PN1

THE COMMISSIONER: Good afternoon, parties. Thank you for joining me. I'll start by taking the appearances, please.

PN2

MS S ANANTH: Thank you, Commissioner. Ananth, initial S, for the applicant.

PN3

THE COMMISSIONER: Thank you, Ms Ananth. For the respondent?

PN4

MS J DOLAN: Ms Dolan, initial J.

PN5

THE COMMISSIONER: Thank you very much, Ms Dolan, that's appreciated. Parties, thank you for the filing of submissions and witness statements which I've obviously been through prior to coming online. This afternoon and tomorrow is the opportunity to obviously hear the oral evidence in relation to the matter and also to take the submissions from the parties prior to a determination by the Commission. Ms Ananth, do you wish to make an opening submission at all?

PN6

MS ANANTH: I would, yes, Commissioner.

PN7

THE COMMISSIONER: What I propose to do in the way of procedure is to turn to Ms Ananth and ask her to place her opening and then to come to her witness evidence, and then at the conclusion of that we'll go through the respondent's case, submissions and also the evidence it brings. Ms Dolan, can I just check, do you seek to cross-examine the two employee witnesses?

PN8

MS DOLAN: I do. I seek to cross-examine Mr Vengopala and Mr Soueid.

PN9

THE COMMISSIONER: Thank you.

PN10

MS DOLAN: Commissioner, a point of conduct, I was wondering if you'd like the witnesses to be out of the room whilst we're taking opening submissions?

PN11

THE COMMISSIONER: Well, do you, becomes the more important question? I think you do.

PN12

MS DOLAN: Yes, I was just going to say I think we'd like that and I take it the applicant would consent to that as well.

PN13

THE COMMISSIONER: Does that apply to your witness as well?

PN14

MS DOLAN: Yes, my witness is leaving.

PN15

THE COMMISSIONER: Thank you.

PN16

MS DOLAN: Yes, Commissioner.

PN17

THE COMMISSIONER: Ms Ananth, do you have any objection to that procedural point?

PN18

MS ANANTH: Certainly not, Commissioner. We'd prefer it.

PN19

THE COMMISSIONER: In that case, Mr Vengopala and Mr Soueid, if you can leave the virtual hearing room and we'll let you know when it's time to come back in.

PN20

MR SOUEID: I was hoping to just leave my laptop on and Rajan was going to sit in and utilise that and myself, and Ananda were going to leave the room physically.

PN21

THE COMMISSIONER: We'll follow that procedure then but if you could mute the sound, please. In that case I'll turn to you, Ms Ananth, to start placing your submissions.

PN22

MS ANANTH: Thank you, Commissioner. We obviously rely on our outline of submissions and witness statements filed on 28 March this year, and I don't propose to go into the submissions again in any great detail but given the complex history of this dispute, including the many conciliations that the parties have engaged in, at which the union has presented different iterations of our proposal with a view to reaching a negotiated outcome, Commissioner, I think it wise to just take you through some of the key elements of our proposal, albeit briefly. Commissioner, you're still on mute.

PN23

THE COMMISSIONER: The 21st Century. I can see from Mr Soueid's computer there's still a person there. Who is that person?

PN24

MS ANANTH: That's Mr Rajan Ramanavan, who is a delegate who hasn't presented any evidence in this matter and is remaining as an instructor.

PN25

THE COMMISSIONER: Thank you. In that case if you proceed, thank you.

PN26

MS ANANTH: Thank you, Commissioner. I will just take you through each of the key questions for determination in this matter, Commissioner. Then being, firstly, what would the skill requirements for progression between each grade of the classification structure be? Secondly, how should A, B and C skills be defined and allocated insofar as they constitute the skill requirements for progression. Thirdly, how should obsolete skills be dealt with?

PN27

Commissioner, I will lastly address you also on the question of jurisdiction. Commissioner, our position boils down to one key principle, that a structure which accords more closely with current and historical practical should be preferred and amended only to such an extent as to resolve any inconsistency or unfairness in the application of a structure, and the value and the skills between various departments of the respondent's Dandenong site.

PN28

This principle, Commissioner, will be consistent with the operation of clause 5.7.2 of the agreement which the respondent rightfully acknowledges is a fetter on the exercise of managerial prerogative in paragraph 10(a) of its outline of submissions which, Commissioner, is on page 124 of the hearing book.

PN29

Turning now to the question of the skill requirements for progression between each level of the grading structure, Commissioner, in keeping with the general thrust of our argument, the union's position is that the skill requirements for progression should accord with current and historical practice. In saying so, Commissioner, I note that when I refer to the current classification structure in my oral submissions, I'm referring to the structure that was in place immediately prior to the respondent's unilateral implementation of its proposed structure in January 2021.

PN30

This grading structure which has remained in place, Commissioner, unchanged for 20 years now, requires a minimum of seven unspecified C skills for progression through the highest grade, that is the grade 4 level. Commissioner, I note that the details of the structure are set out in appendix A to the applicant's outline of submissions which is on page 73 of the hearing book.

PN31

Commissioner, as you can see, there's a further requirement for an employee to be signed off and four specified functional skills for progression to grade 4. Those skills being the authorised trainer, reconciliation, QLF and inventory transaction. The parties agree that to the extent that the respondent has made a business decision to only make training and assessment on the specified functional skills available on an as-needs basis, they function as a block as to progression.

PN32

The applicant agrees with the respondent's proposal that they should be replaced with unspecified skills of an equivalent A, B or C skill value. Commissioner, we say that the specified skills should be replaced with three C skills and one B skill. And we intend to lead evidence in the form of Mr Vengopala's statement that this is consistent with historical and customary practice. That the employer decided to credit reconciliation, a C skill value in 2019 is a reflection of the employer's preference only and is not fact.

PN33

In summary, Commissioner, we say that if the specified functional skills were replaced on a like-for-like basis this would total a minimum of 10 C skills required for progression from grade 1 through to grade 4, with no mandatory C skill requirements for progression until the grade 2-plus level, and this is in keeping with current and historical practice.

PN34

Commissioner, we say that the Commission should reject the company's proposal because a linear structure does not account for the progressive nature of skills acquisition. The respondent is proposing that there should be an increase in C skill requirements for progress from a minimum of 10 to a minimum of 12 C skills. There's been no sufficient justification provided for this.

PN35

Commissioner, again, we say that the respondent's preferred approach of a linear progression, so an equal number of two C skills at each level for progression, doesn't reflect the reality, the industrial reality of how employees acquire skills which is in a progressive fashion. The learning curve on learning a set-up or an operation skill when you're a new employee is much steeper than, you know, it would take an employee to acquire additional C skills once they actually have a basis in the factory.

PN36

Commissioner, we also argue that the company's proposal should be rejected because it is unreasonable. We say that the grade 2 level is a point at which an employee becomes a skilled employee, if not a multi-skilled employee. At grade 2 level employees are able to engage in productive work in the sense of being able to, in most cases, operate a key production or a packaging line in a department.

PN37

Under the company's proposal an employee at the grade 2 level would require four C skills, meaning that such an employee would necessarily need to be multi-skilled and would need to be able to run and set up at least two different machines. Put in a slightly different way, Commissioner, a skilled employee who can run and set up a production or a packaging line, would be classified at the grade 1 level under the company's proposal.

PN38

We will lead evidence in the form of a witness statement from Mr Soueid about how this would be inconsistent with industry practice and, therefore, unfair to an employee with productive skills, to be classified at the grade 1 level. Commissioner, there's also clearly a prima facie unfairness that would result between groups of employees depending on whether they were classified under the current classification structure or the company's proposed classification structure.

PN39

Commissioner, turning now to the skill definitions, both parties have necessarily defined A, B and C skills in line with the desired allocation of skill value. The union proposes a machine-based skill evaluation framework, whereas the respondent proposes a work centre base model. The union's proposal is designed to address three key issues of unfairness and unreasonableness in the respondent's proposal.

PN40

The first unfair or unreasonable element of the respondent's proposal, being that the work centre base model represents a major departure from the logic of skill valuation. We will lead evidence, in the form of Mr Vengopala's statement, that the unilateral nature of this shift, just seeing the company capitalise on the integration of packing lines to allocate only one C skill to packing lines which are comprised essentially of two different complex machines with different outputs, which just so happen to be connected by a conveyor belt.

PN41

We submit that the respondent's proposal to reduce the skill allocation to such complex integrated lines is unreasonable and unfair in two key ways. Firstly, it's not rooted in the material complexity of a skill or machine involved and, secondly, it represents a reduction in skill value allocation from two C skills to one C skill, and one B skill to an employee who's able to run and set up a packing line, without any clear evidence as to why this is warranted.

PN42

The second unfair or unreasonable element of the respondent's proposal is that lack of clarity or reasons as to why process runs or the operation of a machine should be allocated a B skill value in the packing departments but not in manufacturing. If process runs are allocated a different skill value to a set-up skill in the packing department, in order to ensure fairness between groups of workers this should be done consistently across the factory.

PN43

The third unreasonable element of the respondent's proposal, as we see it, Commissioner, relates to the allocation of B skill values to additional lines of the same machine which is outlined in version 8 of the skills list proposed by the respondent which, Commissioner, I believe is on page 191 of the hearing book.

PN44

The union's proposal eliminates all of the three key elements of unfairness or unreasonableness in the skills list and in its submission A, B and C skills should be defined by reference to two factors. The type and complexity of the skill engaged. The type refers to the distinction between process run or machine operation skills and mechanical set-up and changeover skills, and the complexity of a skill obviously depends on the complexity of a machine or the process involved.

PN45

Commissioner, we submit, contrary to the respondent's accusations of the union's proposal amounting to a hybrid model, that our proposal involves allocation of skill value based solely on machine complexity. Under the union's proposal an employee would be allocated a C skill for running or operating a complex machine and a C skill value for setting up a complex machine. An additional C skill value would be allocated for set-up in circumstances where a line is comprised of two separate complex machines such as, for example, in the case of packing lines which accords with historical practice.

PN46

Commissioner, we submit that the differences in skill valuation between the union's proposal and the company's proposal is one of a base allocation alone. The total skill value is relatively similar between the parties. For example, Commissioner, the Kilian 420X lines in RX manufacturing would, under the company's skills list on page 191 of the hearing book, receive one C skill for operation and set-up of one line, and one B skill each for the operation set-up of the other three lines.

PN47

Under the union's proposal an employee would receive two C skills. One each for operating and setting up one line of the Kilian 420X machines and no additional skills for operating or setting up the additional lines on the same machine. Noting that under the company's proposal three B skills equal one C skill, an employee who runs all four lines of the Kilian 420X machine would be allocated two C skills and such employee would be allocated the same number of C skills under the union's proposal.

PN48

We submit, Commissioner, that the union's definition should be preferred to that of the company's because the underlying logic of skill value allocation is more coherent and minimises the risk of arbitrariness and unfairness and unreasonableness in its application. The allocation of additional B skill values for setting up an operation of additional lines of the exact same machine sits uncomfortably with the logic of a skills-based pay structure.

PN49

Put differently, to award one employee who's given the opportunity to run only one line of the same machine, one C skill, but another employee who's given the opportunity to rotate across all four lines of the same machine, two C skills, is manifestly unfair. It's indicative of a job or a task-based model rather than a skills-based pay structure. An employee, regardless of how many lines of the same machine they may operate or set up, possesses the same underlying skills set and should be classified consistently. We submit that our proposal allows the company to do that.

PN50

Commissioner, finally I'll turn now to the question of obsolete skills and how that is dealt with under the union's proposal. We'll lead evidence in the form of Mr Vengopala's witness statement, the difficulties experienced by operators in being given an opportunity to be assessed and trained on another machine to replace an obsolete skill.

PN51

The limiting factor on the time it will take for an employee to replace an obsolete skill to retraining, is the employee actually being offered retraining opportunities which have to be accommodated around production demands. The union's proposal accounts for this by providing employees with 12 months from the date on which an opportunity for retraining is offered to replace an obsolete skill.

PN52

Commissioner, to conclude on the point of jurisdiction, if I may, if the union's proposal were to be accepted by the Commissioner it wouldn't be inconsistent with the principles expounded in the XPT case, in that the Commission would only be interfering with managerial prerogative to such an extent as to redress the unfairness or unreasonableness caused by the exercise of such managerial prerogative.

PN53

We submit that for the reasons outlined in my oral submissions today and outlined in our outline of submissions, that the respondent's proposal creates unfairness to and between employees on site so we say that it would not be inappropriate for the Commission to interfere in the respondent's managerial prerogative by accepting the union's proposal.

PN54

Commissioner, this is especially the case because there already exists a fetter on the exercise of managerial prerogative in relation to the classification structure in the agreement. This is a fetter in clauses 5.7.1 and 5.7.2 of the agreement, that any new classification structure implemented receive the agreement of the union.

PN55

Commissioner, just to round up and close up my submissions, put simply the union's proposal is not a cash grab or a wage plan disguised as a dispute over a classification structure. This dispute is about redressing unilateral decisions that have been made by the respondent which have resulted in employees being materially worse off by the respondent's unilateral decision to stop allocating two C skills to the set-up of packing lines in 2015, as outlined in paragraphs 42 to 47 of Mr Vengopala's witness statement which is on page 101 of the court book.

PN56

The union's proposal is about safeguarding against the unfairness that would necessarily result between new employees who will be classified at a lower grade than current employees classified under the current structure, despite possessing the same skills and performing the same work.

PN57

Yes, Commissioner, we accept that this is a consequence of the safeguard in clause 5.7.2 of the agreement but it's also indicative that the respondent's proposal is actually about downgrading the skill value of work wholesale without any reasonable explanation or evidence as to why this is warranted.

PN58

Finally, Commissioner, the union's proposal is about ensuring consistency in the application of the structure between groups of employees across departments in the respondent's factory. Commissioner, that concludes my oral submissions.

PN59

THE COMMISSIONER: Thank you. Perhaps if I mark as an exhibit the document that you've just been speaking to. The applicant's outline of submissions filed 28 February 2022 will be marked as exhibit A1.

EXHIBIT #A1 APPLICANT'S OUTLINE OF SUBMISSIONS DATED 28/02/2022

PN60

THE COMMISSIONER: Do you still rely upon the material that was filed earlier at all?

PN61

MS ANANTH: No, we do not, Commissioner.

PN62

THE COMMISSIONER: Who is the first of your witnesses?

PN63

MS ANANTH: We don't have a particular preference as to who goes first.

PN64

THE COMMISSIONER: You need to make a choice, they're your witnesses.

PN65

MS ANANTH: I'd like to call Mr Vengopala in that case, Commissioner.

PN66

THE COMMISSIONER: If you can ask him to come in, please.

PN67

MS ANANTH: Yes, thank you.

PN68

THE COMMISSIONER: You're still waiting on Mr Vengopala? Thank you.

PN69

MS ANANTH: Yes, Commissioner, he's on his way.

PN70

THE COMMISSIONER: Good afternoon, Mr Vengopala. You can hear me? Can I just maybe ask you to re-angle your screen so that I can see your full face, please? Thank you. You can hear me? I can't hear you. I think you're still muted there, Mr Vengopala.

PN71

MR VENGOPALA: Yes, yes.

PN72

THE COMMISSIONER: That's much better, thank you. Do you wish to take an oath where you swear on the holy book of some kind or do you wish to take the affirmation?

PN73

MR VENGOPALA: Affirmation, Commissioner.

PN74

THE COMMISSIONER: I beg your pardon?

PN75

MR VENGOPALA: I'll take affirmation, Commissioner.

PN76

THE COMMISSIONER: An affirmation?

PN77

MR VENGOPALA: Yes.

PN78

THE COMMISSIONER: Thank you. In that case, listen to the words my associate speaks to you and then repeat them back to her, please.

PN79

MR VENGOPALA: Okay.

PN80

THE ASSOCIATE: First, could you please state your full name and your address. It can be your place of employment address.

PN81

MR VENGOPALA: My full name is Ananda Komoro Vengopala. My residential address is (address supplied).

<ANANDA VENGOPALA, AFFIRMED [1.55 PM]

EXAMINATION-IN-CHIEF BY MS ANANTH [1.55 PM]

PN82

THE COMMISSIONER: Thank you, Mr Vengopala. Now, what will occur now is that Ms Ananth will take you through your evidence on behalf of the union and then after that Ms Dolan will have the opportunity to ask you questions in the form of cross-examination. All right?‑‑‑Thank you.

PN83

We'll turn to Ms Ananth.

*** ANANDA VENGOPALA XN MS ANANTH

PN84

MS ANANTH: Thank you, Commissioner. I'll just start by tendering Mr Vengopala's statement. Mr Vengopala, have you prepared a statement in these proceedings?‑‑‑Yes.

PN85

Do you have a copy of that statement with you today? It should be on page 97 of the court book?‑‑‑Yes, yes.

PN86

Is that statement a true and correct record of the evidence that you wish to rely on in these proceedings?‑‑‑Yes, please. The only thing is I want to change, if I can, statement 1.

PN87

Sure?‑‑‑I've been since June 5, 2006. I think that one small correcting needs to be done.

PN88

THE COMMISSIONER: What was the year, I'm sorry?‑‑‑June 5, 2006.

PN89

Thank you.

PN90

MS ANANTH: Thank you. Do you wish to make any other changes to the statement?‑‑‑No, no, I don't.

PN91

Thank you, Ananda. If the Commissioner pleases, I tender the document.

PN92

THE COMMISSIONER: Just one moment. The witness statement of Ananda Vengopala with the amendment which has been referred to, and also five attachments, will be marked exhibit A2.

EXHIBIT #A2 WITNESS STATEMENT OF ANANDA VENGOPALA

PN93

THE COMMISSIONER: Thank you, Ms Ananth. Do you have any further questions you wish to ask?

PN94

MS ANANTH: I do not, Commissioner, thank you.

*** ANANDA VENGOPALA XN MS ANANTH

PN95

THE COMMISSIONER: Thank you. In that case, it's over to you, Ms Dolan. Mr Vengopala, I should have let you know this beforehand, because we're dealing with this over video, sometimes there's a delay between the person speaking and when you hear the information and when you start responding. It's always beneficial to wait for the whole of the question to be asked before you say anything. If any of it breaks up or you don't understand what Ms Dolan had to say, then just let me know or let her know and then she can re-put the question to you. It's also important to not speak over the top of each other since we're trying to generate a transcript of this hearing and it becomes impossible to do that if people are speaking over each other through video link. All right?‑‑‑Thank you.

PN96

Ms Dolan.

CROSS-EXAMINATION BY MS DOLAN [1.58 PM]

PN97

MS DOLAN: Thank you, Commissioner.

PN98

Thank you, Mr Vengopala. Have you also been on night shift since you started as Aspen in 2006?‑‑‑Ms Dolan, I started in day shift for the first four and a half years. In 2010, August 9, I moved to night shift.

PN99

Thank you and do you agree that you get a loading of 30 per cent for working night shift?‑‑‑Can you please come again?

PN100

Do you agree that you get 30 per cent loading for working on night shift?‑‑‑Yes, 30 per cent loading for the night shift, yes, as per the legislation, yes.

PN101

Thank you. Do you agree that that loading is for the inconvenience of being on night shift?‑‑‑Yes because 30 per cent is even for me – it's I think relevant State legislation. Not only the Aspen is giving the 30 per cent loading, it's the legislation. So I'm getting the – because I'm working night shift so I'm getting the 30 per cent loading whatever the pay rate, and getting that.

PN102

Have you been a delegate since 2011, correct?‑‑‑Yes, yes.

PN103

Were you a delegate during the last agreement negotiations?‑‑‑Yes.

PN104

Did you help negotiate the agreement?‑‑‑Yes, I was part of the team, the negotiating team.

PN105

Thank you. Did you raise any concerns about all of the clauses in clause 2.1 in the agreement when you were negotiating it?‑‑‑Ms Dolan - - -

PN106

If you'd like to refresh your memory you could go to page 159?‑‑‑Okay.

*** ANANDA VENGOPALA XXN MS DOLAN

PN107

Where some of them are set out?‑‑‑Yes.

PN108

Do you remember whether you raised any concerns with those clauses?‑‑‑I'm not sure but we would have been – go to with the union lawyers and I think this might be, they said, if everything is okay with (indistinct). I can't remember in my mind if this is discussed but we are aware of that one and everything will be discussed, each clause we're negotiating. Because, Ms Dolan, this agreement was a rollover agreement from last two times, like, 2015 we have to come to the Fair Work Commission and we have to take our EBA negotiations that were done in 2015. I think three – like, after that, two negotiations for rollover agreement.

PN109

Thank you. You'd have to say that you agree with those clauses of the agreement?‑‑‑Yes, if it is in the EBA, yes.

PN110

Thank you. At page 98 of the court book which is – I'm referring to paragraphs 10 to 13 of your statement?‑‑‑Yes.

PN111

You've told us that one of the key issues for members are the blocker skills, correct?‑‑‑Yes.

PN112

Do you see in our proposal for the company's proposal, that they will be removed? And I can show you where, if you look at paragraph 41 of Mr Henry's statement which is page 150 of the court book. So paragraph 41 at page 150?‑‑‑Yes.

PN113

Also at page 174 of the court book – sorry, the hearing book?‑‑‑Yes.

PN114

If you look at paragraph 181 of Mr Henry's statement?‑‑‑Yes.

PN115

You can see that those blocker skills will be removed?‑‑‑Ms Dolan, can I comment on the – whatever that you made the statement? Can I tell you what it might be correct?

PN116

The question is, can you see that those blocker skills will be removed?‑‑‑Yes, I can see that one.

*** ANANDA VENGOPALA XXN MS DOLAN

PN117

Thank you. You'd have to say that the members would welcome those blocker skills being removed?‑‑‑See that only – but still we're not given to the members to see what's going on that one, the move – the only thing is the company that implemented that one and it has been the blockers but because that was the initial – we put it as a requisition thing that it's a blocker, people can't move in. But company has made it as a C skill but still it's not properly, like, negotiated in that time. It's still in the skills.

PN118

If blocker skills are removed, would the members see that as a benefit?‑‑‑But the thing is – but the thing is (indistinct) if you come to the other part they remove, like, each machines – we remove, like, before we are two C skills is removed to – I think it's back to one C skill. Again, it's a big blocker. Progression stops there.

PN119

There's a lot of information and I just want to take things piece by piece?‑‑‑Okay.

PN120

If the blocker skills are removed would the members see that as a benefit?‑‑‑I don't think so.

PN121

Okay, thank you. Just bear with me?‑‑‑Yes.

PN122

Now, do you agree that reconciliation which is one of those blocker skills, has been a C skill since 2019?‑‑‑That was the company's proposal, right. Before it was the reconciliation doesn't have any skill level. It's like – in the structure it says reconciliation, training module and inventory transaction. And our company made it as a C skills. It's not, like, a – we propose or anything. That's the company's proposal.

PN123

Correct and it's been a C skill since 2019?‑‑‑Because, Ms Dolan, we are in the dispute, it's not – we are not agreed that part, right.

PN124

Thank you. Why didn't you raise a dispute about that in 2019?‑‑‑Pardon?

PN125

If it's been in dispute since 2019, why didn't you raise a dispute about that specific thing?‑‑‑Because this was in with – it was going on with the company, union and with the Fair Work Commission. So it's – we are not agreed anything whatever the company propose at that point of the time.

PN126

Thank you. I'm going to take you back to page 98 of the hearing book and ask you about clause 13 of your statement and what you say there is:

PN127

(Indistinct) are a disincentive to multi-skilling which in turn creates greater inflexibilities and risks to the continuity of production.

*** ANANDA VENGOPALA XXN MS DOLAN

PN128

Correct?‑‑‑Ms Dolan, can you please elaborate of which clause, which page number, please?

PN129

I'm sorry, paragraph 13 of your statement. You could read it out if you'd like to?‑‑‑Okay.

PN130

It's on page 98?‑‑‑Page 98, paragraph number 13, right?

PN131

Yes. You can read it out if you'd like?‑‑‑

PN132

Employees who are multi-skilled across different machines or lines in department were unable to progress beyond (indistinct) unfair to them and also to (indistinct) the company's interests to block skills or activities, disincentive employees from multi-skilling which in turn creates a greater inflexibility and risks the continuity of the production.

PN133

Thank you. So you agree that having multi-skilled operators in Aspen is good for the business?‑‑‑Yes.

PN134

Thank you. Could you please turn to page 105 of the hearing book?‑‑‑Yes.

PN135

This is AV1. This is your attachment to your statement, your first attachment?‑‑‑Yes.

PN136

I'd like to ask you to count the C skills in that attachment, please?‑‑‑Yes. You want me to count the only C skills?

PN137

Yes, all the C skills that are listed, please, in attachment AV1?‑‑‑Okay. It's grade 2, when it comes to the grade 2 it's in my thing, it's a blister packer, the machine. Another one is the cartoner of that same machine, we have got two-plus incentive.

PN138

Thank you?‑‑‑Another C skill is my sachet partner and another C skill is the sachet filler.

PN139

Yes?‑‑‑That means I've got two machines, I've got four C skills.

*** ANANDA VENGOPALA XXN MS DOLAN

PN140

Yes, that's how many you've got so far. Could you count for me the rest of the C skills that are listed in that competency checklist?‑‑‑I got one, two, three, four. I don't know but Aspen now, the company says that (indistinct) is also C skills. That means I've got a five C skill.

PN141

Thank you. Let's look at your competency checklist. So we've counted one C skill in grade 2?‑‑‑Yes.

PN142

One C skill in grade 2-plus?‑‑‑Yes.

PN143

We've counted two C skills so far, the partner and the sachet filler in grade 3?‑‑‑Yes.

PN144

The available C skills remaining are training, correct?‑‑‑Yes.

PN145

Reconciliations, correct?‑‑‑Yes, yes.

PN146

Quality line functions, correct?‑‑‑Quality line functions, I already got it. It's there.

PN147

Excellent. Inventory transactions which is a C skill, we know it's obsolete but it's still a C skill, correct?‑‑‑Yes.

PN148

Then in grade 4 there's four other C skills available?‑‑‑Yes.

PN149

That's a total of 12 C skills?‑‑‑Ms Dolan, just I want to clarify, see, in the leadership model the training and reconciliation, (indistinct) transaction is not. As for this checklist, it's not a C skill. The company proposed in 2019, that's the company version, they are telling that they're going to make it a C skill. As an employee, I don't know that it's going to be a C skill.

PN150

Currently in AV1 - - -?‑‑‑Yes.

PN151

- - - when I count them, there are 12 C skills listed there, correct?‑‑‑No, it's not correct. It's 10 C skills. If you count it, I will tell you because training module and reconciliation, line function, inventory transaction, is not a C skill, as per this figure it says clearly.

*** ANANDA VENGOPALA XXN MS DOLAN

PN152

I put to you that when you count the C skills clearly set out in AV1, you can count to 12 C skills?‑‑‑No.

PN153

Thank you.

PN154

THE COMMISSIONER: You're content there's a disagreement, Ms Dolan?

PN155

MS DOLAN: Yes, Commissioner.

PN156

THE COMMISSIONER: Thank you.

PN157

MS DOLAN: You'd agree that in your union proposal - - -?‑‑‑Yes.

PN158

- - - which is at page 74 of the court book – well, let's go to page 74?‑‑‑Yes.

PN159

There are 11 C skills in your proposal when you count them?‑‑‑Yes.

PN160

Thank you. So you accept there's 11 and the union's claim refers to Aspen increasing the number of C skills from 10 to 12, correct?‑‑‑Yes.

PN161

Do you agree that 11 is more than 10?‑‑‑Yes.

PN162

Thank you. Moving on, you'd have to agree that it's important that all employees at Aspen are treated fairly, correct?‑‑‑Can you please repeat it, Ms Dolan? I was going through the chart, sorry.

PN163

That's okay. You'd have to agree that it's important that all employees at Aspen are treated fairly, correct?‑‑‑Yes.

PN164

You would have to say it's fair that if Aspen's proposal, three B skills can have equivalency to one C skills?‑‑‑Yes, that is the company's proposing now, yes.

PN165

Would you say that that is fair, that three B skills can become one C skill?‑‑‑I can put it this way. Can I elaborate a little bit, Ms Dolan - - -

*** ANANDA VENGOPALA XXN MS DOLAN

PN166

Yes?‑‑‑ - - - before you give me a question? Like, they are giving three B skill into the one C skill. Now, whatever the company is now proposing, why they remove – Aspen – if you refer to my competency checklist, every one, it says, 'Two C skills per machine'. Okay. We don't have any history of why they removed – what reason they removed the two C skill to one C skill to the whole machine. We don't have any reference or it's not consulted, nothing. It's the company's decision, they already made it, okay. I'm welcoming this one B – three B skill to one C skill, that's a good outcome but the thing is, the thing is, we used to normally we get the two C skill per machine. It's a big disadvantage for the people working in RX packing because I belong to RX packing and liquid packing line people, it's a bigger lines. These people working in those places it will be a big disadvantage because we have big machinery, we have to learn how to set up the machine, it takes a long time compared to the other work centres. It's a disadvantage, okay.

PN167

Thank you?‑‑‑Because as in my evidence - - -

PN168

That satisfies me for your response, thank you. But what you've said there is that you welcome three B skills can equal one C skill, so thank you for that. To confirm, you haven't opposed that, have you, in your plan?‑‑‑Which one, sorry? I didn't get you there.

PN169

You haven't proposed that three B skills can equal one C skill, have you?‑‑‑I think in maybe we – we welcome that one, even in our proposal it will be there.

PN170

Thank you. I've nearly finished with your questions so thank you very much for your assistance?‑‑‑Okay.

PN171

Just turning back to page 105 which is your AV1, which we just discussed, which is your competency checklist and the available C skills?‑‑‑One second.

PN172

Page 105, AV1?‑‑‑Yes.

PN173

You've had some skills made obsolete, haven't you, which is blister packer and partner?‑‑‑Yes, that is the one-man machine, yes.

PN174

Thank you and you would agree that when this occurred you didn't drop a grade, did you?‑‑‑No.

PN175

Thank you?‑‑‑But it's as per the agreement, we should not be going down the rate.

*** ANANDA VENGOPALA XXN MS DOLAN

PN176

Thank you. Ordinary hours of work at the company are only rostered on Monday to Friday, aren't they?‑‑‑Yes.

PN177

I refer to page 104 which is the page before where we're at, where you say the company is 24/7?‑‑‑Yes.

PN178

Thank you. That's all the questions that I have, thank you very much?‑‑‑No worries, Ms Dolan.

PN179

THE COMMISSIONER: Thank you, Ms Dolan. Ms Ananth, is there any re-examination?

RE-EXAMINATION BY MS ANANTH [2.16 PM]

PN180

MS ANANTH: Yes, Commissioner, thank you.

PN181

Mr Vengopala, if I could just get you to turn back to your statement which is on page 97 of the hearing book?‑‑‑Yes.

PN182

Sorry, it's actually page 98, sorry, paragraph 10?‑‑‑Yes, yes.

PN183

If you could just read through the paragraph, is it correct that the specified skills with blockers because the company has refused to provide access for training on those skills to employees?‑‑‑Yes, that's right because reconciliation – reconciliation – because I was stuck because of only because of the reconciliation and training module that I trained, they didn't do the assessment because they said the reconciliation is not required for the night shift operator to do it because only the day shift is doing the reconciliation in RX Packing. That's a big blocker because we all worked the night shift at that time, they said they won't do the reconciliation. And we requested when Mr Tism – Tim – when Tim is there, we requested more than 10 years, like, in 2007 was my last assessment and we requested Tim – most of the employees, then he did it for us, all RX Packing, the reconciliation, all the guys is waiting for more than 10 years. That is the time where the majority of people working more than 10 to 11 years, they got the reconciliation assessment done, then we progressed to grade 3. That is a big blocker. Now, that's the reason we've said it's a big blocker for reconciliation training module and inventory transaction. QLF, even QLF in grade 3.5, they always – it's the company's requirement, they don't need the many people to the QLF based on the business requirement, they will do the QLF roles as well. That's the reason it's all blocked. That's the reason we – most – the majority of the employees it's a blocker. Because I was stuck in a grade 2.5 more than 10 years.

*** ANANDA VENGOPALA RXN MS ANANTH

PN184

So you say, Mr Vengopala, that replacing the blocker skills with an unspecified number of C skills is a good thing that the employees on site would welcome. Is that correct?‑‑‑Welcoming but thing is why is (indistinct) C, that's what my argument, even I mentioned to Jessica, saying that two C skill per machine, the company's removed, that's not right because I don't know on what basis, on what validation they done and they removed it, we don't know. So two C skill per machine, it should be there and it's welcoming.

PN185

Now I'd like you to take a look at AV3 which is on page 107 of the hearing book?‑‑‑Yes.

PN186

You say in paragraph 16 that this is a copy of the skills list that was provided to you by an employee in the year 2000. Is that correct?‑‑‑Yes, when I joined in 2006, the employees she has given the – this is the skill list, the A skill and B skill and C skills available in the RX Packing and the Manufacturing. That is the list we got it from them.

PN187

Can you see under the B skills, can you see that reconciliation is listed as a B skill on this, is this correct?‑‑‑Yes, that's what – that is a B skill.

PN188

Assuming that the reconciliation is a B skill, if we go back to your competency checklist on page 105 - - -?‑‑‑Yes.

PN189

- - - how many mandatory C skill requirements are outlined in that checklist, Ananda?‑‑‑Like, you mean to say that how many C skills to get grade 3?

PN190

To get to grade 4. So how many C skills do you need to have where there's no option to get an alternative skill?‑‑‑See, that's what I'm telling you. One, two, three, four, five, six, seven, eight. Alternate was only eight C skills. The rest of the things were, like, a leadership module and training and reconciliation, it's all the blockers, that's what we said. Now that is the company's made it as a C skill, I don't know, it's a welcoming but the thing is it's still the blocker, people won't get it. Reconciliation, they will say again it's not required by every employee to get the reconciliation. So the progression will, again it will stop.

PN191

Let me take you instead to page 74 again, so appendix B to the union's outline of submissions?‑‑‑Yes.

*** ANANDA VENGOPALA RXN MS ANANTH

PN192

Are there any C skill requirements at the grade 1 level?‑‑‑No, we don't have any requirement in the grade 1. That's what the – even what – it's in the grading structure, even we got it, that doesn't have any C skill requirement in grade 1.

PN193

Okay, so grade 2, do you need to have a C skill to be a grade 2?‑‑‑I agree because we are on the machine, we should get a one C skill for the time it - - -

PN194

No, just based on what you can see in that structure?‑‑‑Yes.

PN195

Do you have to have a C skill to be a grade 2?‑‑‑Yes.

PN196

But do you see that it says one C skill or two A skills?‑‑‑Yes.

PN197

So do you need to have a C skill?‑‑‑We can have a C skill or we can have an A skill, that's what, like, yes.

PN198

It's not mandatory to have a C skill at this point, correct?

PN199

THE COMMISSIONER: You've asked that several times, Ms Ananth. The answer is the answer.

PN200

MS ANANTH: Turning now to the grade 2-plus level, Mr Vengopala. How many C skills do you need at this level?‑‑‑One on C skill.

PN201

At the grade 3 level you've said that reconciliation based on the competency – the skills that you were given when you first started, was a B skill?‑‑‑Yes.

PN202

If under the company's proposal, the other specified skills were replaced with a C skill, how many C skill requirements are at the grade 3 level?‑‑‑If you take out the reconciliation as a B skill, my way, it will be only three C skill is required. But when we first – when we put it as four C skills.

PN203

So and the grade 3-plus, how many C skills?‑‑‑Two C skills.

PN204

And grade 4?‑‑‑Four.

PN205

So do you accept that based on this structure that there's a total of 10 C skills that are mandatory?‑‑‑Yes, 10 C skill is the mandatory requirement.

*** ANANDA VENGOPALA RXN MS ANANTH

PN206

Correct. Now, Mr Vengopala, I want to take you back to page 105 of the hearing book?‑‑‑Yes, please.

PN207

Is it correct that you were signed off – assessed on the blister head and the cartoner in 2007?‑‑‑Yes.

PN208

When were you next assessed on another line? So when were you next assessed on the sachet line?‑‑‑See, the sachet line was installed in the company in 2008 because we are all trained on that machine and because already I got a grade 2-plus with these two – one machine. So my sachet was not at all assessed. I was keep on asking with my supervisor and the day shift, and once I moved to the night shift I was asked – because we don't have a – only limited resources during that time. Only the team leader was there at that time, Bettina. We were asking them, then the assessment was done in 2012 for my sachet line, because I was supposed to train another person in night shift. That is a time where then I completed my assessment task in 2012.

PN209

Based on your competency checklist on page 105, having been assessed on the blister line and the sachet line, so you agree that that's two out of the three key lines - - -

PN210

THE COMMISSIONER: Ms Ananth, how does this relate to the questions that were asked in cross-examination?

PN211

MS ANANTH: Commissioner, this relates to Ms Dolan's question about Mr Vengopala having multiple C skills.

PN212

THE COMMISSIONER: Well, keep it tied to that. I'm concerned you're going way beyond and these questions should have been put in examination-in-chief if this was part of the contest between you.

PN213

MS ANANTH: Commissioner, I accept that and I might actually conclude my re-examination of Mr Vengopala here.

PN214

THE COMMISSIONER: Thank you. Mr Vengopala, you're released and free to go as a witness?‑‑‑Thank you, Commissioner. Thank you very much.

<THE WITNESS WITHDREW [2.26 PM]

PN215

THE COMMISSIONER: Ms Ananth, it's now to Mr Soueid, is it?

*** ANANDA VENGOPALA RXN MS ANANTH

PN216

MS ANANTH: That's correct, Commissioner.

PN217

THE COMMISSIONER: He's in the same room, I take it, or you're in the same room?

PN218

MS ANANTH: Mr Vengopala will just have to fetch Mr Soueid. Ananda, if you wouldn't mind just telling Tarek to come in next, that would be great, thank you.

PN219

THE COMMISSIONER: All right. Thank you. Good afternoon, Mr Soueid. Thank you for joining us. You can see and hear us acceptably, can you?

PN220

MR SOUEID: Yes.

PN221

THE COMMISSIONER: Thank you. Before we take your evidence my associate needs to administer the oath or affirmation to you. The oath being one where you swear to tell the truth on a holy book of some kind. Do you have a preference as to whether it's the oath or affirmation?

PN222

MR SOUEID: Probably affirmation because I'm Muslim but either/or.

PN223

THE COMMISSIONER: If you have a - - -

PN224

MR SOUEID: Quran.

PN225

THE COMMISSIONER: If you have a Quran next to you we can administer the oath.

PN226

MR SOUEID: Regrettably I don't.

PN227

THE COMMISSIONER: All right. In that case my associate will read some words to you and if you speak those back to her, please.

PN228

THE ASSOCIATE: First, can you please state your full name and your address, noting the address can be your place of employment.

PN229

MR SOUEID: My full name is Tarek Soueid and my address is (address supplied).

<TAREK SOUEID, AFFIRMED [2.31 PM]

EXAMINATION-IN-CHIEF BY MS ANANTH [2.31 PM]

PN230

THE COMMISSIONER: Thank you, Mr Soueid. Now Ms Ananth will take you through your evidence-in-chief and then following that Ms Dolan, who's acting for the company, can ask you questions in the form of cross-examination. Thank you. Ms Ananth.

PN231

MS ANANTH: Thank you, Commissioner.

PN232

Mr Soueid, have you prepared a statement in these proceedings?‑‑‑Yes, I have.

PN233

Do you have a copy of that statement in front of you today?‑‑‑Yes, I do.

PN234

Is that statement, which should be on page 110 of the hearing room, is that statement a true and correct record of the evidence that you wish to rely on in these proceedings?‑‑‑Yes, it is.

PN235

Do you wish to make any changes to the statement?‑‑‑No, I'm happy with the statement.

PN236

Thank you. If the Commission pleases, I tender Mr Soueid's statement.

PN237

THE COMMISSIONER: Thank you. The witness statement of Tarek Soueid will be exhibit A3.

EXHIBIT #A3 WITNESS STATEMENT OF TAREK SOUEID

PN238

THE COMMISSIONER: Are there any further questions, Ms Ananth?

PN239

MS ANANTH: No, thank you, Commissioner.

PN240

THE COMMISSIONER: Thank you. Ms Dolan.

CROSS-EXAMINATION BY MS DOLAN [2.33 PM]

*** TAREK SOUEID XN MS ANANTH

*** TAREK SOUEID XXN MS DOLAN

PN241

MS DOLAN: Thank you, Commissioner.

PN242

Thank you, Mr Soueid. I refer to page 110 of the hearing book which is the first page of your statement and I'm looking at paragraph 3. You were a delegate for 15 years, correct?‑‑‑Yes, give or take.

PN243

Thanks. Do you consider that to be a substantial period of time?‑‑‑Sorry, you cut out for a second there.

PN244

Do you consider that to be a substantial period of time?‑‑‑Yes, I do.

PN245

Thank you. You've been an organiser in a professional sense for about three years?‑‑‑Yes, I think it's three years and four months now, but I also did prior work with the union out before becoming an organiser, so off-the-job training with the union for years going back.

PN246

Thank you very much. Now, as a professional organiser, has all of that time been in the pharmaceutical industry?‑‑‑Yes, it has been.

PN247

Thank you. Now, do you consider your period of time organising in the pharmaceutical industry of about three years and four months, to be a significant period of time?‑‑‑Yes, I would say that that's a reasonable amount of time. Four years, sort of, four years going to one specific field, covering one specific field, gives you a relatively good knowledge-base which is (indistinct) four years.

PN248

Thank you. Thanks. Now, just going back to your 15 years as a delegate and three and a bit years as a professional organiser, in your training with the union, you'd say that you've learned the way our industrial relations system works in Australia?‑‑‑Yes, very extensively. As a delegate I used to run my own Fair Work hearings a number of times. I also had extensive experience off the job going to other work sites with other organisers, attending Queensland and helping them organise up there, and doing a whole range of services and activities as well as training with the union, so - - -

PN249

Thank you. Thanks. Excellent. So what you've let me know is you very extensively understand the Australian industrial relations system?‑‑‑Yes.

PN250

You'd have to agree that bargaining occurs at an enterprise level, wouldn't you?‑‑‑Yes, correct.

*** TAREK SOUEID XXN MS DOLAN

PN251

You'd have to agree that we don't bargain at an industry level, do we?‑‑‑We have awards to underpin where the bargaining sort of starts and commences from.

PN252

I'm talking about your extensive knowledge of our industrial relations system being based on an enterprise level centric negotiation structure. So the question is, you'd have to agree that we don't bargain at an industry level, wouldn't you?‑‑‑No, we don't but we have the award at an industry level.

PN253

Great, thank you. You'd have to agree that bargaining wage outcomes would reflect the specifics of an enterprise, wouldn't you?‑‑‑Yes, wage rates are generally negotiated site to site.

PN254

Thank you and you would agree that the specifics of enterprises in the pharmaceutical industry could include things such as the TGA status, whether they have to operate in a sterile environment, and the kinds of products they make, wouldn't you?‑‑‑Yes and I would say that's pretty standard across sites within this industry. They all need to be TGA approved. They all need to have sterile work environments. They all – the workers need to gown up and have PPE and masks and so there wouldn't be terribly much variance in that in the background from site to site.

PN255

I put it to you that Aspen isn't a sterile site?‑‑‑Yes, neither is Blackmores but the work done, the machines utilised, are very similar.

PN256

Thank you. You've answered my question which is that you've agreed that despite saying all enterprises need to have a sterile environment, Aspen doesn't and neither does (indistinct). Thank you. Now, you say that during your time as a delegate you bargained three enterprise agreements which is paragraph 3 at page 110?‑‑‑Yes, that was three on my site. I also helped with the Coles negotiations. Also involved in a number of – facilitating a number of other EBAs but three specifically for my site.

PN257

Thank you. You would have had to bargain some as an organiser in your professional capacity?‑‑‑Yes, I did more than – I think I did 10 last year alone.

PN258

Yes, thank you?‑‑‑In – yes, so a lot.

PN259

Great and you'd say that one of the benefits of an agreement is to reflect the needs of an enterprise?‑‑‑Well, I think the needs of the – it's sort of weighing out what the cost benefit to employees. So work value ratio.

*** TAREK SOUEID XXN MS DOLAN

PN260

Thank you and you would have to say that enterprise agreements allow you to deviate from the award, subject of course to Fair Work Act requirements?‑‑‑They do.

PN261

You would have seen many enterprise agreements with terms that are different to the underlying award, I imagine?‑‑‑Yes, as long as the workers are better off overall.

PN262

Yes, thank you, and some of those different terms would be wages?‑‑‑So, yes, wages do vary from site to site.

PN263

Some of those different terms might be classification structures, correct?‑‑‑Correct.

PN264

There's no requirement to have the exact same classification structure in an enterprise agreement as there is in an award, correct?‑‑‑There's no such requirement but I think there is a standardisation in – you start off with new entrants, then you get workers as they develop skills they get paid more and then you move onto leading hand and supervising and so forth. You don't have - - -

PN265

Thank you?‑‑‑ - - - an enterprise agreement that would start off with, you know what I mean, a skilled operator as the number one position.

PN266

But you'd agree that the Fair Work Act doesn't require that, does it?‑‑‑Once again, as long as the workers are better off overall.

PN267

Thank you. And you'd agree that the terms of an enterprise agreement need to be upheld when it's in operation, correct?‑‑‑Correct.

PN268

Thank you. Now, I ask you to turn to page 159 of the hearing book and these are extracts from clause 2.1 of the current agreement and they're at paragraph 107 of Marcus Henry's statement?‑‑‑Yes.

PN269

You'd agree that it's important those clauses have work to do, correct?‑‑‑So:

PN270

Aspen Pharma and the Union recognise that their commitment represents an opportunity to make the company an internationally competitive manufacturer (indistinct) pharmaceutical or healthcare benefits products to be (indistinct) and enduring company offering secure employment and worthwhile careers.

*** TAREK SOUEID XXN MS DOLAN

PN271

Yes, worthwhile careers is probably – has work to do.

PN272

The question is, they're terms of the current enterprise agreement and they have work to do, correct?‑‑‑Just hold on, I'm just reading it all. The next one:

PN273

To facilitate – to improve the efficiency and viability - - -

PN274

I'll just stop you there (indistinct) - - -?‑‑‑

PN275

- - - of the company's –

PN276

what?

PN277

The question relates to your knowledge of the Australian Industrial Relations System. If there's terms of an operative enterprise agreement in effect, they have work to do, correct?‑‑‑I'm just reading them and I'll tell you if they have work to do. I'm not just going to give you a blanket statement without reading them. So:

PN278

To improve the efficiency and viability of the company's enterprises by ensuring that management and labour practices are more closely attuned to the current and future needs and objectives of the enterprise.

PN279

So labour practices, which I would say would be the classification structure. The next point:

PN280

To facilitate a climate which provides support for individuals to enhance their existing skills through training and multiskilling and develop a broader range of skills thereby providing prospects for higher reward.

PN281

Yes, I would say that one definitely has work to do in the agreement, I think that's why we're actually here today because training, multiskilling and prospects of higher rewards are the key issues why we're here. So that's clause 2.1.1(b). And the last one:

PN282

To create a quality environment which is conducive to flexible work organisation well-placed to meet changing markets and manufacturing technologies.

*** TAREK SOUEID XXN MS DOLAN

PN283

I say we agree with that with the introduction of new technology and such.

PN284

Thank you very much. Now, Mr Henry has included in his statement, and I'm going to ask you to turn back two pages to 157, to paragraph 90 in his statement. He's included in his statement that Aspen isn't going to be making the Ventolin nebules that GlaxoSmithKline currently makes. Correct?‑‑‑Well, he doesn't say that you're not going to make it. He just says in his statement it's not going to be happening in 2022, so it doesn't say that he's not going – it's not going to be introduced. It just says the year, it's not going to be introduced in this year.

PN285

Thank you. Just bear with me for a moment. Thank you very much. Mr Henry has also included in his statement that his knowledge of the industry, that Pfizer has had to make a significant number of people redundant, and that's at paragraph 87 of the page that we're currently on of 157. Correct?‑‑‑What number, sorry again?

PN286

Paragraph 87, the second to the top at page 157?‑‑‑Yes.

PN287

So the question is he said that, correct?‑‑‑Yes.

PN288

Would you like to see redundancies at Aspen?‑‑‑What does that have to do with Aspen?

PN289

Would you like to see redundancies at Aspen - - -

PN290

THE COMMISSIONER: Ms Dolan. Ms Dolan, that's not a question to put to a union official. Let's move on.

PN291

MS DOLAN: Would you agree that redundancies anywhere in the industry, including at Aspen, including at Pfizer, would be bad for employees in terms of fairness across the industry?‑‑‑Well, we actually work broadly across the industry and we try and get our members jobs at other sites. We're also doing work in the background, potentially with newer companies coming into the market producing MRNA vaccines which would open up and provide more jobs for people so - - -

PN292

But you agree that if there was further job losses it would create unfairness across the industry?‑‑‑I don't see the relevance.

*** TAREK SOUEID XXN MS DOLAN

PN293

THE COMMISSIONER: Well, it's not for you to see the relevance of questions, Mr Soueid, so please give it your best?‑‑‑I think - - -

PN294

MS DOLAN: That's right, thank you?‑‑‑Realistically, we would just like – we would like to see all companies paid to a certain standard and level of recognition for work done across the industry and if one place closes hopefully if there is a level playing field employees can move into similar work receiving similar pay and recognition across the industry.

PN295

Thank you. I also note that GlaxoSmithKline's rates are also about to be reduced to zero and that wouldn't be fair across the industry either, would it?

PN296

THE COMMISSIONER: Sorry, what do you mean?

PN297

MS DOLAN: I retract that. That's the end of my questions. Thank you very much. Thank you.

PN298

THE COMMISSIONER: I'm just reading paragraph 86 of Mr Henry's statement, surely that's wrong but we can take that up with Mr Henry, or at least words are missing. I'm assuming it's not saying that the pay rates will soon be zero, or does it?

PN299

MS DOLAN: I can put that to him in examination-in-chief, if you like, Commissioner.

PN300

THE COMMISSIONER: All right. Thank you. That concludes your cross-examination?

PN301

MS DOLAN: It does, thank you very much.

PN302

THE COMMISSIONER: Thank you. Ms Ananth, any re-examination?

PN303

MS ANANTH: I do not have any questions in re-examination of Mr Soueid.

PN304

THE COMMISSIONER: That was easy, Mr Soueid, so thank you very much for giving evidence. You're released and you're free to go.

<THE WITNESS WITHDREW [2.48 PM]

*** TAREK SOUEID XXN MS DOLAN

PN305

THE COMMISSIONER: I'm assuming now, Ms Ananth, that concludes the evidential case for the applicant.

PN306

MS ANANTH: That's correct, Commissioner.

PN307

THE COMMISSIONER: Okay.

PN308

MR SOUEID: Just as a point of clarification, does that mean myself and Ananda can sit in on the rest of the proceedings?

PN309

THE COMMISSIONER: You may. It's a public hearing so you're quite welcome to remain.

PN310

MR SOUEID: Thank you.

PN311

THE COMMISSIONER: Thank you. Ms Dolan, I'm assuming we're coming now to your case.

PN312

MS DOLAN: Yes.

PN313

THE COMMISSIONER: Did you wish to put an opening of any kind?

PN314

MS DOLAN: No, Commissioner. We've made very extensive submissions and we rely on those. I will be putting a closing but I haven't got an opening other than to put what we've already put. Thank you.

PN315

THE COMMISSIONER: Okay.

PN316

MS DOLAN: We're just getting Mr Henry now from the other room.

PN317

THE COMMISSIONER: I might just go offline for a couple of minutes but we'll be back shortly. Thank you.

PN318

MS DOLAN: Thank you.

SHORT ADJOURNMENT [2.49 PM]

RESUMED [3.24 PM]

PN319

THE COMMISSIONER: Thank you, parties. Ms Dolan, I understand we've got Mr Henry ready to give evidence.

PN320

MS DOLAN: We do. Thank you, Commissioner.

PN321

THE ASSOCIATE: First, can you please state your full name and address, noting the address can be your place of employment.

PN322

MR HENRY: Yes, Marcus Paul Henry, (address supplied).

<MARCUS HENRY, AFFIRMED [3.24 PM]

EXAMINATION-IN-CHIEF BY MS DOLAN [3.25 PM]

PN323

THE COMMISSIONER: Thank you. I'm sorry?‑‑‑You can hear me okay?

PN324

Yes, I can. There's no problem at all. If at any stage anyone has difficulties hearing you, I'm sure they'll let you know. Ms Dolan, if you can start taking Mr Henry through his evidence, please.

PN325

MS DOLAN: Thank you, Commissioner. Mr Henry, do you have a copy of your witness statement with you today?‑‑‑I do.

PN326

That is a true and correct record of your evidence?‑‑‑Yes, it is.

PN327

Thank you. I ask that that be tendered as an exhibit, Commissioner.

PN328

THE COMMISSIONER: Thank you. Was there just the one attachment to that document? No, there's more.

PN329

MS DOLAN: There's up to NH8.

PN330

THE COMMISSIONER: In that case, the witness statement of Marcus Henry with eight attachments will be marked as exhibit R1.

EXHIBIT #R1 WITNESS STATEMENT OF MARCUS HENRY PLUS EIGHT ATTACHMENTS

*** MARCUS HENRY XN MS DOLAN

PN331

MS DOLAN: Thank you, Commissioner. Mr Henry, can you please tell us about your relevant employment history?‑‑‑Yes. I have been employed at Aspen Pharma for the last five‑and‑a‑half years. I started in August 2016. I commenced my career in 1990 as a cadet working for Reckitt and Colman in Sydney. I did that role for eight years. During that time I worked in the pharmaceutical, the food, the aerosol and the toiletries factory at that site. I completed the roles of an operator, a quality line function, and analytical chemist whilst I did my chemical engineering degree at NSW uni. Since that time I have worked as an operations manager at the CSR Ethanol supplying ethanol and agency chemicals to the pharmaceutical, food and a number of other industries, and prior to working at Aspen I spent five years working in the water industry on a matter of public

PN332

health looking after water and wastewater treatment facilities. That's what (indistinct).

PN333

Just to confirm, you started your career as a cadet in 1990, correct?‑‑‑In 1990.

PN334

In your statement, you talk about three B skills being able to be equivalent to one C skill. Can you please tell us about this?‑‑‑Yes. So one of the things we looked at following a survey of the site was how to optimise the structure. We came up with this idea of equating one C skill to three B skills. We then went through the historical classification structure and awarded three B skills for every C skill that was on there and including blockers, and added up the previous B skills as well, and that gave us an equation of 36 to 37 B skills, which we then looked at turning into a linear progression across the (indistinct).

PN335

Could you please tell me what happens when an employee learns one line and then learns another line in terms of skill allocation?‑‑‑So at the moment we have that covered under our skills list, version 7. So depending on the line on which they've learnt, they'll get a C skill for the first line, and if there's only one other line that is similar, they'll get a B skill for the second line. If there's more than two lines, they might get a subsequent B skill for that line as well.

PN336

Could you please turn to page 157 of your witness statement, and I'd like you to look at paragraph 90, please? Is Aspen ever going to make those nebules that are mentioned in relation to GlaxoSmithKline?‑‑‑No, and I can turn that with our chief operations of the (indistinct).

*** MARCUS HENRY XN MS DOLAN

PN337

Could you please look at paragraph 86 of your statement, which is at the top of page 157? I won't read out what you've said, but could you please recount for us what this paragraph means, what effect it has?‑‑‑So, the intent was in response to Mr Soueid's statement where we were reviewing other sites and their wage tables. I acknowledge that the wage tables of other businesses are different to ours, and that's 100 per cent up to those businesses. What I can say from knowledge of the industry in Victoria is the GSK site at Boronia is shutting at the end of this year, and that is partially in response to the sustainability of their model and their international competitive (indistinct).

PN338

They are all the questions that I have for examination‑in‑chief. Thank you, Commissioner.

PN339

THE COMMISSIONER: Mr Henry, what do you mean by 'soon the rates for GlaxoSmithKline will be all zero?'---Well, that site is shutting, so all those (indistinct) will be made redundant at the end of this year.

PN340

Thank you. Ms Ananth will soon be asking you questions. Given that we're doing this over video, I just need to let everyone know that you should be careful as you listen to the questions which are put to you. Sometimes there's a delay between the words being spoke and the words coming to you and vice versa. It's easy to get into a situation where you're talking over each other. So just be conscious of that and make sure that you allow Ms Ananth to complete the full question before you start answering, and since we are taking a transcript of this matter it becomes important to make sure that you're not speaking over each other, just to ensure that the transcript in fact can be prepared. So I'll turn to Ms Ananth.

PN341

MS ANANTH: Thank you, Commissioner.

CROSS-EXAMINATION BY MS ANANTH [3.32 PM]

PN342

MS ANANTH: Mr Henry, I'd like to refer you to paragraph 25 of your statement, which is on page 147 of the hearing book. Could you please let me know when you've finished reading through the paragraph?‑‑‑Yes.

PN343

You say that the business – following extensive consultation process about the implementation is what you call the current classification structure, which I take it means the structure that you implemented on 1 January 2021. Do you recall if there was a vote that the employees conducted about the proposal?‑‑‑There wasn't.

PN344

There was not a vote conducted of the employees?‑‑‑No.

*** MARCUS HENRY XXN MS ANANTH

PN345

Mr Henry, I'd now like to take you to paragraph 32 of your statement, please, on page 148. You say there that the historical C skill requirement is actually 12 C skills, not 10 C skills as being contended by the union, is that correct?‑‑‑That's correct.

PN346

I'd like to take you to page 73 of the hearing book, please. Putting aside the matter of the specified skills, so the authorised trainer, reconciliations, (indistinct) and inventory transactions, can you please count for me how many mandatory C skill requirements there actually are for progression?‑‑‑So at grade 2, there was one C skill.

PN347

But do you accept that that's not a mandatory requirement for progression, Mr Henry?‑‑‑A mandatory requirement?

PN348

For progression, correct?‑‑‑Yes. So in my statement I've said there's a minimum of 11 C skills and a maximum of 12 C skills.

PN349

So you accept that there isn't a requirement for a minimum of 12 C skills?‑‑‑I've stated in my statement that there's a minimum of 11 and a maximum of 12.

PN350

I'll turn to how you've arrived at this figure of a minimum of 11 C skills. You say in your statement, Mr Henry, in paragraph 39 to paragraph 42, which are on page 149 and 150 respectively – well, I'd like to draw your attention particularly to paragraph 42. You say here that, 'Reconciliation has been a C skill since December 2019.' Do you accept that that was a business proposal that reconciliation be treated as one C skill?‑‑‑No. That was an item that was consulted through the ECC.

PN351

But ultimately do you accept that it was a business decision to allocate a C skill value to reconciliation?‑‑‑Yes.

PN352

Do you accept that this doesn't accord with historical factors?‑‑‑No, because prior to it being reconciled as a C skill it was written as a business blocker skill, and had been treated from version 1 through to about version 4 of the skills list under the core skills list.

PN353

But insofar as the reconciliation skill is a specified skill in the structure, you accept that there wasn't a skill value allocated to it by the business, correct?‑‑‑Prior to it being recognised as a C skill, which it was done in version 4 of the skills list, it was recognised only as a blocker skill. It wasn't recognised as an A, B or C skill, in my time in the business.

*** MARCUS HENRY XXN MS ANANTH

PN354

Since 2006?‑‑‑2016.

PN355

Sorry. Correct, that's right. And then you also accept that it was a business decision to apply a C skill value to reconciliation?‑‑‑It's an important skill and we recognised it as such.

PN356

Mr Henry, I'd like to turn your attention to paragraph 67 of your statement, please. That's on page 154 of the hearing book. You say that the employee's skill should be available and acquired equally, and that the same should apply to the pay rises. Do you accept that the pay increases between each grade of the classification structure is not linear?‑‑‑Correct.

PN357

Just turning back to paragraph 47 of your statement, which is on page 150 of the hearing book, you say that only a linear structure could encourage multiskilling and that progression that's not based on a linear structure would be unfair. Do you accept that skill acquisition is not always linear? Let me put it to you slightly differently, Mr Henry. Do you accept that the learning curve for laying a set‑up skill or a process‑run skill would be a lot steeper if I was a new employee with no prior history of a site?‑‑‑Yes.

PN358

And do you accept that it would be relatively easier for employees to acquire additional skills or to be multiskilled once they had some knowledge of setting up and operating alone in that department?‑‑‑Yes, that's how learning works.

PN359

So you accept that an employee actually acquiring skills, that's not a linear process, correct?‑‑‑In terms of learning new skills, it can be linear. In terms of learning similar skills, it can be exponential.

PN360

You'd acknowledge, wouldn't you, Mr Henry, that skill acquisition is a progressive thing, is that correct?‑‑‑Yes, absolutely.

PN361

Mr Henry, I want to take you now to paragraph 71 of your statement again. Apologies, if I could actually turn your attention to paragraph 74 on page 155. You say here that there's no proposal to classify employees down due to them not having as many skills as their counterparts. Do you accept, Mr Henry, that you cannot actually downgrade employees' classification level by virtue of the operation of clause 5.7.2 of the agreement?‑‑‑Sorry, could you repeat the question?

PN362

You accept, Mr Henry, don't you, that because of the operation of clause 5.7.2 of the agreement that you can't actually downgrade an employee's classification level, even if the company's proposal were to be implemented?‑‑‑That is what is written in paragraph 74 of that clause.

*** MARCUS HENRY XXN MS ANANTH

PN363

So accounting for that, Mr Henry, do you accept that when two employees with the same skills are graded at different levels simply because of the operation of a new classification structure, do you accept that that would be unfair?‑‑‑That is the situation I have with the historical classification structure at grade 2‑plus where I have people who have one C skill, and I have people with six C skills, which is unfair. But the business proposed linear structure has smaller increments, more (indistinct), which reduces that impact.

PN364

But you accept, don't you, Mr Henry, that the problem that you've just alluded to here, that you have two employees, one with one C skill and one with six C skills at the grade 2‑plus level, that that's because of the specified blocker skills?‑‑‑In some cases. In some cases it has to do with the ability to learn.

PN365

But the second employee in the example you've provided, Mr Henry, if an employee has six C skills, and there were no blocker skills in the classification structure, that employee would not be classified at a grade 2‑plus level, would they?‑‑‑In the historical or in the current (indistinct)?

PN366

In both your proposal and the union's proposal, insofar as that we're in agreement that the blocker skills should be removed, an employee with six C skills to their name would not be classified at the grade 2‑plus level, is that correct?‑‑‑I have to count it up. An employee with six C skills would be graded at A2‑plus under the current business proposal, and an employee who is currently employed and is on a grade 2‑plus will still be on a grade 2‑plus after the business proposal is locked in.

PN367

Do you accept that that would be unfair, Mr Henry?‑‑‑No. I think that is just an institution and current process under the agreement.

PN368

But do you accept that the issue would be one entirely of the company's making, because it's the company's proposal that has increased the number of C skills for progression between grades 1 to 2‑plus from one C skill to six C skills, isn't that right?‑‑‑I think if you look at it from that point of view, yes, it can be viewed that way, but it's also unfair at the back end of the process where there are 10 C skills required to get from grade 2‑plus to 4, which is equal to one (indistinct).

PN369

Why do you suggest that that would be unfair?‑‑‑Because that's an issue that was raised with me by the union about how difficult it is to get from grade 3 to grade 4. What the business has proposed is making it equal at each step along the journey of training.

*** MARCUS HENRY XXN MS ANANTH

PN370

But you've accepted, Mr Henry, that the process of acquiring and learning skills is a progressive one, so wouldn't frontloading the C skill requirement just disadvantage a different group of employees, namely, employees at the lower end of the grading structure?‑‑‑You've used the word, 'frontloading.' It hasn't been frontloaded. It's been (indistinct) adjusted so that every step along the journey, the same requirement is required.

PN371

But Mr Henry - - -?‑‑‑It doesn't advantage or disadvantage an employee. Everyone is treated equally.

PN372

But Mr Henry, if you accept that the process of learning skills is progressive, and iterative in a sense, then wouldn't you suggest that a linear requirement for progression would disadvantage employees at the lower end of the scale?‑‑‑It hasn't been my experience.

PN373

You've had no experience of the company's proposal because it's yet to be implemented, isn't that right?‑‑‑No, it has been implemented. It was implemented in January this year and ran up until the end of February, during which time a number of employees were graded up on the back of that proposal.

PN374

Did you have a lot of new employees commence in the business between the months of January and February 2021?‑‑‑Yes, absolutely, we've had new employees.

PN375

How many employees would you estimate would have commenced employment between January and February 2021?‑‑‑I couldn't give you a number. I have 28 vacancies currently on site.

PN376

It wouldn't be, for example, in the 30s or 50s, for example; that would be too far‑fetched, wouldn't it, Mr Henry?‑‑‑Yes, I would have thought it would be somewhere between 10 and 20 people.

PN377

So in the one month that your proposal was in place and in operation, is it fair to say that you haven't had that much of an experience of how it would actually work?‑‑‑No, what I do have extensive experiences in is how the historical classification has worked on site and its disincentive to multiskill operators, and also that the remuneration that I've paid for people up to grade 2‑plus, and the skills gap that I have on site and the impact it has, allowed business and its sustainability and its ability to deliver customer service.

*** MARCUS HENRY XXN MS ANANTH

PN378

Do you accept, Mr Henry, that an employee under the skill structure – the grading structure that was in place prior to 1 January 2021, that an employee at the grade 2‑plus level would be an employee who is assessed as being skilled in running and operating one machine?‑‑‑Under the historical classification or the current classification?

PN379

Well I think we might be using the terms slightly differently, but - - -?‑‑‑In my statement - - -

PN380

The structure that was in place prior to 1 January 2021, Mr Henry, an employee who is assessed as being competent in setting up and running a machine, what level would they be graded at?‑‑‑In the historical classification, they could have been classified at grade 2 or 2‑plus.

PN381

Mr Henry, do you accept that an employee from the new starter to grade 1 levels would not be an employee who is able to operate and set up a machine? Or a line in the factory, is that correct?‑‑‑Sorry, I missed the first part of the question.

PN382

An employee in the new starter to grade 1 level would not be capable of running and operating a machine under what you call the historical structure, is that correct?‑‑‑I don't agree with the use of 'capable.' They just haven't been assessed at that - - -

PN383

Sure, okay. You said that an employee at the grade 1 level, for example, would not have been assessed on operating and running a machine?‑‑‑No, and that's because the assessment in the historical classification didn't require someone to be assessed at that level, and he had to be assessed on an A skill or a B skill to lower levels.

PN384

So under what you refer to as a historical classification structure, an employee at the grade 2 level would be a skilled employee?‑‑‑They had skills. Would they be a multiskilled operator? No.

PN385

But they would be assessed as being able to set up and operate a machine?‑‑‑Potentially one machine, yes.

PN386

Do you accept, Mr Henry, that the increase in wage rates between grade 1 to grade 2 is the highest?‑‑‑Yes.

*** MARCUS HENRY XXN MS ANANTH

PN387

Mr Henry, I put it to you that your primary concern with what you refer to as the historical grading structure is in fact that you have to pay an employee who is productive and skilled, in the sense of being able to run and set up at least one machine, that your issue is actually the fact that you have to pay them at the grade 2 rate?‑‑‑My issue with the historical system was that it had blockers in it. It didn't recognise these skills sufficiently, and that the remuneration was front‑end loaded and the skill acquisition was back‑end loaded. And what the business has sought to do through this process is make the acquisition of skills, through the whole wage table, equitable whether you're a new starter or whether you're a grade 3 operator.

PN388

Mr Henry, does that remain your concern now that you've accepted that the process of acquiring skills is not actually linear?‑‑‑The process of acquiring skills is up to the individual. Different people have different capacities and capabilities to acquire skills. What may take one employee two or three years can take another employee three months. Part of our employment process is to determine in the workplace people who have the skills that we're looking for, whether it's a mechanical aptitude or whether it's in education, or whether it's acquired work history. Getting people onto the site who have relevant work history shortens the training period.

PN389

I understand that, Mr Henry, but if you could – if you (indistinct) generalisation here, as a statement of general principle, would you accept that it would take longer for an employee who is a new starter to learn the skills required to set up and operate a machine than it would take an employee at, say, the grade 2 or 2‑plus level once they already know how to operate and set up a machine to learn additional skills in that department?‑‑‑Yes, certainly it takes longer for someone to learn a skill they don't have any experience with, but people who have already got a skill from a particular work area - and I think the wording the UWU used was a 'key production process' - once you know one key production process, the ability to learn subsequent ones is accelerated.

PN390

Absolutely, we're in agreement there, Mr Henry. So I'd put it to you that the reason for the jump in wage rates between grade 1 to grade 2 is for precisely the reason as you've articulated, that's it a lot harder for a new employee with no prior skills in the factory to learn the skills of setting up and operating a machine, and that once that employee has made the jump from grade 1 to grade 2 that they're now a productive employee in the sense that they have the skill to at least set up and operate one machine, do you accept that?‑‑‑I see no evidence on the data that I've looked at on site as to why there existed (indistinct) jump at that level.

PN391

But do you not accept, Mr Henry, that the actual wage rates that underpin the classification structure are a matter for bargaining?‑‑‑Yes.

*** MARCUS HENRY XXN MS ANANTH

PN392

And do you accept, Mr Henry, that the relativities between each grade of the structure is also a matter that should be determined in bargaining?‑‑‑No, I think the wage table has been bargained. How it ended up in that place, I can only go on the historical classification. But there's no information available as to why there were jumps at different levels and why there aren't at other levels.

PN393

Mr Henry, I think in the interests of time we should move on. I would like to take you now to paragraph 97 of your statement, please. That's on page 158 of the hearing book. Could you please let me know once you finish reading through it?‑‑‑Yes, (indistinct).

PN394

Thank you. Mr Henry, I'd like to remind you of the response you've provided to Ms Dolan during your examination‑in‑chief about the allocation of B skill values to additional lines of the same machine, and you accept that where there are multiple lines of the same machine, the skill value allocation the company would make is that you get a C skill for the first machine and a B skill for each subsequent machine, is that correct?‑‑‑That's correct.

PN395

Mr Henry, I put it to you that allocating additional B skills to multiple lines of the same machine is actually like allocating additional skills to an employee for driving a red or a green or a blue car of the exact same machine model. Do you accept that?‑‑‑Yes, it's similar.

PN396

And yet that's what the company is proposing, is that correct?‑‑‑That's correct.

PN397

Mr Henry, I'd like to come back to paragraph 97 but in the context of your statements in paragraph 108. That's on page 159. I apologise. It's actually paragraph 126, sorry?‑‑‑Around the skill definitions?

PN398

Yes – sorry, Mr Henry, I might refer you back to paragraph 117, if I may. That's on page 162. You say there that you acknowledge that historically two C skills were allocated to a machine in the packing line for set up, one for the head and one for the cartoner, is that correct?‑‑‑Yes. I've covered this in paragraph 116.

PN399

Yes. That's the one I was looking for earlier. Thank you, Mr Henry. So noting that the company previously and historically has allocated two C skills for setting up a packing line, going back to what you said in paragraph 97, what the company is now proposing is to reduce the overall allocation of C skills for setting up a packing line to one C skill where to then allocate a different – a B skill value for multiple lines of the same machine, is that correct?‑‑‑That's not correct.

*** MARCUS HENRY XXN MS ANANTH

PN400

How would you say it's incorrect, Mr Henry?‑‑‑So in paragraph 116, I clearly articulate the history on site, was that you got a C skill for the cartoner and a C skill for the head of the machine, but it clearly says that you only get it once. The business has moved away from a machine‑based model and gone to a work centre‑based model, which incorporates those different – the outcome's the same. There are two C skills available, but you get a C skill for, in the historical case, for B1, and you get a C skill for B2. The difference back then was you got it for the cartoner and for the blister head. Now the business just recognises it as blister 12 gets a C skill and blister 4 gets a C skill.

PN401

I'm in agreement with you, Mr Henry, about what happened historically. If we want to take the example that you've outlined in paragraph 116 to refer to here in the table as B1RX, from the example it appears that there are two lines of the B1 machine, and you accept that historically there were two C skills allocated to B1, one for the head and one for the cartoner, and if you weren't B2 as well, you didn't get any additional C skill. So the overall C skill allocation would be two C skills for setting up both lines of the B machine, is that correct?‑‑‑Once either is learnt, no addition or credit is given, correct.

PN402

So the overall skill allocation is two C skills, you accept that? For both lines of the machine?‑‑‑One for each line equivalent.

PN403

No, but the manner in which it was actually allocated, do you accept, was one for the head, one for the cartoner of the first machine, and then no additional skills for the additional line, do you accept that that's correct?‑‑‑That's what it says there, yes.

PN404

Going back to where you've outlined in paragraph 97 now, given that you're saying that under the company's proposal what would actually happen is that you would only get one C skill for that same machine, for the initial machine, but then you would get a B skill for additional lines of that machine, do you accept that?‑‑‑That is what we proposed. History on the site was that you got an A skill for the second machine.

PN405

But Mr - - -?‑‑‑And as part of the grading structure conciliation and negotiation process, we upped that to a B skill for the second line, to increase the recognition of B skills, in accordance with our one C equals three B proposal.

*** MARCUS HENRY XXN MS ANANTH

PN406

Mr Henry, you acknowledge in paragraph 97 that allocating skills on the basis of someone getting a car licence, but then giving them additional skills for driving a blue or a green or a red car of the same model, would be nonsensical, you accept that, don't you?‑‑‑Ms Ananth, I think you're talking at cross‑purposes. Paragraph 97 is specifically looking at a machine‑based model (indistinct) model, and the point we're making around a machine‑based model is that if you have a blister head new award skills for a blister head, then a blister head is like a car. You don't get subsequent licences for being able to drive subsequent cars. But we have from day one said that we are looking at a work centre model as our methodology, and what I've also put there is that the business is actively harmonising our fleets to one model of car, for example, and we see this as a means of disadvantaging people on site if I'm only awarding one C skill for being able to run an MB421 blister head.

PN407

Thank you, Mr Henry - - -?‑‑‑That is just the model that we adopted. We could adopt a machine‑based model.

PN408

Mr Henry, I put it to you that your proposal represents a reduction in overall C skill allocation from two to one for a line in the packing area. You accept that, correct?‑‑‑Not based on the information in 116.

PN409

Putting aside any paragraph references, Mr Henry, you've already acknowledged that compared to historical practice, your proposal involves a reduction in C skill allocation from two C skills, one for the head, one for the cartoner for a packing line, to one C skill for the entire line?‑‑‑In that context, yes.

PN410

I put it to you, Mr Henry, that to the extent that your proposal, the company's proposal would benefit employees, it's simply because you've allocated B skill values to additional lines of this exact same machine and model. Is that correct?‑‑‑Sorry, I'm – what was the question?

PN411

Let me put it to you in a slightly different way. Mr Henry, do you accept that if it weren't for the B skill values that are allocated to additional lines of the same machine, your proposal represents an overall reduction in C skill values for a packing line?‑‑‑Our proposal of having a B skill is an enhancement on version 1 of the skills list which had been - - -

PN412

Mr Henry, could you please just answer the question that was put to you?‑‑‑So the suggestion is that it's a reduction?

PN413

It's not a suggestion. It's a question. Do you accept that your proposal represents a decrease in the number of C skills allocated to, say, a packing line from two to one?‑‑‑No.

PN414

So just putting aside the question of additional lines for just one machine, historically it is allocated two C skills. Under your proposal it would be allocated one C skill. Is that not a reduction---Yes, I see what you're trying to do, Ms Ananth, but you're talking about - - -

*** MARCUS HENRY XXN MS ANANTH

PN415

THE COMMISSIONER: Mr Henry, if you could answer the question, please. It's Ms Nolan's role to seek clarification in re‑examination, but you need to answer the questions as Ms Ananth puts them to you. If you don't like the question then that's something Ms Dolan needs to deal with?‑‑‑Yes, Commissioner. So for the obsolete line that you are highlighting, yes, there was two C skills.

PN416

MS ANANTH: But it wasn't machine-specific, was it, Mr Henry? It was a general methodology applied to any packing line, that you would get one for the head and one for the cartoner, is that not correct?‑‑‑That's not correct. That is correct for blister 1 and blister 2, but it hasn't been leveraged into others.

PN417

If you look at page 162, the table that you've provided, it appears that it also applies to the cartoner on the tube line?‑‑‑On page 162? Paragraph?

PN418

This is the table that you've put together, Mr Henry, at the very top of the page. You acknowledge that a separate C skill value would apply to the tube cartoner?‑‑‑Which is one line.

PN419

I put it to you that the allocation of two C skills for lines with a head and a cartoner was a matter of general proposition. It wasn't confined to the B1 and B2 lines?‑‑‑Yes, as written, and that covers two different factories.

PN420

Why don't I take you to page 107 of the hearing book. Can you see there, Mr Henry, under the C skill list that the tube filler is also listed as a C skill?‑‑‑So this is the 1997 version of the skills list.

PN421

That's the heading on the list, yes?‑‑‑Yes.

PN422

So you accept, Mr Henry, that prior to you commencing in the factory, that as a matter of historical practice generally where there is a machine with a head and a cartoner, two C skills were awarded to that line?‑‑‑In isolation of that skills list; that's what it says. The skills list is underpinned by a training document, which I've referenced in my witness statement.

PN423

You accept, Mr Henry, that your proposal represents a departure from that skill value allocation insofar as, under your proposal, only one C skill would be allocated across both the head and the cartoner of a packing line, correct?‑‑‑That's correct.

*** MARCUS HENRY XXN MS ANANTH

PN424

I put it to you, Mr Henry, that the only advantage contained in your proposal is through the allocation of B skill values to multiple lines of the same machine, correct?‑‑‑Sorry, can you repeat the question?

PN425

Let me rephrase it. Where previously if an employee was assessed on both line 1 and line 2 of the – I presume it's a bottle line that you've referenced in paragraph 116, they would get two C skills. Under your proposal, assuming that those two lines haven't been discontinued for the purpose of the example, under your proposal the employee would get one C skill and one B skill if they learnt both of those lines, correct?‑‑‑For identical machines, yes.

PN426

So the only way an employee could make – to the same C skill valuation as was previously awarded to those lines is, if there were three additional multiple lines of the bottle line, and they learnt all three of them, in which case they'd get one C skill for the first line and three B skills for subsequent lines, (indistinct) two C skills, is that correct?‑‑‑I think if you use an example - - -

PN427

Mr Henry, just a simple yes or no, please?‑‑‑Can you rephrase?

PN428

Well, you accept that if an employee under the previous structure had learnt both lines 1 and 2 of the bottle line they'd get two C skills, but under the company's proposal they'd get one C skill and one B skill, correct?‑‑‑It's very difficult to get a definitive answer on that, because we're talking about something from 25 years ago.

PN429

Mr Henry, to be a matter of general application, your proposal has to withstand the tests of time and have some level of general applicability, correct? So what I'm asking is, under your proposal, is it not correct that an employee who learns both lines 1 and 2 of the bottle line would get one C skill and then one B skill for the next line, so a total of one C, plus one B?‑‑‑Yes, for the bottle lines. For bottle line 5 they get a C skill. For bottle line 2 they get a C skill. For bottle line 1 they get a C skill.

PN430

I'm just talking about multiple lines of the same machine. So bottle line 1 and 2 for this example being the same, you'd get one C skill, plus one B skill?‑‑‑Yes. So if I use that current example - - -

PN431

Was that a yes, Mr Henry? I'm sorry to cut you off, but I just want an answer to my question. Was that a yes?‑‑‑It depends on whether those lines are identical or not. If they're identical, they get a B skill for the second line. If they're being determined as being materially different, you'd get a second C skill.

*** MARCUS HENRY XXN MS ANANTH

PN432

So assuming that they're identical, Mr Henry, do you accept that it would be one C plus one B for both lines?‑‑‑That is correct.

PN433

So one C plus one B, as a total, is less than two Cs, correct?‑‑‑That's correct.

PN434

Mr Henry, I put it to you that allocating a B skill value for an additional line of the exact same machine is not consistent with your definition, because it would mean that you're allocating a skill – a value for an employee just because they're driving a green car as opposed to a blue car. Do you not accept that where the lines are identical that there is no basis from a skills perspective to allocate an additional skill value to the second line?‑‑‑I think you've crossed purposes again. You've gone into a machine‑based definition versus a work centre definition.

PN435

Mr Henry, let me put this to you very clearly. Where you have two lines of the exact same machine, you propose that an employee would receive one C skill for the first line, and then one B for the subsequent line?‑‑‑Correct.

PN436

You're in agreement with me there. I put it to you, Mr Henry, that allocating a B skill value for a second line when the line is identical to the first line does not make much sense from a skills perspective, does it, Mr Henry?‑‑‑That's your opinion.

PN437

Mr Henry, would an employee require any additional skills if the two lines are identical to operate one line as compared to another?‑‑‑Possibly, depending on the products that run on that line, but the underpinning skill would be the same.

PN438

If it's the exact same machine, yes?‑‑‑Yes. The underpinning skill would be the same.

PN439

Mr Henry, I put it to you that not only does your proposal constitute a disadvantage to employees relative to the historical system where an employee would get two C skills, where they're now only getting one C skill plus one B skill, but I also put it to you that allocating a B skill for the second line is not consistent with your overall definition. Do you accept that?‑‑‑I think that's your opinion. I don't accept it.

PN440

All right. Mr Henry, I would like to take you now to paragraph 108, which is on page 159. You say here that the output of a product – 'A product output which is made in a work centre is a logical basis to define and value skills.' Do you stand by that, Mr Henry?‑‑‑Correct.

*** MARCUS HENRY XXN MS ANANTH

PN441

I put it to you that the output of, say, for example, the head of a machine in a packing line is different to the output for a cartoner of a packing line, do you agree with that premise?‑‑‑The output of a blister head is a subset of a cartoner, yes.

PN442

But you accept that they're different product outputs, don't you?‑‑‑Yes, but they're not mutually exclusive.

PN443

But they are different outputs, you accept that?‑‑‑Yes.

PN444

Mr Henry, I put it to you that it would be perfectly consistent with your own definition of allocating skills on a work centre‑based model to allocate one C skill to the head and another C skill to the cartoner, because, as you've acknowledged, the output of both of those components would be different?‑‑‑The output from the first one is not mutually exclusive of the second unit, as the second (indistinct).

PN445

Mr Henry, but that applies to everything that happens on site. By that definition, I put it to you that the output of an encapsulation or a compression machine, which is to produce a tablet, is a subset of the output of the blister head, which is another subset of the output of the blister cartoner?‑‑‑Which is why I had work centre model.

PN446

Mr Henry, do you agree that if what differentiates work centres is differences in product output, then it would be perfectly consistent with your own definition to allocate one C skill to a packing head and one C skill to the cartoner of a packing line, consistent with historical practice?‑‑‑Ms Ananth, a cartoner doesn't exist in isolation of a blister head or a (indistinct) line. It's part of the packing process. So, our work centres are built around a manufacturing process or a packing process. For a packing process we take the manufactured product and we put it into a bottle, a blister or a carton, a shipper. That is the process start to finish.

PN447

Mr Henry, I acknowledge that there is no use for a cartoner if there's nothing to put in the cartoner, but to the extent that your definition is based on differences in output, you've acknowledged that the output of a head of a machine in a packing line is different to the output of the cartoner of a packing line. So would it not be consistent with your definition, Mr Henry, to allocate different skill values to the head versus a cartoner?‑‑‑No. That would make sense if you did a machine‑based methodology.

PN448

Mr Henry, but to the extent that a work centre is defined in relation to its product output, it would still be consistent with that definition, would it not?‑‑‑I don't think so.

*** MARCUS HENRY XXN MS ANANTH

PN449

Mr Henry, I would like to take you now again to paragraph 119. That's on page 162. You've already to some extent answered my questions in this regard. You've been very patient with me and I appreciate that. You've acknowledged that historically two C skill values would be allocated to a line in the packing area, for example. Can you please explain to me what was the basis of the change that was made when the company decided to stop allocating two C skills to a packing line and instead only started allocating one C skill?‑‑‑That was done before I started.

PN450

Mr Henry, now -just bear with me, I'm almost done - I'd like to take you to paragraph 130 of your statement, please. That's on page 166. And if you can also just read 131 for me simultaneously. The question I have for you is about both of those paragraphs. Please let me know when you're finished reading through them?‑‑‑Yes.

PN451

In paragraph 130, you say that it's an integrated skill to set up and run a machine in solids manufacturing, but then you say that in solids packing some operators may never learn to set up a line because of a lack of mechanical aptitude, and yet, Mr Henry, everyone in solids manufacturing can apparently do the set up. So how is it coherent to have the same skill allocation for set up in manufacturing and packing if only some employees could have the mechanical aptitude to do the set up and packing?‑‑‑Because when I hire people for RX manufacturing I ensure they have the mechanical aptitude to execute the task.

PN452

But Mr Henry, do you not accept that the underlying premise of your statement is that RX packing requires a higher level of mechanical aptitude to set up a line than RX manufacturing?‑‑‑That's not what I'm suggesting.

PN453

Well, Mr Henry, if everyone in RX packing could do the set up because it's integrated as part of the process run, but some employees in RX packing may never develop the skills to do a set up and a changeover because of the sheer mechanical aptitude required, I put it to you that that suggests that there's a difference in complexity in the set up of a line in RX packing as compared to RX manufacturing. Do you accept that premise?‑‑‑I'm not sure that I'm quite following you. If I maybe respond in terms of – process run is the lower skill capability, and in order to do a set up and a changeover you need to be able to run the packing line. So being able to pull down the machine, rebuild the machine to the required set points takes a level of mechanical aptitude. Part of that mechanical aptitude is then being able to process run the line to make sure that it achieves the required output. Being able to run the line is a different skill, where someone starts the machine, stops the machine, resets the machine if it faults, and does the end process checking. In solid dose packing and liquid packing, it's a separable skill to the set up component. Does that answer your question?

*** MARCUS HENRY XXN MS ANANTH

PN454

Well, not quite, Mr Henry, unfortunately. The question I'm asking you is that, in a packing area, so whether it's solid dose packing or liquids packing, an employee – I acknowledge that an employee would require a degree of mechanical aptitude to be able to successfully do the changeover and set up of the line, correct?‑‑‑To do the set up and changeover, yes.

PN455

Although you suggested in RX manufacturing, setting up and operation is an integrated skill?‑‑‑Correct.

PN456

So is there not an underlying assumption there in what you're saying, Mr Henry, that the setting up skill in a packing line is more complex than the set up of an RX manufacturing line?‑‑‑No, that's not what I'm suggesting at all.

PN457

Well, you're not suggesting, Mr Henry, that an employee would require a higher level of mechanical aptitude to set up a packing line as compared to a manufacturing line?‑‑‑No. The issue in manufacturing is it's an ongoing set up process where they are responding to the steps in the batch sheet, whereas in packing once the line is set up it runs, and it can run for eight hours, it can run for five days under those same set points. In manufacturing, when you finish a step you go on to the next step, which may require the dismantling or the set up of another process vessel.

PN458

Mr Henry, I'd like to now take you to paragraph 164, which is wrapping up now on your submissions with regard to obsolete skills?‑‑‑Yes.

PN459

On page 171, yes?‑‑‑Yes.

*** MARCUS HENRY XXN MS ANANTH

PN460

Mr Henry, you're saying here that 'the business will preserve obsolete skills for 12 months from the date of the machine becoming obsolete while training to get a new skill is undertaken. Mr Henry, the phrase there that, 'while training to get a new skill is undertaken,' does that not assume that access to training and assessment on a new skill will be provided within those 12 months?‑‑‑If I've made a piece of equipment redundant, because of probably three reasons, one of them is that I no longer require that piece of equipment because I've lost that market share, so that piece of equipment would be made redundant and the people with those skills would be reallocated to other tasks on site and be trained to perform those tasks. Another option is that that asset is unreliable and it's replaced with a like‑for‑like piece of equipment. I'm just trying to think of another – or I have bought a new piece of equipment that has a higher capacity, and by having a new piece of equipment that can do twice the equipment, one of the other lines is made redundant. So in either circumstance, if I'm replacing it with a like‑for‑like or a faster piece of equipment I need someone to run that, and the people with those skills would be trained to do that. If I no longer have a need for that equipment, then the people would either be made redundant if that equipment is because I've lost market share and lost volume on site, or they would be re‑tasked to other activities on site, which may or may not require further training.

PN461

Mr Henry, do you accept that there's a problem there though in relation to, for example, a current packing line on your facility which historically an employee had been allocated two C skills for, if that were to be decommissioned and replaced with a new packing line, an employee would only receive one C skill. So even if once the old equipment has been decommissioned and they've been trained on the new packing line almost immediately, it would still leave a shortfall of one C skill for them to replace. Do you accept that?‑‑‑In that example, yes.

PN462

What happens, Mr Henry, if training to replace that second C skill is not provided within 12 months of the equipment being decommissioned? Do you accept that that would result in a disadvantage to the employee?‑‑‑They would not lose grading status and they wouldn't lose (indistinct). So I'm not sure how they would be disadvantaged.

PN463

Well that's a given, Mr Henry. That's because of the operation of clause 5.7.2. But in terms of progression, do you accept that where an employee had previously been allocated two C skills for a packing line, which has been subsequently replaced with a new packing line where you only get one C skill, if retraining to replace that second C skill is not provided within 12 months, it would be unfair to the employee in terms of their ability to progress, do you accept that?‑‑‑It wouldn't be unfair. That would be the case.

PN464

The employee just has to live with it, is that what you're suggesting?‑‑‑Training is allocated on the business needs, so if the business needs those skills, then the training would be allocated.

PN465

Mr Henry, I refer you to paragraph 165 of your statement that's on page 172.

PN466

THE COMMISSIONER: Ms Ananth, do you have many more questions?

PN467

MS ANANTH: Only two more, Commissioner.

PN468

THE COMMISSIONER: Thank you. If there are more I'll need to adjourn until tomorrow.

*** MARCUS HENRY XXN MS ANANTH

PN469

MS ANANTH: I'll be very quick, Commissioner.

PN470

THE COMMISSIONER: All right. Thank you.

PN471

MS ANANTH: At paragraph 165, Mr Henry, you say that the access to retraining will not be unreasonably refused. Mr Henry, does that also apply to a night shift employee, who according to you is being paid a loading of 30 per cent to compensate for a lack of opportunity for retraining?‑‑‑Training requirements for the business need are independent of day, afternoon or night shift. If there's a requirement on night shift, then the training is given on night shift.

PN472

But you suggest here, Mr Henry, that the business will not unreasonably refuse training opportunities, and you've stated elsewhere in your statement that you believe that a night shift employee is already compensated by the order of 30 per cent for a general lack of training opportunities. So does that mean that an employee on night shift can reasonably access training, and that, you know, the agreement that you won't unreasonably refuse training opportunities will apply to a night shift employee?‑‑‑So, on day shift I run near on 100 per cent of my lines. On night shift I run 50 per cent of my lines, because I have a much smaller team on night shift. On night shift I run the lines that have the most requirement, and the training on night shift is applicable to those lines predominantly. On day shift I run more lines, and the training opportunities – the breadth of the training opportunities are greater than on night shift.

PN473

So it's possible, isn't it, then that an employee on night shift might not receive access to retraining within 12 months of a piece of equipment being decommissioned?‑‑‑If they were skilled on the piece of equipment that was decommissioned and that's being replaced with a new piece of equipment, then they would likely be trained on the new piece of equipment.

PN474

What happens, say, if that employee was multiskilled and they're not actually working currently on the line that has been decommissioned, wouldn't you require the employee to work on the line they're currently working on, which would limit their access to retraining opportunities?‑‑‑If that's the business need for them to run the other line, then that's where they would operate.

PN475

So it's possible that they wouldn't be given an opportunity to replace the skill that has been obsolete within 12 months of a line being decommissioned if they needed to run the line they're currently running?‑‑‑It's possible, but it's determined by business need.

*** MARCUS HENRY XXN MS ANANTH

PN476

Mr Henry, my final question for you, I'll take you to paragraph 170 of your statement on page 173. You say here that, 'The business will focus on providing retraining opportunities to employees at higher grades.' Mr Henry, do you accept that a grade 4 employee has nowhere further to progress?‑‑‑Unless they go into a team leader role, yes.

PN477

Do you accept, Mr Henry, that under the company's proposal a level 2 employee would not be prioritised over a grade 4 employee for retraining opportunities?‑‑‑The training process that we consulted with the grading structure work group was that we would start closing skill gaps at grade 4 and work our way down.

PN478

Even though an employee at the grade 4 level would be disadvantaged less because it's not like they have anywhere further to progress to?‑‑‑Yes, but I'm paying them the highest on site, and you know, I pay for service that I get. So we would start at grade 4 and then work our way down.

PN479

So if an employee at the grade 2 level wasn't even prioritised for retraining opportunities to replace obsolete skills, and the company just had to work through both business needs, production demands and then the hierarchy of a prioritisation whereby you start with a grade 4 employee and then work your way down, isn't it possible, and I put it to you entirely probable, that an employee at the lower level of the classification structure, say, grade 2 or 2‑plus, would certainly not get access to retraining to replace all their obsolete skills within 12 months of a line being decommissioned?‑‑‑My experience on site is that the grade 4 operators that we have had a number of skill gaps, but those skill gaps are from obsolete equipment that left the site 10 or 15 years ago via the factory, and that people at grade 3 and 2‑plus have been given the opportunities to train.

PN480

But under your proposal, Mr Henry, there's already a pool of employees at grade 4 level who have a number of obsolete skills to replace. You'd have to prioritise them first, isn't that correct?‑‑‑Yes. I would certainly ask them first, yes.

PN481

So all I'm putting to you is, isn't it entirely probable that an employee at the grade 2 level who's not going to be prioritised for retraining opportunities might not get an opportunity to replace obsolete skills within 12 months of a line being decommissioned, because you have to work your way through those employees at the higher levels?‑‑‑It's possible.

PN482

Thank you, Mr Henry. That concludes my cross‑examination today, Commissioner.

PN483

THE COMMISSIONER: Thank you, Ms Ananth. Ms Dolan, is there any re‑examination?

*** MARCUS HENRY XXN MS ANANTH

PN484

MS DOLAN: There is, Commissioner. I expect to be asking approximately 12 to 15 questions and it might take some time, so we're at your – yes, your decision about whether we continue tonight or tomorrow. My preference would be to get to it tonight so that Mr Henry can be released - - -

PN485

THE COMMISSIONER: All right. You have until 4.50.

PN486

MS DOLAN: No, I won't get through it then, Commissioner.

PN487

THE COMMISSIONER: In that case we'll adjourn until tomorrow at 10.

PN488

MS DOLAN: Thank you.

PN489

THE COMMISSIONER: Thank you, parties.

PN490

MS ANANTH: Thank you, Commissioner.

<THE WITNESS WITHDREW [4.36 PM]

ADJOURNED UNTIL TUESDAY, 12 APRIL 2022 [4.36 PM]

*** MARCUS HENRY XXN MS ANANTH

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 APPLICANT'S OUTLINE OF SUBMISSIONS DATED 28/02/2022........................................................................................................ PN59

ANANDA VENGOPALA, AFFIRMED....................................................... PN81

EXAMINATION-IN-CHIEF BY MS ANANTH......................................... PN81

EXHIBIT #A2 WITNESS STATEMENT OF ANANDA VENGOPALA PN92

CROSS-EXAMINATION BY MS DOLAN................................................. PN96

RE-EXAMINATION BY MS ANANTH................................................... PN179

THE WITNESS WITHDREW.................................................................... PN214

TAREK SOUEID, AFFIRMED.................................................................. PN229

EXAMINATION-IN-CHIEF BY MS ANANTH....................................... PN229

EXHIBIT #A3 WITNESS STATEMENT OF TAREK SOUEID............ PN237

CROSS-EXAMINATION BY MS DOLAN............................................... PN240

THE WITNESS WITHDREW.................................................................... PN304

MARCUS HENRY, AFFIRMED............................................................... PN322

EXAMINATION-IN-CHIEF BY MS DOLAN......................................... PN322

EXHIBIT #R1 WITNESS STATEMENT OF MARCUS HENRY PLUS EIGHT ATTACHMENTS........................................................................... PN330

CROSS-EXAMINATION BY MS ANANTH............................................ PN341

THE WITNESS WITHDREW.................................................................... PN490