employees. However, Mildura Fruit Juices have attempted to reach agreement and have consulted appropriately with employees. Allowable Matters [39] For the reasons already given I do not consider that I have jurisdiction in this matter pursuant to s.89A . There is no connection between the ban on smoking and remuneration. Nor is the determination sought in my view consistent with the Commission's role with respect to awards of establishing and maintaining a safety net. Conclusion [40] The AMWU has acted to, as I understand it, vigorously represent the concerns of its members as best it can. It has put its arguments with considerable care and preparation. It cannot expect that it will succeed on all occasions, nor can its members reasonably expect that. I dismiss the application. BY THE COMMISSION: DEPUTY PRESIDENT Appearances: Messrs R Campbell and Mr T Hale from the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Mr C Rutledge from the Australian Industry Group and Mr P Thaker from Mildura Fruit Juices Hearing details: 2003 Melbourne 10 July Mildura 15 September Printed by authority of the Commonwealth Government Printer <Price code D> 1 Key Performance Indicators. eg. See clause 9 of the Mildura Fruit Juices Aust Pty Ltd Certified Agreement 2002/2003, which sets targets regarding HACCP 9000 and ISO 9002, wasteage of oranges etc. 2 PN693, Mr.Paramjeet Thaker. 3 Evidence of Mr.Craig Williams, AMWU shop steward, PN287-292 4 Under s.99 of the Workplace Relations Act 1996 5 Written submissions, witness statements and other evidentiary material were filed in accordance with directions. The matter was heard on 15 September 2003 in Mildura. 6 Exhibit H1, paragraph 3 and Transcript, PN46 7 Exhibit H1, paragraph 3 and Transcript, PN47 8 Exhibit H1, paragraph 3 and Transcript, PN48 9 Exhibit H1, paragraph 4 10 Exhibit H1, paragraph 4 11 Transcript, PN793 12 Exhibit H1, paragraph 4 and Transcript, PN765 and PN766 13 Exhibit H1, paragraph 1 14 Exhibit H1, paragraph 1 15 Exhibit H1, paragraph 2 16 Exhibit H1, paragraph 6 17 Exhibit H1, paragraph 7 and Transcript, PN120 18 Transcript, PN762 and PN764 19 Exhibit R1, paragraph 1 20 Exhibit R1, paragraph 2 21 Exhibit R1, paragraph 2 22 Exhibit R1, paragraph 3 and Transcript, PN143 23 Exhibit R1, 3 24 Exhibit R1, paragraph 9 and Transcript, PN145 25 Transcript, PN148 and PN150 26 Exhibit R1, paragraph 3 27 Exhibit R1, paragraph 5 and Transcript, PN177 - PN179 28 Exhibit R1, paragraph 6 29 Exhibit R1, paragraph 7 30 Exhibit R1, paragraph 6 31 Watson SDP, Kaufman SDP, Foggo C, 12 November 2002, Print PR924554 at paragraph 20, my underlining. 32 See Exhibit R9; later amended, see Exhibit R7: `the smoking ban on MFJA property takes effect on 1st June 2003.' This was postponed too take effect on 25 June 2003 - witness statement of Paramjeet Thaker, General Manager of Mildura Fruit Juices, paragraph 13. 33 Exhibit R8, paragraph 3. 34 Evidence of Mark Hancock, Group Managing Director, Mildura Fruit Juice, PN498-500; cross examination PN556 35 Exhibit R8, paragraph 5 36 PN225 37 See The Public Transport Corporation of Victoria and The Australian Rail, Tram and Bus Industry Union , Full Bench, Ross VP, Polites SDP, Grimshaw C, Print M2454 at p.4; and Gray J in PKIU v. Davies Bros (1986) 18 IR 444 at 449. 38 AMWU submissions, PN828 39 Evidence of Ray Campbell, AMWU Organiser, PN425, in which he denies that that has been asked; evidence of Mr.Craig Williams, AMWU shop steward in which he denies there has been any discussion on the issue, PN220. 40 Evidence of Ray Campbell, PN417 41 See witness statements of Craig Williams Exhibit H2, and Graeme Sherlock, Exhibit H3. 42 Big W , paragraph 30 43 Also see witness statement of Paramjeet Thaker Exhibit R10, paragraph 8 and 9 44 PN371-380 45 See Exhibit R6, minutes of occupational health and safety meeting, 23 October 2002. Exhibit R10, witness statement of Paramjeet Thaker, General Manager, Mildura Fruit Juices, paragraph 8, PN616. 46 PN398 47 Evidence of Mr.Craig Williams, AMWU shop steward, PN287-292