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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N 0160
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER HOLMES
C2001/4239
MEDIA, ENTERTAINMENT AND
ARTS ALLIANCE
and
VICTORIA AMATEUR TURF CLUB
Application under section 170LW of the Act
for settlement of dispute re alleged failure
to maintain normal work duties while the
parties endeavour to resolve a dispute
MELBOURNE
10.14 AM, MONDAY, 10 SEPTEMBER 2001
Continued from 21.8.01
PN23
MR B. POUND: I appear for Media, Entertainment and Arts Alliance.
PN24
MR P. BURCHARDT: I seek leave to appear on behalf of the respondent. I am instructed by MR P. LUPSON from Middletons, Moore and Bevins.
PN25
THE COMMISSIONER: Thank you, Mr Burchardt. Mr Pound, is there any objection to leave being granted.
PN26
MR POUND: Yes, Commissioner, there is and I would like to speak to that objection, if I may?
PN27
THE COMMISSIONER: Certainly. Do you wish Mr Burchardt to just indicate which provision of the Act he relies upon for his application?
PN28
MR POUND: Yes, I would and I would actually like to speak to the provisions of the section to outline my contentions of objection.
PN29
THE COMMISSIONER: Certainly. Yes, Mr Burchardt?
PN30
MR BURCHARDT: Thank you, Commissioner. I may say I had observed in the transcript of the last time this matter was before you that there would be such an objection. What we are concerned with obviously is section 42 of the Act and I don't seek to take you through it in any detail because I suspect it is provisions which the Commission is well familiar.
PN31
THE COMMISSIONER: Yes.
PN32
MR BURCHARDT: Pursuant to section 42(3)(b) I would seek leave to appear on this footing. Even the briefest examination of the outlines filed by the parties pursuant to your directions shows that there are legal issues as to jurisdiction being pressed in this case. It is the first point articulated in the applicant's submissions and it is also dealt with in some detail in the respondent's one. As you will be aware, sir, the respondent has asserted in its outline that the Commission doesn't have jurisdiction in this proceeding and has sought to analyse section 170LW, section 89, section 89A of the current Act.
PN33
And the predecessor provisions of the Industrial Relations Act 1998 because those are the ones that have been considered by the High Court in a case referred to by both parties, namely, CFMEU v AIRC. And there have been virtually no cases, at least in the reports, about section 170LW and certainly not before the High Court. So, we would need to look at all that. And that is also the case, since this dispute is said to have arisen in the context of a certified agreement, which itself was on the cusp of the legislative change. You will be told in due course, Commissioner, that the notice of bargaining period that gave rise to the certified agreement that is now being sought, as it were, for the vehicle for this dispute to be before you, was served in October 1996 and the provisions as they then were of section 170PE and so forth were all complied with.
PN34
The agreement itself was certified in mid '97. It won't be at the forefront of our submissions but that does raise some intrigue into an extent - perplexing issues as to the nature of the transitional provisions. But, in any event, the part we will seek - and it is quite obvious that the applicant also seeks - to examine the Commission's jurisdiction to entertain this matter. We will be seeking to construe and analyse the terms of the certified agreement made in 1997 against the principles established in the authorities. And these are all quintessentially legal problems. The respondent is not itself equipped otherwise than through legal representation to address them.
PN35
So that is the first basis upon which I press the application. The second one, which probably falls to be considered under section 42(3)(c) is a simple, practical one. The VATC is not super heavy with what I might describe as industrial relations personnel. The human resources manager, Ms Hunt, is in effect, the only professional human resources person that it employs. Although she has done a number of conciliations I am instructed - and of course I accept her word - that she has never actually arbitrated - appeared as an advocate in an arbitrated matter.
PN36
So it would be a major demand, in any event, to ask her to step up to conduct this one. But even if that wasn't enough, she is in fact our primary witness. So she isn't obviously an appropriate person to conduct the proceeding. So in that sense, sir, if I can put it - I hope - appropriate modesty - it is me or no-one and it is only fair that the respondent be represented. So that is the outline of the matters I press.
PN37
THE COMMISSIONER: Thank you, Mr Burchardt. Yes, Mr Pound?
PN38
MR POUND: Commissioner, in our view the section 42 has not been met by the employer. We say that, in terms of (3)(a), it is clearly not the consent of the party. That we informed the other party on transcript at the initial hearing that we would object to legal counsel. We don't believe that the Commission should be satisfied under (b) that the subject matter of the proceeding - that there is any special circumstances that make it desirable that the parties be so represented. I am unsure what would constitute special circumstances but it is clear that the party seeking leave for representation would have to demonstrate to the Commission what they were.
PN39
Clearly, the respondent has not done this. It is our view that the party needs to make the application in fact and not the solicitor that they are hoping to use, particularly, given that the union foreshadowed this objection. And I should note that already jurisdictional objections have been flagged just in the leave process which I think, you know, talk of areas that are not fundamental to the case but are intriguing and perplexing. Well, frankly, I think that the framers of this legislation sought this section in the legislation so that it didn't become a legal mine field.
PN40
In terms of (c), by leave of the Commission granted on application made by the party, if the Commission is satisfied that the party can only adequately be represented by counsel, the matter today, we argue, is not a matter of fine legal substance, it is a matter that - about correct human resource management or industrial behaviour. Christine Hunt, who represents the company as the human resources manager, no doubt has qualifications in this field and is responsible for the management of the VATC in human resources issues. The VATC employs hundreds of people across a number of unions and two sites.
PN41
And Christine Hunt is understood to have held her role at the VATC for several years. Commissioner, in relation to the fact that Christine Hunt is a witness in this matter, it seems to me that we would have no problem - that - I can indicate - we would have no problem to assertions made from the bar table and could be rebutted to from the applicants. So we would have no difficulty in statements made by Christine Hunt for the purposes of the respondent. The policies that dictate the working practises at VATC and are part of the notification to the Commission today are the responsibility of Christine Hunt.
PN42
If there is one person in the company with the capacity to understand the matters in dispute it is Christine Hunt. Clearly, in our view, the requirements of the section have not been met. Further, Commissioner, the Alliance submits that the employer has not discharged, what we believe, would be some burden intended by the Act in framing the section or proving a special need for counsel. Thank you, Commissioner.
PN43
THE COMMISSIONER: Thank you, Mr Pound. Yes, Mr Burchardt?
PN44
MR BURCHARDT: I won't take up the various procedural aspects as to who has made the application, Commissioner. It is not the first time I sought leave to appear in front of you. It is quite common for that to be done by the legal representative. Perhaps all I should say is this. Jurisdiction isn't an issue that arises out of any kind of personal desire on my part. It arises out of the circumstances of the case in fact. The legislation is framed in the way that it is. Unfortunately, and in many senses, it is always unfortunate, jurisdiction is always very important because it is either there or it is not.
PN45
So far as the matters related to Ms Hunt are concerned, the reason why we are calling her is that, she is indeed, the person best equipped to describe certain matters of fact to you. But I can assure you from the bar table that she hasn't ready of the cases which are in issue in the proceeding and she is not in a position to deal with matters of law that arise. If the Commission pleases.
PN46
THE COMMISSIONER: Thank you, Mr Burchardt. Well, leave is granted on both grounds. I am satisfied that the outline of the issues to be canvassed, particularly the jurisdiction of the Commission, in the light of the High Court's decision in CFMEU v AIRC. And also on the second ground that the capacity of the organisation to be properly represented, given that the alternative advocate in fact is a primary witness, would make the carriage of the case extremely difficult. And therefore leave is granted, Mr Burchardt.
PN47
MR BURCHARDT: Thank you very much, Commissioner.
PN48
THE COMMISSIONER: Mr Pound, I don't know whether there has been any discussion between you and Mr Burchardt about the jurisdictional issues and objections and whether in fact there is any understanding about who would present argument first in that regard.
PN49
MR BURCHARDT: No, we haven't had any discussions as to that, Commissioner, but perhaps I could assist the Commission and Mr Pound by putting my submission as to the appropriate way to proceed. In my submission, it is quite plain that both parties wish to present, as it were, the totality of what they wish to put including argument as to jurisdiction but also to present some evidentiary material before you as they would wish to rely on. I have no objection to that being done and no desire to press that jurisdiction be examined first or in isolation.
PN50
It is often said that jurisdiction can only properly and best be considered when the evidence is in or in the context of the evidence as it lies. And, indeed, we wish to put some evidence in which would go to those issues anyway. So, subject to anything that may fall from Mr Pound or from the Commission, my submission would be that we should proceed in the ordinary way with the applicant going first and putting his material and obviously having a right of reply to anything that we may raise that they feel makes that appropriate.
PN51
THE COMMISSIONER: Thank you, Mr Burchardt. Mr Pound?
PN52
MR POUND: I have no problem with that process, Commissioner.
PN53
THE COMMISSIONER: Thank you, Mr Pound. Well, that is the why we shall do it. So, over to you.
PN54
MR POUND: Commissioner, in the matter of jurisdiction the Alliance submits that the Commission does have jurisdiction to arbitrate this particular dispute in accordance with the power of private arbitration under the dispute settling procedure clause 29 in the applicable certified agreement. The Alliance would rebut and any case distinguish any employer contention that section 89A of the Workplace Relations Act prevents the exercise of arbitral powers by the Commission. As in this application the Commission is empowered by the agreement of the parties.
PN55
Commissioner, if you wish, we can hand up the case lodged with our contentions, the recent High Court decision in CFMEU v AIRC?
PN56
THE COMMISSIONER: Certainly.
PN57
MR BURCHARDT: I have got it - we should all work, perhaps, from the same document, that is the main thing. I have got the reported copy if you want that? Commissioner, CFMEU v AIRC, to use the acronyms, is reported - - -
PN58
THE COMMISSIONER: That is fine.
PN59
MR BURCHARDT: - - - in the ALJR (2001) at 670 and I have run off copies for the Commission, for Mr Pound and for the transcriber in an endeavour to assist.
PN60
THE COMMISSIONER: Thank you. I take it, Mr Pound, that you have the Osterley version?
PN61
MR POUND: Yes.
PN62
THE COMMISSIONER: I don't know whether that - thank you, Mr Burchardt.
PN63
MR BURCHARDT: This is just - it is a little easier to follow and to get to the pages and things like that than the Osterley version, in my submission, Commissioner.
PN64
THE COMMISSIONER: Yes. I appreciate that, it is just a question of whether - Mr Pound, do you have any difficulty in finding the comparable spots of - - -
PN65
MR POUND: I was just checking that, but no, the paragraphs are numbered the same under the decision, so - - -
PN66
THE COMMISSIONER: Thanks, Mr Pound.
PN67
MR POUND: Commissioner, in paragraph 31 of this decision it states:
PN68
Where parties agree to submit their differences for a decision by a third party ...(reads)... binding of its own force.
PN69
Further, Commissioner, the Alliance submits analogously to the situation in the CFMEU v AIRC case in the High Court. The hand scan dispute is a local dispute confined to the Caulfield and Sandown racecourse not an industrial dispute to which section 89A applies. In paragraphs 37 and 38 of the High Court decision are on point in that matter. The Alliance submits that should the Commission accept the arguments of the respondent in relation to clause 29 being limited - clause 29, that is, of the certified agreement - the disputes settlement clause - being limited to settling disputes over the agreement's application, that this application, in any case, expressly includes the application of clause 29 itself, and clause 8, the consultative committee clause in that agreement.
PN70
The Alliance position therefore is that the application of clause 29(c) expressly requires that while the dispute process is under way as it clearly is in this matter that:
PN71
Work will continue as normal unless there is a threat to employee safety.
PN72
Accordingly the Alliance submits that the Commission has jurisdiction to exercise the arbitral powers referred by consent of the parties by way of the certified agreement itself. The Alliance would rebut any respondent's contention that the Commission is restrained from exercising powers to the award allowable matters only. This dispute application is subject to a certified agreement that is properly founded and in relation to clocking on or off issues. These directly pertain to a local dispute and a disputed change to work duties subject to the application of clause 29.
PN73
Accordingly, the Alliance submits that the current dispute falls therefore within the ambit of section 170LW(a) of the Workplace Relations Act:
PN74
To settle disputes over the application of the agreement.
PN75
The union therefore submits that the jurisdiction of the Commission in this local matter was supported in paragraph 27 of the High Court decision in CFMEU v AIRC. This reads:
PN76
Although the Commission may not arbitrate to give itself either powers or functions that the Parliament has not authorised ...(reads)... disputes. So much follows from R v Hegarty ex parte City of Salisbury.
PN77
Accordingly, the Alliance argues that the Commission can exercise all discretionary arbitral powers to assist the dispute at hand. The Alliance additionally submit that jurisdiction may with the referral of constitutional powers from the State of Victoria to the Commonwealth effectively confer a wider range of disputes to the Commission for settlement. And the case cited by the employers, NTEU and AHEIA, if I may use the acronyms - do you have that before you, Commissioner?
PN78
THE COMMISSIONER: It will be somewhere among this material. Yes, I do, thank you, it is the Osterley version.
PN79
MR POUND: Yes, Commissioner.
PN80
THE COMMISSIONER: Thank you.
PN81
MR POUND: That reads on page 29 of the copy I have:
PN82
Under the Act the Commission now has jurisdiction over local disputes in the State of Victoria. It has long had jurisdiction ...(reads)... function to settle referred disputes.
PN83
In the interests of the parties and processes to assist settling this dispute, we, as I have already said, concur with the view of the respondent that should you reserve your decision on the matter of jurisdiction we should also hear the merits of the case. Thank you, Commissioner.
PN84
THE COMMISSIONER: Thank you, Mr Pound. Now, as I understood - well, perhaps I better let you go first, Mr Burchardt.
PN85
MR BURCHARDT: I would - that is obviously the opening upon which Mr Pound relies. In the ordinary way we would now expect to hear his evidence.
PN86
THE COMMISSIONER: Are you in a position to call evidence now, Mr Pound?
PN87
MR POUND: On the merits of the case, Commissioner, yes.
PN88
THE COMMISSIONER: Well, you can, if you wish, make some opening remarks on the merit if you wish and then call evidence.
PN89
MR POUND: In opening I should say that - just in terms of assisting the Commission - I believe that I can run through our argument in less than half a day. That the - in terms of witness support we now have two statutory declarations because we had in our contentions proposed to have one direct witness but, as per the statutory declaration, that person is unavailable but has given a statutory declaration. So, I could, I believe, run through our argument in total, if you like, now.
PN90
THE COMMISSIONER: Well, that is a matter for you. There is of course the fact that Mr Burchardt may wish to challenge or put some views about the statutory declaration and I don't know whether he has had a chance to see them.
PN91
MR POUND: No, he has not.
PN92
MR BURCHARDT: Commissioner, if I infer correctly, what Mr Pound may have in mind - it seems to me that in effect it is proposed that you be provided with material and submissions in a, sort of, concurrent process.
PN93
THE COMMISSIONER: Yes.
PN94
MR BURCHARDT: And I have got no objection to that obviously.
PN95
THE COMMISSIONER: Yes.
PN96
MR BURCHARDT: And the material provided may or may not be contentious obviously depending upon (a) what it says and (b) what it is said to support.
PN97
THE COMMISSIONER: Yes.
PN98
MR BURCHARDT: I have no desire to be unnecessarily troublesome or difficult, and in my submission we should just proceed as best we can, and if something arises that gives rise to some sort of difficulty then so be it, we will deal with it in the running. That might be the best way to go. Obviously we have read the outline of contentions that the applicant has filed and doubtless there is material submissions to support that to be made. And I think, perhaps, in a sense, what we have really heard is the opening on the jurisdictional issue rather than the opening on the merits itself.
PN99
And one of the things - if I might endeavour to assist everybody - articulate now, is that it would be helpful to know precisely what sort of order or direction might be sought by the applicant because that is one thing that doesn't seem to emerge with clarity. The nature of the matter in dispute is perhaps reasonably clear but quite what is said ought to be done about it in the event that you rule against all our objections on jurisdiction and, you know, against us on the merits.
PN100
We are still not absolutely clear from the materials precisely what sort of direction or order is being said you might make. And that would certainly be of some assistance.
[10.39am]
PN101
THE COMMISSIONER: Mr Pound, if your are able to assist in that regard?
PN102
MR POUND: Yes, Commissioner, and my submissions are ordered so that that will be one of the first statements for the record so that everyone is aware of where we are heading.
PN103
THE COMMISSIONER: Thank you. Please proceed, Mr Pound.
PN104
MR POUND: Thank you, Commissioner. The union will argue that this dispute is one of the employer's own making, and that the union has sought a dispute settlement without success, and that several alternatives are open to the Commission to assist in resolving this matter. The range of resolutions could be one or more of the following, or any other remedies as the Commission sees fit. The primary remedy sought by the applicant is that the hand scan machines are withdrawn from use by management until when and if there is consent to this new condition in a certified agreement between the parties.
PN105
Other remedies could include a range of restrictions. Non-compulsory use for MEAA members. That the hand scan is not required to be used for clocking off. That a mobile system is required for workstations in certain locations, namely distant locations or workstations from where the current pay office is located. The union submits that the introduction of the hand scan mechanism by the VATC was unilateral and in breach of normal work practices in clause 29 of the MEAA and Victorian Amateur Turf Club Agreement 1997, the disputes clause.
PN106
Clause 29C, the dispute settling procedure, provides for the union to seek resolution of disputes or grievances by submitting them to the club representative, and if not resolved, the issue may be referred to the Commission. The union have made our opposition clear in proceedings with management and our public statements. However, management have attempted to crash this new and abnormal work duty through. Commissioner, may I hand up documentation, giving some background to the positions of the parties in this dispute?
PN107
PN108
MR POUND: Commissioner, the April 2001 Heath News, the front of this exhibit, is a management publication which under the banner headline "Issues on the move" in the second column states:
PN109
The club is in the process of implementing its new payroll system, KRONOS, over the coming months.
PN110
Overleaf, on the Heath News, at the top it states:
PN111
Catering casual staff will be the first staff to go live with KRONOS and over the coming weeks be required to have their hands scanned and a new employee number allocated.
PN112
The last sentence under this heading states:
PN113
Customer service event staff will go for a similar process in June.
PN114
Commissioner, in the exhibit is also a union racing update noting, in the second paragraph:
PN115
The union is concerned about the introduction of this new technology, as we believe that it violates your privacy and civil rights.
PN116
The MEAA union organiser, Sarah Howe, has also met with management representatives, including the Human Resources Manager, Christine Hunt on 6 May this year, where opposition was expressed to the hand scan work change. As reported in the Workplace Express on 25 May, which is also in the M1 exhibit, Sarah Howe stated - this is two thirds of the way down that page, that:
PN117
... members were concerned how the data would be used and the confidentiality of the information. "One outdoor worker said it felt like going to prison, not work."
PN118
THE COMMISSIONER: Sorry, you have lost me. Whereabouts - - -
PN119
MR POUND: So that is in a - the document Workplace Express that - - -
PN120
THE COMMISSIONER: Yes, I see.
PN121
MR POUND: About two thirds of the way down.
PN122
THE COMMISSIONER: Yes, I have it. Thank you.
PN123
MR POUND: Commissioner, the Alliance wrote, by letter dated 1 August to Christine Hunt at the VATC, which is also in this exhibit.
PN124
THE COMMISSIONER: Yes. I have that.
PN125
MR POUND: Commissioner, this refers to a recent meeting with branch organisers that failed to resolve this dispute and sought, as you will see in the second paragraph:
PN126
Accordingly we seek confirmation that no member shall be under any obligation whatsoever to use the hand scan until this issue is satisfactorily resolved. The Alliance would appreciate written confirmation prior to our meetings with members on Saturday 4 August.
PN127
As no confirmation was received by the Alliance from the employer, we notified this dispute to the Commission after those meetings with our members. We submit that the introduction of the hand scan mechanism was in breach of clause 8 of the above certified agreement as no consultative committee was established to consider this workplace change. The Alliance notes that while the existing agreement has nominally expired it continues in force, as also noted in the contentions of the respondent.
PN128
We submit that a new work condition, the hand scan, should be the subject of a claim by management and subject to the genuine bargaining process under way in terms of a new certified agreement clause. Commissioner, the Australian Workers Union, a major union at the VATC, has a public position of opposition to any unilateral imposition of the hand scan on their members. Further, to our knowledge no endeavour has been made to impose the hand scan on AWU members, although the system is asserted by management as necessary to rationalise the payroll systems, of which the AWU employees form an important part.
PN129
Commissioner, we submit the hand scan is unnecessary, intrusive and counter-productive to best work practices, and that the hand scan is contrary to the Federal government voluntary guidelines about employee information. May we tender this guideline?
PN130
THE COMMISSIONER: That will be Exhibit M2.
PN131
PN132
MR POUND: Commissioner, on page 2 of that guideline under principles, it states:
PN133
Employers will only collect information about an employee that is necessary. An employer should only collect personal information about an employee which is required to meet legal obligations and is necessary for the effective operation of a business. Employers will be fair in the way they collect information. An employer should only collect personal information by lawful and fair means and not in an unreasonably intrusive way.
PN134
While I acknowledge this is not a binding guideline, I think it is useful that a peak employer body has such principles. The Alliance submits that the hand scan mechanism is intrusive, and members will give declaratory evidence to this effect. And also that it is not effective, and also that it is unreasonable. We submit the hand scan connection to the software can be overridden and an acceptable alternative can be implemented by management to uphold an effective pay system, including the rationalisation of several payroll systems into one system.
PN135
PN136
MR POUND: In column 3, Liberty Victoria President Chris Maxwell said there was no justification for the introduction of such invasive technology:
PN137
The notion you have to create a data base of biological information about people in order to identify them seems outlandish and quite out of proportion to any demonstrated issue of absenteeism ...
PN138
he said. The hand scan mechanism in question, Commissioner, involves taking a 3D photo of individual's hands to identify them. They have to place their hands inside a machine in order to clock on and off, which then takes an image using infrared rays, it is understood, Commissioner. The union rejects the assertion in the VATC staff release of 23 May, if I may tender that?
PN139
MR POUND: This asserts, in paragraph 2, that:
PN140
Hand scanning technology produces a three dimensional mathematical representation used for verification of time and attendance, rather than identification.
PN141
This assertion that it does not identify employees, rather it verifies them, is at best misleading. We submit that this is the unworldly language typical of the hard sell of this Orwellian new technology. Commissioner, if I may take you back briefly to the previous exhibit, The Age story. We also note that this quotes the AWU, the Australian Workers Union Secretary Bill Shorten stating, in column 3:
PN142
They will not introduce hand testing if they want to have racing at Caulfield or Sandown.
PN143
Commissioner, in relation to the staff release exhibit, we note that in the paragraph immediately following the dot points, in the sole reasons given in the release for the introduction of the hand scan mechanism, that they do not include any problems with the behaviour of our members in terms of duplication or malingering or fraudulent activity or any such thing. The union shall submit evidence that the letter from Christine Hunt, VATC Human Resources Manager to Brian Pound, myself, of the MEAA dated 1 August is incorrect in the assertion that MEAA members - if I may hand it up before I quote from it, as is proper.
EXHIBIT #M5 LETTER FROM CHRISTINE HUNT TO BRIAN POUND DATED 1 AUGUST
PN144
MR POUND: Commissioner, at the bottom of page 1 of this exhibit it is stated by Christine Hunt that:
PN145
Each delegate was happy to recommend that the union endorse the implementation of KRONOS.
PN146
In fact, no agreement has been given by MEAA officials or delegates to the introduction of the hand scan. The union has consistently opposed the unilateral change to normal work imposed by management. Commissioner, may I tender a letter received by an employee, Ted Podesta, on this issue?
PN147
MR POUND: Commissioner, this letter states in the third paragraph:
PN148
Unfortunately ...
PN149
Sorry, Commissioner, by way of background, this is a letter from Nick Cosgrove, the Venue and Catering Manager to our member Edward Podesta. This states:
PN150
Unfortunately, given the fact that you neither clocked on nor off for Saturday 11 August the club confirms as advised by Matt McTaggart that your wages have not been processed. Hopefully you will change your position in relation to the VATs clocking off and on procedures in order to avoid any future problems in the processing of your wages.
PN151
Commissioner, the Alliance submits, this letter delivered by Express Post to our member is evidence of the position put by management to our members at large. That message in simple terms is use the hand scan or put your pay at risk. We submit these circumstances place employees on the verge of, if not under duress to comply with the abnormal work instruction to use the hand scanner. Given the lack of disputation by our members and our union with the VATC, this approach is overbearing, as is the technology.
PN152
Given the make-up of our casualised members, this pressure has not surprisingly led to employees, albeit very reluctantly, by and large using the hand scan. Commissioner, the union seeks to tender the statutory declaration of our member Geoff Hanlon.
PN153
PN154
THE COMMISSIONER: Can you show that to Mr Burchardt as well.
PN155
MR POUND: I have got a copy, Commissioner.
PN156
THE COMMISSIONER: I just wondered whether you wish to see the original, that was all.
PN157
MR POUND: Make sure it is the same.
PN158
MR BURCHARDT: Yes. Thank you very much.
PN159
THE COMMISSIONER: Yes, Mr Pound.
PN160
MR POUND: I seek your guidance briefly, because I intend to read that on to the record, but if there is an objection.
PN161
THE COMMISSIONER: Well I - - -
PN162
MR BURCHARDT: There is no need to read it. Reading it on to the record is not what the objection is about.
PN163
THE COMMISSIONER: No, no. It is a question about whether - well I can't - - -
PN164
MR BURCHARDT: Sure.
PN165
THE COMMISSIONER: Can not speak obviously for Mr Burchardt, but in similar situations there is a question about given the availability of the evidence to be tested. There is usually a question of weight or at times an objection to various clauses contained in it, or sentences contained in it. But I think we will just deal with it. You proceed to address me in relation to that.
PN166
MR POUND: Yes.
PN167
THE COMMISSIONER: There certainly isn't a need for you to read it verbatim on to the record.
PN168
MR POUND: Yes, Commissioner.
PN169
THE COMMISSIONER: If you wish I can arrange that that - it appear verbatim in the record. But it is really, from my point of view, a question of you drawing attention to those elements of it which you believe are - go to the merits of your - well, your case.
PN170
MR POUND: Yes, Commissioner.
PN171
THE COMMISSIONER: Thank you.
PN172
MR POUND: Commissioner, this is a statutory declaration from Geoff Hanlon, a member and longstanding delegate and employee with the VATC. He states that a majority of members working since June have discussed the hand scan issue with him, and all, including VATC delegate Eileen Brown, have directly expressed opposition to the implementation of the hand scan machine to him. He notes that he is participating in good faith enterprise bargaining negotiations currently with John Ancey, the Human Resources Manager for Racing Victoria, and that no claim has been made in relation to the hand scan payroll scheme as yet. He notes that he objects to the unilateral and unreasonable introduction of the hand scan, and believes it is intrusive. Further he declares that identity is not an issue to the people employed at VATC, as members have a history over many years as a trustworthy and regular workforce.
PN173
He declares that on 11 August he worked at the Caulfield Racecourse, and was told to use the new hand scanner to register for his shift. He informed the staffing manager that the issue of implementing this hand scanner had gone to this Commission, and was to be heard on Tuesday, 21 August. That was the conciliation hearing, of course, Commissioner. He stated he didn't want to use the hand scanner unless members were directed to do so by the Commission, and made the point that the matter would hopefully be settled within two weeks.
PN174
Matt McTaggart stated to him that he was instructed that everyone has to use the hand scanner, as it had been directly connected to the payroll system. And if he wanted to be paid for his work for the day he would have to use the hand scanner. As a result he relented and used the machine. Again on Saturday 25 August at Sandown Course, our member declares that he told Matt McTaggart that the dispute had gone to arbitration, or was pending arbitration at the Commission, that he was opposed to its use and wished to register his attendance but not by the hand scan.
PN175
He advised he would use the hand scan again if this became the decision of the Commission. The supervisor stated he was under instruction to see that everyone used the hand scan machine, and he wouldn't be paid if he did not use it. He did not use it. However he was in fact paid for that day. So that is the essence of that declaration.
[11.03am]
PN176
THE COMMISSIONER: Thank you.
PN177
MR POUND: Commissioner, the union would also seek to hand up a declaration from another member and delegate of the employee, Sidney Andrews.
PN178
PN179
THE COMMISSIONER: I ended up with three copies so I don't know whether you need one back, Mr Pound.
PN180
MR POUND: No, I have got it now. Thank you, Commissioner. This declaration notes that Sid is 72 years of age and in the midst of moving house, hence not be in a position to appear today, that he is a delegate at the VATC for our union, that he was asked to meet with VATC management on the afternoon of a race day on 6 May, where management noted the hand scan mechanism was being introduced and he raised objection to the introduction of the hand scan, in particular civil rights issues.
PN181
He states that he was aware other delegates met management and to his direct knowledge delegates have not agreed to recommend the use of the hand scan, and that he maintains his objections to the hand scan and believes it is intrusive and unnecessary. He also notes that the machine does nott need to be imposed by VATC to identify people they employ, as there is a loyal and stable staff that have shown over many years they deserve to be trusted by management.
PN182
He notes that the hand scan clocking off method requires members who are at busy work stations, or distant work stations, such as carparks at the Caulfield and Sandown Course, to at times leave work after their pay call is completed, as they have to walk to the hand scan to clock off and then return to their vehicles in the carpark. He notes on Saturday, 1 September at Caulfield that situation applied to him when he was working in the cloakroom, which was busy due to wet weather, which you may recall that was the day of our inspection, Commissioner, and no overtime was received in his pay that week under the new pay system.
PN183
He may have received it since the declaration; I am uncertain, Commissioner. He notes that he was engaged at the Sandown Course on 5 September 2001 and was informed at clock off time that the hand scan was not working and that he didn't see a notice adjacent to the machine stating the machine would not have to be used. It was subsequently advised to him by myself on 6 September that such a notice should have been displayed in terms of the agreement pursuant to the conciliation hearing. And while it may have been displayed it wasn't seen by him or drawn to his attention. That is the substance of Sidney Andrews' declaration, Commissioner.
PN184
Commissioner, may I give a brief submission in relation to some employer contentions, reserving, of course, any right of rebuttal later.
PN185
THE COMMISSIONER: Yes.
PN186
MR POUND: The Alliance in our submissions has addressed issues relating to process and the respondent's contentions and the Alliance note:
PN187
We have no evidence that the hand scan would cause radiation harm. However, it can be particularly intrusive for members, including older members with hand injuries or arthritis. Hygiene is, however, an issue, unless the hand scan is regularly cleaned.
PN188
In regard to the respondent's contention 10 that it would be bizarre for any third party to wish to obtain algorithms, we would ask the Commission to consider if this identification system is so bizarre then why does the employer seek to impose it and why should it be regarded as any way a normal work duty? The Alliance submits in relation to contention 11 about biological data collection that it does in fact give rise to security issues because it can identify our members, and any collection of this data must be subject to full security measures which have not been given any real detail to our members or the union.
PN189
Contention 12 does not refer to hand scanning and the interest of the media in this matter has indicated the unique nature of this hand scan dispute we would say. Commissioner, we understand from the employer's statements that the KRONOS software, which will no doubt be the substantial outlay in the payrolls system, will not be a lost investment if the hand scan clock on and off system is rejected or restricted. In any case the respondent is, we would say, hoist by their own petard if a system they railroad in contrary to normal work practices in any Australian industry is rejected in whole or in part.
PN190
We certainly would be surprised if there is any evidence that the 250,000 in fact would be lost in full by the loss of the system, when we have no objection whatsoever to the software of KRONOS; it is this particular machine and the units themselves we understand are in the vicinity of $1500 or thereabouts. Commissioner, in terms of return to normal work duties we would submit in disputes such as these an appropriate order would be - or could be that the normal work duties are restored. The Alliance submit that there is an analogous case, Walltrus v The Australian Timber Workers Union, which I would seek to hand up.
PN191
THE COMMISSIONER: Yes, Mr Pound.
PN192
MR POUND: Commissioner, in that case Commissioner Caesar heard of a strike resulting from the dismissal of an employee who without any fraudulent intent on their part was clocked off by another employee and dismissed for this action. The application in that dispute was by the employer seeking a return to work order. Commissioner Caesar determined that the first recommendation, of course, as it must be, that there be an immediate resumption of work, and that is in the third from last paragraph on the second page.
PN193
THE COMMISSIONER: I have it, thank you.
PN194
MR POUND: We submit that in this case also a return to normal work should occur. That is the hand scan machine should be decommissioned and management override this machine with manual instructions to the software. The union are aware this can be done and any inconvenience resulting should have been foreseen by the employer. In terms of equity the detriment to them should not, in our submission, be given undue weight, as their hands are not clean, the dispute is of their own making. Commissioner, the Alliance submits that under section 92 the Commission should consider the circumstances surrounding this dispute.
PN195
This dispute relates to non-compliance of the dispute clause in the industrial agreement. The Alliance position is that the failure to uphold normal work duties, when the union has made it clear that the change to work practices is opposed, is a fact that should weigh against the employer in consideration of the exercise of the Commission's powers. Accordingly, we submit the orders we seek should be given in full, or at least in part. One of the prevailing circumstances is the background of enterprise bargaining currently under way and the union submits that good faith negotiations are the forum for the employer to pursue variations to conditions of employment.
PN196
Another circumstance that relates to the VATC non-compliance with the disputes clause is the knowledge of the employer that the AWU have a public position of opposition to the hand scan, and indeed, to our knowledge the VATC have not endeavoured to impose or railroad the use of the hand scan on Australian Workers Union members. We submit another circumstance the Alliance should consider is contained in the 1 August letter earlier tendered from Christine Hunt to myself. On page 2 it notes in the second paragraph :
PN197
As previously advised the club will now be paying the events staff on a weekly basis. We note this is a unilateral and detrimental change ...(reads)... This imposition was not subject to the consultative committee or any consent by the union.
PN198
Commissioner, the Alliance seeks the assistance of the Commission in settling this dispute through a decision that considers first, a primary remedy that the hand scan mechanism is withdrawn permanently, or until when and if consent is given as part of a new certified agreement with the MEAA. Other remedies the Commission could consider include: non-compulsory use by MEAA members of the hand scan, no requirement for MEAA members to use the hand scan to clock off, a mobile system of verification to the KRONOS software, and that as the employer contends greater flexibility under the new system, if the hand scan is determined to continue in use, that members return to the practice prior to August this year of being paid within three working days of their call.
PN199
The Alliance submits a process the Commission should consider to assist resolution of this dispute is directing the parties to seek a negotiated outcome within a deadline, with the decommissioning of the hand scan in the interim, or at least continuation of the current interim choice of use for MEAA members. Thank you, Commissioner, those are our submissions.
PN200
THE COMMISSIONER: Thank you, Mr Pound.
PN201
MR BURCHARDT: Commissioner, that really in effect is the case for the applicant as I understand it.
PN202
THE COMMISSIONER: Yes.
PN203
MR BURCHARDT: There are a number of new matters in it, both as to the material in the statutory declarations, most of which at first blush isn't contentious, some of which probably is.
PN204
THE COMMISSIONER: Yes.
PN205
MR BURCHARDT: But also, and I don't put this as a point of criticism, because there is time lines on the submissions and so on, but a number of matters have been dealt with as to merit which really aren't outlined in the contentions that were filed earlier. Given that we have moved perhaps faster than was anticipated, could I ask for half an hour? I know that is longer than I would ordinarily asked for at this stage, but I want to get instructions on the statutory declarations; also on the new issue of - or at least new in terms of the material that was filed - the new issue about the alleged difficulties of clocking off in terms of how long it may take or whether you get paid for it.
PN206
And thirdly, the completely new issue of the complaint that is now made about the move, as it is said, to weekly pay as opposed to three day pay. And ordinarily I would ask for five or ten minutes but I think that may just take a bit longer in this particular set of circumstances.
PN207
THE COMMISSIONER: Certainly. Mr Pound, do you have any objection?
PN208
MR POUND: None whatsoever, thank you, Commissioner.
PN209
THE COMMISSIONER: We will adjourn until 10 to 12.
PN210
MR BURCHARDT: Thank you, Commissioner.
SHORT ADJOURNMENT [11.19am]
RESUMED [11.48am]
PN211
MR BURCHARDT: Thank you for the time, Commissioner, just for once I needed just a little less than a little more, which is always as pleasant as it is unusual. Can I just deal with the issue that is perhaps still with us as to where we go with the two deponents of the statutory declarations, before I come on to my submissions. We note that neither witness is available today. We observe that we have no objection to them being called tomorrow, should the applicant wish to do so. We are certainly going to call direct evidence about some of the issues that arise from those statutory declarations and in the event that the applicant elects not to call them, we would be asking the Commission to take an inference from that, in the ordinary way.
PN212
We also observe that in relation particularly to Mr Andrews, that he is 72 years old. We are really not in the business of seeking, as it were, to force him here of ourselves, it is a matter for the applicant as to whether it wishes to call him, but if they don't we will rely upon the fact that these witnesses aren't called. We want to - 72 is an age at which there is sometimes a feeling that you have reached extra time and you are entitled to enjoy your ease, so to speak, but if he is a deponent, then ultimately he either gets called and gets cross-examined or he doesn't. Obviously, if he were to be called, we would hope to treat him properly
PN213
THE COMMISSIONER: Certainly, Mr Burchardt.
PN214
MR BURCHARDT: But I make that point. I don't require my friend to respond at this stage. He is entitled to take that on board and tell us how he feels after lunch or something like that. Commissioner, I will open my submissions on the jurisdictional issue first, if I may and then come on to outline the cases to what might be said to be the merits.
PN215
THE COMMISSIONER: Certainly.
PN216
MR BURCHARDT: Can I repeat a point that was made, I hope clearly, in the outline of arguments, which is, that contrary to what is generally felt to be the case, jurisdiction isn't being pressed, as it were, to avoid some sort of debate because we don't feel we have a case on the merits, quite the contrary. This is a case where the respondent is quite sure it has got the merits but unfortunately jurisdiction is a fact of life in a statutory tribunal. It is submitted first that this application, whether it is designed with this primary intent or otherwise, reflects an endeavour to circumvent the operation of section 89A of the Workplace Relations Act.
PN217
It is submitted that it is quite clear that the manner of recording arrival and departure times, which is what the kernel of this dispute is about, which is said really by both sides to be at the centre of it, is not an award allowable matter. I don't need to prove a negative by going through section 89A subsection by subsection but it is quite obvious that that is so. Even if this was an award allowable matter, section 170N would appear to prohibit arbitration as the parties are in agreement that they are in a bargaining period, notice of bargaining period having been served by the applicant on the respondent on 6 October last year.
PN218
Furthermore, this dispute, if I can use that term in a neutral phrase without making any concessions as to its statutory implications - - -
PN219
THE COMMISSIONER: Yes.
PN220
MR BURCHARDT: - - - plainly does not involve any of the relevant circumstances in which the Commission could vary the agreement, for example, by section 170MD or whatever. And so that brings us inexorably to the purported application, if not made under section 170LW, really relying upon that source of power to imbue the Commission with the authority to proceed.
PN221
Could I first of all bring you to the union's application, which I imagine would be on file. It is dated 4 August 2001 - - -
PN222
THE COMMISSIONER: Yes it is.
PN223
MR BURCHARDT: - - - and it has - it is under - it is fashioned under rule 66 of the rules and annexes a copy of a part of the agreement.
PN224
THE COMMISSIONER: Yes.
PN225
MR BURCHARDT: The first thing you will notice is that:
PN226
Notice is given by Media Entertainment and Arts Alliance to a Commission under clause 29 of the certified agreement between the Media Entertainment ...(reads)... intrusive scheme to require employees to use a new hand scan system for clocking on and off.
PN227
And then it goes on to say that the steps taken are those in the dispute resolution clause. So of course what is said to be in dispute is the decision to introduce the new system. Now for reasons I will come to, perhaps which are more to do with merit, it is apparent that the dispute isn't really about the way in which the club has got to where it has arrived at, although of course the union doesn't like that and says it is wrong and should have been done otherwise, the real dispute, if one interprets it correctly, is the fact that the applicant has a stated, maintained and apparently this possibly insuperable objection to the introduction to the new technology and the company wants to introduce it.
PN228
The next page, clause 29, sets out the actual dispute settling procedure, which is alleged to bring us here. And if I could ask you to turn to that, please sir, it says that:
PN229
The parties agree to adhere to the dispute settlement procedure set out below, (a) it is the basic intention of this clause to remove by direct negotiations and consultation between the club and union any dispute or grievance that may arise between the employees and the club.
PN230
The first point to make about that is that it doesn't say that one of the means of removing such difficulties is by arbitration, it is by negotiations and consultation. Secondly, it is very broadly crafted, it is:
PN231
...any dispute or grievance that may arise between the employees and the club.
PN232
So it is not restricted as the terms of section 170LW are, to matters arising under the agreement, it is not restricted as to industrial matters, they could have a dispute about anything at all, if one was to take this clause at face value. Now for reasons I will come to, I will accept that one reads it down, I am not seeking to say it is invalid in toto simply because it is broadly drawn. That was one of the issues in the CFMEU v AIRC case.
PN233
THE COMMISSIONER: Yes.
PN234
MR BURCHARDT: It was determined against the respondent's submissions, I am not going to try and get around the back door of that, but the fact is it is very broadly crafted. The second sub-paragraph reads:
PN235
(b) Accordingly, the parties will use every possible endeavour to ensure that any dispute or grievance is dealt with in accordance with the arrangements provided by this clause.
PN236
And that takes us to (c) which is arrangements and it says:
PN237
...the dispute or grievance shall in the first instance be submitted by the accredited union delegate and or union official to the nominated club representative ...(reads)... the issue may be referred to the Industrial Relations Commission by either party.
PN238
And of course what it doesn't say and perhaps given the sort of clauses that have arisen in other cases it should have done, was what the Commission is empowered to do when it gets there and that is a matter I will return to. It says:
PN239
...both parties shall endeavour to expedite the resolution of any matter in dispute and thereby prevent industrial action from taking place. Whilst this process is occurring, work will continue as normal, unless there is a threat to employee safety.
PN240
Now, as a matter of construction, that is the sort of equivalent of the - it is not a bans clause, but it is the sort of clause you ordinarily have designed to prevent strikes while you are proceeding unless - it is to prevent people walking off the job, that is the proper analysis of that. Now that is the agreement - sorry the notification. I know it is a formal document in the Commission, but would it be appropriate to make it an exhibit, so that there is no argument if we need to refer to it later on?
PN241
PN242
MR BURCHARDT: Now, if I could then go to section 170LW.
PN243
THE COMMISSIONER: Yes, Mr Burchardt?
PN244
MR BURCHARDT: Thank you sir. You will see it reads:
PN245
Procedures in a certified agreement for preventing and settling disputes between the employer and employees, whose employment will be subject to the agreement may, if the Commission so approves, empower the Commission to do either or both of the following, (a) to settle disputes over the application of the agreement...
PN246
And (b) isn't relevant because there is no board of reference power in the certified agreement. So the parts to be taken from that are, first, there is no requirement on the parties to empower the Commission as a third party. And secondly, they can only, should they wish to do so, empower the Commission to:
PN247
...settle disputes over the application of the agreement.
PN248
I would interpolate, there is no discussion in the High Court's decision in CFMEU v AIRC of what is meant by settle. But one would reasonably say that that must mean sorting it out in some compulsory way. On one view it might be empower only to try and settle it by conciliation, but I am not going to take you that far Commissioner, except that it must - - -
PN249
THE COMMISSIONER: There is a Full Bench decision, of which you are well aware I gather, in terms of what settle actually means.
PN250
MR BURCHARDT: That is right. Now, in any event however, it must be a dispute over the application of the agreement and if I can take you to the three authorities at this stage, Commissioner, that we have referred to and then come on to the agreement itself. And just briefly could I take you to the Full Bench decision in CFMEU, which is in fact reported in industrial reports but I have got spare copies for everybody. The citation of the case is:
PN251
Construction Forestry Mining and Energy Union v Gordonstone Coal Management Proprietary Limited (1997) 75 IR 249.
PN252
I grew up in a village of that name in Scotland, Commissioner, although it was spelt differently, so it rings a bell. That is to say Gordonstone rather than Construction and Forestry. If I could take you to that decision, you will see that the introductory material and described as the dot points under the heading, Background to proceedings, show that the matters that were said to be in dispute, are all set out there. And it was common cause in that case that not all those matters were necessarily award allowable matters. And if I could then take you over the page or over the two pages to page 250 to 251, you will see that what is set out there is the problem resolution procedure, the PRP, and step three, which relevantly begins at the top of page 251, if matters remained unresolved, said:
PN253
...referral to the appropriate industrial authority for determination of the matter.
PN254
And then there is a proviso and then there is a status quo clause, and then in clause 22 there was a series of provisions which expressly gave the Commission the authority to make a binding determination of the matters in dispute. And you will see that the parties to the agreement:
PN255
...agreed to abide by any decision determined by the AIRC.
PN256
And then in the next clause, that if it was referred to a third party, they agreed to accept the recommendation. So that was the sort of background which is notably different from the phraseology that has been used here. I won't take you through all the arguments advanced by the parties, not least because they have been overtaken by the High Court's decision, but if I could take you please to page 260. They considered a whole series of points including the issue as to whether there was in fact an industrial dispute that might have given rise to this agreement in the first place because this was of course litigation concerned with the 1988 Act before it was all changed and I think I mentioned that earlier because this one straddles that time passage as well.
PN257
The difference there was the agreement that they were considering had been fully certified under the pre-existing legislation in 1988. If I could take you to about the first full paragraph which begins:
PN258
We do not need to determine those points -
PN259
if you have that?
PN260
THE COMMISSIONER: Yes.
PN261
MR BURCHARDT: The passage - I am going on from there. This is the passage I want to take you to, sir:
PN262
Nor do we need for the purpose of this decision to decide whether the processing clause is 21 and 22 may be capable of application to a wider category of dispute ...(reads)... referred, must be identifiable as a dispute about the application of the agreement.
PN263
In other words, Commissioner, you can make your dispute referral clause as broad as you like, if all you seek to do is to seek conciliation, but once you start to arbitrate it must be a matter arising under the terms of the agreement itself. That is the point I seek to take from that. And indeed, you will see in the last full paragraph on the following page, which begins:
PN264
It follows...
PN265
I won't read it out, but I will refer to that, it is about point 8:
PN266
It follows in this instance for there to be power...
PN267
That point is again repeated. So the Full Bench had no trouble in reading down the provisions of the PRP in that case to be, if you like, co-extensive with the path or the terms in section 170LW. Now that then brings me to the NTEU case which I think everyone has got and if I could take you briefly to that as well. It wasn't reported although it was felt by the parties to be quite a significant case. And if I could ask you to turn to page 27, sir, the numbers are at the top right. You may recall, Commissioner, this was a long running dispute between the parties who are effectively the academics union and the universities, as to the scope and extent of casual employment and various other matters in tertiary institutions.
PN268
And at 4.7, one of the things - on page 27, they were arguing about a dispute settlement procedure. You will see there some numbers indented, well not indented but - - -
PN269
THE COMMISSIONER: Yes.
PN270
MR BURCHARDT: - - - the substance of the claim and under 3(b) there was:
PN271
...convention within 14 days of a three member disputes committee, which is to consider written submissions and evidence and argument relied upon ...(reads)... the dispute may be referred to the Commission for arbitration.
PN272
So once again, they plainly envisaged a consensual submission to arbitration as an express part of the agreement. On page 28 there is a reference to Hegarty's case in paragraph 10.10. I only refer to that because as the Commission is aware, this is a case in Victoria. The issues as to interstateness that were enlivened in this case and in CFMEU v AIRC, I accept are not extant in the same way here. But if you turn to page 29, sir, you will see at the top:
PN273
The current provisions of the Act relating to consent order or to certified agreement dispute settlement procedures, are built upon an understanding of constitutional ...(reads)... Commission to settle disputes over the application of the agreement.
PN274
And in the next paragraph you will see it starts:
PN275
It is within the purview of the principles set out in Hegarty's case for the Commission to do, through dispute settlement procedure, those things which the Commission ...(reads)... for the exercise of that power to deal with an industrial dispute by...
PN276
And it goes on to set out what is allowed:
PN277
The limitation, in section 170LW to disputes over the application of the agreement appears to be designed to restrict in much the same way the scope of the dispute ...(reads)... of a particular agreement is worthy to apply to disputes of particular character.
PN278
And then a bit further down, I am sorry the paragraphs aren't numbered and it is a few words in, there is a sentence that begins:
PN279
A dispute settlement procedure established by a consent award...
PN280
THE COMMISSIONER: Yes, I have that.
PN281
MR BURCHARDT: Point 7, Commissioner.
PN282
...or an agreement may purport to confer on the Commission the task of settling by arbitration or determination a dispute amount matters arising under the agreement ...(reads)... agreement. The scope for valid operation may be subject to conjecture.
PN283
And it goes on to deal with the matter about local disputes which I have already conceded doesn't activate us in this case. So it does seem to be fairly well established, in my submission, that we are confined at best to an examination of matters that arise under the agreement itself.
PN284
THE COMMISSIONER: Doesn't though the question of the High Court's decision in relation to the meaning of section 170MH under the Industrial Relations Act 1988 carry with it implications given the similarity of the wording between section 170MH under that Act and 170LW in the current Act. On my reading of the High Court decision, if the parties gave - in the dispute settling power there is reference to any matter or any issue in dispute, it wasn't limited to simply an application of the agreement?
PN285
MR BURCHARDT: I was just going to come to the High Court's decision, immediately, Commissioner and I will take that as part of the matters I wish to submit about that, if I may. If you have got that sir, the ALJR report and that I handed up earlier - - -
PN286
THE COMMISSIONER: Yes.
PN287
MR BURCHARDT: - - - we have got obviously the background to that from the Full Bench's decision as to what they were actually arguing about and you will notice that what occurred - this is at the bottom of the first page, page 670, the matter went from the Full Bench to the Federal Court, which held that prohibition should ensue and the Federal Court said section 88, you can't get around section 89A, the High Court reversed that decision and said for various reasons you don't have to be concerned about that. But if I could take you to page 671 held alone, the appeal:
PN288
Although the AIRC may not arbitrate to give itself either the powers or functions that Federal Parliament hasn't authorised or to provide for procedures which ...(reads)... which are the subject of those procedures are not themselves interstate disputes.
PN289
And it is referenced to Hegarty. It goes on to say:
PN290
It is incidental to the conciliation and arbitration power for the Parliament to permit parties to an industrial situation to agree to the terms on which they will ...(reads)... settlement of that kind and also for it to authorise the Commission to participate.
PN291
It is referenced to Victoria against the Commission. However, 3:
PN292
There is however a significant difference between agreed and arbitrated dispute settlement procedures. The Commission cannot by arbitrated award require the ...(reads)... rather its effect, if any, depends on the law which operates with respect to it.
PN293
Now if I could pause there, because it brings me to the question that you have just asked me. In summary, the High Court said, let us leave aside arbitration because this was a consent award and it is a consent agreement so we are not concerned with those difficulties. The Commission can, by consent of the parties, in invoking - because I accept the wording of section 170MH and LW is relevant, it is identical so there is no problem there and there is no other statutory aspect of the matter that causes that identical phraseology to be of any difficulty.
[12.12pm]
PN294
But if it is dealt with in that way and the Commission is as it were dealing with it qua the Commission then its powers can't go broader than the Act, so you are stuck with the application of the agreement. Of course, imagining as though the Commission didn't exist, parties to an industrial situation or in the light of the new legislation an employer or a union of workers can agree to submit their differences to anyone they want, be it a member of a Commission or any one else to act if you like as a commercial arbitrator. But then what you have got to look at is the instrument that so devolved the matter and the powers and rights of that determination have got nothing to do with this Commissions powers, they are to do with the instrument which refers it. That is really what the High Court in my submission.
PN295
THE COMMISSIONER: Which comes back to C or whatever it is in the dispute settling procedure.
PN296
MR BURCHARDT: Precisely, you see what has been assumed or these - it is inferred in the applicant's case here is, all we have really got to do is get within the portals of the Commission and suddenly the Commission has the full gamut of whatever powers the Act might give it because this is a 170LW application, we are not caught by section 89A it is fine you can do whatever and the point I am making is, well if it is under section 170LW it has got to be a matter arising under the agreement and the short point is that it is not a matter arising under the agreement, because the agreement doesn't deal with this controversy in any way. Insofar as it is said to be a private arbitration what I will be submitting is that the instrument that might be said to enliven those powers is totally silent as to exactly what it is that is being submitted. What the binding force of your determination would be and indeed what powers you might be said to have it had.
PN297
THE COMMISSIONER: Can I make such a finding that determinates.
PN298
MR BURCHARDT: Precisely, precisely. Now I have no doubt that the parties who crafted this document perhaps weren't turning their mind to all these issues not at least because it happened at a time when the legislation had just changed, and I don't make that as a criticism of anybody.
PN299
THE COMMISSIONER: No.
PN300
MR BURCHARDT: But the parties are stuck with what they have done.
PN301
THE COMMISSIONER: I understand, thank you.
PN302
MR BURCHARDT: Now at paragraph 4, this is the issue that I have already raised, Commissioner, and parties to a situation are free to agree between themselves as to the terms of which they conduct their affairs. Their agreement has affect according to the general law, if it is certified it also has affect as an award to the extent that an agreement provides in the manner that exceeds what is permitted by the Constitution or the legislation which gives the agreement effect as an award, it cannot operate with that effect, that is the point I made earlier, Commissioner.
PN303
But the underlying agreement remains in the validity of that agreement depends on the general law not the legislative provisions and once again that is really the point I was seeking to make. Commissioner, in a sense I have made the point that I wanted to make, if I could just ask you in due course - - -
PN304
THE COMMISSIONER: No I am sorry I even - because I interrupted you, please flow do as you want.
PN305
MR BURCHARDT: No I am not seeking to, yes, no I am not feeling pressured not to Commissioner, but points 5, 6, and 7 of the headnote I would ask you to read because they sort of flesh out the points I have already made and Commissioner, perhaps I could just take you to the text briefly, on page 673 you will note on the left hand column at paragraph 6 the new legislation if I can so describe it, the Workplace Relations Amendment Act came in to force on 25 November 1996, that is when the changeover took place and you may recall that the notice of bargaining period that instituted the certified agreement was served in October, I will be tendering it but that is when it happened.
PN306
Then there is the history of the proceedings which I don't make - well you may care to note on page 674 at the top there was still an issue as to whether the matters in issue were disputes over the application of the agreement (question that is still undetermined) the matter was referred to Commissioner Hodder, so at that stage at least the extent to which the matters were in fact disputes over the application of the agreement was still in issue and it wasn't before the High Court. Then on page 675 and 676 and 677 there is the meat of the decision, Commissioner, I would refer to the paragraphs numbered 20 through to paragraph number 39 in their entirety, but I wasn't proposing rather laboriously to read them all to you.
PN307
Could I just take you to paragraph 31 on the bottom of the right hand column on page 676:
PN308
Where parties agree to submit their differences for decision by a third party the decision maker does not exercise judicial power but a power of private arbitration. Of its nature judicial power is a power that is exercised independently of the consent of the person against whom the proceedings are brought and results in a judgment order that is binding of its own force. In the case of private arbitration, however, the arbitrator's powers depend on the agreement of the parties usually embodied in the contract and the arbitrators award is not binding of its own force rather its effect if any depends on the law with which operates with respect to it.
PN309
And at paragraph 34:
PN310
The parties to an industrial situation are free to agree between themselves as to the terms on which they will conduct their affairs. Their agreement has effect according to the general law. If their agreement is certified it also has affect has an award to the extent that an agreement provides in a manner that exceeds what is permitted either by the Constitution or by the legislation which gives the agreement effect as an Award, it cannot operate with that effect. The underlying agreement remains and the validity of that agreement depends on the general law of the legislative provisions which gave it effect as an award.
PN311
There are two - - -
PN312
THE COMMISSIONER: So the reference to general law is common law?
PN313
MR BURCHARDT: That is right, just the ordinary law contract. And what is had in mind there is in my submission is this, you either operate within the construct of the Act or should you wish to do so you can go out and do what ever deal you like and you can provide within that deal for whatever arbitration system the parties agree on, regulated and with the enforceability of whatever you agree, but if you wish to do it within the Act you are back to what is in the agreement in section 170LW. Now, Commissioner, there are two decision I will mention because they were the only ones that research on our side showed up about section 170LW in terms, in other words since the legislation changed and I only mention them because we don't want to be accused of trying to hush them up, but first of all there is CPSU v DSS (1996) 73 IR 240 a decision of Deputy President Duncan.
PN314
Second there is a decision of Commissioner Bacon in ASU v Qantas (1998) 82 IR at page 1. Both those cases involved determinations made under certified agreements which had the kind of binding commitment to arbitration I have taken you to in the CFMEU case, they are distinguishable from this one and don't assist you. I might say that in each case the Commission decided it should arbitrate and did have power to do so. Now the - - -
PN315
THE COMMISSIONER: There is another decision of which I am aware.
PN316
MR BURCHARDT: Look, I am sure we have missed some, Commissioner, those were just the ones we could find.
PN317
THE COMMISSIONER: I am not sure whether it has been published yet that is all.
PN318
MR BURCHARDT: Yes. Commissioner, the applicant presents its case under the agreement because even though this is a local dispute in Victoria and therefore the interstate element isn't a difficulty, it would ordinarily be caught pursuant to section 89A. The agreement itself has nothing in it about the matters which are presently in dispute and rather than just say that from the bar table I will seek to tender a copy of it. I should say we have got a copy of what we understand is the agreement, we have downloaded it and rather unhelpfully the photocopier has cut the edge of either side of the page off, but it will still be intelligible.
PN319
THE COMMISSIONER: I have a copy of the agreement from our library so.
PN320
MR BURCHARDT: Well, in that case we will work of that if it is convenient, Commissioner. You will see that the agreement commenced on 26 May 1997, that should be on the front page or fairly close to it.
PN321
THE COMMISSIONER: Yes.
PN322
MR BURCHARDT: And you will also see under the table of contents and I think it would be in relation to part D other conditions, reference to payment of wages and time and wages records.
PN323
THE COMMISSIONER: Yes, clauses 19 and 24.
PN324
MR BURCHARDT: Sorry, nine and?
PN325
THE COMMISSIONER: 19 and 24.
PN326
MR BURCHARDT: Thank you, Commissioner, my - that is part of the bit that is lost to me, so I am learning as I go. You will also see that the agreement applies to person employed casually by Victoria Amateur Turf Club who are eligible to be members of the MEAA and it doesn't apply to people employed on weekly, fortnightly or annual basis. You will note that it has got the usual relationship to parent award clause and it relates back to the 1983 Award although my copy is a bit truncated.
PN327
THE COMMISSIONER: Yes it says `93.
PN328
MR BURCHARDT: Yes, thank you.
PN329
THE COMMISSIONER: `83 sorry.
PN330
MR BURCHARDT: Yes, `83 that is right. If you go however, to the clauses 19 and 24 and if you turn to clause 19 please. The payment of wages that is all about electronic funds transfer, it has got nothing to do with clocking and clocking off.
PN331
THE COMMISSIONER: And it also says in (b) that three working days.
PN332
MR BURCHARDT: Yes, that is right. The next part of it is right of entry and inspection of time and wages records, you will see that is clause 24.
PN333
THE COMMISSIONER: Yes.
PN334
MR BURCHARDT: The reference to time and wages records is a little misleading what the clause really is the right of entry clause to go and look at time and wages books. So that is what there is in the agreement. Those clause in the agreement follow a notice of bargaining period in 1996 and perhaps I could tender that, it should be tab 27 I think. I seek to tender a letter from the applicant union to Dale Monteith dated 7 August together with a notice of the initiation bargaining period.
PN335
MR BURCHARDT: You will notice it was served on 7 August - sorry I have been saying October and I have misleading you there - it was August `96. It is a notification seeking an agreement under division 2 of the Act which of course was then a certified agreement as opposed to enterprise flexibility agreements which were division 3 at that time, it is a little confusing because we have still got division 2 and 3 but they are not the same, and it then goes on to say what it deals with in the next two pages. You will note on paragraph (c).
PN336
THE COMMISSIONER: 4(c).
PN337
MR BURCHARDT: Sorry, 4(c), thank you very much, sir, yes. Under the various particulars required by section 170PE the matters proposed to be dealt with were the terms and conditions of employment to apply the cessation of the Award and included payment of wages, times and wages records, and we have seen what that is about and then you will notice under paragraph (d) at paragraph 170PE(d):
PN338
The industrial dispute to which the proposed agreement relates is C number 1267 in 1982.
PN339
Which was plainly the dispute finding that originally gave rise to the 1983 Award. So that is the sort of breadth if you like of the original matters that arose in `96 to 7. The 1993 Award does not reserve leave in respect of the matters presently in dispute, perhaps I could tender you a copy of the Award. If you turn to the leave reserved clause which is on the - which is page 11 clause 23, was leave reserved to the applicant in respect to certain classifications, there is leave reserved to seek inclusion of a classification and there is various other things on page 12 including outdoor allowances in terms of engagement and the like, free entry to courses but there is nothing about the recording of arrival and departure.
PN340
I should say, Commissioner, the Commission has lost the original log of claims that gave rise to that Award. We have sought to find it and what we are told from archives is it is not available. I am therefore not able to tell you whether or not in 1982 the finding of dispute that must have been made was or wasn't wide enough to encompass the issue that we are now concerned with. That is regrettable but it is one of those things, we have made what might be said to be proper steps to get it but I dare say a 1982 document isn't something that everybody just has lying around on the shelves as time moves on.
PN341
THE COMMISSIONER: Well, to be frank Mr Burchardt, this Commission's registry should have it on its shelf.
PN342
MR BURCHARDT: Well, I - that is why we asked them and it is just a matter of - there is apparently a note on the file that it has been lost.
PN343
THE COMMISSIONER: Certainly.
PN344
MR BURCHARDT: There is a note that it is not there, well that is not the same as being lost, it may come back. I am indebted to my instructor for that.
PN345
THE COMMISSIONER: One hopes.
PN346
MR BURCHARDT: Yes. The reason I mention this of course is that one of the strands that ran through the CFMEU case in which wasn't in any sense displaced by the High Court's decision was, you can't put in to a dispute settling agreement - a dispute settling provision in a certified agreement that is made pursuant to ultimately notification of dispute, anything brought in the original dispute. It is the old line about a river can't rise higher than its source and that is fact well established of course, and the difficulty that arises here is the timing of the events.
PN347
THE COMMISSIONER: Yes.
PN348
MR BURCHARDT: The transitional provisions are almost impenetrable. The relevant provisions in the transition legislation is schedule 8 of the - if you will bear with me, workplace.
PN349
THE COMMISSIONER: The WROLA Act is it?
PN350
MR BURCHARDT: Sorry?
PN351
THE COMMISSIONER: The WROLA Act.
PN352
MR BURCHARDT: Yes, that will do that is the nicer way to call it otherwise it goes on and on. And that appears to suggest that ongoing matters as defined were entitled to be dealt with what might be described as the Commission's new powers, but that ongoing matters were matters that the Commission had started to deal with before the introduction of the legislation in November 1996. We know that the agreement was certified in 1997 and I don't have access to the accompanying documentation that would suspect in an ordinary way it was relatively shortly before the agreement was certified, and that the Commission did not start to deal with it in that sense until then.
PN353
The difficulty then is if it is - if you like a 1988 Act application we are confronted with these ambit issues, if of course it is merely a division 2 application under the amended legislation the parties can agree what they like without the necessity for an industrial dispute.
PN354
THE COMMISSIONER: It was certified pursuant to division 2 of the Workplace Relations Act 1996 by Commissioner Deegan.
PN355
MR BURCHARDT: Yes I noted that. Now I don't wish to put this in a way that is unnecessary, difficult or misleading, I wouldn't wish to mislead you on any footing of course but.
PN356
THE COMMISSIONER: One would hope not Mr Burchardt, and from past experience you never have.
PN357
MR BURCHARDT: Thank you, sir. The way it lies is this, my client can't positively establish because it can't get access to the source materials, the scope of the original dispute in 1982, if that scope was not broad enough to encompass the manner in which you clock on and clock off from work to put it at its simplest, then obviously the agreement that might have been made in 1996 to 7 couldn't have encompassed that issue. That might then give rise to the whole hideous series of complications that arise where it said an agreement has not been validly certified, which is the - - -
PN358
THE COMMISSIONER: That did go through my mind about.
PN359
MR BURCHARDT: - - - ..... that the parties to the O'Connor dispute embarked upon. All we say about it for these purposes, Commissioner, is that in construing your powers in this case you will perhaps be the more cautious to take the broader view when the position is perhaps attended by that measure of uncertainty. Because the parties would not ordinarily be presumed to have been setting up a mechanism to regulate things which they hadn't previously been confronted with. So that is the second part of the submission, the first part and the part is pressed as a matter of jurisdiction is that the matter presently before the Commission is not a dispute arising under the agreement.
PN360
On the matter of the three day payment which has really been articulated in a formal way just this morning, we will be dealing with that when we come to evidence. What we really say, is that the dispute here is over the introduction of some new technology it is the manner in which the recording of the people's arrival and departure from work takes place, there is nothing in the agreement about that issue and thus we run in to these difficulties, which would otherwise be attended by section 89A. Now, Commissioner, that is the outline of the submissions I make on jurisdiction and indeed it won't be necessary for me to repeat those in any final address, that really says what we wish to put on that aspect of the matter.
PN361
THE COMMISSIONER: Thank you.
PN362
MR BURCHARDT: That then brings us to an opening on the question of the merit. The first point that arises out of the applicant's materials is what you might describe as process. Could we say and in that regard, sir, if you have the applicant's materials you will notice under the heading contentions, on page 1, there are a series of paragraphs which are to the effect that the introduction was unilateral - I am sorry, I will wait until you have got that sir.
PN363
THE COMMISSIONER: Yes, I have it, thank you.
PN364
MR BURCHARDT: I beg your pardon. Under contentions there are about four paragraphs which are about - immediately about process and these have been effectively repeated in Mr Pound's submissions this morning. It said that the introduction was unilateral in breach of normal work practices and therefore of clause 29 of the agreement. It was in breach of clause 8 because there wasn't a consultative committee and that there has been no application to vary the certified agreement although negotiations are under way for a new one.
PN365
Now, as we construe the Act so that there would be no capacity in these circumstances to apply to vary the agreement according to its terms, because there are only certain limited circumstances in which you can of course apply to various certified agreements. But can I say this, in a sense the fact - if we are wrong, Commissioner, and you have a power to arbitrate, all these procedural procedures disappear. The real dispute is about whether the club should or should not introduce in a mandatory way the new system of technology it has got for recording people's times of work.
PN366
The Union says and there is no reason to doubt their word, that they oppose that what they are seeking is that the respondent be stopped from using it. In a sense all the provisions as to consultation and so forth - and I will deal with the facts of this in a moment, that all of those are simply overtaken by events. The end result is if you don't agree according to the union you come to the Commissioner, and the fact is we are here now so let us deal with it. But can I say in respect of the process whereby we got here, that the respondent took such steps as it would have reasonably been required to take to do exactly what it said it didn't do, namely to consult inform and negotiate with its employees.
PN367
Now, I would like to tender a number of documents, although I will be calling Ms Hunt who will give direct evidence about them, but it would be convenient to take them now. Now you may have and I think you do have the Heath News of April 2001. It is part of exhibit M1, Commissioner. I think it is the first two pages of it.
[12.36pm]
PN368
THE COMMISSIONER: Yes.
PN369
MR BURCHARDT: This was the starting point and you will notice that under the heading "Issues on the Move", as Mr Pound rightly took you to there is a suggestion that the Club is in the process of implementing its new payroll system KRONOS and it attached some information on it to tell people about it and having done that you notice that it says under "general":
PN370
Your cooperation -
PN371
this is on the second page -
PN372
your cooperation with the pending changes over the coming months is greatly appreciated. Should you have any queries regarding these changes, please don't hesitate to raise them with Matt or Sam.
PN373
Doubtless those christian names would have meant something to the people to whom they were sent. The next thing that was sent out was, and it is not dated, but I think it is the next one in time, is a document entitled "KRONOS Time and Attendance System" which I think is the second document in M1.
PN374
THE COMMISSIONER: Yes.
PN375
MR BURCHARDT: And you will notice, once again, having set out what they thought they were going to do they stated at the bottom:
PN376
If you have any concerns relating to the new payroll system please contact the payroll department or Matt McTaggart, Staffing Coordinator.
PN377
So, once again, employees are being informed. They are being requested to raise any concerns that they may have. The next document after that was a letter from Ms Hunt to Sarah Howe dated 26 April which you don't have and which I will seek to tender. I seek to tender this, Commissioner, since it is not before you.
PN378
MR BURCHARDT: Thank you, sir. This reads:
PN379
Dear Sarah -
PN380
this is from Christine Hunt, Human Resources Manager, to Sarah Howe or the applicant, dated 26 April 2000. I think that is a common cause - it will be common cause - that is a typographical error and should have been 2001. I think that is right. Yes. The author confesses, Commissioner:
PN381
Dear Sarah, The VATC is currently installing KRONOS Time and Attendance software that will work in conjunction with the existing Micropay payroll software to calculate employees' entitlements and to record hours worked. Our employees will be affected by the following changes -
PN382
and you will notice under "Weekly Payment of Wages", -
PN383
Employees will be paid weekly rather than by event. This will actually improves the Club's ability to tax employees correctly and alleviate some of the under-taxing that can occur when paying by the event.
PN384
Ms Hunt will give evidence about this. The problem you get is - these are all casual people we are talking about, so if they come in on a Wednesday, a Saturday and a Monday, or some three days like that, the requirement to pay you within three days will mean that you can actually get three different pays within the time span of a week. If you are paid, if you earn, say $200 over a week, you will be taxed on that figure. If - if it is done in one go. If you are only taxed on 70 and 70 and 70, the tax rates are lower, because the presumption in the scheme of things is that that is all you are making and this actually gave rise to circumstances where people might find themselves notwithstanding that the Club had very properly withdrawn the amount of tax ostensibly withdrawable, they would end up with a tax bill at the end of the year and this was a difficulty that this system was designed to address.
PN385
And then you will notice that there is therefore is notification in April of changes due to occur in May or June of the year and says that detailed notification will be sent to staff. So the union is notified at the same time, effectively, as the employees of the intention to introduce this material - this new system. The next document that was released which is also part of exhibit M1 - no I am sorry it is not part of M1, but it has been tendered, was M4, dated 23 May.
PN386
THE COMMISSIONER: Yes.
PN387
MR BURCHARDT: You will notice once again, I don't see to take you through all of it, that on the second page there is a - once again an indication that there is further information available - you will see that on the bottom of the left hand side:
PN388
For further information, Christine Hunt -
PN389
and gives her phone number and her e-mail address. The next correspondence - I beg your pardon I am not absolutely sure if this is in it or not, there is a letter dated 30 May 2001 from Ms Hunt to Ms Howe. Perhaps I could tender that at this stage. Sorry, do we have a copy of that one as well.
EXHIBIT #V4 LETTER FROM MS HUNT TO MS HOWE DATED 30 MAY 2001
PN390
MR BURCHARDT:
PN391
Dear Sarah, On 19 May 2001 at a Caulfield race meeting both myself and Nick Cosgrove invited Mary Latham, Eileen Brown and Sid Andrews to view and discuss the hand scanning technology. I am happy to say that after this meeting all three delegates were satisfied and endorsed the implementation of KRONOS.
PN392
And there is reference to an attached staff release may or not have been in before, I am not sure, probably not. No it probably was given 19-23rd. Ms Hunt will give evidence about the meeting that took place on 19 May. Her evidence will be that at that meeting all three of the persons present from the applicant, expressed unqualified support - I don't want to put words beyond what they went, but they were unqualified in their position that the technology should be introduced. She will tell you exactly what they said, but so far as it is possible to take what people say as being what they mean their response was that this technology looked like rather fun and would be perfectly acceptable.
PN393
I appreciate that Mr Andrews now says that that is not what he said. That is a matter that ultimately may be an issue or may not. We are certainly calling evidence about it, but at the very least unless you were to find that Ms Hunt is an absolute out and out liar who invents things that are not the fact the very, very lowest one can put it is that the respondent thought he had had agreement from the delegates at that time and that puts the matter at its very lowest level. We would go further and say they did, in fact, have that agreement because we are calling the person who says she got it but in any view unless this letter is a deliberate untruthful, as it were, forgery that is the state that the employer was in.
PN394
PN395
MR BURCHARDT: You will see that that says, under the heading "KRONOS":
PN396
Delegates from the CFMEU and MEAA raised on behalf of the staff some issues relating to the hand scanning device. The Club prepared a staff release dated 23 May 2001, which addresses these concerns in detail.
PN397
As I am instructed, Commissioner, the concerns that are asserted there by - to have been raised by the MEAA are those that gave rise to the meeting on the 19th. Once again, you will notice that Mr Cosgrove, the author of this document said:
PN398
Communication is the key to this transition and I would be grateful for staff input during the process.
PN399
Now, the next piece of documentation which was raised by this controversy is in August and Ms Hunt's evidence will be that following that letter that she sent to Ms Howe there was a sort of silence from the union for quite an extended period of time while the company went on with the introduction of the technology. Could I now tender the August edition of the Heath News. Sorry.
PN400
MR BURCHARDT: You will see that there is reference there to a meeting and this arose because the union had formally by this stage articulated its complaints and the - the Club made available the Hiskens Bar on 4 August for meeting of staff to consider the issue in whatever way they felt. I should say obviously no representative of management was at that meeting or at least - well, it is not obvious, but that is the case they weren't in the usual way they had a bit of a look to see as a matter of impression how many people attended because there was a meeting in the morning and a meeting the afternoon. Of those eligible which was certainly some dozens it would appear that only a very small number of people attended.
PN401
PN402
MR BURCHARDT: You will see that this says:
PN403
The alliance is writing following your recent meeting with branch organiser, Sarah Howe and Serena O'Meley to confirm our current position in relation to our disputing management's need to introduce -
PN404
sorry -
PN405
to change normal work arrangements through imposition of intrusive hand system - hand scan system. Accordingly we seek confirmation that no member shall be under any obligation whatsoever to use the hand scan until this issue is satisfactorily resolved. The alliance would appreciate written confirmation prior to our meeting with members on Saturday, 4 August.
PN406
PN407
MR BURCHARDT: Now, sir, I don't want to read all of this on to transcript, but I do want to refer to all of it. Would it be convenient to ask you to read it and let me know when you have finished?
PN408
THE COMMISSIONER: Yes, certainly. Have you many more documents to go, Mr Burchardt?
PN409
MR BURCHARDT: No, on this aspect of the matter I am coming to an end, because of course the dispute was notified to the Commission shortly thereafter. This really the last - last documentation relating to this aspect of the issue. Yes, it may be a - I - - -
PN410
THE COMMISSIONER: Yes.
PN411
MR BURCHARDT: Thank you. You will notice on page 1, on the first page that is to say that there is reference in the first paragraph to some of the reasons why the respondent wished to introduce the new system and I will get Ms Hunt to outline those in more detail in her evidence. You will also notice that in paragraph 2 or the second paragraph there is a reference by Ms Hunt to asking Sarah Howe on a number of occasions to elaborate on the union's concern but failing to get a - a response or information she was after and you will notice there is, once again, reference to the meeting in May at which the union delegates gave their approval and of course there was no reply to this letter so - although I appreciate those issues - those matters and have no issue and of course you will that on the second page the Club had moved to the new system.
PN412
You would have noted however, that on the - there was reference to 600 staff using the software, on the first page. The Club has moved its employees, if you like, by sections. The first section that moved were the catering staff. The catering staff had a pay system that just didn't work at all and they adopted it and are using and at least as far as the respondent is concerned there is no breath of controversy about that.
PN413
So, out of the 1000 or so people that would perhaps represent the more normal ambit of employment, because it goes up a lot in the Spring Carnival and I will come on to that in a minute - 600 they are already using it. There are also a number of employees in the Tabaret area, all of whom are using it. The figures do really wax and wane but I understand that is in excess of 100. There are about anything up to 400 casual people who might be said to fall within the MEAA rules but of those - I am sorry, I take that back - there are about 400 casuals over and above that of whom 240 are understood to be eligible for MEAA, a number would be people like doctors and vets who probably aren't and who, in any event, aren't the subject of this dispute as we understand it.
PN414
There are also a number of AWU members who, at a maximum as I am instructed, get up to about 100 of whom 40 would be casual and Ms Hunt will give evidence about the reasons whereby they have been taken last. It is not because the AWU has a stated position of opposition. It is to do with various planning issues to do with the way in which the respondent moves forward, so catering went first because they were the most pressing problem. AWU are going last because they have got a very complex certified agreement and there are real issues as to the way in which the new system will operate.
PN415
Now, Commissioner that is how we got here. As you are aware, and following the assistance and intervention of the Commission there has been posted at both Sandown and Caulfield a notice indicating that those who do not wish to do so need not use this - the hand scanning technology while this matter is before the Commission. On Wednesday three out of 45 employees were paid manually because they did not want to use it. And as we understand it, yesterday, 44 employees - casuals attended - that is to say of the relevant ones we are concerned with here, all of whom scanned on and apparently two appeared to have forgotten to have scanned off when they left. They didn't announce that they didn't want to do it. They just didn't scan off.
PN416
I note that Mr Andrews says that he didn't see the notice at Sandown, but it was there. Commissioner, that in outline is what we say about the process. Would that be a convenient time?
PN417
THE COMMISSIONER: It would, indeed. We will adjourn until a quarter past two.
PN418
MR BURCHARDT: Thank you, Commissioner.
SHORT ADJOURNMENT [12.54pm]
RESUMED [2.22pm]
PN419
THE COMMISSIONER: Yes, Mr Burchardt.
PN420
MR BURCHARDT: Thank you, Commissioner. I had asserted before lunch that we had finished the rather dread crawl through all the documents about process, but I am afraid there were two I missed. I will rectify that omission now, if I may.
PN421
THE COMMISSIONER: Fine.
PN422
PN423
MR BURCHARDT: This was obviously part of the ongoing process of informing people and once again, Commissioner, you will see that there is an express invitation to employees on the second page to take up any issues that they might have been concerned with, with the club.
PN424
THE COMMISSIONER: Right.
PN425
PN426
MR BURCHARDT: You may recall I said, sir, there was a gap of several months. Exhibit V4, I think it is, is a letter dated about 20 May from Ms Hunt to Ms Howe setting out in broad terms what is going on and so on, so that extent it may be that Ms Hunt's recollection is correct. It was quite a long time before any kind of formal reply came back. I may say, in saying that, this isn't put in some way to be critical or to score a particular point. It is merely to make the point that the club thought it was proceeding on a particular basis and had some reasonable grounds to do so.
PN427
That is the end of my remarks in introduction about process, sir. Could I then deal with the next matter which is raised in the materials filed by the applicant, and that is privacy. I am going to deal with the government guidelines - the industry guidelines, which I may say are also the same guidelines issued by the Federal Privacy Authority. They are still voluntary, and so on, but they are the same document. I will deal with those in submissions because they are really not put in any kind of significant way, in the sense that they exist and they make a number of encouragements to various bodies to do things and broadly speaking, what the respondent says is it is not breaching any of it.
PN428
But, similarly, in relation to the remarks reported in The Age, those are matters I can deal with in submissions because we are not hearing from the people who were expressing opinions in that article. Could I, however, on this issue, hand up by way of tender, a letter received from America by my instructing solicitor which both sets out the answer and sets out the questions that were asked so that we don't need to put in the original letter. I have shown a copy of this to my opponent over the luncheon adjournment. Could I just pause before I take you to it.
PN429
As you have heard, the - and as, indeed, I believe you have experienced, the system operates by placing the hand on a template. That then leads to a recording of a number of points on the hand which enable what is called an algorithm to be created which is a series of numbers. Those are stored in the computer. When you punch in your number, your employee code number, and as you may have seen, those are, in fact, above the machines to avoid any difficulties of memory or whatever, and you put your hand in, it flashes through to the computer and says this is - either is or is not the hand that ought to go with this number.
PN430
And obviously there might be concerns. First of all, that the data is not being stored securely and we will deal with that in a moment. And secondly, that if, in some way, some computer hacker was so bizarrely oriented that they felt they wanted to know what the algorithms were of the casual employees at Caulfield Racecourse, and if they could defeat the various security provisions within the computer set-up, what would they get out of doing that. And the answer is all they get is a series of algorithms. They can't reconstruct the image of the hand.
PN431
Even if by some freakish way they could do that, it is no good to them without the actual hand there to confirm that it is the right one. And even then, on the system that the club uses, you need to insert the code as well. Now, of course, in the world of science fiction there is always the risk of some extraordinary series of events, but within the framework of anything that could be anticipated, bearing in mind that the club also records people's tax file numbers and other very sensitive material already, it is put that there is no possible basis for any kind of sensible security or privacy concern.
PN432
The flow of information can go into the system, but it can't be taken back out of it. The club itself can not access the algorithms by way of illustration. Now against that background, could I bring you to this letter. Recognition Systems, as I am instructed, are the people who make this and perhaps I would seek to - I seek to tender the letter and the attachments, sir.
PN433
MR BURCHARDT: You will see it reads:
PN434
Dear Mr Lapson, In reference to your letter to Julie Kerim -
PN435
who we anticipate calling tomorrow, sir -
PN436
the following are our responses to your questions. 1, from the -
PN437
the image that is typed, is the question in the original letter, if you follow me, sir -
PN438
from the image of the hand placed on the hand scanner, what actually is created? Answer, a nine by 10 plate which is a mathematical value. Could you please provide an example in the physical form? The following is a hypothetical biometric template -
PN439
and you will see it is just a series of numbers, so that is what goes in -
PN440
Are independent third parties able to access the records created by the hand images referred to above? Only if the third party is allowed access to the database by the end user.
PN441
In other words, unless we let you have it, or unless you are some freakish hacker, and they can get into the Pentagon, I suppose, so they can get into most places, but absent something like that, we have got to give it to them:
PN442
If yes to 2 above, what could independent third parties possibly do with the information accessed from the records? They could put the templates in other ...(reads)... Please see the RSIs official privacy statement attached.
PN443
And he then gives what, in effect, are his qualifications because we felt that might assist. And you will see that there is some materials which follow which address those issues which I won't read through, but we would ask to incorporate as part of our case. Essentially what it says, Commissioner, is that the template goes into the system, it can't be brought back out. That is essentially it. And ultimately, I doubt that that will really be an issue in this proceeding, but we felt that it was proper to endeavour to prove the point.
PN444
THE COMMISSIONER: Thank you.
PN445
MR BURCHARDT: Could I also say, we sought information as to who is using this. Sorry, sir, you are obviously reading it. I am quite happy to - - -
PN446
THE COMMISSIONER: No, no, go on.
PN447
MR BURCHARDT: It has got a very wide application in the United States. Could I hand up what they sent us about applications. It may not be up to the minute, but it is 3/01 which probably means March this year, and these are simply applications in America. It is used by a wide variety of organisations. You will notice - somebody - there is some hearsay evidence that somebody felt like he was going to prison when he went to work. There are some correctional units that use it. That is the phrase they obviously use in America. But you will notice that it is also used by firms like Coca Cola, large restaurant chains, hospitals, government organisations, and so forth. It is a very well accepted mechanism. It is fair to say - - -
PN448
THE COMMISSIONER: Do you want to tender this?
PN449
PN450
MR BURCHARDT: Thank you. Could I say this. It is the use that is now in place at the respondent, is by no means the first use in Australia. Ms Kerim instructs that the technology has been available since about 1986 in this country. We do know, that is to say, Ms Hunt is informed by KRONOS that it is being used by a number of other places. The difficulty is, KRONOS won't tell her who they are because this is part of market information, and KRONOS are not the only people who supply it. So we can't tell you how many people are using it or precisely who they are, and indeed, Ms Kerim can't because they sell through people like KRONOS as well, although there may be some anecdotal evidence about that.
PN451
But we do know it is in reasonably widespread use. There are some hundreds - some 500 such units in use in Australia as best we understand it, and that is only the information we have had from KRONOS and there are others. Now that, in one sense, doesn't prove anything either way, but it is just helpful to be - for the Commission perhaps to be aware that this isn't the first time this issue or this technology has ever arisen. We are also, once again anecdotally, led to believe that Woolworths are using a similar scanning process, but theirs is based on an actual fingerprint, rather than a hand scan.
PN452
One might think that that is more - you know, if anything is intrusive, to record a fingerprint might be said to be in some way objectionable. But once again, we can't take that further than that. So that, in substance, is what we say about the broader privacy issues. The material that is - the template, so to speak, the algorithm, is recorded on the respondent's computer. The software is totally controlled by the payroll officer, is accessible only on a password basis, and is kept in a room in the administration under lock and key. All the material generated by this technology, all the source material, is kept under lock and key in the administration centre in the respondent's premises.
PN453
Now, returning to the applicant's outline, there were a number of matters at the bottom of the first page and dealing with Mr Hamlyn on the second page, and further, that really are to the effect that the applicant doesn't agree with the course that the respondent has embarked upon and we accept that that is so and that is why we are here. But as I said earlier in relation to this issue of process generally, that really just explains the disagreement between the parties. It is not a matter of any merit in itself. There is a suggestion on the second page, that the software can be overridden. That is partly, at least, correct. You can manually override.
PN454
The respondent's understanding is that that takes 10 times longer. It would require the allocation of further personnel, in each instance to do it, and the understanding that the respondent has from the suppliers of the equipment, is that the scale of arrangements that would need to be made to enable these numerous manual overrides to take place would, apart from being an incredibly inefficient use of the technology, in fact, compromise its integrity. Because although there is an override for exceptional circumstances, it is not intended to operate as though that were the norm. That is really understandable.
PN455
Might I say in this regard, I sought instructions and I am in a position to formally give this undertaking. In the event that somebody has some deformity of the hands that might make the placing of either hand, because it can work on either hand, but if they had some deformity or illness that made that either impossible or distasteful in a way that one might conceivably imagine could be the case, if for example, you had very severe arthritis or something, or if you had some bona fide objection of another sort as yet not articulated by anybody, the respondent is quite prepared to look at those on a case by case basis. One would imagine they would be rare, but should it occur, I am formally instructed to give that undertaking and that will obtain irrespective of the outcome of this proceeding.
PN456
THE COMMISSIONER: Thank you, Mr Burchardt.
PN457
MR BURCHARDT: I have dealt with the matter of Liberty Victoria. I will deal with that in submissions, and the business of the person who said they felt like going to prison not work. So far as the opposition of the AWU is concerned, I think I outlined earlier on that obviously with different work sites and different - there is more work sites in the union, but with different work sites and different functions being performed and different pay systems previously in existence, the respondent tried to progress its affairs in an orderly and sensible way and the AWU has come out last for reasons that Ms Hunt will elaborate in her evidence.
PN458
Beyond that, Commissioner, I think the only final points I should make are this. We were going to tender a letter from the Department of Human Services which was to the effect that the Department has checked these machines and says they are safe, but I am indebted to Mr Pound who has assured me that there is an express concession that that matter is not being pressed. It is not suggested that placing your hand in the machine involves risk from infrared rays or anything of that order. Now, we came equipped to deal with that, but he helpfully says that is not an issue, so I don't have to deal with that.
PN459
So far as there was some mention this morning of a possibility of health risks associated with dirt on the template, the respondent makes - there are wipes right beside them which can be used if anybody thinks there is a difficulty there. But realistically, it is about as dangerous as opening the door handle - putting your hand on a door handle. We heard this morning some issue which I took to be of concern to employees at the time it might take them to, as it where, get from where they were to where they might clock off and we have got here, some diagrammatic representation of Caulfield Racecourse, and perhaps I can tender this.
EXHIBIT #V13 DIAGRAMMATIC REPRESENTATION OF CAULFIELD RACECOURSE
PN460
MR BURCHARDT: You have been there, Commissioner, so you have got an idea of what this scale means. If you look in front of the members Rupert Clarke area - - -
PN461
THE COMMISSIONER: Yes.
PN462
MR BURCHARDT: - - - you will see a thing called the Secretary's Office. As I am instructed, leaving aside the catering staff who have always clocked on and off at the Catering Manager's office, the persons with whom we are now concerned used to announce their arrival there. They were simply noted. They didn't sign on or off, they just announced their arrival. The clocking off can now be done in one of three places. Either in the Tabaret towards the left, which you will see is in purple, or in a spot underneath the main grandstand which you would have to sort of go beneath, but bearing in mind that there is a tunnel into the car park area in the middle. You can see the scale from, for example, the subway pedestrian entrance in the middle top part of the diagram?
PN463
THE COMMISSIONER: Yes.
PN464
MR BURCHARDT: Well, if you wanted - if you wished to clock off from there you have only got to go, as I understand it, just underneath the Rupert Clarke public area is another one and of course, there is another one in the catering office which is where everybody clocks on now. If you have that, on the right?
PN465
THE COMMISSIONER: Mm.
PN466
MR BURCHARDT: I should further say that all employees have been instructed to finish their work, if it is not already finished because they are employed for a minimum number of - amount of time, and of course they can leave when they are finished. But if they hadn't otherwise finished, they have been instructed to cease their work about 10 minutes early so they can get to wherever it may be that they have to clock off in good time.
PN467
THE COMMISSIONER: What is the situation if what they are doing, they can't cease 10 minutes early and they work to the end of their shift and then they walk to a clock-out area? Are they paid for that time?
PN468
MR BURCHARDT: We don't anticipate this is actually happening, but as a matter of analysis we would accept they would be.
PN469
THE COMMISSIONER: But obviously, we may - from having clocked off, the time it takes them to get back to wherever their vehicle is or whatever, that is in their own time?
PN470
MR BURCHARDT: Well, that is so if you don't have company car parking dead on site, I suppose. That is so for all of us, Commissioner, yes. Now, on the question of the pay period, there will be evidence given about the reasons why the move to weekly pay was made, but one thing I should emphasise is that the respondent does not concede itself to have in any way breached the certified agreement. The certified agreement requires for pay within three days of the nominated time and what has been changed, of course, is the nominated time.
PN471
So rather than making the nominated time each event you work, it has been made the one week - one spot in the week. I appreciate there may be room for argument about that, but that is what we say about that, and certainly, might I say, that is no piece of sophistry on my part. That is the thinking that underlined the way in which they moved. Now, Commissioner, that is the matters I wish to put before you in opening. As foreshadowed, I would seek to call Christine Hunt.
PN472
PN473
THE COMMISSIONER: Yes, Mr Burchardt.
PN474
MR BURCHARDT: Ms Hunt, remember that the microphone in front of you doesn't amplify your voice, so speak up?---Okay, all right.
PN475
And bear in mind some people are taking notes of you, so don't try and rush and try and, as far as you can, to direct your answers to the Commissioner. Now you have given your name and address. Would you give your occupation, please?---I am the Human Resources Manager at the VATC.
PN476
And how long have you occupied that position?---Four years and eight months.
PN477
Thank you. If I may, I would like to commence with the question of the timing of which and the way in which all this was notified to people as we went along. When did the possibility of moving to the new technology first arise, as far as you are aware?---The proposal was sought in December of last year.
PN478
What happened next?---It went to our Chief Executive and our Committee for approval and then the discussions took place with KRONOS.
PN479
What happened after that?---What happened after that? We organised an implementation plan in regards to what areas were going to be done first and at that stage we started the consultation process with the relevant unions, which at first was the LHMU.
PN480
Seeing as you have mentioned that, why were they first? Why was that - go back a step, it is my fault. What area, if there is one, does that union cover?---The LHMU covers our catering staff, our casual catering staff. We have our own in-house operation.
**** CHRISTINE HUNT XN MR BURCHARDT
PN481
Right. And why did you start with the catering staff?---We only took over the catering operation about three years ago and at that time we didn't have a payroll system that was capable of payrolling the casual staff. We did put in an interim measure of a payroll system, 3rd Millennium, that was quite inefficient and had significant amount of problems and didn't live up to our expectations. So the reason why we put in KRONOS first to catering, is that we had an urgent need in the catering area because we weren't getting any costing reports from the existing payroll system, and there were a number of problems with it being paid. It just wasn't working. So catering was the first priority.
PN482
When did you start with them?---We started with them in February/March and they went live in May.
[2.46pm]
PN483
Tendered, I think it was actually the applicant tendered Heath News from April 2001?---Yes.
PN484
As part of exhibit M1. So far as you were aware, was that or was it not the first intimation to relevant employees that there might be such a change in written form?---To the MEAA, yes, that is right.
PN485
And what happened next, after that? You are not entitled to look at a document in front of you?---I am not allowed, okay. All right.
PN486
You have got to do it from memory, I am afraid?---Okay. What happened after that? We had a meeting with the union and with the MEAA, with Sarah Howe who was the representative at that time. And at that meeting Sarah expressed, and a number of the delegates expressed concerns in regards to the technology. And at that time we invited them to witness the actual hand scans in operation at the next race meeting, which was 19 May I believe.
**** CHRISTINE HUNT XN MR BURCHARDT
PN487
So who was there on 19 May?---We had Sid Andrews, Mary Latham and Eileen Brown. There was myself, the Venue and Catering Manager, Nick Cosgrave, and the Payroll Officer, Vicki Hodkinson.
PN488
Right. Just pause there for a moment. Commissioner, I wasn't seeking, given that the exhibits weren't challenged formally to require this witness to prove, as it were, the documents I tendered. In a sense they speak for themselves, and I wasn't proposing to duplicate matters by, as it were, formally tendering them again through her. If that is convenient. Because none of them were the subject of any challenge and I think we can take them to have been sent at the times they say and so forth. Thank you.
PN489
THE COMMISSIONER: Do you have any difficulty with that course?
PN490
MR POUND: No, none.
PN491
THE COMMISSIONER: That is fine, Mr Burchardt, thank you.
PN492
MR BURCHARDT: Just saves a bit of time.
PN493
THE COMMISSIONER: It does indeed.
PN494
MR BURCHARDT: Thank you. Now at the meeting to which you have referred, at the racecourse, who said what? I mean, did people get to look at the technology?---All of the three delegates got to look at it and even place their hands in it so they felt comfortable with it. It was our opinion through the meeting and even when we met with them that it was - the fact that they hadn't seen it. They hadn't seen it in operation so they - we thought that by seeing it and using it that that would allay their fears. The issues that were raised by the delegates were more operational type issues in regards to the fact that they had moved casual staff officers, because a number of these changes happened at the
**** CHRISTINE HUNT XN MR BURCHARDT
same time. So we worked through a number of those operational issues. But at that time we got an undertaking from all three of the delegates, it was my understanding, that they said they were happy to endorse the implementation of KRONOS to the MEAA. Whilst they obviously didn't approve it, but they said they were going to speak to Sarah and recommend that it be implemented.
PN495
Was Ms Howe herself present on that day?---No, she wasn't.
PN496
We know because exhibit V4 says so, that you wrote to Ms Howe on 30 May - - -?---Mm.
PN497
Recounting the events of the 19th, and saying that they were satisfied about it. Did you hear anything from the union, either through the delegates or through Ms Howe or anyone else, immediately thereafter?---No, no. That was - I sent the memo to her to let her know that the delegates were - basically that they were happy to proceed. And the next I heard from the union was in July, late July.
PN498
And we know that there was a meeting on 4 August because, once again that is not being argued about?---Yes.
PN499
What happened so far as you were concerned on that day? Did you attend the meeting?---I didn't the union meeting, no.
PN500
Were you able to observe it at all?---Yes, I met Brian Pound and Serena O'Meley outside the Hiskens Bar, and at that time I saw about eight or so people, half of which I believed were delegates go in to the meeting.
PN501
Was there one meeting or more than one meeting on the day?---There was one meeting at the end of the shift at about 3 or 3.30 to catch the afternoon staff that had started earlier. And from my understanding there was only a couple of people at that - at that meeting.
**** CHRISTINE HUNT XN MR BURCHARDT
PN502
How many people would have been working that day who might have been eligible to go to the meeting? I am not talking about whether they were union members or not, because you may or may not know whether they area?---It would have been in excess of 130, 150, that would have been able to attend on that day.
PN503
Right. We know of course there has subsequently been a dispute and we are here. But leaving aside the formal communications from Ms Howe and the union, how many - has anybody approached you or anybody else on behalf of management that you are aware of with any concerns about the operation of the technology?---No. The only people that I can say that have, have actually talked to the casual staff co-ordinator on the day, and we have indicated them as Ted and Geoff Hanlon. But directly, no. No, we haven't had.
PN504
Is "Ted" Mr Podesta in respect - - -?---That is right.
PN505
And you don't challenge the account that has been given about his circumstances?---No. But during that whole time we hadn't had any approach from any staff member.
PN506
Now in relation to the issue raised today about the question of the cleanliness of the template, do you have anything to say about that?---We have Swipes, like disposable Swipes that can be used at either one of the stations. They are cleaned on a periodical basis in that we have instructed our cleaners to thoroughly clean them using the appropriate detergents at the end of the shift. So they are cleaned quite adequately.
PN507
Thank you. Can I then move on to the matter of privacy issues?---Mm.
**** CHRISTINE HUNT XN MR BURCHARDT
PN508
What is your understanding of the - of what the mission - of what this equipment actually does. First of all, what do you understand it to do? You place your hand under the scanner. What happens?---It takes an infrared reading of your hand which looks at 90 - well, a 3D dimensional picture that picks up 90 points in your hand. And what it does is converts that into an algorithm that then - that is then verified against what is in the data base, based on the employee's accurate payroll number being put in as well.
PN509
And are the payroll numbers made available to employees in any way at the time they are putting their hand in the scanner, or do they - - -?---Yes.
PN510
- - - have to remember them?---No, there is actually a list on each one of the hand scans of the relevant payroll numbers. Because it is only the right payroll number with the right hand that will allow it to be adequately signed on.
PN511
You said the right hand. Does that mean the correct hand or the - just the - - -?---Yes. That's right.
PN512
Can you use either hand?---You can. If for some reason that - either by concern or by - we have a number of people that have arthritis in their hands, so if they can't actually touch all of the points they can just use the left hand, put up that way. So that is the other option of using the technology.
PN513
THE COMMISSIONER: The witness indicated that the left hand was inverted such that the palm faced upwards?---That is right.
PN514
MR BURCHARDT: Thank you, Commissioner. Okay. Now where, if anywhere, within the respondent's premises is any of the information stored?---All of that information is stored within the VATC server, which is in the administration office.
**** CHRISTINE HUNT XN MR BURCHARDT
PN515
I am sorry, could you pause there?---Yes.
PN516
Commissioner, there is another lady in Court who is another employee of the respondent. I hadn't realised she was sitting in. She is in fact involved in the payroll process. Depending upon the questions put to this witness it may or may not be appropriate to hear something from that person who is a witness, and she probably ought to sit outside.
PN517
THE COMMISSIONER: Yes.
PN518
MR BURCHARDT: Sorry, I didn't realise she was in.
PN519
THE COMMISSIONER: Don't close the door, just sit away from the room so you cannot hear, that is all.
PN520
MR BURCHARDT: Sorry.
PN521
THE COMMISSIONER: Thank you, Mr Burchardt.
PN522
MR BURCHARDT: Sorry. Do go on. You were talking about the - I think you got about as far as payroll office which may have been what alerted me to it?---Yes, yes. The information that you were discussing to do with the algorithms is actually kept on the VATC server, which is in the main administration office, which is under lock and key and only has access from our IT department. The other information to do with the software is actually run by the payroll and remuneration managers PC, and again that office is in the main administration office and has specific keys and is password protected.
PN523
Is it possible, so far as you are aware, for the respondent itself to access the algorithms?---No.
**** CHRISTINE HUNT XN MR BURCHARDT
PN524
Can the algorithms be used to, as it were, create an image of the hand?---Not that I am aware of.
PN525
Have you made any enquiries as to whether or not you are, as it were, the first or amongst the first people to use this equipment in Australia, and if so, what emerged?---When we went through the process with KRONOS we were assured that we were not the first in Australia to use the technology. That in fact - that it had been in operation throughout the world since 1986. However, from our understanding is that the hand scan units were significantly more expensive when they were first released as most technology is. And it wasn't until recently, the last couple of years, that they have come down in price to make them more affordable for organisations. It is quite difficult. EDS is the company that distribute them through Australia and they on-sell to various companies like KRONOS. Simplex is another - is pretty much their competition. Timewise, Time and People, these are all time and attendance software companies that may buy the actual electronic data capture device from EDS. EDS also sell to people like Chubb, and Chubb would on-sell to a - for instance, either a casino or from an access - from a door access point of view. Or any - like an airport or something along those lines. So EDS itself can list their major clients but they can't actually list where the organisations are. But my understanding is that there are several hundred within Australia.
PN526
Right. If I can then, having dealt with those issues, go to another question which in one sense comes first, but it hasn't quite fallen this way. What was the reason for the decision to proceed and actually get this technology?---The whole technology of KRONOS? Yes.
PN527
Yes?---We conducted a payroll audit last year and what came out of that payroll audit is that we had a significant amount of duplication of effort. We had a number of issues in regards to the fact that the payroll was decentralised, we had up to nine people across our payroll. And we wanted to get more control and create a better audit trail for the organisation's point of view. So what we sought to do was centralise all of our payroll activities, which led to an increase in personnel in the human resources department, which is my department. And to aid in that we introduced KRONOS time and attendance system, which really reduces the significant amount of data entry that each one of the sites was undertaking at that time.
**** CHRISTINE HUNT XN MR BURCHARDT
PN528
Does the introduction of this technology make any difference to the way in which people's time of arrival and departure at work is recorded?---Well, what it actually does is it verifies - yes, it does. In that we used to manually write that down and then process it - data entry it into a computer. Now what happens is that through the electronic data capture device, we record that time and it gets verified against the roster and verified against the award rules that have been written for that specific employee. So a lot of that process is automated, unless there is an exception in regards to somebody working longer or outside of the rostered hours. So it really cuts down that middle - that middle function.
PN529
Prior to the - I am limiting my questions at the moment simply to the people who might be eligible to be members of the MEA?---Okay.
PN530
What is it - you have described the catering staff and the other in the - I can never remember its full title but the LMHWU I think. What do the people who we are now concerned with actually do?---The MEAA staff?
PN531
Yes?---What do they do?
PN532
Yes?---The types of functions?
PN533
Yes?---The MEAA - well the employees that are eligible for the MEAA are what we call our event staff, which is typically the non-food and beverage staff. So they could be a ticket seller, a turnstile attendant, race book seller. They may be a general attendant in our grandstand. They may work in our carparks, so they are usually in a hospitality type role.
PN534
Right. And how many people does the club employ overall?---Overall? In our peak times, which we are coming up to now, we will payroll up to 1300 people, of which, you know, there is about 1000 of those that are casual.
**** CHRISTINE HUNT XN MR BURCHARDT
PN535
And if you are able to, of the 1300 how many would be in catering?---It can get up to 700 in catering.
PN536
Yes. And you mentioned in an earlier answer that that was brought online earlier this year?---That's right.
PN537
Are all of them using the new technology, or not?---Every single catering staff member at this stage is using the technology. What - we have probably got up to 500. The extra 200 are currently being employed at the moment, and as we provide an induction and orientation we are scanning them on. So it is intended that every new staff member that comes on board is using it. But everyone is using it at the moment.
PN538
And are there are any number of people employed in - separately to that in the Tabaret area?---Yes, we have got about 100 to 120 in the Tabarets. And they went online at about the same time as what the MEAA did, in August. So they have been under the system for about three to four weeks now, and that is going well.
PN539
Now there has been reference to the AWU?---Mm.
PN540
Without getting - I will come back to that aspect of it. But roughly how many people would fall within what might be said to be their area?---About 100 to 110. We have about 65 full timers. The rest of them would be casual. But we would employ predominantly on race days to fill the numbers.
PN541
And then MEAA eligible numbers, how many of them would there be?---There - MEAA specifically, about 250.
PN542
Is that at the peak time or at other times?---Probably more around 300 at the peak time. But in that - in the casual staff group we also have the industry officials which makes it bolster up a bit more.
**** CHRISTINE HUNT XN MR BURCHARDT
PN543
All right. Who are they and what do they do, the industry officials?---They go through the - exactly the same process in regards to the MEAA staff and the same engagement process. Report to the same office. But they are our industry officials that are on individual contracts and they would be people like our judge, our clerk of the course, our - people who operate the scales, doctors, vets, those type of people. And they are usually co-ordinated throughout the industry.
PN544
Right. Now if I can go back prior to the introduction of any of this technology, and particularly looking at the MEAA eligible staff - - -?---Mm.
PN545
- - - was there any way in which they reported their arrival to work?---The MEAA staff?
PN546
Yes?---Yes. The MEAA staff all used to go to the casual staff office and that is where they would get allocated their duties for the day, or their section of where they were working. They would get told that they are working in the, you know, members turnstiles, something along those lines.
PN547
Where was that office?---That office was at the back of the secretary's office, just near the members subway.
PN548
And was there any record made by either them or anyone else as to recording their arrival or not?---There was with their arrival. They all came to the casual staff office, and they were ticked off at that time. It was - they didn't sign anything. They were just ticked off.
PN549
By themselves or someone else?---No, somebody else ticked them off.
**** CHRISTINE HUNT XN MR BURCHARDT
PN550
And what happened at that stage when they left?---When they left? They left. They didn't come back to the casual staff office. The only people that came back to the casual staff office were people that had to typically return gear that they had for that day. What they would do is predominantly let their supervisor know that they were leaving for the day. And the supervisor would then go back and report to the casual staff officer.
PN551
With the new hand scanning technology, is that still the same or has it changed in any way?---No, we have actually asked the staff to sign off. To have a fully automated system it does need to have the sign on and the sign off, otherwise it is of no use having an automated system. So all staff are asked to sign off in the casual staff office at the moment.
PN552
Are there any advantages to the club in the new arrangement?---Yes, there is a number of advantages even just in merging the two casual staff offices. We had very similar processes conducted for two similar groups. So now we have actually consolidated that into one office which has, from our perspective, had a number of productivity gains, from our - from the managerial point of view. But yes, by having all the staff sign off that means that it is automating the system. Predominantly it is a five hour engagement - a five hour minimum engagement, and there are a significant number of employees that would just work the five hours. So the payroll can, quite effectively, be fully automated.
PN553
Is it possible or is it not possible at any given time from the - as a result of the hand scanning technology, to know whether a person is at work or not?---Can we get a report, sorry - is that - - -
PN554
Is it - does the technology and the records it creates enable you to know whether someone is at work or not?---Yes, definitely. We can automate a report or we can do an ad hoc report, which is very, very simple. So if we know that we have got 50 people, like especially for carnival times, if we know we have got 50 people due to arrive at 10 o'clock, we can call up a report or have one automated that at 10 past 10 we know exactly who has turned up and who hasn't turned up. And we often do get a number of no shows, and when there is that big staffing level that is of a real benefit for us to be able to pull up at any one time who is on site or basically who has turned up.
**** CHRISTINE HUNT XN MR BURCHARDT
PN555
Now you may have answered this. If you have I apologise. Are you able to say how many people were employed in the payroll function prior to the centralisation and how many are now employed?---Okay. We had one and a half in the payroll function that - reporting to human resources area, which is my area. But we did have up to nine people, or probably seven other people that had a payroll type function that performed payroll duties in the various outlets. We are now - we have appointed a full time person - a full time payroll officer that has come on board predominantly because we have risen from 300 to 1300 that are all being processed through the centralised payroll office. So we are now two and a half instead of one and a half.
[3.08pm]
PN556
Are you able to give any evidence as to the cost in terms of investment that the technology is involved?---I certainly can, it is about a quarter of a million dollars all up, which incorporates all of the costs of KRONOS and the hand scan technology.
PN557
Does the technology have any advantages or disadvantages in respect of rostering?---Yes, the - not particularly the hand scan units, but time and attendance KRONOS does definitely in that we are able to roster up to three months in advance, which is of huge benefit from our point of view in that we have got 63 race meetings as well as numerous functions throughout the year. One of the biggest issues with most of the unions to do with the casual staff is that the staff aren't getting their engagement cards in adequate time to make themselves available, or not available. Under this system we can pre-cost rosters so we will actually know now exactly how much, or approximately how much Caulfield Cup is going to cost us. So it is a rostering based system which allows us a lot more flexibility from a labour management point of view.
PN558
Have there ever been any disputes with employees about rostering?---Yes. Yes, it is a - one of the MEAA's main concern - concerns in regards to rostering, as to the staff not getting as regular shifts as they would like and with Saturdays and Sundays being at totally - well Sundays are double to Saturdays, there is often a dispute in regards to not getting offered the right amount of Saturdays and Sundays. So it has been - it has been an ongoing issue.
**** CHRISTINE HUNT XN MR BURCHARDT
PN559
And does the new technology assist or otherwise in that sort of thing?---Well, this is what we are quite excited about, is because at the moment if somebody was to say to us over the last year I have been rostered - well they feel that they haven't been rostered adequately, we would have to go back through all our manual records and actually try and find that. With Micropay, which is the payroll system that we use, it is actually a pay system so it will just say five hours at time and a half, it won't tell you what day and it won't tell you what time you started and what time you finished. And with KRONOS we can actually pull up up to seven years - seven years' worth of information as to what an employee's pattern of work is, what day they worked or shift they worked, and how much money they have earnt. So it is a more comprehensive overall system.
PN560
Now, you have heard from the bar table this morning assertions about the AWU?---Mm.
PN561
Perhaps if I could take it from the top. From your evidence it is clear that you started with catering and you have moved through various groups and that the AW is not done. Would you tell the Commission what the reason for that ordering has been?---Well, as I mentioned earlier, catering was the most urgent need because their payroll system was inefficient. Then we moved through to the other predominant casual staffing groups which was the MEAA, the events staff and the Tabarets which went on-line pretty much at the same time in August. The reasoning for putting the AWU or the ground staff last is that that is the only full-time award that we do have that we are using the system for. It is a kind of complex - complex and intricate enterprise agreement which has numerous allowances and overtime rates and it is probably more comprehensively costed as well. I won't go into the details but it is - it is a much more complex enterprise agreement. What we wanted to do was get fully proficient in using KRONOS in the first stage before we tackled that enterprise agreement, given that - its complexity.
PN562
Right. You heard raised this morning an issue as to payment within three days?---Mm.
**** CHRISTINE HUNT XN MR BURCHARDT
PN563
Could you perhaps describe what has happened there and what that is about?---Okay. The clause in the enterprise agreement actually says that the organisation is compelled to pay the employee no longer than three working days after the nominated pay period. Up until a number of months ago the nominated pay period was an event day. I believe that that is probably more historical that it has been that way, given that years ago we didn't have as much racing or as many events as what we do now. We often have a situation with the two race courses, and it is probably more a VATC issue than it is say, for instance, VRC issue, that we can race Wednesday, Saturday and Sunday, which would mean that we would be payrolling the people three times - three separate times, and what was happening is that an individual, say they earnt $70 per engagement, rather than taxing them on the 210 we were taxing them individually as, and rightly so, so that means that they were taxed on an individual basis, which means that their tax was all wrong. We often had complaints from the employees in regards to the fact that they weer getting tax bills at the end of the year and we would often have employees that would work Wednesdays, Saturdays and Sundays, so to alleviate that we changed the nominated pay period from an event day basis to a weekly basis. It also improved our efficiencies as well because we were doing three separate pay runs, three separate mail outs, three separate payslips and the employee was getting three separate deposits into their account rather than just the one.
PN564
You are also aware from Mr Pound's opening this morning there has been an issue raised about having to walk to finish up your day's work?---Yes.
PN565
And to, as it were, clock off?---Yes.
PN566
I think I isolated from the bar table the places at which people can clock off, but if you would look at this, please, which is V13. Would you just confirm to the Commission if you would, please, where employees may hand scan themselves to finish work?---There are three spots currently, and there will be four spots once the AWU or the ground staff unit is installed, and that is at the catering office, which is on your far right, which they sign on currently. There is also under the public Rupert Clarke Grandstand, the orange building, there is a basement, where it says service tunnel, it is just underneath there, and there is
**** CHRISTINE HUNT XN MR BURCHARDT
also one in the Tabaret and the Tabaret is actually tucked away, it is not behind - you can access that quite easily, as is the one in the basement. And we have instructed the people that say, for instance, they were working in the Guineas car park, which is on the far left, if they didn't want to come back to the catering office that they could sign off at either the Tabaret or the basement sign off station.
PN567
Does the club require the employees to, as it were, walk to the sign off point in their own time?---No, we have actually instructed - given that we are a fairly large site we have instructed employees that they - that that will be in the club's time and that they leave their post with adequate time to get to the pay station and clock off so it is not in their own time. To my knowledge that - as we have mentioned, there hasn't been any employees in regards to that that haven't - that have gone into their own time. It has actually been before or on the time.
PN568
It has been asserted that it is possible to override manually the technology, is that correct?---It is actually possible but it more for an emergency situation than a practical long-term solution.
PN569
Perhaps you could tell the Commissioner why you say that?---What actually happens with the manual override is that it overrides everything in the system, the time, the date, pretty much everything. So what it would mean for an employee to sign on would mean that they would - a supervisor would have to stop the system, put in their code, which I won't bore you with all of those details, but it does take about ten times longer than it would for a normal employee. There is a series of codes that needs to happen. The employee would then put their employee number in and then the supervisor would have to restart the system again. The problem that if you had ten people on - signing on at the same time and you wanted to do the supervisory override and then keep it overridden, that means that the time would actually stop which would totally ruin the whole time and attendance system. So you have to actually put it in and then take it out again after each and every employee, which is not an efficient use of time and plus EDS have instructed us that it is actually certainly not the advisable way to use the system and would be - it would breach the integrity of the system, given the number of supervisors that would be required to be put on to the system.
**** CHRISTINE HUNT XN MR BURCHARDT
PN570
Now, you are aware from Mr Andrews' statutory declaration that he says he didn't see at Sandown a note instructing employees that they - - -?---Yes.
PN571
- - - didn't have to use this pending the outcome of this proceeding. Are you aware whether or not such notices have indeed been put up at Sandown and Caulfield?---Yes, yes. Well, actually they haven't - oh, no, they have because we had Stitches and Craft this week so it was put up at Caulfield as well. At Sandown it was put up at quarter to nine on Sunday and it was there again - no, I am sorry, on Wednesday, and was there again on Sunday.
PN572
Has there been, so far as you are aware, any person who has objected to hand scanning on Wednesday last at Sandown?---Yes, there was three people on Wednesday that chose not to sign on using the hand scan and on Sunday, yesterday, we had everybody sign on and only two people didn't sign off which I would presume would be more than they have forgotten to sign off rather than not wishing to do so.
PN573
Out of - of the total number of relevant people employed, it was three out of how many on Wednesday?---Oh, it was about 45 for each one of them, 44, 45 for both Wednesday and Sunday.
PN574
Have there been since April-May in the case of the catering staff, and since August in the case of the Tabaret staff, any complaints forwarded to management of which you are aware about using the hand scan technology?---No, no.
PN575
Finally, you heard me give an undertaking to the Commissioner to the effect that any person who has a real physical problem with the - a health problem to do with their hands or has any other bona fide difficulty will be assessed on their merits. I have given that undertaking. Do you confirm that that is so?---Absolutely. If somebody cannot use the system for the reasons that you have mentioned in regards to a deformity or something along those lines, I would be more than happy to look at that on a case by case basis. Certainly if they are incapable of using the system I have got no problems with that at all.
**** CHRISTINE HUNT XN MR BURCHARDT
PN576
And if somebody had some other bona fide objection would you take those on a case by case basis also?---On a case by case basis, yes.
PN577
Would you stay there a moment, please. Well, subject to the usual fears that you forgot to deal with something you should have, that is the evidence-in-chief. I would ask you to stay there if you would please?---Okay.
PN578
THE COMMISSIONER: Thank you, Mr Burchardt. Actually there will be a brief adjournment of 10 minutes. Ms Hunt, you are directed not to discuss your evidence with anyone or anyone who is to give evidence, their evidence, and we will return at half past three. You can talk socially, of course.
SHORT ADJOURNMENT [3.21pm]
RESUMED [3.39pm]
PN579
THE COMMISSIONER: Yes, Mr Pound, your witness.
PN580
PN581
MR POUND: Christine Hunt, may I just ask you a few questions?---Sure.
PN582
Are you aware of any specific site that the hand scan machine itself, rather than the KRONOS software, is used in Australia?---No. As I mentioned, it is quite difficult to get that information but I understand I goes across a number of industries such as manufacturing and retail.
**** CHRISTINE HUNT XXN MR POUND
PN583
If I put it to you that I raised this issue with the Victorian Trades Hall executive and they were aware of no sites that use this hand scan mechanism, would that be of surprise to you?---Of great surprise.
PN584
Of any surprise?---Of great surprise - absolutely of any surprise. I am aware that there are sites. As I said, I can't mention them because I don't have the names of them, but my understanding is that there is up to 500 units that are used throughout Australia. So that would be of surprise, yes.
PN585
It would seem to me that your evidence of this is - while I don't challenge your integrity, but this evidence would - is this hearsay from the suppliers themselves?---No, what KRONOS - it is not hearsay. What KRONOS have indicated to us is that there is a - they have - no, sorry, what EDS have communicated to us, which is the people that distribute the hand scan units in Australia, they would distribute to an organisation like KRONOS, but KRONOS often has a global account. So when we got a list from KRONOS in regards to the sites that were using the hand scan unites - like, for instance, Coca-Cola Amatil, we don't know whether that is actually in Australia or just in America, so we haven't got - we have got access to the global accounts but not necessarily the domestic accounts. We have tried to get it but perhaps Julie Kerim from EDS could elaborate more on that.
PN586
Thank you. Did you consider directly approaching the MEAA before considering purchasing the new system, particularly the hand scan technology?---No.
PN587
Did you refer this introduction of the hand scan technology to the consultative committee under the enterprise agreement?---We don't actually have a consultative committee to my knowledge.
**** CHRISTINE HUNT XXN MR POUND
PN588
That answers the question. Did you consider forming a consultative committee under the certified agreement to consider this workplace change?---I wouldn't necessarily call it a consultative committee, but the meetings that we had in May with Sarah Howe, I don't know whether it constitutes a formal consultative committee, but we had three to four union delegates that were there. They expressed some concerns. We talked, we shared information and at that time we suggested that a meeting on site would be the best way to move forward. So at that stage we had the meeting in May and to my recollection they actually said that they would endorse it. So from that point onwards we didn't foresee any more problems with it going through to the mainstream staff.
PN589
If I may I will come back to - - -?---Sure.
PN590
- - - a couple of questions in relation to that process - - -?---Okay.
PN591
- - - which is, we would submit, that is not the consultative committee. How much are the hand scanner machines themselves per unit?---Dollar wise?
PN592
Yes?---They are about $7000 per unit. The club has purchased nine.
PN593
Does the KRONOS software work with swipe cards? This question is obviously in relation to could the technology, which the software is obviously the major part of the 250,000 purchase price, could it be aligned to a swipe card system?---KRONOS can be aligned to a swipe card system, yes.
PN594
Are swipe cards to the best of your knowledge a cheaper form of using - of aligning to the KRONOS software?---Not long term, no.
**** CHRISTINE HUNT XXN MR POUND
PN595
May I ask you to elaborate, why not long term? Is that loss of cards or some such thing?---Yes, it is the administration cost of actually having swipe cards in the system. As you can appreciate, Commissioner, that we are a high turnover industry. We employ people for - a lot of our staff, up to three, four hundred just for one week only. Issuing of cards and getting them set up on the system would be quite an inefficient and long term quite a costly exercise as opposed to using the hand scan units.
PN596
If I may just press a little on that. In the short term would it - given the price of the units are 7000 per unit, which is more than I must say I asserted incorrectly from the bar table - - -?---1500, yes.
PN597
- - - of approximately 1500?---Mm.
PN598
And I accept your evidence on that, of course. Given that level and nine units I would have thought that in the - it would be quite a long term run before swipe cards would be a less effective and more - and cost ineffective alternative?---That may be the case but we also look at the type of staff that we have engaged at the VATC and they range everything from your manual type of labouring type of work, like gardeners, our ground staff, which I don't believe it is necessarily the most effective - most efficient system by issuing them with a swipe card that can get lost. They can leave it at home, it can get damaged. I would imagine that, no - perhaps you are right with long term but that is what we are looking at, this system, and we are spending $250,000 to improve our efficiencies in the long term.
PN599
Well, I won't guesstimate the years and you have been unable to as well, of course. Is there any demonstrated problem within the MEAA membership, which is what this application relates to, and I am not suggesting there would be any elsewhere, of duplicity, of fraudulence, swapping cards to avoid - to be incorrectly paid or unfairly paid or overpaid currently?---The short answer is no, but they don't swap cards because they currently don't have cards, so they do the manual sign on - well, they don't even sign on, they just say, hi, I am here. So as far as the integrity of the workers, absolutely not. That wasn't the underlying reason to introduce the system, it was to improve our efficiency as an organisation.
**** CHRISTINE HUNT XXN MR POUND
PN600
With a swipe card presumably there would be efficiencies that would also be attainable given there is no - you were saying fortunately there has been no problem in terms of misrepresenting presence, etcetera, by our members?---Sure. Sorry, can you repeat that.
PN601
So a swipe card could be used, given there has been no record of people swapping calls and not turning up, someone else doing the job or signing out for the wrong time?---Well, as I mentioned, with this group they don't sign out, so there is - I don't understand your question there because they don't sign out currently, they don't sign off currently, so it is quite difficult.
PN602
Essentially what I am endeavouring to say - perhaps I am framing it poorly - is given that supervisors acknowledge when people leave, etcetera - - -?---Yes.
PN603
- - - why would not a - and there isn't a problem with people misrepresenting they are there or not there - - -?---Yes.
PN604
- - - or leaving early?---Yes.
PN605
- - - wouldn't a swipe card be just as effective for a management tool as a hand scan mechanism, which, of course, people can't duplicate?---Yes.
PN606
That is the point I am trying to get to?---For the purposes of signing off, yes, you could use a swipe card and, yes, you are correct, that a swipe card you could give to somebody else so that would be a consideration. The signing off procedure is - well, I am not sure whether this is what you are asking, but the fact that they are actually signing off - at the moment because they don't sign off and they have quite an informal system - if there was a dispute in regards to exactly what time somebody finished we don't have that audit trail currently to satisfy that, so signing off we see as quite important in the process.
**** CHRISTINE HUNT XXN MR POUND
PN607
[3.48pm]
PN608
In terms of one of the efficiencies you have spoken of is the ability to roster three months ahead?---Yes.
PN609
Is in fact your experience given the casual workforce of our membership that really realistic given there will be lots, I would have thought, not available NAs, if they were rostered so far ahead of a race day?---So you are asking whether it is not efficient or - - -
PN610
Yes, I am asking if it is realistic to be able to fully use this three months rostering ahead because I would have thought you would get so many people who then became not available or weren't available at first call, that you wouldn't be able to roster ahead three months, in any case?---Well to my knowledge it is one of the single most important issues to the casual staff to get their engagement cards as soon as possible especially, for instance, at this time of the year where we have a number of our casual staff that work at different events such as the football, the Grand Final we suffer greatly around the finals time for the football because they can actually roster in advance so if we are not rostering in advance those staff go first to the football, if you are a casual employee that has your name down at three or four different events you are going to take the first gig that comes along, the first job that comes along, so yes, I would see it as a huge advantage.
PN611
In your letter of 1 August to myself, to Brian Pound of the union, you state within that that each delegate after that, I think, 19 May race day meeting which you will recall, was happy to recommend the hand scan system effectively. However you have also given evidence if I recorded it correctly and I will not have it verbatim but to the effect it seemed a little contradictory in that you said, if I have got it right:
PN612
Obviously not approved the system.
**** CHRISTINE HUNT XXN MR POUND
PN613
?---Yes, I can explain that. The exact words are to my recollection and to the recollection of the other two VATC personnel that were there at the time was that the words used were:
PN614
They were happy to recommend to the union that the system be endorsed.
PN615
So as far as the authority to approve it, no, but they said they were happy to recommend to the union that it be endorsed so they were the exact the words that, from what I recall, to have been spoken at the time.
PN616
You have had the benefit of hearing declarations from members that are in contradiction to that statement, in particular, Sid Andrews, who I gather was one of the people from your - - -?---Yes.
PN617
From the respondent's evidence and yours, at the meeting, is declaring that, in fact, he has oppositions and continues to have opposition to the hand scan. How do you explain that, just in your words?---All I can say is that what I recall and that I believe that Sid must be mistaken because I remember quite distinctly all three of them saying that they would be happy to recommend to Sarah that the union endorse its operation. Whether that is a time that - perhaps he has recalled it differently over a period of time and as you can tell I have written it a number of times, I wrote it straight back to Sarah in my letter dated at the end of the month to let her know that and at that time I didn't receive any feedback from Sarah to say that my recollection of what happened was difference to what the members was.
PN618
Well it seems also - was Eileen Brown one of the people at this 19 May meeting when this - - -?---Yes, Eileen and Mary, that is right.
PN619
Geoff Hanlon has given a declaration to the effect that Eileen Brown, to his direct knowledge, has also said that she didn't recommend or agree in any way to the use of the hand scan. How would you explain that?---Well I can't explain it. As I said all I can recall and, you know, I have two other people as I am sure Sid has, Mary and Eileen to our - but it was understanding at that time that that is what was said so that is - - -
**** CHRISTINE HUNT XXN MR POUND
PN620
MR BURCHARDT: I think in fairness to the witness, Commissioner, exhibit M7 doesn't record the opposition, which is the declaration of Mr Hanlon, does not record the expression of that opinion by either Mr Hanlon or Mr Brown specifically on 19 May. It says in paragraph 2:
PN621
A majority of members working since June have discussed the issue with me and all including delegate Eileen Brown have directly expressed opposition.
PN622
That is said to have been in a conversation, presumably with Mr Hanlon, at some time since June. It doesn't say it was what was said on 19 May.
PN623
THE COMMISSIONER: Accurate, good, right?---What I can say, Brian, is that should my recollection be any different to that we would have maintained an ongoing consultation process with the union at that time, that is why when we got that undertaking, we assumed, as well as I have forwarded numerous correspondence directly to the staff and to Sarah Howe, that we assumed from that point onwards that there was no problems.
PN624
MR POUND: Was the change to the pay period put to the consultative committee?---Yes, it was. Well what I call the consultative committee, yes it was and after explaining our concerns and I understand that the union delegates did have a number of concerns but from our perspective the over-riding factor has to be that the Club wasn't fulfilling its legal requirements under the taxation guidelines so we explained that in due course to the union delegates and that we had over a period of time received a number of complaints from the staff in regards to being taxed incorrectly.
**** CHRISTINE HUNT XXN MR POUND
PN625
In regard to the incorrect tax, could you perhaps just outline, I believe it relates to a tax threshold issue, could you just perhaps outline that for me once more?---Well the taxation system doesn't work on a event basis, it works on a weekly, fortnightly and monthly basis. So the employees were working say, for instance, last Wednesday, would actually be taxed on a weekly basis. Because that was a less amount, because it is a single unit amount, they would take - we were taking out less tax. Then if they worked on the Saturday and then on the Sunday, we would again be taking out less tax because it was taxed as a single unit. But what we were then finding it that overall we would have consolidated those three days, we would have taxed more than if we had done it the way that we had done it with taxing it separately. So from our mind that it was - it wasn't the right way to go.
PN626
Perhaps if you do have the knowledge, what is a tax threshold, I just want to try - - -?---I don't have that knowledge, I am sorry.
PN627
The point of my question is, is this happening over a number of people because I would have thought that the tax threshold would be several hundred dollars per week and would only be say during the Spring Carnival, it would be triggered?---To my knowledge and I don't necessarily are that intimately involved in the payroll side of things, it was an issue. It was an issue with a number of staff and I don't - I can't - I haven't got in front of me how often it happened but it was an issue to my understanding.
PN628
In terms of consultation or indeed negotiation, do you think that staff bulletins are sufficient to satisfy full consultation over a workplace change such as the hand scan?---Well we had a number of meetings with the union delegates, one on one, and then we have been keeping them up to date with the changes through staff bulletins. It is very difficult with casual staff that turn up only on a race day to organise any other means of communication so we do rely on the staff to read the material that we do give on the day.
PN629
In relation to negotiations or agreement or consent by default, do you have any evidence of a change of the union's official opposition to the hand scan since our position was made clear early this year?
**** CHRISTINE HUNT XXN MR POUND
PN630
MR BURCHARDT: Well I object to that not because it - if only because it is equivocal, it should be explained precisely when this formal notification is said to have been made.
PN631
THE COMMISSIONER: Yes, Mr Pound, you just look at your records and when you are ready to re-phrase the question, please do so.
PN632
MR BURCHARDT: I should say, sir, I might have made some audible signs when Mr Pound was discussing the tax-free threshold, two hundred a week is ten thousand a year and if it was that high, we would all be better off, tax cuts in well under that, as I am afraid we are only too well aware.
PN633
THE COMMISSIONER: Thank you.
PN634
MR POUND: Well, Commissioner, one of the pieces of information to that effect, Christine Hunt to Sarah Howe from yourself on 30 May, it which you acknowledge:
PN635
I believe that the details outlined in this document should alleviate any concerns that either yourself or the staff may have about this technology.
PN636
So that is one piece of evidence in relation to our - did - - -?---Is that the - yes, no that is fine.
PN637
So are you aware of any formal withdrawal of our opposition to the hand scan mechanism?---No.
PN638
Thank you. And a final question, are you or will you or your management team will be ever required to use the hand scan mechanism?---Some of the supervisors, yes, but I suppose it depends on who you class as management but the system is used for award staff or coverage by enterprise agreement staff.
**** CHRISTINE HUNT XXN MR POUND
PN639
Thank you. I have no further questions.
PN640
PN641
MR BURCHARDT: Thank you, Commissioner.
PN642
There is only a couple of things I would like to ask you, Ms Hunt, and you will be finished, subject to any questions from the Commission. First of all you were asked questions about swipe cards. Are you able to inform the Commission why you didn't go down the swipe card route, so to speak, instead of the hand scanning route?---Yes, the swipe card, as I mentioned earlier, the swipe card system, I believe is quite inefficient in that we would be required to continually issue cards. We have trouble with staff remembering their name badges every race meeting let alone name badges and a swipe card. The replacement value, the administration cost and the inconvenience to employees and it was weighed up that it was not the best system that was available. In saying that, if it was the only system available, I still believe it is better than what we had which was a total manual system however we were alerted to the fact that there was a number of biometric system that were on the marketplace which I had not previously seen and after weighing them all up one of them was actually the fingerprint scan system which, in my opinion, I would have been more concerned about than the hand scan given that the fingerprint is easily recognisable. So in weighing up the swipe card, the fingerprint and the hand scan units, it was deemed that the hand scan units were the most efficient system for the employees and for the management of the Club.
PN643
Could you, if you are able, explain what is actually involved, as it were, in entering somebody's data for the purposes of the hand scanning and then explain the same process that would obtain to create a swipe card?---Yes.
**** CHRISTINE HUNT RXN MR BURCHARDT
PN644
If you don't know, don't - just say so but if you do. What is actually involved in, as it were, getting somebody on line with the hand scan?---What to initialise somebody and Commissioner you were initialised when you came out on September the 1st, is that we have a supervisory code that goes into the system first and the employee puts in their employee number and with their hand they do that three times and then they are initialised. It takes about 30 to 40 seconds to do that. I am not quite sure on how - what the system is with the swipe card system to get somebody set up.
PN645
Do you presently produce the technology to produce swipe cards for any individuals?---Yes, I believe we do.
PN646
Right. But you don't - do you, sorry, do you know how that is used, or not?---No, not personally, no.
PN647
If I could have a moment please, sir. No, thank you very much, I have nothing else arising Commissioner unless you have any questions for the witness and I will ask that Ms Hunt be released.
PN648
THE COMMISSIONER: I just have one.
PN649
MR BURCHARDT: Thank you.
PN650
THE COMMISSIONER: It relates to the swipe card system that some consideration was given to. Did that involve swipe cards with people's photos on them or - - -?---No, it is just a metallic bar code strip that is quite similar to the - like your Visa card, it is that type of system that has a metallic strip on it, so, no, not with photos, no.
PN651
Thank you. I have got no further questions so you are excused. Yes, Mr Burchardt?
**** CHRISTINE HUNT RXN MR BURCHARDT
PN652
MR BURCHARDT: Something arising out of that.
FURTHER RE-EXAMINATION BY MR BURCHARDT
PN653
MR BURCHARDT: What would be recorded on the card to indicate to whom it related, if anything?---What would be recorded on the card?
PN654
Well if you have got a swipe that has got the bar code - - -?---It would be an employee's number.
PN655
Right?---Mm.
PN656
Would their name be on it?---I am not sure, to be honest.
PN657
Okay. Thank you very much. We may return to that, if it assist you, sir.
PN658
THE COMMISSIONER: Thank you, Mr Burchardt.
PN659
The reason - you are excused, thank you. You are not to speak to anyone who has yet to give evidence - - -?---Okay.
PN660
PN661
THE COMMISSIONER: Just for both advocates, the reason I asked that is that there is a swipe card system operational in this building which does have our photos on it. But also, security know - can - well, it shows up on their monitor who in fact has used it at what time, and what floors, etcetera, they are on. But that may not be the system that was being looked at in relation, and that is why I asked that question.
PN662
MR BURCHARDT: Well certainly, Commissioner, you will be aware that the recording of photographs of employees on cards which have a swipe or barcode on them is quite commonplace. I only advance that proposition from numerous recent visits to hospital with my spouse for our second child. Every person at a hospital has got one.
PN663
THE COMMISSIONER: Congratulations, Mr Burchardt.
PN664
MR BURCHARDT: Yes. It has been the one really great thing about the last month. But the - it - the recording of information in that way is a matter of which the Commission will take proper notice. Indeed I will be dealing with that in submissions.
PN665
THE COMMISSIONER: Thank you.
PN666
MR BURCHARDT: Commissioner, we - I was in two minds as to whether we needed to call the lady who I asked to remove herself, but no questions are put to Ms Hunt about the - to challenge her description of the way in which the material is secured, and I don't propose to call another witness to give more detail of that, because it does not seem that that aspect of the matter is in issue. The only other witness we were otherwise minded to call was Ms Kerim, who is based in Sydney. And she is in the air, flying her way down here as we speak.
PN667
Once again, we have been in two minds because we were not quite sure what would be in issue and what isn't. But plainly, she would at least need to give evidence about the extent to which these machines are in operation anywhere else. She will be in a better position to do that, we hope, than - - -
PN668
THE COMMISSIONER: She is an employee of EDS, is she?
PN669
MR BURCHARDT: Yes. She is the employee of EDS. She - we are going to the source, so to speak. I wouldn't imagine however that her evidence would take a great deal of time. I simply say this to assist the Commission as to timetabling, and once we had done that we would close our case and make our submissions. I have given an invitation to Mr Pound earlier on today as to how he wished to proceed. It might assist if we were to know this evening whether that is going to be something we will have to address tomorrow.
PN670
THE COMMISSIONER: Yes, Mr Pound.
PN671
MR POUND: Commissioner, in terms of how we are to proceed, I wanted to raise a question arising from the respondent's counsel, which is in terms of security I don't believe there would be any need for any evidentiary material, other than - or that there would not be any need of it if - assuming that this technology is to continue post-arbitration, that some undertaking - I am sure a satisfactory undertaking could be given about appropriate mechanism of destruction of the material, even though we have heard it would be a pretty bizarre person who might wish to have these algorithms.
PN672
But nonetheless, I think some satisfactory mechanism would easily be agreed between the parties, subject of course to the whole decision.
PN673
THE COMMISSIONER: Well, just in that regard I would suggest that you might confer with Mr Burchardt in terms of making sure that there is a clear understanding of what is being asked of the VATC, and he can seek instruction overnight. And are you proposing to call any witnesses?
PN674
MR POUND: No, Commissioner. That was the other matter. We will stand by the declarations and you - the Commission of course will give them whatever weight they deem appropriate, given the - - -
PN675
THE COMMISSIONER: Thank you. Well, the - tomorrow morning I have a number of matters on but it is my expectation that they should be completed by half past ten. So we will resume then. So this matter is adjourned until 10.30 tomorrow.
ADJOURNED UNTIL TUESDAY, 11 SEPTEMBER 2001 [4.09pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #M1 DOCUMENTATION RE BACKGROUND OF DISPUTE PN108
EXHIBIT #M2 AUSTRALIAN INDUSTRY COUNCIL GUIDELINES PN132
EXHIBIT #M3 NEWS RELEASE FROM THE AGE DATED 21 MAY PN136
EXHIBIT #M4 VATC STAFF RELEASE DATED 23 MAY PN139
EXHIBIT #M5 LETTER FROM CHRISTINE HUNT TO BRIAN POUND DATED 1 AUGUST PN144
EXHIBIT #M6 LETTER RECEIVED BY TED PODESTA PN147
EXHIBIT #M7 STATUTORY DECLARATION OF GEOFF HANLON PN154
EXHIBIT #M8 DECLARATION OF SIDNEY ANDREWS PN179
EXHIBIT #V1 NOTIFICATION PN242
EXHIBIT #V2 LETTER DATED 07/08/1996 PN335
EXHIBIT #V3 LETTER FROM MS HUNT TO SARAH HOWE DATE 26 APRIL PN378
EXHIBIT #V4 LETTER FROM MS HUNT TO MS HOWE DATED 30 MAY 2001 PN390
EXHIBIT #V5 COPY OF HEATH NEWS PN395
EXHIBIT #V6 COPY OF HEATH NEWS - AUGUST EDITION PN400
EXHIBIT #V7 LETTER FROM APPLICANT TO RESPONDENT DATED 1 AUGUST PN402
EXHIBIT #V8 RESPONSE FROM MS HUNT PN407
EXHIBIT #V9 DOCUMENT SENT ON 27 JUNE PN423
EXHIBIT #V10 LETTER FROM MS HOWE TO MS HUNT DATED 16 JULY PN426
EXHIBIT #V11 LETTER FROM RECOGNITION SYSTEMS PN433
EXHIBIT #V12 LIST OF APPLICATIONS IN THE UNITED STATES PN450
EXHIBIT #V13 DIAGRAMMATIC REPRESENTATION OF CAULFIELD RACECOURSE PN460
CHRISTINE HUNT, SWORN PN473
EXAMINATION-IN-CHIEF BY MR BURCHARDT PN473
CROSS-EXAMINATION BY MR POUND PN581
RE-EXAMINATION BY MR BURCHARDT PN641
WITNESS WITHDREW PN661
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