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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:(02) 9238-6500 Fax:(02) 9238-6533
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER LAWSON
AG2002/3496
APPLICATION FOR CERTIFICATION
OF AGREEMENT
Application under section 170LK of the Act
by Travelex Limited and Travelex Pty limited
for certification of the Travelex Collective
Agreement (2002)
SYDNEY
9.42 AM, THURSDAY, 26 SEPTEMBER 2002
Continued from 20.9.02
PN2159
THE COMMISSIONER: I note that there are no changes in the appearances. This matter continued last Friday, 20 September, with evidence from four CAT members and one employee representative. Today we will continue with evidence of Ms Toole as a CAT member and then the four employee representative witnesses. We will then move straight into the submissions phase concerning the certification process.
PN2160
Do you wish to call Ms Toole at first instance, Mr Swebeck?
PN2161
PN2162
MR SWEBECK: I am wondering if you could state to the Commission your full name and address, please?---Virginia Louise Toole, 16 Halcyon Street, Wavell Heights, Queensland.
PN2163
Ms Toole, did you prepare a statutory declaration in respect of the application before the Commission today?---Yes.
PN2164
Do you have a copy of that with you?---Yes.
PN2165
That is the declaration signed by you dated 26 August 2002?---Yes, that's correct.
PN2166
Commissioner, we rely on the evidence in Ms Toole's statutory declaration supporting the application.
PN2167
THE COMMISSIONER: Any further questions of the witness?
PN2168
PN2169
MS HEAP: Ms Toole, I would just like to ask you a number of questions in relation to that statutory declaration. Have you got a copy of that in front of you?---Yes, I do.
PN2170
Which employees did you represent in relation to the CAT team?---Basically Queensland and Northern Territory.
PN2171
How did you come about to be nominated for the CAT team?---I was at work one day when the Queensland manager was looking for a person to be placed as a nomination and my name came up as one suggestion.
**** VIRGINIA LOUISE TOOLE XXN MS HEAP
PN2172
From the Queensland manager?---Yes.
PN2173
How did you communicate with the Northern Territory employees?---Not directly with the employees. I spoke a few times on the telephone with the manager up there.
PN2174
In relation to the answers to the questions in 4.1 you indicate that you provided copies of the company bulletin updates to employees, is that correct?---The company update bulletins were actually put on the intranet by the company. Basically it was up to the employees to go to those points of access to print them up. I think middle management was also basically responsible for those that didn't have access to the intranet passwords etcetera to try and print them up and distribute them amongst the staff. I raised concern sometimes about how I was meant to get to all the employees but it was basically indicated to me that it was really the employees that should try to get to me if they had concerns.
PN2175
What were your concerns about accessing employees?---In respect to the company information?
PN2176
Yes and generally in relation to the CAT - - - ?---Well, time basically. I mean I was working full time in the job. I didn't sort of allocate - well I allocated some of my own time on days off and weekends like that were basically days off to ring some staff who had phoned to see how they were going with sourcing the information.
PN2177
Were you given any time during working hours to perform the role of CAT team .....?---I took some time. I mean if the people phoned me I mean I worked with another person so if I wasn't busy I did take some time then to speak to them when they phoned and if I got busy I would phone them back later after I had finished my shift. But there wasn't any planned procedures for more or less contacting other staff.
**** VIRGINIA LOUISE TOOLE XXN MS HEAP
PN2178
Is it fair to say from your prospective that the bulletin updates were the major source of information to employees about the agreement?---Yes.
PN2179
Did you attend all of the CAT team negotiating meetings with management?---Yes.
PN2180
Were you part of a video conference that took place on 3 July 2002?---Yes.
PN2181
What happened during the course of that video conference?---The 3rd I think that one was a video, I was in Brisbane. The company was trying to seek an agreement in principle from staff representatives and the ASU.
PN2182
During the course of that video conference was the CAT team and the ASU able to give in principle agreement?---No.
PN2183
When they weren't able to give in principle agreement, what happened then?---The company basically called an end to the meeting and left.
PN2184
At that time, that's 3 July, had you seen a copy of an agreement at that time?---No.
PN2185
I understand that you were provided with individual clauses that were working papers for negotiation?---Yes.
PN2186
But you hadn't seen an agreement in its total form at that time?---No, we had asked from time to time because we found that sometimes the working papers were a bit difficult. I mean we had lots of working papers to refer to.
PN2187
So you had asked for a copy of the agreement?---If we could have - we thought it would be easier for us to follow if we had an interim draft to work from.
**** VIRGINIA LOUISE TOOLE XXN MS HEAP
PN2188
Was that provided to you, just talking up until 3 July now?---No.
PN2189
What did the CAT team do after the 3 July teleconference?---One member of the CAT team thought it might be a good idea to talk to the company by phone conference just to sort of find out like where we stood at that time. So that was arranged for the following Monday.
PN2190
Was that a teleconference that took place on 8 July?---Yes, it would have been, yes.
PN2191
What happened during the course of that teleconference?---I thought we were just going to have a bit of a further discussion with the company but it ended up the remaining CAT team members gave their agreement in principle. I didn't.
PN2192
You didn't give your agreement in principle at that time?---No.
PN2193
Why did you not give your agreement in principle at that time?---Because there were issues in the agreement that the people I was representing were not really happy with.
PN2194
Can you indicate what those issues were?---Core hours was our main issue but I mean basically the company was not going to alter that. 7.00 am to 7.00 pm. We hadn't sort of - I thought we hadn't finished discussing everything.
PN2195
At that 8 July teleconference and prior to the teleconference, had CAT team members seen a copy of an agreement at that stage?---No.
PN2196
So when people gave their in principle agreement, they hadn't seen the document?---Not in its entirety. In working papers only.
**** VIRGINIA LOUISE TOOLE XXN MS HEAP
PN2197
What happened, you eventually as I understand it did give your in principle agreement around about 11 July, is that correct?---Yes.
PN2198
What happened in between 8 July and 11 July that you indicated you felt you could give your in principle agreement?---I had a couple of hour discussion with John Gallagher. There was very awkward I felt for me being the only one sort of holding up the process. I raised sort of quite a few questions with John Gallagher, he did clarify quite a few issues that I was unclear of and I felt that I couldn't really hold up the process for ever because of outstanding issues just one person. I did suggest from time to time that they go ahead without my agreement in principle but the company did wish to have that. So I thought well I will give it and the employees will have to decide when they vote.
PN2199
Is it reasonable to say you were reluctant to give your agreement in principle?---Yes, possibly, yes, but it was I think up to the employees then. I mean I felt that I had done all I could do at that time to sort of try to satisfy peoples inquiries.
PN2200
So when you say you feel that you couldn't hold up the process, why was holding up the process an issue for you?---Well, it is very difficult to sit there by yourself and the whole company and everyone else is sort of waiting for an outcome.
PN2201
Your giving of agreement in principle on 11 July followed a lengthy conversation with John Gallagher?---Yes, I had also had discussions with my Queensland manager prior to speaking to John and I don't really think it was up to me to sort of stop the process and then John and I talked for about two hours. I was at home on my day off and I asked John to ring me and we went through quite a few issues then.
PN2202
At this stage had you seen a copy of the agreement?---No.
**** VIRGINIA LOUISE TOOLE XXN MS HEAP
PN2203
The company had set a deadline, hadn't it, in relation to needing to have in principle agreement by a certain date and if employees were to get their wage increase backdated?---Yes.
PN2204
Do you understand what that deadline was?---Originally when we started discussions on 15 May the company was hoping for 4 July vote. That did get extended because negotiations were taking longer tha expected. I just think they wanted to set a date. I mean just a date that they could maybe work to.
PN2205
Did the company advertise in its bulletins to staff that it needed to have in principle agreement by 12 July if their offer of back pay was to stay on the table?---I believe so.
PN2206
When did you first see a copy of an agreement in agreement form?---Sydney posted me the first draft copy by express post. I got that on Wednesday 17 July and then I printed up the second draft copy, they sent me a floppy disc with that package which had the second draft copy of it and I stayed back at work on that Wednesday and printed it up.
PN2207
So the first time that you see an agreement is 17 July?---If that's the Wednesday, yes.
PN2208
There is a teleconference with the CAT team and the company on 18 July, is that correct?---The next day, the Thursday, yes.
PN2209
What was your understanding of the purpose of that teleconference?---I didn't know that it was going to go so long. It went for four hours. It started at 10 and finished at 2.15. It was basically Simon Lane was conducting it just to go through the document.
PN2210
When you say it took 4 hours, were you at work during that day?---Yes.
**** VIRGINIA LOUISE TOOLE XXN MS HEAP
PN2211
What happens with your working duties while you were actually on the teleconference?---I asked the duty manager to come over and work on my till.
PN2212
You took 4 hours and Simon Lane took you through the document, is that correct?---Yes.
PN2213
Did you discuss the problems with the document at that stage?---Well, to as much as I could because the night before, like I said on the Wednesday I printed up the second draft copy, I probably got home around about 6.30 that night and then I basically that Wednesday night I was trying to compare the second draft to the first draft just to see what had been changed but that was taking some time and then trying to compare the document to the working papers, I mean I'd been up since 3.30 because I start work at 5, I was still trying to compare the document at 11 o'clock that night to be up again at 3.30 the next morning to get back to work at 5. So I didn't have a great deal of time to really - I mean I did some of it, I compared the first to the second draft and then did compare some of the working papers to the second draft and then I continued to do it while we were on the teleconference.
PN2214
So, when you were doing the comparison document did you identify any issues of concern for you in the draft, the final draft that had been given to you?---Yes.
PN2215
What were those issues of concern?---The buy out clause was not in the document. There appears to be split shifts in the document. There was no reference whatsoever to the A issue. There was an inclusion of a consultative committee which we had never ever discussed and several other clauses and amendments.
**** VIRGINIA LOUISE TOOLE XXN MS HEAP
PN2216
Can you remember any of the other clauses that you had some concerns with? Before you refer to whatever you have in front of you can you let the Commission know what you have got in front of you, what you might be referring to now?---They're just clauses that following the teleconference and trying to determine what was different, myself and another CAT team member had put together some of the differences and later the next week we had advised the company of the discrepancies that we had sort of feel that were still sort of outstanding.
PN2217
THE COMMISSIONER: Did you prepare your own working paper, your own comparison of the paper?---Yes.
PN2218
MS HEAP: And you're going to refer now to notes that you made at the time, is that correct?---There were some - I mean I had gone through and I had just compared my copy, the second draft copy of the agreement with notes where I saw differences. Another CAT member, Nadine Maxwell, from Perth, she was apparently doing the same thing. We did discuss it and we sort of came to the conclusion that there were differences between the final, the draft that we'd seen and our last negotiated position.
PN2219
So, can you tell us now what some of those differences were? You've already indicated some, can you give us some additional ones?---Well, quite a few of them do relate to the deletion of the ASU. I mean I suppose if the ASU was not going to be a party to this agreement they probably were necessary amendments but we didn't realise that they'd be - the ASU would be deleted from things like the dispute resolution procedures, the introduction to change, the union was out, different paragraphs were altered. Some were only minor, some might have been to the benefit of employees but there were changes to certain paragraphs. Transition of business. I mean we hadn't done a working paper on that but it had apparently it was different in the final document. We've got employment categories. We were concerned about current part-time hours. I was of the opinion there was meant to be a clause in the agreement protecting the minimum 15 hours span for existing part-timers and I didn't
**** VIRGINIA LOUISE TOOLE XXN MS HEAP
think the wording in the current agreement was sufficient to give them that protection. Thought it was not the wording that had been agreed upon in discussions. Casual employees. There were changes to clauses but those were not like bad changes, they were just clarifications. IN redundancy, clause 14, had been deleted. It was in the working papers, it didn't appear in the final document.
PN2220
There is a redundancy provision in the final document, what's different?---Well, it's just one clause that was in the working papers and it was clause 14.3.4. It apparently is not in the final document. It's just why was it missing, I mean we don't know.
PN2221
Do you know what that 14.3.4 had in it?---The clause read:
PN2222
Provided that the severance payment shall not exceed the amount ...(reads)... normal retirement date.
PN2223
Apparently it was as Travelex clause, not a Thomas Cook one. In enumeration, clause 20.5 in the working papers re payment of loadings had been deleted from the final document.
PN2224
Can you explain that one to the Commissioner?---I have to go back to the award. 20.5 it was:
PN2225
Payment of roster loading shall be made in the month following the one in which it was earned.
PN2226
Well, that's not in the final document so I suppose we'd question when our roster loading is going to be paid if they're not specified in the agreement. There was, as I said, the split shifts. There was to be a subclause added that no split shifts for any Travelex roster for life of agreement has not met. That was not included in the final document but there are in the final document split shifts for casual employees. I was of the opinion there was to be no split shifts
**** VIRGINIA LOUISE TOOLE XXN MS HEAP
for any employees. There's a word additional drop from the shift work payments in the final document, clause 21.4.2c. Additional being dropped, I mean as to whether it is going to change the contents of the clauses or not, I mean we hadn't really sort of gone over and rediscussed those matters. There's some discrepancy as to the team leader role. I mean there's people in the organisation who some seem to be classified as duty managers or assistant managers and then there's the team leaders so there is confusion over those roles as to whether they come under a team leader salary or whether they are paid on a different agreement. Mainly a lot of the other clauses are the right of entry, the union, that's gone naturally because there's no ASU. The consultative committee. Well, that's something that we hadn't discussed or hadn't seen a format of how that was going to take place and how they were going to instigate that committee.
PN2227
So you hadn't discussed at all the consultative committee clause?---No, no.
PN2228
Is there anything else?---There's sort of minor I suppose things in other clauses but whether they have a detriment to the agreement or not I don't think they would.
PN2229
When you say, I think the words you said were at one point, naturally the union needed to be deleted because it wasn't going to be a party. What is your understanding in relation to that?---Well, it was no longer an agreement that the employees and the union and the company were putting together, that it became an employee and a company agreement. That there wasn't really a place for the union to be in there.
PN2230
The reason for dropping off those provisions was that given the union wasn't going to be a party those things couldn't be included?---I was led to believe that.
PN2231
Who were you led to believe that by?---Basically Simon and John.
**** VIRGINIA LOUISE TOOLE XXN MS HEAP
PN2232
And was that during the course of the discussion on that day, the 18th?---It was a few discussions prior to that just in the course of, say, maybe when I've had a discussion with John on the phone, on the day of the 18th, when it was quite obvious that there was no reference apart from one clause for the union to be in the document.
PN2233
You get the document on the 17th, have this discussion on the 18th. What is your understanding about the process that was to occur following the conclusion of the teleconference on the 18th?---I thought I had the following day, like, more or less I was off the next day, Friday, Saturday, Sunday were my days off. I thought I would have more time over those three days to look at the document and finish going through it more precisely.
PN2234
What would happen then?---Hopefully we would get back with Simon Lane and John Gallagher and finish discussing any issues we had with them.
PN2235
So you weren't aware that the document was going to be released to staff that day?---No.
PN2236
When did you first become aware that the document had been released to staff?---The following day.
PN2237
How did you become aware?---I was talking to the staff member and they said it had been posted on the intranet.
PN2238
But you weren't working that day, is that correct?---Yes.
PN2239
And your shift arrangement meant that you weren't back at work for how many days?---My next working day was Monday.
**** VIRGINIA LOUISE TOOLE XXN MS HEAP
PN2240
So it was released on the Thursday and you didn't return to work until the Monday?---The Monday.
PN2241
Did you see the document before you returned to work?---No, not the final one. I had the second draft.
PN2242
You indicate under 4.1, the answer to your question under 4.1 your statutory declaration, you say certain terms were factors in giving this in principle agreement and it was necessary for me to withdraw my original decision on 14 July 2002?---Yes.
PN2243
Can you explain what those certain factors were and why you withdrew your in principle support?---The letter that had been drafted up in relation to our in principle support basically stated that the drafting reflects the last negotiated decision of the company and that we the CAT team will be involved in the drafting of the fine detail. Considering that there were changes to that document that we hadn't discussed fully I didn't consider that it was the last negotiated decision.
PN2244
Can I show you a document, Ms Toole, for the Commission's reference it's document under tab 5 of the company's original papers in support of the application?---That's the draft document, yes.
PN2245
When you say those are the terms on which you gave your in principle agreement, even though you hadn't signed one of those documents, or there is not one provided here, is that your understanding of the basis upon which your in principle agreement was given?---Yes.
PN2246
So when you withdrew your in principle agreement it was because you believed those provisions hadn't been met, is that correct?---Yes.
**** VIRGINIA LOUISE TOOLE XXN MS HEAP
PN2247
And when you withdrew your in principle agreement, were you exercising a personal choice or were you acting as representative of the people, the employees you represented?---I was acting as representing the employees I was representing although the company did feel that I was taking it as a personal matter.
PN2248
And why do you say you were acting - how do you say you demonstrated you were acting on behalf of the employees you represented?---I was talking to the people at work, they were the main, I mean Brisbane Airport and they actually signed a letter to the effect that they supported me in withdrawing my agreement in principle, some of those staff did.
PN2249
You indicate in answer to the question at 5.1 in the statutory declaration at the bottom of the page where 5.1 is first listed that while union member employees could seek advice from the union employees were unable to provide a copy of the agreement to the union due to restrictions placed by the company. Can you indicate what you understand those restrictions were?---All the working papers that we were given had confidentiality clauses on them. We couldn't show that to anybody part from the CAT team and the updates that came off the intranet too basically, it was for staff information only.
PN2250
Sorry, did the copy of the agreement have a provision on the front of it in relation to confidentiality?---Yes it does, yes.
PN2251
What is your understanding of the effect of the confidentiality provision on the document?---As it states here, you have to have written permission from John Gallagher to provide part or any party had to have permission. My understanding is that if you divulged it to anybody it could endanger your job prospects. That's how I felt. It wouldn't be looked upon kindly by the company.
PN2252
Was it your understanding that you couldn't provide a copy to a third party or that you had to get written permission before you could provide a copy to a third party?---My understanding was that we shouldn't show it to anybody. We could discuss it but we couldn't show.
**** VIRGINIA LOUISE TOOLE XXN MS HEAP
PN2253
The working papers that the CAT team had, were you able to show those to other employees?---Not show them, we could discuss them.
PN2254
Also in answer to question 5.1 you indicate that the company notified employees of its intention to make agreement on 17 July and that the ballot papers would be sent to them on 1 August. How do you know it was 17 July that the notice was sent?---Which notice are you referring to?
PN2255
It says here the company notified employees of its intention to make the agreement so the notification which is the company's intention- - -?---I think that was the letter that was going out with the grading letters.
PN2256
If I show you a document can you confirm that that's the document you were referring to there? It's at item 7 in the papers the company originally presented in support of the application?---That's the letter that was included with the grading letters, yes.
PN2257
So, do you know when the grading letters were sent out?---On our phone conference on the 18th John Gallagher stated that he was finishing signing those on that day and they would be distributed.
PN2258
So in fact it's at least 18 July when those notices were sent out, is that correct?---Yes.
PN2259
Do you know when people at Brisbane airport received their grading notice and notice of intention?---I don't know the exact date but it was after 23 July.
PN2260
Why do you say it was after 23 July?---Because Simon Lane and John Gallagher came to Brisbane airport on 23 July to give a staff presentation regarding the agreement and no one had received their letters at that date.
**** VIRGINIA LOUISE TOOLE XXN MS HEAP
PN2261
Was that a question raised by staff members during the course of that presentation?---Yes.
PN2262
What did he say about when they would receive them?---Basically they've been done, they should be somewhere, should have them.
PN2263
Do you know how they were distributed at Brisbane airport?---By the junior managers I believe or the airport manager.
PN2264
Did you receive your grading notice?---I did.
PN2265
When did you receive your grading notice?---It was probably later that week or early the next week after 23rd.
PN2266
Where were you when you received your grading notice?---At work.
PN2267
Did it have the notice of intention in it?---No, it didn't unfortunately.
PN2268
So, you got your grading notice and you didn't have the document that you've identified as being notice of intention included in it?---Yes, that's correct.
PN2269
When did you receive your notice of intention?---When I went to Sydney and the matter came up and I wasn't sure what they were talking about and John Gallagher gave me a copy then.
PN2270
Sorry, you went to Sydney, when did you go to Sydney?---To see John Gallagher about the company stat dec.
**** VIRGINIA LOUISE TOOLE XXN MS HEAP
PN2271
The stat dec, and do you know approximately when that was?---20 August.
PN2272
People were discussing the notice of intention and you hadn't seen that, is that correct?---I wasn't aware of that piece of paper at that stage.
PN2273
You were given - - - ?---I got a copy from John Gallagher on that day.
PN2274
I just want to go back to your notice, you getting your salary grading. Can you pinpoint approximately when you got your salary grading notice?---I can't pinpoint the exact date, I know I was at work. I got one that had been apparently e-mailed up to Brisbane because my - I don't know it might have gone missing I don't know what had happened to it. It was apparently e-mailed up to the Brisbane manager and printed up and given to me, I think that's why I didn't receive the attachment page. However, it didn't actually state my grading under the existing Travelex Award. So I would think because I had - I did obtain a copy, the correct copy, or I believe to be the correct copy, on 14 August because I had actually contacted Human Resources, so I would think that I didn't have the letter that long. I would think I probably got it maybe 31 July or 1 August because I was working those days.
PN2275
Can I just take you back a step. So, you didn't receive your grading notice at the same time everyone else at Brisbane airport received theirs?---No.
PN2276
Are you aware why yours was delayed?---No.
PN2277
But I understand from what you've just said that something was sent from head office to your manager at some point?---Mm.
PN2278
Is that point at least after 23 July, do you know that?---Yes.
**** VIRGINIA LOUISE TOOLE XXN MS HEAP
PN2279
Was that given to you immediately do you know?---Well, going by the days I was working it was probably around about probably the, as I said, maybe 31st or 1 August that I was probably given the copy that the airport manager had printed off.
PN2280
That was incorrect, is that correct?---Well, it didn't state my grading under the current award, it just stated how I was going to transit over.
PN2281
You needed your grading under the current award to assess whether they correctly translated you, is that correct?---Well, I believe that the grading letter should have stated both.
PN2282
At 5.9, in response to your question at 5.9, you indicate:
PN2283
The company has advised me that no request was made by the organisation to the employer.
PN2284
Can you indicate who advised you of that?---John Gallagher.
PN2285
AT 5.10 you indicate in response to the question about before the agreement was made, were reasonable steps taken by the employer to explain the terms of the agreement to employees, you say:
PN2286
For employees up to date with the proceedings I would say ...(reads)... I would say no.
**** VIRGINIA LOUISE TOOLE XXN MS HEAP
PN2287
Could you explain what you mean by that statement?---I believe that HR did put all the information out on the internet, it was there, however I do believe that maybe middle management let the company down in respect to ensuring that all staff knew where to access the information because I did have staff ring me from outside Queensland and Northern Territory, like I had staff from the ACT and other places ringing to say well, you know, where do we find it? In particular Canberra airport didn't seem to have up to date information. I mean once they found out where to find it they could, you know, so I think really some of the channels out in the work place weren't working terribly well but HR certainly did provide it on the internet.
PN2288
So, if people hadn't had access to it from the start, is what you're saying is they would have difficulty catching up with - - - ?---Well, there was a lot of reading and a lot of things to digest and you know, even I feel us CAT members still have trouble trying to digest all of the information and I should imagine that someone who is just going to pick up some of the documents and try and, you know, work out whether they're better or worse off would find it quite a task.
PN2289
You identified in response to question 6.2 that certification wouldn't result on balance in the reduction of the overall terms and conditions of employment in employees being reduced, effectively I have paraphrased the question there. Can you indicate how you came to that conclusion?---To say how we may be disadvantaged, is that what you are saying?
PN2290
In answer to the question whether all people would be disadvantaged in an overall sense and you said, no?---The question was, no, yes.
PN2291
Can you indicate how you came to that conclusion?---The company was prepared to those that are employed under the Sydney agreement which is I suppose an agreement whereby they get paid quite good penalty rates for working odd hours, the company is doing a buy out to those employees basically placing I suppose an average of what they consider would be, they are going to miss out on under the new structure, into their base salary. So I suppose that's covering the financial side of things for those people. People
**** VIRGINIA LOUISE TOOLE XXN MS HEAP
under the Travelex Award mainly like Brisbane Airport, Cairns, Darwin, the group that I sort of represented, we don't receive really any penalties for working the hours we do. So those staff will be financially better off in that respect.
PN2292
What about the people under the Thomas Cook Award?---The Thomas Cook in Queensland there is no Thomas Cook based at the Airport so they are in the branch network. For those people I am unsure of - I don't think they are a party to any buy out.
PN2293
So if their core hours change they are not paid to any buy out?---I don't believe they are a party to a buy out. Whether they are going to be worse off or not, their working hours are probably within the existing core hours. I don't think it would make a great deal of difference to them, the core hours to the retail branches.
PN2294
Is it fair to say you are not particularly familiar with the Thomas Cook arrangements?---That would be right, yes.
PN2295
In relation to the salary increase. At clause 16.5.1 provides a salary increase of 3 per cent to all employees in the first year. Are you aware that the Thomas Cook Award would move by 3 per cent anyway in November of this year?---No. Is that the living wage adjustment?
PN2296
Yes?---That was raised but I think a lot of us, I know under Travelex I think are already paid over the award so it is up to company discretion whether they pay that, which they have in the past.
PN2297
When you were making assessment in relation to the no disadvantage to employees, did you discuss the loss of peoples ability to access increments within the salary structure?---Yes.
PN2298
What was your view in relation to that as a disadvantage to them or not?---Do you mean within the spans, the new spans.
**** VIRGINIA LOUISE TOOLE XXN MS HEAP
PN2299
Well, people in relation to the awards had access to movement through the salary structure annually in the Thomas Cook Award it's an annual progression in the Travelex Award is annually but based on some criteria being met. Did you discuss the impact of moving to a system that didn't have those adjustments in it?---I can't recall.
PN2300
Can you explain what is your understanding of how people were being paid for the second wage increase under the agreement?---The first year everyone is to receive a 3 per cent increase. The second year the 3 per cent is everyone is basically guaranteed 2 per cent of that 3 per cent and the other 1 per cent is allocated to the various spans and so you've got your team leader experts certified. The smaller the number of people in the spans the greater the amount of that percentage they would get. So it's basically geared towards say the expert level would get the bigger bite of that 1 per cent and then because in the other spans there are more people. So the distribution would be distributed amongst more people so those people would receive lesser payments.
PN2301
So your understanding is that everyone would get the second 2 per cent?---Yes.
PN2302
What about employees whose current salary is above the top of the span that they would move into?---I believe they would still receive it.
PN2303
Is it a surprise to you that the provisions of the agreement provide for absorption of that 2 per cent increase for those people?---You are sort of like a red circling effect, are you talking about.
PN2304
Not referred to as red circlings, I understand that has a different context in your agreement, but people who move into a span where their current salary is above the span maximum, will have their 2 per cent absorbed?---It may I suppose could happen, I am not sure.
PN2305
Do you know of employees were aware of that when they made the decision on the agreement?---Well, I would say maybe not.
**** VIRGINIA LOUISE TOOLE XXN MS HEAP
PN2306
Did you provide information to people that you represented that that was a consequence of the agreement?---No.
PN2307
Did casuals receive the buy out?---They are now, yes, I believe.
PN2308
What do you mean by saying, they are now?---Originally I don't think it was the company's intention to pay out the casuals but that was an issue I clarified with John Gallagher when I had my talk with him prior to giving my agreement that the casuals looked like they were going to get the buy out.
PN2309
Were they given a buy out figure prior to their voting on the agreement?---I am not sure. Buy outs weren't applicable to Queensland staff, it's more relating to the people under the Sydney agreement.
PN2310
So no one in Queensland received a buy out figure, is that your understanding?---Only those doing the tropical allowance up north, their buying out, and I think it is the Thomas Cook people in Darwin and Cairns that get paid the tropical allowance of getting their tropical allowance paid out into their base salary. But as to the other, no, no one else is.
PN2311
I have got no further questions, Commissioner.
PN2312
THE COMMISSIONER: Thank you, Ms Heap, Re-examination, Mr Swebeck?
PN2313
PN2314
MR SWEBECK: Mr Toole, I'll just take you back to the beginning of the cross-examination by Ms Heap. Do you recall she asked you some questions about CAT team nominations, do you remember that?---Yes.
**** VIRGINIA LOUISE TOOLE RXN MR SWEBECK
PN2315
Is it true that you were one out of three nominations for that team?---From Queensland/Northern Territory?
PN2316
From Queensland/Northern Territory?---There probably were others on the list, yes.
PN2317
You mentioned in answer to a question by Ms Heap that you believe that some employees had difficulty with regard to the intranet access, is that right, do you remember that question?---Yes.
PN2318
It's fair to say, is it not, that any employee that didn't have access to the intranet had access to you?---They did have access to CAT team members, yes.
PN2319
They also had access to the union?---Yes, if they were members, yes.
PN2320
And their managers?---Yes.
PN2321
Just taking you back, you said that you reached an in principle agreement with the company on the 11 July?---Yes.
PN2322
That you were provided with a copy of the whole agreement on 17 July?---Yes.
PN2323
You were provided with two copies, is that right?---One hard copy, one on floppy disc, yes.
PN2324
The agreement was released to employees on the 19th?---I believe so, yes.
PN2325
Weren't you told by the company on 11 July that if an in principle agreement was reached the company would then proceed to draft the agreement?---Yes.
**** VIRGINIA LOUISE TOOLE RXN MR SWEBECK
PN2326
You then addressed a number of issues of concern that you had about the draft agreement at the time, do you recall? I will just mention a couple. There was the buy out clause, the split shifts, do you remember those issues of concern that you identified to Ms Heap?---Yes. Which date, like when did I discuss those you are referring?
PN2327
I think it was in response to a question from Ms Heap. You said that you had a number of issues of concern when you looked at the draft agreement?---Yes.
PN2328
One of the issues of concern that you mention was the consultative committee?---Yes.
PN2329
Isn't it true that at, or during, the video conference on 18 July that you had with the company Mr Lane explained to you that the A issue was not a party to the agreement and therefore a consultative committee was required?---That was on the phone conference of the 18th?
PN2330
Yes?---Yes, that did - he did say that then. We hadn't discussed it prior to that.
PN2331
With respect to the - I'm just still focusing on those issues of concern that you identified - - -?---Yes, that's fine.
PN2332
Do you recall, about that time, having a conversation with Mr Gallagher, a telephone conversation with Mr Gallagher?---Yes, earlier that week. Yes.
PN2333
Is it true to say that during that conversation you said to Mr Gallagher: "My issues are the same as Nadine's"?---We had similar issues, we had - yes, we had, as I said earlier we had talked about what we felt was different in the - and, yes, we had similar issues. We had sent John Gallagher correspondence to that effect.
**** VIRGINIA LOUISE TOOLE RXN MR SWEBECK
PN2334
Thank you. You then spoke about an issue with split shifts and casuals being required to work split shifts?---Yes.
PN2335
You are aware that under the agreement a casual employee has to agree to that proposition?---When we did our working papers - - -
PN2336
No, that's not the question?---Sorry.
PN2337
Are you aware, under the agreement, that a casual employee has to agree to that proposition?---No, I wasn't aware. I thought we had excluded that from the agreement.
PN2338
Perhaps you are not understanding my question. Isn't it true that under the agreement a casual employee cannot work a split shift unless they agree?---Staff should agree with changes, yes. Well, I think they should, yes. But I thought that they would be required to under the agreement if it was put on their roster.
PN2339
Yes, I won't pursue that question. I might just skip along a little bit, you answered a number of questions with respect to the receiving of the notice of intention and your grading level. Do you recall those?---Yes.
PN2340
As I understand it, your evidence is that the notices arrived in Queensland about 23 July?---Sometime, yes, either then or after that, yes.
PN2341
Did you get your notice on that date?---No.
PN2342
This is where I'm getting a bit confused. You might help me?---Yes.
**** VIRGINIA LOUISE TOOLE RXN MR SWEBECK
PN2343
THE COMMISSIONER: I think the witness has been giving quite clear evidence. She felt, at first, she got it sometime later that week or earlier the next week. She later gave evidence that she believed she received it on 31 July or 1 August.
PN2344
MR SWEBECK: Commissioner, with respect, my understanding is the witness was talking about the actual grading letter and not the notice. My confusion arises because I understood the notices arrived in Brisbane around the 23rd and in the answers to my friend's questions were focusing on the grading letter and my understanding is that she didn't receive her grading letter until the 31st, but the notice itself, Commissioner, appeared at some on the 23rd, I'm just trying to find out when the witness actually got the notice as distinct from the grading letter.
PN2345
THE COMMISSIONER: The notice of intent?
PN2346
MR SWEBECK: The notice of intent.
PN2347
THE COMMISSIONER: She's clarified that. The day she arrived, she came to Sydney. In the middle of August. The exact date I am not sure, but I have made a note of it somewhere.
PN2348
MR SWEBECK: Commissioner, I understood that to be the grading letter. Perhaps I can ask the witness?
PN2349
THE COMMISSIONER: Yes, ask the witness to clarify it.
PN2350
MR SWEBECK: You are aware that the notices that went out had attached to them a grading letter. Is that right?---The grading letter had the notice of intention attached to it, yes.
**** VIRGINIA LOUISE TOOLE RXN MR SWEBECK
PN2351
When did you get your notice and grading letter?---I didn't get them together.
PN2352
Right. So you received the notice before the grading letter?---No, I got the grading letter, and incorrect grading letter, and then I got the notice of intention on 20 August.
PN2353
On 20 August?---Yes.
PN2354
Ms Heap asked you some questions about the percentage increase, or the three per cent increase, in the first year?---Yes.
PN2355
She then asked you whether you were aware that whether the Thomas Cook Award would move by $18 or three per cent, in her words, later this year. Is that right?---Yes.
PN2356
Isn't it true that under the agreement the first year three per cent increase is backdated until July?---Yes.
PN2357
I have no further questions, Commissioner.
PN2358
PN2359
THE COMMISSIONER: Any further witness evidence?
PN2360
MR SWEBECK: No, there is no further witness evidence for the applicants, Commissioner.
PN2361
THE COMMISSIONER: Any other documentary evidence to be handed up at this time?
PN2362
MR SWEBECK: No, Commissioner.
PN2363
THE COMMISSIONER: All right. We will move to the evidence of the four witnesses being represented by Ms Heap. What's the order of these witnesses, Ms Heap?
PN2364
MS HEAP: Commissioner, I would prefer to do them; Karen Oviedo, first. Jasmin Rasoni, second. Christine Lannan, third and, Lauren Hutchins, fourth.
PN2365
PN2366
MS HEAP: Would you state your full name and address for the record?---Karen Oviedo, No 1, 1/20 Winifred Avenue, Caringbah, New South Wales.
PN2367
Do you have in front of you a witness statement made in these proceedings?---Yes, I do.
PN2368
I believe it is dated 8 September 2002, is that correct?---That's correct.
PN2369
To the best of your knowledge is everything contained within that witness statement true and correct?---It is true and correct.
PN2370
Commissioner, I would seek to rely on the witness statement in these proceedings.
PN2371
PN2372
MS HEAP: Ms Oviedo, could you explain, are you a shift worker with the company?---Yes, I am.
PN2373
What shift pattern do you work?---I'm a rotator.
PN2374
What does that mean?---I do four mornings and I have two days off and then I do four nights.
**** KAREN OVIEDO XN MS HEAP
PN2375
And then you have?---Two days off.
PN2376
What happens then?---Then I go back to morning shift and I have four days on again.
PN2377
THE COMMISSIONER: What's the location of your employment?---Sydney International Airport.
PN2378
MS HEAP: In relation to your witness statement, at paragraph 9 you indicate that you were never able to access copy of the enterprise agreement from the internet, is that correct?---That's correct.
PN2379
Were you ever given a copy by anyone in the company to look at?---Yes.
PN2380
Who were you given a copy from?---Chris Lannan.
PN2381
Who is Chris Lannan?---She's a staff member, a colleague of mine.
PN2382
In what circumstances did you view the document and who showed it to you?---it was on the way to work.
PN2383
Where were you?---We were on the bus going into work from the carpark to the work place.
PN2384
Approximately how long did you have a look at the agreement?---It's about a 5 to 10 minute bus drive.
PN2385
Did your manager ever give you a copy of the agreement?---No.
**** KAREN OVIEDO XN MS HEAP
PN2386
Did your manager ever inform you where you could get a copy in your work place?---Just over the internet.
PN2387
Was there a hard copy available to you in your work place?---No.
PN2388
Can you explain for the Commission what is your understanding of the confidentiality requirement in relation to the document, the agreement?---Well, when I asked if I could show anybody I was told that I wasn't allowed.
PN2389
Who told you that?---John Gallagher.
PN2390
Where were you when he told you that?---At the first meeting that I went to.
PN2391
That's the meeting in your witness statement referred to as occurring on 25 July, is that correct?---That's correct.
PN2392
Were you told by Mr Gallagher that you could show a copy to third parties if you sought written permission first?---No, not at all.
PN2393
In relation to your work patterns have you identified any disadvantages in the agreement?---Yes, I have.
PN2394
Can you explain what they are?---On the Saturdays our core hours, instead of having them from 2 onwards, they go till 6. Six in the afternoon.
PN2395
THE COMMISSIONER: I am sorry, I have no idea what this witness is talking about.
**** KAREN OVIEDO XN MS HEAP
PN2396
MS HEAP: You work on Saturdays, is that correct?---That's correct.
PN2397
What are your normal hours of work on the Saturday, if you're rostered on the Saturday?---Saturday afternoon.
PN2398
Yes?---From 1.30 till 10.30 at night.
PN2399
Under the current award do you know what your entitlement is in relation to - what's considered to be normal hours of work currently?---From 2 o'clock onwards we get penalty rates.
PN2400
Do you know what rate those penalty rates are at?---No.
PN2401
What do you understand will happen under the enterprise agreement in relation to that same time period?---It changes from - it starts at 7 o'clock in the evening with penalty rates instead of from 2 o'clock.
PN2402
So, penalty rates instead of being available from 2 o'clock in the afternoon would then be available from 7 o'clock in the evening?---That's correct.
PN2403
Did you receive - there's presumably a buy out figure associated with well the change to 4 hours?---Yes, I did.
PN2404
In your view does that buy out figure compensate you for the changes?---I don't think it does, no.
PN2405
Can you explain to the Commissioner why you don't believe it compensates you?---As just before like we - from 2 till 10.30 we were on penalties and with this new buy out it starts from 7 till 10.30. So you lose out hours there.
**** KAREN OVIEDO XN MS HEAP
PN2406
THE COMMISSIONER: That is only part of an answer. So you have to clarify the whole issue as to how it relates to earnings or hours.
PN2407
MS HEAP: When you received your buy out figure from your manager, were you aware of how he calculated that?---It was just done really briefly, really quick, and - - -
PN2408
The circumstances in which he calculated it?---Sorry can you?
PN2409
Sorry, it was brief in terms of - you've given in your witness statement that he calculated it in front of you. Are you aware whether or not he included in the calculation of your buy out figure compensation for the fact for example that your change of 4 hours on a Saturday afternoon would change as you'd spoke about?---No.
PN2410
Have you done any figures which look at whether or not you're better or worse off after receiving the buy out figure compared to what you were currently earning?---We did a quick figure with another colleague and it worked out to be 47 to 57 dollars depending on the morning or the night that you worked.
PN2411
So when you say 47 to 57 dollars is it 47 to 57 dollars better or worse off?---Worse off.
PN2412
And is it per week or per fortnight?---Per week.
PN2413
What's the situation if you're rostered to work a Thursday evening?---At the moment?
PN2414
Yes?---At the moment on a Thursday it's still from penalties, from 6 till the time you finish which would be 10.30 at night.
**** KAREN OVIEDO XN MS HEAP
PN2415
What's your understanding of the situation under the agreement?---Till 9 o;cock. From 7 till 9. There are no penalties, penalties start at 9 o'clock at night.
PN2416
THE COMMISSIONER: Ms Heap, with very great respect none of this means anything unless it is quantified.
PN2417
MS HEAP: I don't understand, Commissioner.
PN2418
THE COMMISSIONER: Well, if there has been a reclassification of the employees into bands and then penalty rates are applied, that's the end result, that's really the answer to the question whether a person is better off or worse off. The mere loss of a penalty to a period of hours does not necessarily equate to a loss of a benefit in terms and conditions of employment.
PN2419
MS HEAP: I understand what you're saying, Commissioner.
PN2420
Ms Oviedo, you were given a grading that showed where you were translating to the new agreement?---That's correct.
PN2421
As a result of that translation into a new agreement is there any change to your base salary rate where you translate into the classification structure?---No.
PN2422
Are there any other benefits that you understand you will receive under the agreement that off set what you perceive to be the disadvantage of losing your shift penalties?---Sorry, can you say that again?
PN2423
Indicated that you translate into the new salary structure at the same salary level, is that correct?---No. It's a different salary level with a new EBA.
**** KAREN OVIEDO XN MS HEAP
PN2424
Is it a higher or lower salary that you translate into?---It's a higher salary.
PN2425
Can you indicate what you understand the difference to be?---I don't know.
PN2426
Where do you translate from, would you know what your grading is under the current award?---I believe it's three, so I don't know whether - - -
PN2427
So it's Thomas Cook?---Thomas Cook.
PN2428
Grade 3, and where will you translate into the new structure?---Like as in grade 3?
PN2429
Yes?---As far as I am aware .....
PN2430
THE COMMISSIONER: You will have to speak up, Ms Oviedo, I can't hear you and perhaps the transcript is not picking up your answers as well.
PN2431
MS HEAP: You understand you'll be moving across on a high salary?---That's correct.
PN2432
When you did your calculations as to whether or not you were better or worse off under the agreement, did you include the reclassification?---No. When we did it because at first with a post it note it wasn't included the Thursday night. So it wasn't - that's where - without having a Thursday night on there that's the calculation that they gave us, with no Thursday night.
PN2433
Go back a step and I'll come back to that question in a minute. When you indicated before that you did a calculation as to whether you'd - and you worked out you'd be between $47 and $57 per week worse off, did you do that on the basis of using your new base rate under the agreement?---Yes.
**** KAREN OVIEDO XN MS HEAP
PN2434
Can you explain what you were saying about not including the Thursday night originally in the buy out?---Well, originally on the buy out the post it note that I was given it didn't include the Thursday night at all.
PN2435
So stop there. It didn't include the Thursday night, so it hadn't taken into account the fact that you could be rostered to work a Thursday night, is that correct?---That's correct.
PN2436
It didn't take into account the loss of penalties on that Thursday night?---That's correct.
PN2437
Then what happened in relation to clarifying the Thursday?---Sorry, then?
PN2438
Did you raise that issue in terms of not taking into account the Thursday night?---Yes, we did.
PN2439
What happened then?---I was told that we will get back to you with a new figure and to this day we still haven't received anything.
PN2440
So you calculated that you would be $40 to $57 worse off under the agreement including your improved salary arrangement?---Yes.
PN2441
You are still waiting for clarification as to the actual buy out figure that you should receive?---Yes.
PN2442
Can you explain what's the normal situation for you in relation to taking meal breaks please?---Within the first four hours of your shift you take a half hour break and then your next half hour before you finish work.
**** KAREN OVIEDO XN MS HEAP
PN2443
It's a further half an hour break?---It's another half hour sorry, yes.
PN2444
I have got no further questions.
PN2445
PN2446
MR SWEBECK: Ms Oviedo, as a shift worker you are one of the employees that is entitled to a buy out, is that right?---That's correct.
PN2447
The figure that you receive, let's put to one side for the moment its correctness or otherwise. But the figure that you receive you understand that to go into your base salary, is that right?---That's correct.
PN2448
Do you understand then the new base salary which includes the buy out will then have under this agreement added to it a further 3 per cent if it's approved?---Yes.
PN2449
All other entitlements you have such as annual leave and superannuation and those sorts of things, those entitlements will be calculated then on your new base rate, is that correct?---Yes.
PN2450
Isn't the buy out to compensate employees like yourself for the change to the core hours under the agreement?---Yes.
PN2451
In paragraph 7 of your - you have a copy of your statement there, don't you, yes, thank you?---I do, yes.
**** KAREN OVIEDO XXN MR SWEBECK
PN2452
In paragraph 7 of your statement you say that you were provided with a buy out figure but you challenged its correctness, is that right?---That's correct.
PN2453
At this stage you have told the Commission that a new figure, or the figure that you queried hasn't been provided to you?---That's correct.
PN2454
In paragraph 7 you've stated the mistake with your buy out figure you calculated to be about $57?---Less.
PN2455
Less. You have been on annual leave?---That's correct.
PN2456
If I could take you to paragraph 9 of your statement, you say you had a number of difficulties accessing the enterprise agreement?---Yes.
PN2457
What date did you receive a copy of the agreement from Ms Lannan?---I can't actually remember the date, sorry.
PN2458
Was it before 25 July?---Before I attended the meeting, yes.
PN2459
Yes, it was?---Yes.
PN2460
Between 19 and 25 July when you received a copy from Ms Lannan, did you speak to anyone about your difficulties of access?---Yes, I did.
PN2461
Who did you speak to?---The manager on duty and some of the other girls.
PN2462
I put to you that when you spoke to the manager about your difficulty he told you a hard copy was available?---She didn't know about it either.
**** KAREN OVIEDO XXN MR SWEBECK
PN2463
Did you speak to your change action team member during that period?---No because she was away on holidays.
PN2464
Did you speak to any of the other change action team members during that period?---No.
PN2465
Did you attend bi-monthly staff meetings?---Yes.
PN2466
I put to you that at one of those bi-monthly staff meetings you were told by Lisa Mayham that a hard copy of the agreement was available?---Not that I can recall, sorry.
PN2467
At paragraph 14 of your statement you refer to a staff member named Matilda?---Melita.
PN2468
Melita, I am sorry. Melita is a casual employee?---That's correct.
PN2469
At the time she raised the issue of her by Mr Gallagher, didn't Mr Gallagher tell her that casual buy outs are harder to work out than full time staff?---Yes.
PN2470
And didn't he say that the buy out for casuals was still to be calculated?---Yes.
PN2471
And didn't Melita say to Mr Gallagher that she understood this approach?---Don't know.
PN2472
At paragraph 15 you refer to a conversation between Carmen Turner and Mr Gallagher?---Yes.
**** KAREN OVIEDO XXN MR SWEBECK
PN2473
Did Ms Turner at the time raise with Mr Gallagher that banks were paying a lot more money than Travelex?---Sorry, can you repeat that.
PN2474
Yes I will. Didn't Ms Turner raise at the time with respect to her conversations with Mr Gallagher that banks were making a lot more money than Travelex?---No.
PN2475
THE COMMISSIONER: With respect, how can this witness answer that question unless she was privy to that discussion, otherwise it's hearsay.
PN2476
MR SWEBECK: I think she was, Commissioner, at 15 she says she was at a meeting with Ms Turner I will get to the point, Commissioner. In response you have stated that Mr Gallagher said if she, Ms Turner, was not happy with the company, "Why are you here". Do you see that?---Yes.
PN2477
Did Mr Gallagher have a further conversation at the time with Ms Turner where he said that if she thought she was better off working for a bank then she is free to apply to work for a bank?---No.
PN2478
You say at paragraph 16 that you still have not had a conversation or heard from Mr Larson?---About my buy out figure, no.
PN2479
Yes, about your buy out figure. Didn't Mr Larson tell you that any queries that you had were being resolved?---Not that I can remember, sorry.
PN2480
I don't have any further questions, Commissioner.
PN2481
**** KAREN OVIEDO RXN MS HEAP
PN2482
MS HEAP: When you were asked a question from Mr Swebeck about receiving the copy of the agreement, did you get a copy or did you just look at her copy at that time?---I just looked at her copy at that time.
PN2483
The bulletins to staff in relation to the - Mr Swebeck has asked you a number of questions about the calculation of the buy out figure, etcetera. The bulletins to staff, have the ability for staff to use a ready reckoner. Was a ready reckoner available to you?---Sorry, a ready?
PN2484
A ready reckoner? Was there any mechanism provided by- - -?---No.
PN2485
Sorry, I will ask that question again. Was a ready reckoner provided to you?---No.
PN2486
Was there any other mechanism provided by the company to you to work out the calculations as to whether you were better or worse off under the agreement?---No.
PN2487
I have no further questions, Commissioner.
PN2488
PN2489
MS HEAP: Commissioner, before I call Jasmin Rasoni could I please ask for my colleague, Mr Met to be excused from the bar table.
PN2490
THE COMMISSIONER: Yes.
PN2491
PN2492
MR SWEBECK: Commissioner I might rise. With regard to the evidence of the witness there were some issues addressed last time we were before you, with regard to certain parts of the evidence that were opinion and hearsay. I don't propose to take the Commission through those aspects of the agreement because I think the commission is well aware of what parts of the statements might be considered opinion and of little substance and given due weight.
PN2493
THE COMMISSIONER: Are there any particular paragraphs of this witness statement?
PN2494
MR SWEBECK: Yes, there are Commissioner.
PN2495
THE COMMISSIONER: Which are those?
PN2496
MR SWEBECK: Paragraph 7 with respect to this witness' opinion on whether shift workers were disadvantaged and as to the witness's opinion as to the difficulty they had with returning their ballot paper. Paragraph 12, Catarina Braincourt is not appearing to give evidence and so her statement needs to be given due weight with respect to the comments made therein. Paragraph 17 is supposition on behalf of the witness; similarly with the last sentence in that paragraph. Paragraph 19, the last sentence, as to the witness's opinion as to who the system benefits. That's all, Commissioner.
PN2497
THE COMMISSIONER: All right thanks, Mr Swebeck. Go ahead, Ms Heap.
PN2498
MS HEAP: I might actually get that statement before I deal with those objections. Could you give your full name and address for the record please, Ms Rasoni?---My name is Jasmin Rasoni.
PN2499
Where do you live?---I live at 7/65 Bega Street, Revesby.
**** JASMIN RASONI XN MS HEAP
PN2500
Have you got a witness statement in front of you that you prepared for these proceedings?---Yes I do.
PN2501
Is it signed?---Yes.
PN2502
And dated. Can you tell me the date of that please?---12 September.
PN2503
To the best of your knowledge is the content of that witness statement true and correct in every particular?---Yes.
PN2504
We seek to rely on the witness statement, Commissioner.
PN2505
PN2506
MS HEAP: Commissioner, I will deal with the objections Mr Swebeck raised. In relation to paragraph 7, I will ask Ms Rasoni some questions in relation to how she knows that. In relation to paragraph 12, I say that Ms Rasoni can give evidence as she has in the witness statement as to the content of the telephone conversation between her and Ms Braincourt. In relation to paragraph 17 the witness is attesting to her concerns about disadvantage to her and I understand the objections raised by Mr Swebeck, and in relation to paragraph 19.
PN2507
HIS HONOUR: The last sentence I think of 19.
PN2508
MS HEAP: If we take it on the basis of her concerns as a person with those outside responsibilities her view and the impact on her, that should clarify that.
**** JASMIN RASONI XN MS HEAP
PN2509
THE COMMISSIONER: Yes, go ahead.
PN2510
MS HEAP: Ms Rasoni, you work for the company in the Hurstville Branch?---Yes.
PN2511
What pattern of work do you work, what are your hours of 9.00 till 5.30, Monday to Friday.
PN2512
As a person who works those hours were you provided with a buy out figure?---No, ma'am.
PN2513
In paragraph 7 of your witness statement, you indicate that there was disadvantage to shift workers in relation to the time frame for selection of CAT team members. Can you explain for the Commission how you understand that they were disadvantaged?---By speaking to some staff members and referring to the voting and ballot paper, the person that works in my branch, Thursday night and Saturday did not receive those ballot papers at all because he wasn't there until Saturday so my belief is that some people have not received them on time.
PN2514
Were they able to participate in the ballot for CAT team selection?---No.
PN2515
Can you explain to the Commission your understanding of the confidential requirements in relation to the enterprise agreement document?---Basically, if we disclose any information in those documents we could be put off work or there was basically just they said that document was confidential and no-one was to see it. Not the union member or no-one for that matter.
PN2516
No person outside the company?---Correct.
**** JASMIN RASONI XN MS HEAP
PN2517
Did you clarify that with Mr Gallagher?---Yes, I did.
PN2518
What did you ask Mr Gallagher?---I ask him if I can advise the union rep to look into it because this is not my field, I don't understand the document and Mr Gallagher's response was to that if the union wants a document to ring him the following Monday and he will be supplying it to them.
PN2519
Did you ask if you could show the document to people such as a legal adviser?---I did. Yes, I did. I did not get a specific answer. Basically I was told again that if I got a union rep and Lauren will be back, she can ring them and ask for the document to be supplied to her so union can have a look at it.
PN2520
Sorry, so Lauren is the union representative?---Lauren is my union representative.
PN2521
Did Mr Gallagher say to you that if you asked in writing to be able to show other people the document you would be able to do that?---I don't recall that.
PN2522
I have no further questions, Commissioner.
PN2523
THE COMMISSIONER: Cross-examination, Mr Swebeck?
PN2524
PN2525
MR SWEBECK: In paragraph 5, Ms Rasoni, you speak about receiving the notice from Cherie Muir about the end of April, do you see that?---Yes, sir.
**** JASMIN RASONI XXN MR SWEBECK
PN2526
What I'm going to put to you was that in fact you received that notice about mid April, is that right?---I cannot recall the date.
PN2527
Paragraph 6, you say that you were concerned as a result of the ballot, it was not a secret ballot, and management could monitor the way people voted. Do you see that?---Yes, sir.
PN2528
You are aware that the ballot was conducted by an outside organisation?---Yes, sir.
PN2529
Are you aware, at the time, that there were rumours floating about the organisation that some managers intended to vote?---No.
PN2530
Paragraph 7, you say that the time frame to vote was very short. Is that correct?---Correct.
PN2531
You said earlier that you can't recall whether you received the ballot at the end or in the middle of April. Do you recall that?---Well, in my belief was the end of April.
PN2532
Yes, but you can't recall?---Not exact date.
PN2533
So if, as I have put to you, it was received in mid April and the notice informed employees they didn't need to vote until 6 May, then that amounts to a lot more time than one or two days, does it not?---It does.
PN2534
Is it true to say that there are no shift workers at Hurstville?---Correct.
PN2535
Do you recall you stated in evidence that you spoke to a number of shift workers about the disadvantage they have. Do you recall that answer?---Yes, sir.
**** JASMIN RASONI XXN MR SWEBECK
PN2536
Can you outline to the Commission exactly what their concerns were?---Basically their concern were they were doing longer hours without penalties and I think because no-one particularly understood the agreement, we were not explaining - we didn't understand the agreement and there is still a lot of concern of that.
PN2537
Are you aware that shift workers under the agreement will have a buy-out provided to them?---That came at later stage.
PN2538
At paragraph 8 of your statement you speak about your concern about the accessibility of New South Wales CAT team representatives. Do you see that?---Yes, sir.
PN2539
Did Mr Gallagher have a conversation with you about those concerns?---Yes.
PN2540
Did he advise you to call Elizabeth Owen in Victoria who represented branches?---Correct.
PN2541
Did Miss Owen then call you based on the concern you had about representation?---I don't remember who call who, but I did speak with Elizabeth Owen.
PN2542
Well, I put it to you that Miss Owen called you. Is that correct?
PN2543
MS HEAP: She has answered that question.
PN2544
MR SWEBECK: She said she doesn't recall.
PN2545
MS HEAP: Excuse me, Commissioner. She has answered the question she doesn't recall.
**** JASMIN RASONI XXN MR SWEBECK
PN2546
THE COMMISSIONER: Yes, I know that.
PN2547
MR SWEBECK: Did you have a number of conversations with Miss Owen about branch representation?---No.
PN2548
Do you recall how many conversations you had with Miss Owen?---One or two maximum.
PN2549
Did Mr Gallagher also advise you that apart from the Change Action Team member you also had the union to represent your interests?---Correct.
PN2550
Have you heard of the expression, "I'll scratch your back if you scratch mine"?---Yes, sir.
PN2551
I put to you that you had a conversation with Ms Getsios where you indicated to her that you were willing to incite industrial action at the branches - - -
PN2552
MS HEAP: Excuse me, Commissioner, I object to where I think this is going. Firstly, Mr Swebeck hasn't made it clear when the conversation took place and he hasn't put any of this information to Ms Getsios when she was in the witness box.
PN2553
THE COMMISSIONER: Why are you now raising this issue with this witness when you didn't raise it with Ms Getsios at the time?
PN2554
MR SWEBECK: Commissioner, at the time the information wasn't readily available. I can't - - -
PN2555
THE COMMISSIONER: What has this got to do with the certification of the agreement anyway?
**** JASMIN RASONI XXN MR SWEBECK
PN2556
MR SWEBECK: Well, Commissioner, it taints the witness' evidence.
PN2557
THE COMMISSIONER: It might go to the issue of the credibility of the witness, that's all. I will allow you to ask one question in relation to this alleged discussion with Ms Getsios.
PN2558
MR SWEBECK: Did you have a conversation with Ms Getsios where you indicated to Ms Getsios that you would incite industrial action at the branches if Getsios was interested in doing the same thing at the airport?---No.
PN2559
In paragraph 9 you mention individuals signing a petition, do you see that?---Yes.
PN2560
Do you know how many employees signed the petition?---No.
PN2561
Paragraph 11 you mention that you had internet access to the agreement on 19 July?---Yes.
PN2562
Do you recall receiving a notice from the company about 18 July with your grading attached?---No, sir.
PN2563
I just might show you a document. I'll identify it as being notice of intention that the company - - -
PN2564
THE COMMISSIONER: Tab 7.
PN2565
MR SWEBECK: Tab 7, thank you, Commissioner. Do you recall seeing that notice?---Yes, sir.
**** JASMIN RASONI XXN MR SWEBECK
PN2566
Paragraph 12 of your statement you relate conversations which you had with a Ms Braincourt, do you see that?---Yes.
PN2567
Are you aware that the company couriered Ms Braincourt's E updates and agreement?---No.
PN2568
Are you aware that Ms Braincourt's grading letter and notice that you've identified was sent to her by express post?---No.
PN2569
MS HEAP: Commissioner, I want to object to this line of questioning from Mr Swebeck. He never put to the company representative the particulars in relation to Ms Braincourt in terms of the setting information - - -
PN2570
THE COMMISSIONER: This is the first any of us has heard about Ms Braincourt, raised by Ms Rasoni. She can respond to questions in relation to that paragraph.
PN2571
MS HEAP: I just note Commissioner that Mr Swebeck had the witness statement in advance of Ms Newell's evidence and never took her to the question of whether the company had carried out these things in relation to Ms Braincourt.
PN2572
THE COMMISSIONER: I note your comment.
PN2573
MR SWEBECK: You mentioned earlier that you believed that you would be subject to disciplinary action if you released a copy of the agreement, do you recall that?---Correct.
PN2574
According to your statement you had a copy of the agreement on 20 July, or you could access copy of the agreement on the 20th, that's at paragraph 11?---Yes, sir.
**** JASMIN RASONI XXN MR SWEBECK
PN2575
You also stated that you received the notice of intention which you've identified?---Yes.
PN2576
If I take you to the third last paragraph of that notice where it says:
PN2577
If you are a member of the Australian Services Union you may request ...(reads)... ballot takes place.
PN2578
Do you see that?---Yes, sir.
PN2579
So, in terms of your understanding that she couldn't release the documents, it is true is it not, that the company did not say to you that you couldn't seek advice on the agreement?---I received this letter together with my grading in July, after 19th.
PN2580
Just answer the question. The question is you stated to the Commission that you believed that you couldn't release the documents otherwise you'd be subject to disciplinary action, is that correct?---Yes.
PN2581
What I am putting to you is that the company did not tell you at any time that you could not seek advice on the agreement?---The company is telling me I can seek advice but the documentation I was not allowed to supply to I assume representative, that was understanding.
PN2582
In paragraph 18 of your statement you mention a concept known as managed local markets or MLM?---Yes.
PN2583
You've completed the MLM course?---Yes, I did.
**** JASMIN RASONI XXN MR SWEBECK
PN2584
Didn't the company advise you that the reason you'd be transiting to the experts ban is because you've completed that MLM course?---Not that I remember.
PN2585
I have no further questions, Commissioner.
PN2586
PN2587
MS HEAP: Ms Lannan, can you state your full name and address for the record, please?---Christine Marie Lannan, Unit 8, 174 Governors Road, Kingsford.
PN2588
Have you got before you a copy of a signed witness statement that you prepared for these proceedings?---Yes.
PN2589
Is that the document dated 13.9.2002?---I believe it is he 13.9, yes.
PN2590
To the best of your knowledge is everything contained within that witness statement true and correct?---Yes.
PN2591
Commissioner, we seek to rely on the statement of Ms Lannan in these proceedings.
PN2592
PN2593
MS HEAP: Ms Lannan, where do you work for the company?---I work at Sydney International Airport.
PN2594
You're a shift worker, is that correct?---Yes.
PN2595
What shift pattern do you work?---I work PM shifts, which is 1.30pm to 10.30pm, four days on, two days off.
**** CHRISTINE MARIE LANNAN XN MS HEAP
PN2596
In relation to the agreement itself, what is your understanding about the confidentiality requirements about the document?---That it was confidential and not to be shown to anyone outside of the company.
PN2597
Were you told by anyone from the management of the company that you could show it to people outside of the company if you got written permission first?---No, that was never told to us, or to me.
PN2598
No further questions, Commissioner.
PN2599
PN2600
MR SWEBECK: Ms Lannan, as a shift worker you are entitled to the buy out, is that correct?---Yes.
PN2601
You have had your buy out confirmed, is that correct?---No, I haven't.
PN2602
If I could take you to paragraph 5 and 6 of your statement. Did you attend that meeting as a delegate of the ASU?---Yes.
PN2603
Are you still a delegate of the ASU?---Yes.
PN2604
At paragraph 5 you say that you had the meeting with the company and you raised with the company, or the union raised with the company, the members desire to achieve an enterprise agreement, do you see that?---Yes.
PN2605
Was that focused on the agreement at the Sydney International Airport?---Yes.
**** CHRISTINE MARIE LANNAN XXN MR SWEBECK
PN2606
You raise in paragraph 6 that the company said to you that an agreement was not the highest priority for it at that time, do you see that?---Yes.
PN2607
Did the company explain to you why it wasn't the highest priority at that time?---Yes.
PN2608
What did it explain to you?---They were concerned at the time about getting the tender back. That was due early the next year I think and they were more concerned with getting that at that stage.
PN2609
THE COMMISSIONER: I am sorry, I missed that point, getting what back?---Sorry, the tender, Thomas Cook Travelex has the tender for foreign exchange branches at Sydney Airport and that was due for renewal.
PN2610
MR SWEBECK: That's all?---Yes, they also said after September 11 they were more concerned with whether they would get all their branches back and keeping jobs.
PN2611
Anything else?---No, not that I remember.
PN2612
I put to you, Ms Muir of the company said to you at the time that the company's priority was harmonising the two sets of conditions under the two awards, do you recall that?---Yes, sorry, yes, I do.
PN2613
You also recalled that Ms Muir said it was a bad time because of the Ansett collapse, do you recall that?---Yes.
PN2614
That she said it was a very busy period for the company between December and February, do you recall that?---Yes.
**** CHRISTINE MARIE LANNAN XXN MR SWEBECK
PN2615
Do you also recall Ms Muir's conversation with you that the pay freeze was only on over award payments?---I am sorry, I don't understand?
PN2616
Do you recall Ms Muir saying to you that there was a pay freeze at this stage as well?---Yes.
PN2617
So there was a bit more said than just wondering about the tender documents?---Okay.
PN2618
In paragraph 7 you say that the next thing you heard about enterprise bargaining was a note you received from Cherie Muir, do you see that?---Yes.
PN2619
Do you recall when you received that note?---I don't remember the exact date but it was late March, early April that I recall.
PN2620
Late March, early April?---Yes.
PN2621
In paragraph 8 you refer to a petition you signed. Do you know how many people signed the petition?---I don't know the exact number, no.
PN2622
I take you to paragraph 9 when you first saw the agreement on the night of 18 July?---Yes.
PN2623
Prior to that time you would have been subject to your view about them but you would have been seeing the company updates on the intranet?---Some of them.
PN2624
Paragraph 10 you say in evidence that you stopped reading them because you had a view about them, do you see that?---Yes.
**** CHRISTINE MARIE LANNAN XXN MR SWEBECK
PN2625
Do you recall at what stage you actually stopped reading the updates?---No.
PN2626
You said in evidence that you were still a delegate of the ASU, do you remember that?---I said today?
PN2627
Yes?---Yes.
PN2628
In paragraph 13 you say that you wanted to seek advice from the union but you understood you weren't allowed to do this. Do you recall receiving a notice of intention to make an agreement from the company about 17 or 18 July?---I don't understand?
PN2629
Did you receive a notice, I'll show you the document it might assist your memory. This has been previously identified as CAPs - - -
PN2630
THE COMMISSIONER: The world fund, tab 7.
PN2631
MR SWEBECK: Yes, world fund, tab 7, thank you Commissioner.
PN2632
THE WITNESS: Yes, I do have that.
PN2633
MR SWEBECK: Is there a copy still in the box there?---No, I have a copy.
PN2634
If I could take you to the third last paragraph where it says, if you're a member of the union you can get the unions advice about the agreement, do you see that?---Yes.
PN2635
I also want to take you to an update. Update number 17. If I could take you to - I might have given the witness the wrong number, Commissioner, just bear with me. I might just withdraw that question, Commissioner.
**** CHRISTINE MARIE LANNAN XXN MR SWEBECK
PN2636
You've stated that you had access to the agreement on 18 July. When you access the agreement, identified as exhibit S2, Commissioner, I am just showing you a document, is that the document that appeared on the internet as a cover to the agreement?---I believe it is.
PN2637
If I just read to you the last - at the bottom of the page, the document says:
PN2638
Remains strictly confidential and shall not be copied or distributed ...(reads)... permission of John Gallagher.
PN2639
Do you see that?---Yes.
PN2640
Did you speak to Mr Gallagher about a release of the document?---A release of it?
PN2641
Yes, as it says there?---No.
PN2642
Paragraph 15 you talk about specific concern raised by staff with respect to 12 hour shifts?---Yes.
PN2643
Didn't Mr Gallagher say at the meeting that the airport had a curfew so 12 hour shifts were not really viable?---Yes.
PN2644
You say there that the current agreement, do you mean the award?---The Sydney Airport Agreement.
PN2645
I am looking at your clause 15 where you say:
**** CHRISTINE MARIE LANNAN XXN MR SWEBECK
PN2646
At the time I thought this was a good point. However, I subsequently checked ...(reads)... agreement -
PN2647
Are you referring to the agreement or the award? This is in your statement at paragraph 15, the last sentence?---I believe it is an agreement.
PN2648
Are you aware that under the existing award that any work beyond 10 hours is overtime?---Did I know that it's overtime?
PN2649
Are you aware that under the Thomas Cook Award that applies at the airport that any ordinary hours beyond 10 are worked as overtime?---Yes.
PN2650
Paragraphs 18 and 19 of your statement you refer to your buy out figure?---Yes.
PN2651
Is that the correct buy out figure?---That's the figure I've got, I'm not sure if it's correct.
PN2652
At the time you were provided with the buy out figure from Mr Larson, did Mr Larson say to you the figures were tentative only and had to be confirmed once the employees had checked them?---Not that I remember.
PN2653
I could take you to paragraph 20, the first point, you say the change to the work hours. I assume that means the change to the hours in the Thomas Cook Award?---The hours that we work at Sydney Airport?
PN2654
Yes?---Yes.
PN2655
It says:
**** CHRISTINE MARIE LANNAN XXN MR SWEBECK
PN2656
Staff were required to work 12 hour shifts and/or six days.
PN2657
Are you aware that under the agreement that no employee can work 12 hours for six days?---
PN2658
You say the second point:
PN2659
Penalty buy out only compensate current shift workers ...(reads)... work shifts in the future.
PN2660
With regard to these buy out figures that have been provided isn't it true to say that if your shift work changed tomorrow you would retain that buy out figure as part of your base salary?---Yes.
PN2661
Are you aware that the buy out figure for casual employees has been performed by the company?---I don't understand what you've just said.
PN2662
I could take you to the third dot point in your paragraph 20?---Yes.
PN2663
You say:
PN2664
Casual employees who work shifts were originally told they ...(reads)... under the agreement.
PN2665
?---Yes.
PN2666
Are you aware that casuals do in fact receive a buy out under the agreement?---I heard that during the week.
**** CHRISTINE MARIE LANNAN XXN MR SWEBECK
PN2667
THE COMMISSIONER: Are you talking about the most recent week?---This past week, yes.
PN2668
MR SWEBECK: On the last point you talk about the lack of union involvement as a substantial disadvantage. Under the agreement are you aware that the union can represent you as a member in any dispute?---No, I wasn't aware.
PN2669
Have you read the agreement?---Yes.
PN2670
The last paragraph, sorry the second paragraph of clause 21, you speak about a casual employee named Abel?---Yes.
PN2671
Are you aware that there is no casual employee with the first name Abel in the company?---I'm sorry I thought he was a casual.
PN2672
PN2673
MS HEAP: Ms Lannan, I just want to take you to paragraph 12 of your witness statement. You were asked by Mr Swebeck whether you sought from Mr Gallagher a release to be able to show the document to parties outside of the organisation. Do you remember that?---Yes.
PN2674
Were you aware in relation to the information that had been provided by John Gallagher at the time, were you aware that you could do that?---To show someone outside of the company?
PN2675
That's right?---No. I didn't want to show the whole thing to anyone, I wanted to be able to ask someone advice on different points.
**** CHRISTINE MARIE LANNAN RXN MS HEAP
PN2676
At the presentation with John Gallagher when he went through the document did he make it clear that you could seek in writing to have permission to show third parties the document?---No, he didn't mention that in the training day.
PN2677
Do you still hold the view that there was a person employed by the company named Abel who told you you didn't receive a ballot paper?---Yes. He works in a different section so I didn't know.
PN2678
What section was he working in?---In the control room.
PN2679
At Sydney Airport?---Our cash room at Sydney Airport.
PN2680
He told you directly you didn't receive a ballot paper?---No, he didn't tell me, he told someone in the office who told me.
PN2681
THE COMMISSIONER: So it's really hearsay evidence.
PN2682
MS HEAP: Yes, I understand that now, Commissioner. No further questions.
PN2683
THE COMMISSIONER: Thank you for your evidence. You may step down, Ms Lannan. You are welcome to remain in the proceedings or leave if you choose?---thank you.
PN2684
PN2685
MS HEAP: I seek to call Ms Lauren Hutchins.
PN2686
PN2687
MS HEAP: Ms Hutchins, could you state your full name and address for the record please?---My name is Lauren Elizabeth Beamer Hutchins and my address is Level 2, 619 Elizabeth Street, Redfern, New South Wales.
PN2688
Do you have in front of you a signed witness statement prepared for these proceedings?---Yes, I do.
PN2689
Which is dated 13 September 2002?---Yes.
PN2690
Do you say that to the best of your knowledge the content of that witness statement is true and correct in every particular?---I do.
PN2691
I seek to rely on the witness statement in these proceedings.
PN2692
PN2693
MS HEAP: Ms Hutchins, you are an employee of the Australian Services Union, is that correct?---Yes.
PN2694
In what capacity are you employed there?---I am an organiser.
PN2695
In that capacity you have had responsibility for - sorry you are employed in the New South Wales Branch?---Yes.
PN2696
And in that capacity you have had responsibility for the negotiations with Travelex about an enterprise agreement?---Yes/
**** LAUREN ELIZABETH BEAMER HUTCHINS XN MS HEAP
PN2697
You participated in all of the CAT team negotiations where the union was present is that correct?---Yes.
PN2698
Were you present at the teleconference, videoconference that was held on 4 July 2002?---Yes, in the Travelex office in Bulwarra Road.
PN2699
Ultimo?---Ultimo, yes.
PN2700
Can you tell us what happened during the course of that teleconference?---Initially there was some discussion between the change action team and representatives of the Australian Services Union, myself and Linda White and John Gallagher and Simon Lane both representing the company. At that time there were a number of undertakings made by the company with a view that if we gave an in principle agreement both change action team representatives and ASU representatives that those would remain in place. Both the change action team representatives and myself and Linda White requested that we meet separately without the company representatives present to discuss the proposals put forward by the company and also the position we would take at that meeting. it was agreed unanimously at that meeting with the change action team and ASU representatives - - -
PN2701
THE COMMISSIONER: Sorry, which meeting are you talking about, with or without the company?---Without the company, sorry.
PN2702
All right?---At that meeting it was unanimously agreed that neither change action team representatives or ASU representatives could give an in principle agreement to the document as we hadn't seen it at all in its complete or changed form. It was then that representatives of the company came back, Simon Lane and John Gallagher. Linda White from the ASU put the position of both the change action team and the ASU to Simon Lane and John Gallagher that until we saw the draft agreement we could not give an in principle agreement. At that time Simon Lane stated that those matters that had been discussed earlier in the day when the Travelex representatives were present were taken off the
**** LAUREN ELIZABETH BEAMER HUTCHINS XN MS HEAP
table, as had been stated before and that Travelex representatives would get in contact with both the ASU and change action team representatives in a couple of weeks after something had been drafted and both Simon Lane and then John Gallagher left the meeting room.
PN2703
Before it happened, were you aware of the CAT representatives having a separate meeting with the company following that video conference?---No, I wasn't.
PN2704
When did you first become aware that that had occurred?---When there was discussion with one of our representative in the Western Australian Branch, an ASU delegate, had informed me that the change action team representative from Western Australia had given an in principle agreement subject to conditions which I wasn't aware of and that was the first time I was aware of any meeting that had taken place after 3 July.
PN2705
You weren't aware of the content of that in principle agreement at that stage?---No, I wasn't.
PN2706
Were you aware of communications between the ASU and the company over this period of time?---Yes I was.
PN2707
What form did those communications take?---They were letters, some correspondence from Linda White, the assistant national secretary of the Australian Services Union and responses from John Gallagher representing the company. To my knowledge there were also a number of telephone conversations between the two.
PN2708
Throughout this time that there were discussions with the company about the agreement, did the ASU hold teleconferences with members to discuss the bargaining strategy.
PN2709
MR SWEBECK: I am wondering of the relevance of the conversation or the fact that it's occurring at the moment?
**** LAUREN ELIZABETH BEAMER HUTCHINS XN MS HEAP
PN2710
THE COMMISSIONER: Given that you have two hats, as a representative of some nominated employees and the ASU is here as an agent on behalf of a number of nominated employees, it's only relevant what occurred in respect of those employees.
PN2711
MS HEAP: I will get her to identify some people in the teleconference, Commissioner. Can you identify people who were regular attendees in these teleconferences for employees of the company?---Yes.
PN2712
THE COMMISSIONER: Are they employees that are covered by I think it is Exhibit S1?---Yes.
PN2713
MS HEAP: Sorry, H1.
PN2714
HIS HONOUR: Sorry, you're right, which is your number of authorities to act.
PN2715
MS HEAP: I will show you H1. I have given to the witness exhibit H1, Commissioner. Could you please identify in terms of the named people in exhibit H1 those persons who attended the teleconferences that you refer to?---Christine Lannan, Karen Oviedo, Jennifer Greeney, Jasmin Rasoni, Andrew Hapesi, Jean Laurent, Gail Taylor.
PN2716
Did those people participate in teleconferences with yourself and Linda Wyatt, is that correct?---Yes, that's correct.
PN2717
What was the purpose of those teleconferences?---To give updates to those participating on what had been discussed at the negotiations meetings. To also get feed back from those present on the teleconferences about what to put forward at the next meeting of negotiation. To get a general feeling of the attitude throughout the Travelex Thomas Cook network. To gauge the response outside of that teleconference. To vote on a number of things in terms of what's to be put to the company and basically the ASU position at negotiations.
**** LAUREN ELIZABETH BEAMER HUTCHINS XN MS HEAP
PN2718
During the course of the negotiations with the management and the CAT team representatives, did you make the company aware that you had teleconferences of that group or however you named it in between times?---Yes.
PN2719
What did you tell the company about those teleconferences?---That they were vital to our position at negotiations meetings. We made it quite clear that it wasn't a decision of either myself or Linda White at negotiations.
PN2720
Do you recall if there was a teleconference which discussed the seeking to get a copy of the agreement?---Yes, there was.
PN2721
What was the discussion at that teleconference?---There were a number of people present in that teleconference. The discussion was basically around informing those in the teleconference that they had a right to representation. There was a number of employees on that teleconference who voiced concern about a certain paragraph on the draft agreement that they had received that stated that they couldn't get advice from anyone. So that was the major discussion at that teleconference.
PN2722
Couldn't get advice or couldn't show the document?---Couldn't show the document to anyone.
PN2723
Was it an outcome of that teleconference that the ASU would request a copy of the document?---Yes, formally request it of the company.
PN2724
On behalf of the people it represented?---Yes.
PN2725
Do you recall if there was teleconference that discussed the union acting on behalf of people to ask for a meeting with the company about the agreement after it had been released?---Yes.
**** LAUREN ELIZABETH BEAMER HUTCHINS XN MS HEAP
PN2726
What's your understanding of the outcome of that discussion of the teleconference?---That there were a number of concerns that members still had about the agreement. It was requested that a meeting be called to see if there could be some agreement met between the company and ASU representatives on those outstanding issues.
PN2727
So was it an outcome of the discussion that the union would contact the company and seek to have a meeting about the agreement?---Yes.
PN2728
Did that occur?---No.
PN2729
Did the union request a meeting?---Yes, sorry.
PN2730
Did that occur?---No.
PN2731
Is the request that you refer to contained in the letter marked F attached to your witness statement?---Yes.
PN2732
Ms Hutchins, can you explain your understanding of the situation of casuals in relation to the buy out?---My understanding is to date that those employees affected by changes to the core hours have not been officially informed of the buy out figure.
PN2733
That's casual employees?---Casual employees, yes.
PN2734
What was your understanding at the time that the vote was taking place in relation to whether casuals would be having access to the buy out?---To my understanding it was agreed that casuals would be subject to the buy out. However, it was ambiguous to say the best because we actually had never finished that discussion with the company.
**** LAUREN ELIZABETH BEAMER HUTCHINS XN MS HEAP
PN2735
So you never had a complete discussion with the company about the situation of casuals in the buy out?---No.
PN2736
Are you aware that casuals have been given a buy out figure to date?---It has been described to me as a ball park figure. But again nothing official has been given to casual employees to my understanding.
PN2737
When do you understand casual employees received this ball park figure?---Several weeks ago, but definitely after the vote had taken place.
PN2738
At paragraph 29 of your witness statement you indicated that you were present at the Australian Electoral Commission when the votes were being counted for the ballot on the agreement, is that correct?---Yes.
PN2739
You indicate there the persons present including Charles Anderson, is that correct?---Yes.
PN2740
At paragraph 30 you indicate the exchange of conversation with you and Marilyn Kerr about people requesting ballot papers who hadn't received them. Was Charles Anderson a party to that conversation?---Yes.
PN2741
Charles Anderson indicated he wasn't a party to that conversation, are you certain about him being present?---Yes, I am certain.
PN2742
Do you attest that the conversation as relayed in paragraph 30 and 31 is a correct representation?---Yes.
PN2743
After that conversation did you have any sense about how many people hadn't been able to receive a ballot paper and return it?---The indication was that it was well above 10 plus. That was my understanding.
**** LAUREN ELIZABETH BEAMER HUTCHINS XN MS HEAP
PN2744
I have no further questions for this witness, Commissioner.
PN2745
THE COMMISSIONER: Cross-examination, Mr Swebeck?
PN2746
PN2747
Ms Hutchins, how long have you been employed by the ASU?---Approximately 14 months.
PN2748
During that 14 months have you been involved in the negotiation of many workplace agreements?---Several.
PN2749
How many of those have been LK agreements?---None.
PN2750
Of those agreements that you have been involved in how many have involved over 500 employees?---None.
PN2751
Could I take you to paragraph 2 of your statement about your primary responsibility. Do you represent the members in the branches and airports or just the branches?---Both.
PN2752
I take you to paragraph 4 where you talk about your meeting with Cherie Muir and John Gallagher. Were you aware that the wage freeze only applied to over award payments?---I was not aware of that.
PN2753
I put it to you that the company informed you that the wage freeze only applied to the over award component of people's salaries at that meeting. Is that true?---I can't recall.
**** LAUREN ELIZABETH BEAMER HUTCHINS XXN MR SWEBECK
PN2754
Could I take you to paragraph 5; You say the company representatives told you that enterprise bargaining was not a priority. Was anything else discussed at that meeting?---There were a number of things discussed at that meeting.
PN2755
Did the company mention to you that a bigger priority was a national agreement which would harmonise the existing two sets of award conditions?---I can't recall that.
PN2756
Did the company also say to you that it was a bad time to negotiate the agreement?---Yes.
PN2757
I take you to paragraph 6. Do you recall when in April you were contacted by members?---I can't recall the specific date, no.
PN2758
Was it early or mid April?---As I said, I can't recall the specific date. I would assume it was mid April.
PN2759
Mid April, thank you. You say in that paragraph that that's the next time you became aware of the company considering enterprise bargaining when you were contacted by members. Are you aware of the ASU sending a company a letter on 12 April?---I'm not aware of it.
PN2760
I just want to show a document to the witness. I'm just showing you correspondence dated 12 April from the ASU to Mr John Gallagher. Do you see that?---Yes.
PN2761
So on 12 April the union has informed the company that Miss Linda Wyatt was now the person responsible for possible enterprise bargaining, is that correct?---According to the letter.
PN2762
THE COMMISSIONER: Are you tendering this letter?
**** LAUREN ELIZABETH BEAMER HUTCHINS XXN MR SWEBECK
PN2763
MR SWEBECK: I am tendering the letter, Commissioner.
PN2764
THE COMMISSIONER: Is it part of the documents I already have before me?
PN2765
MR SWEBECK: No, you don't, Commissioner.
PN2766
PN2767
MR SWEBECK: Just remaining at that same paragraph for one more question, Ms Hutchins, paragraph 6. Are you aware that at that time the union had initiated a bargaining period against the company in March?---From my understanding that was the Queensland branch.
PN2768
Of the ASU?---Yes.
PN2769
So you were aware of that?---Yes.
PN2770
You say in paragraph 8 that your members had a concern about the way the ballot was conducted for choosing CAT team representatives. Are you aware of the reasons why the company required the employees to put their numbers on the ballot?---I wasn't aware.
PN2771
Isn't it true to say the company had the ballot managed by an outside organisation?---I wasn't aware of how the vote was processed.
**** LAUREN ELIZABETH BEAMER HUTCHINS XXN MR SWEBECK
PN2772
With respect to paragraph 9 of your statement do you know how many employees signed the petition?---From recollection there was approximately 38 employees.
PN2773
38 employees. You said in evidence that you attended the Change Action Team meetings. Is that right?---Yes.
PN2774
Were you at a Change Action Team meeting on 15 May?---I'm assuming so. I haven't got my diary in front of me.
PN2775
Do you recall at that meeting that it was raised by one of the Change Action Team members that out of the 38 signatures, 35 were from Sydney Airport?---It was raised, yes.
PN2776
Do you also recall at that meeting that the ASU representative stated that it acknowledged that if employees weren't happy with CAT then the ASU could represent them?---I'm not sure who made that statement. I can't recall.
PN2777
If I can take you to paragraph 17 of your statement. You say:
PN2778
Throughout negotiation individual clauses were fed by the company.
PN2779
Do you see that?---Yes.
PN2780
At these CAT meetings isn't it true that agendas were circulated prior to each meeting?---There was a set agenda put at the first meeting. However, it changed throughout the course of negotiations.
**** LAUREN ELIZABETH BEAMER HUTCHINS XXN MR SWEBECK
PN2781
The question is for each of the CAT meetings isn't it true that an agenda was circulated prior to the meeting, as to what was to be discussed at the meeting?---As I said there was a set agenda put forward at the first meeting that went through certain areas. From my recollection that was one of the only times out of the first few meetings we received anything and as such that changed anyway.
PN2782
Were minutes taken at each of the meetings?---That's correct.
PN2783
They were confirmed at the next following meeting as being a correct assessment of what occurred?---No. It was decided that going through the minutes at each meeting was far too time consuming as there was discrepancies between the company provided minutes, the minutes taken by myself and those notes taken by members of the change action team.
PN2784
Would it be true to say that if anyone had an objection with regard to the minutes they would raise it at the meeting?---No, it was agreed that minutes would be - or notes on minutes would be forwarded to the company.
PN2785
Did you give the company any feed back on the copies of the minutes that you received?---Yes.
PN2786
Do you recall when that was?---It was probably in the first three meetings.
PN2787
If I put to you that the minutes of all the meetings that you had with the CAT and company representatives do not disclose the ASU ever requesting a complete copy of the agreement, what would you say?---I would say that they were untrue.
**** LAUREN ELIZABETH BEAMER HUTCHINS XXN MR SWEBECK
PN2788
If I could take you to clause 26 of your statement. You referred to a letter written to the company on the 22nd. I might just show you that correspondence. I think it has been marked already. You told the Commissioner in evidence that that letter represents employees requesting the union to meet and confer with the employer about the agreement, is that right?---Correct.
PN2789
Can you indicate to me where in the letter it states that you have been so requested to meet and confer?---I take you to the first paragraph:
PN2790
I write to confirm that it is the ASU's preferred position to be a party ...(reads)... negotiated.
PN2791
That's the ASU's position?---Yes.
PN2792
I am looking for a paragraph that says that you have been requested by members to meet and confer with the employer in accordance with the Work Place Relations Act?---I can't see any statement.
PN2793
Are you aware of the ramifications to this application if the Commission finds the employer has not complied with the provisions of the Act?---Yes.
PN2794
In terms of this correspondence, on the 22nd, isn't this correspondence simply correspondence that followed earlier correspondence between the company and the union on 9 and 10 July?---I'm sorry I'm not understanding the question.
PN2795
What I am suggesting to you is that this piece of correspondence is simply another piece of correspondence in a long trail of correspondence between the company and you with respect to the negotiation of the Work Place Agreement?---All correspondence to my understanding from 15 May was in relation to negotiations with Travelex.
**** LAUREN ELIZABETH BEAMER HUTCHINS XXN MR SWEBECK
PN2796
You sent that correspondence to the company on 22 July or the union sent this correspondence to the company on 22 July, do you recall seeing correspondence from the company in response to that letter?---It would have been circulated, yes.
PN2797
When the company didn't respond specifically to your request to meet with the company on behalf of members to confer about the agreement, what did you do?---Me personally?
PN2798
Yes?---There were discussions with members throughout New South Wales about the company's - - -
PN2799
Did you contact the company again?---Personally?
PN2800
Or the ASU?---I'm sure that there were discussions, yes.
PN2801
THE COMMISSIONER: Ms Hutchins, you are now guessing. You're answering your questions by saying you're guessing. I suggest that you don't guess. That you only answer the questions from your first hand experience. If you don't know the answer to the question say so.
PN2802
THE WITNESS: To my understanding there were numerous discussions on messages left with John Gallagher made by Linda Wyatt. I personally did not contact representatives of Travelex.
PN2803
MS SWEBECK: You can't tell the Commission that you're aware of the content of any correspondence following the correspondence from the union to the company dated 22 July?---From the company, the response from the company, sorry. Not off the top of my head, no.
**** LAUREN ELIZABETH BEAMER HUTCHINS XXN MR SWEBECK
PN2804
Do you recall seeing any correspondence from the company to the union dated 24 July?---Not off the top of my head, no.
PN2805
After you sent the correspondence on 22 July to the company did you attempt to obtain a 291A certificate from the Registrar?---I didn't personally, no.
PN2806
In your meetings and discussions with the company following 22 July did you inform them that you were still waiting for a response to the correspondence dated 22 July to meet and confer with them?---As was stated before, I made no personal contact with the company following 3 July.
PN2807
If I could take you to paragraph 27, can you tell me why the ASU wasn't prepared to give the undertaking of confidentiality to obtain a copy of the agreement?---My personal reasoning, or the decided reasoning?
PN2808
THE COMMISSIONER: Well, you were asked the question as an officer of the ASU?---Okay. That it was unnecessary given that at that date the agreement had already gone out to employees to be voted on, and as such they were free to seek advice and free to come to us as members.
PN2809
MR SWEBECK: If I could just take you back to an earlier response you gave with respect to your experience with the ASU. You have told the Commission you have been with the ASU for, I think, it's two and a half years?
PN2810
THE COMMISSIONER: Fourteen months, I think, was the witness' answer.
PN2811
MR SWEBECK: Fourteen months, sorry. During that time you haven't been involved in negotiation of a 170LK agreement?
PN2812
THE COMMISSIONER: The witness has already answered that question.
**** LAUREN ELIZABETH BEAMER HUTCHINS XXN MR SWEBECK
PN2813
MR SWEBECK: In terms of the correspondence from the ASU to the company dated 22 July, have you had any experience in the past in preparing requests to meet and confer with the employer about an agreement under section 170LK?---Me personally?
PN2814
Yes, as an officer of the ASU?---No.
PN2815
Are you aware whether the union has a standard letter that it sends to employers with requests to meetings and conferring with employers for LK agreements?---Not that I am aware of.
PN2816
If I could take you to clause 30 of your statement where you say you had a conversation with Miss Kerr. Are you aware that Miss Kerr didn't work until 10.00pm on the night of the 14th?---I wasn't aware.
PN2817
If I put to you that Miss Kerr denies - - -
PN2818
MS HEAP: No.
PN2819
MR SWEBECK: Well, she's not here for cross-examining.
PN2820
MS HEAP: Well, you haven't sought to call her as a witness either.
PN2821
THE COMMISSIONER: That's right. I don't think you can put that proposition to the witness at all, Mr Swebeck.
PN2822
MR SWEBECK: Thank you, Commissioner. Are you aware that the company sent out 13 replacement ballots?---No.
**** LAUREN ELIZABETH BEAMER HUTCHINS XXN MR SWEBECK
PN2823
Could I take you to clause 32. When you talk about the changes, are they changes to people employed under the Thomas Cook Award or the Travelex Award, or both?---From my understanding it's a mixture of the two.
PN2824
Could you explain to me what you mean by the first paragraph of clause 22 where you talk about the buy-out proposal does not compensate for a loss in this condition?---The buy-out is simply a replacement of those hours we lost as non-core hours in the current rostering system. It doesn't compensate for this being a provision in relation to working hours outside of those being normal. That's my belief on it.
PN2825
Doesn't the buy-out provision seek to compensate individuals who may have their hours changed under the new core hours?---Not from my understanding of it, no.
PN2826
When you say the current part-timers can have their hours reduced to 12 hours per week, don't the existing awards only speak of a three hour minimum per day?---I haven't got them in front of me, but - - -
PN2827
Sorry. You can take my word for it if you like. If I just read it to you it might be easier. Under clause 9.2.5 of Travel Industry Travelex Australia Pty Limited Award it states that:
PN2828
An employer is required to roster a regular part-time employee for a minimum of three consecutive hours on any shift.
PN2829
And under the Travel Industry Thomas Cook Award at clause 10.2.5:
PN2830
An employer is required to roster a regular part-time employee for a minimum of three consecutive hours on any shift.
**** LAUREN ELIZABETH BEAMER HUTCHINS XXN MR SWEBECK
PN2831
But when you say that current part-timers can have their hours reduced to 12 hours per week, what do you mean by that statement?---From my understanding the minimum hours employed part-timers, in New South Wales, I'll put it in my perspective, is 15, and their contracts of employment reflect that.
PN2832
Yes, but under the Award those hours could be changed and reduced to 12 at any time, with the appropriate notice under the Award?---I - - -
PN2833
When you say that casuals can be asked to work extended hours without overtime payments, isn't it true that casuals can only be requested to work without overtime payment with their consent?---That is correct, yes.
PN2834
You have given some evidence about casuals not received a buy-out figure. Isn't it true that casuals have been informed that they will be receiving a buy-out figure, it just hasn't been finalised yet?---That's not my understanding of the discussion with casual employees.
PN2835
When you say facility to start introducing split shift arrangements, isn't it true that under the agreement only casual employees who consent can work a split shift?---If you can take me to the clause I can give you an answer.
PN2836
Clause 23.10. Sorry, it's not that clause, it's clause 23.3?---Can you repeat the question, sorry?
PN2837
Yes. I can't remember it myself now.
PN2838
THE COMMISSIONER: I think the question related to only casuals who could consent, they worked split shifts.
**** LAUREN ELIZABETH BEAMER HUTCHINS XXN MR SWEBECK
PN2839
MR SWEBECK: Thank you, Commissioner. You talk in your statement to facility to start introducing split shifts and my question was, isn't it true under the agreement at that clause that casuals can only agree to work a split shift?---According to 23.3, yes.
PN2840
If I could take you over the page, to page 6 of your statement where you say the union has been removed from the dispute resolution procedures, isn't it true that under the agreement the union can still represent members throughout the resolution of disputes or grievances? I will take you to the provision dealing with disputes, 9.3?---If you wish to define the ASU as other nominated representative.
PN2841
It will be up to the individual. I put to you it's up to the individual through that dispute process to nominate who they want to represent them. Perhaps I will ask you this question. Is there anything - - -
PN2842
THE COMMISSIONER: Let the witness answer the first question.
PN2843
MR SWEBECK: Yes?---Once the matter has been escalated, yes, but not initially.
PN2844
Thank you. You make a statement that says the agreement allows for Australian workplace agreements that in respect provide lesser conditions than the agreement. Could you explain that statement to me please?
PN2845
THE COMMISSIONER: Is that a statement of fact or a statement of opinion?---Opinion.
PN2846
MR SWEBECK: Thank you, Commissioner. Under 17.1.4 you state that it allows the employer to transfer an employee to a lower paid position in what would normally be a redundancy situation. isn't it true that under that provision an employee retains his or her existing rate of pay?---From my reading of the clause they retain their current salary until the lower salary span catches up to it.
**** LAUREN ELIZABETH BEAMER HUTCHINS XXN MR SWEBECK
PN2847
Yes but until the span catches up they do retain their existing rate of pay?---So, I'm assuming that it means that they would not receive any percentage increase as the agreement prescribed.
PN2848
I am not following that question. We will move on to my next question. I have no further questions, Commissioner.
PN2849
THE COMMISSIONER: Re-examination, Ms Heap? I would like to conclude the evidence of this witness so that you each have an opportunity of preparing your submissions which I will hear this afternoon. I am very aware that there is a time constraint at the end of the day.
PN2850
PN2851
MS HEAP: Commissioner, I would like to show you correspondence that Mr Swebeck adverted to. Ms Hutchins, I show you a letter dated 24 July 2002 from the company, Linda Wyatt to the ASU. Do you recall Mr Swebeck asked you a question about whether or not you had recollection of that correspondence?---Yes.
PN2852
Have you seen that correspondence before today?---Yes.
PN2853
I seek to tender that document.
PN2854
THE COMMISSIONER: Exhibit H9. I have a concern that this letter - I am not familiar with it, I don't think it's been in any of the material that has been provided to me to date but it is in fact headed, Strictly Private and Confidential and Without Prejudice. I would not normally accept material that is so marked unless all parties consent to it forming part of the public record. You wish to tender it?
**** LAUREN ELIZABETH BEAMER HUTCHINS RXN MS HEAP
PN2855
MS HEAP: Yes, I do, Commissioner.
PN2856
THE COMMISSIONER: I guess it's up to Mr Swebeck as to whether he accepts that tis document should form part of the public record.
PN2857
MR SWEBECK: I could have one minute.
PN2858
THE COMMISSIONER: Yes. it is a matter that you took this witness to. In fact you might provide clarification of your
PN2859
point or Ms White's point, I don't know.
PN2860
MR SWEBECK: I was speaking to the witness about correspondence. She doesn't recall any correspondence of is aware of any.
PN2861
THE COMMISSIONER: I don't think she recalled there being a responsive letter of 22nd. Her memory has now been jogged with this letter.
PN2862
MR SWEBECK: Yes, Commissioner.
PN2863
THE COMMISSIONER: The Commission's position is quite simple. We greatly respect private correspondence that does exchange between parties and in circumstances material of that nature should remain exactly that, private and confidential between the parties unless and until all the principals to such correspondence consent to it forming part of the public record.
PN2864
MR SWEBECK: I might seek some instructions, Commissioner.
**** LAUREN ELIZABETH BEAMER HUTCHINS RXN MS HEAP
PN2865
MS HEAP: Commissioner, I seek to address you on this issue as well but I think I need to wait till we see what Mr Swebeck's opinion is. If he agrees with it it could be a waste of the Commission's - - -
PN2866
MR SWEBECK: Commissioner, my instructions are that the correspondence is to remain private and confidential.
PN2867
THE COMMISSIONER: You have a response to that, Ms Heap.
PN2868
MS HEAP: I do, Commissioner.
PN2869
THE COMMISSIONER: Without going to the content of it because I don't know and I don't want to know what the content of it is. All I want to know is what is it's relevance to the evidence that this witness has given, I wonder if this debate ought to be held in the absence of the witness?
PN2870
MS HEAP: I am not sure that what I am going to say to you is going to have any impact on her evidence, but you don't know that, I am happy for you to exclude her if you want to.
PN2871
PN2872
THE COMMISSIONER: Ms Heap?
PN2873
MS HEAP: Commissioner, there is two positions in relation to this document that I wish to put to you. The first is that Mr Swebeck took Ms Hutchins to a response from the company of 24 July 2002. Her response to that was that she didn't recall that letter. To the extent that Mr Swebeck would seek to rely on the question of whether or not she recalls it, my view is that she should actually have it before her and be able to attest whether she had seen it prior to these proceedings. In a sense not being tricked by the fact that she just didn't have it before her today. If Mr Swebeck doesn't seek to rely on it at all in that way, then there will be no difficulty in relation to not tendering it through her giving her the opportunity to confirm that she had actually seen it prior to this day. I don't intend to take her to the content of it in any detail at all.
PN2874
THE COMMISSIONER: What, merely the fact that there was a company response to the 22 July letter from the union to the company?
PN2875
MS HEAP: Yes, and that she had actually - - -
PN2876
THE COMMISSIONER: Is that your only point?
PN2877
MS HEAP: And that she had actually seen it prior to today. Because there seems to have been - I was preempting the fact that Mr Swebeck might place some reliance into the fact that she couldn't recall having seeing it.
PN2878
THE COMMISSIONER: Well, we don't know what Mr Swebeck is going to conclude about it.
PN2879
MR SWEBECK: No, Commissioner. It was raised on this basis that there was as I put to the witness correspondence, a chain of correspondence and I just didn't want it left up in the - - -
PN2880
THE COMMISSIONER: She didn't recall.
PN2881
MR SWEBECK: She didn't recall. I didn't intend to tell you. I just didn't want it to be left up in the air that the company gets a letter on the 22nd and then everything just goes quiet.
PN2882
THE COMMISSIONER: That point is a valid point and in those circumstances I will allow the document to be tendered so long as it is for the purpose of having the witness merely have her memory jogged that there was a response from the company.
PN2883
MS HEAP: I would like to make my second point to you, Commission, though and that's in relation to the fact that I was going to seek to tender this document outside of the evidence of Ms Hutchins in the event and I am wondering whether or not you want me to address me on that matter now?
PN2884
THE COMMISSIONER: When were you going to tender it? It doesn't form any part of the documents before me already?
PN2885
MS HEAP: Commissioner, I was seeking to tender it on the basis that as before the union goes to its submissions in relation to this matter, on the basis that it raised within it, the matters within it and I am not going to them in detail now. Are matters that are at issue between the parties in relation to this proceeding. Do provide a different characterisation of some of the evidence given by the company's representatives on what the company was actually saying and doing at the time.
PN2886
One of the difficulties we have, Commissioner, is that the company heads all of its correspondence, strictly private and confidential on all of its documents as we have seen in that respect. They've raised issues in these proceedings about what they were doing at the time. Those issues are covered by this correspondence and in my view we would seek opportunity to put to you these correspondence demonstrates a different view to what the company has indicated through its evidence today of what the company was going at the time.
PN2887
THE COMMISSIONER: Yes, all right, when were you proposing to tender that, at a later time, in your submissions? If I allow it in now it's in now, and each side can take into account in the preparation of their submissions over the luncheon adjournment.
PN2888
MS HEAP: Yes. I have one other document which I might do that with as well, Commissioner, but it's not anything to do with Ms Hutchins - - -
PN2889
THE COMMISSIONER: If it's got nothing to do with Ms Hutchins evidence you'll have the opportunity of tendering that at the end of her evidence and before we adjourn. In the circumstances I will allow the document to be tendered and it's marked exhibit H9. I note for the record that I am aware that there are other documents similarly marked in these proceedings as documents in their own right or as attachments to other documents and in that context I regard this exhibit H9 as one and the same. Ms Heap?
<LAUREN ELIZABETH BEAMER HUTCHINS, ON FORMER AFFIRMATION [1/07pm]
PN2890
MS HEAP: Ms Hutchins, could I just - I think you answered the question prior to your going, but just to confirm. Have you seen that correspondence prior to the proceedings today?---Yes.
PN2891
Can I take you to your witness statement at paragraph 32. Mr Swebeck took you to what your meaning was in relation to the first paragraph there which commences, the buy out proposal for changes, etcetera. Do you recall that?---Yes.
PN2892
Is it the case that you indicated in response that the buy out proposal doesn't compensate for a change of core hours. Are there employees that you are aware of who aren't compensated by the buy out for the change of core hours?---From my understanding there are a number of employees ranging from no official documentation being given to any staff that I am aware of, to those who are on some form of leave at the time that the buy out was proposed and as such have no form of calculation to give that figure.
PN2893
Perhaps I'll clarify the question. Are retail employees subject to the change of core hours?---Yes.
PN2894
Do they receive a buy out figure?---Not to my knowledge.
PN2895
THE COMMISSIONER: Is it your understanding that retail employees as described by Ms Heap are to have their hours changed?---In term of it, I am not aware currently of any roster change in the retail but that is subject to the Harvey World or Thomas Cook branch that they work in extending their hours of trading.
PN2896
So it is merely conjecture as to how it would affect a person whose hours may change?---Yes.
**** LAUREN ELIZABETH BEAMER HUTCHINS RXN MS HEAP
PN2897
MS HEAP: Do retail employees currently work outside of core hours?---Yes.
PN2898
Your evidence is that they haven't been provided with a buy out, is that correct?---Correct.
PN2899
Does the extension of the core hours mean that they will now get the hours that they want outside of the core hours will be at a lower - will not necessarily be paid at penalty rates?---That's correct.
PN2900
You were taken to the dispute resolution procedure by Mr Swebeck and your evidence in your witness statement is that the removal of the ASU is a concern from the settlement procedure. What did the procedure look like before the ASU was removed?---From recollection, in addition to there being - first and foremost there was no reference to representative and I will just quickly go to it. Representative of the consultative committee because at negotiations there was no discussion of a consultative committee clause that has been placed in the draft. Basically where there's reference to a consultative committee representative there was reference to a representative of the Australian Services Union.
PN2901
THE COMMISSIONER: I think it naturally follows that where the ASU was referred to in the former dispute settling procedure, it is substituted in one way or the other by another representative of the employee in the proposed agreement. Is that a correct summary?---Without specifically saying ASU, yes.
PN2902
Does it naturally follow that that would be the case because the ASU is not to be bound by the agreement, not to be a party to the agreement?---I'd assume so.
PN2903
MS HEAP: That's a matter for submission, Commissioner, in relation to it, that it actually does naturally follow at all.
**** LAUREN ELIZABETH BEAMER HUTCHINS RXN MS HEAP
PN2904
Mr Swebeck took you to clause 17.1.4 of the agreement and you were answering that question and Mr Swebeck stopped you from doing that. Can you explain what the provision of 17.1.4 means from your understanding?---Is that an employee on stand 4 a team leader can be transferred to a role of less responsibility therefore a span 3 and their salary is retained at their current level until span 3 so the maximum of span 3 accommodates it. So my understanding of that is that that transfer to a position of less responsibility would mean that the employee's wage would be retained until the span actually caught up not in terms of percentage increases awarded by changes in the agreement or award.
PN2905
So any improvements that may be on offer in terms of wage increases would be absorbed until the span caught up?---That's my understanding.
PN2906
THE COMMISSIONER: You described that in paragraph 32 as a problem with the agreement. What's the problem with that?---is that with the changes of, well my interpretation of it is the changes in cost of living agreements are supposed to at least give some percentage increase. I will start that again. The agreement has stated that everyone will get an across the board increase of 3 per cent and that was what was put out to staff in a number of bulletins placed by the company. The way that that clause reads it is in fact incorrect for those members of staff who as a result of a transfer be in a less responsible area. They will not receive, for example if there was a change in position in December of this year and this agreement is certified, they will not receive the 2 per cent wage increase that will be awarded in July, if their wage is above that of the current span. I see that as a problem given that - - -
PN2907
In what way is it a problem? I don't understand what you're trying to describe as a problem?---In that there is an assumption that this agreement will award a definite 5 per cent increase over the 2 years.
PN2908
Well, is there? Whose assumption is that?---Those people who voted on it.
**** LAUREN ELIZABETH BEAMER HUTCHINS RXN MS HEAP
PN2909
MS HEAP: Commissioner, perhaps I can assist. One of the difficulties that you experience with that clause the fact that it actually envisages the right for the employer to transfer people to lower paid positions.
PN2910
THE WITNESS: Yes.
PN2911
THE COMMISSIONER: Isn't it in a redundancy situation? Is it confined to that? I think that was Mr Hutchins - she specifically refers to it in her redundancy situation.
PN2912
MS HEAP: No, I don't understand that it is redundancy situation, Commissioner. What we say is - - -
PN2913
THE COMMISSIONER: Well, Ms Hutchins specifically mentions it in the context of that being a redundancy situation.
PN2914
MS HEAP: What we are saying there, Commissioner, is that it is a provision that the employer can transfer people. It's not within the notice of provision. That is in those circumstances an employee may be considered to be redundant and may have options available to them under the agreement in relation to redundancy or under the award in relation to redundancy. This provision envisages that the employer can do it and it is not a redundancy situation.
PN2915
THE COMMISSIONER: Go ahead, please.
PN2916
PN2917
THE COMMISSIONER: I think you indicated you had one other document you wish to tender at this time.
PN2918
MS HEAP: Commissioner, I seek to tender a final document on behalf of people I represent, which is a piece of correspondence dated 9 July 2002 from Travelex to Linda Wyatt, assistant national secretary of the union. I might point out that I think it is incorrectly dated 9 July 2002 given the content of the document, it is clearly after that date and you can see it was received on 31 July in the union's offices. The first line of the first paragraph indicates that it is incorrectly dated.
PN2919
THE COMMISSIONER: The first line says and I quote:
PN2920
I refer to your letter dated 26 July and have noted its content.
PN2921
So the signatory of the letter is Mr Gallagher, he's obviously talking about something received in the past tense. So one can only assume that the correct date of this letter is not 9 July but is some time after 26 July and before 31 July.
PN2922
MS HEAP: That's correct, Commissioner. I seek to tender that document because it goes directly to a matter between the parties in these proceedings in relation to just exactly what was the understanding of people in relation to confidentiality of the document. It clearly articulates the position from the company in relation to that. In my submission the position is different from what the company has asserted through its evidence here today and I seek to tender it and to address it therefore in submissions.
PN2923
PN2924
THE COMMISSIONER: Any further evidence? We will just go off the record for a moment.
OFF THE RECORD
RESUMES [1.25pm]
PN2925
THE COMMISSIONER: I will adjourn now and resume this afternoon at 2.15 to hear the union's final submission, after which Mr Swebeck will have an opportunity to provide a final right of reply. I adjourn now to 2.15.
LUNCHEON ADJOURNMENT [1.26pm]
RESUMES [2.25pm]
PN2926
THE COMMISSIONER: Can I have your submissions?
PN2927
MS HEAP: Thank you, Commissioner. Commissioner, in commencing submissions in relation to this matter before you today, I start on the basis of actually taking you to the principal objects of the Act which place emphasis on fair and effective agreement-making in relation to the provisions of the Act. Specifically I refer to section 3E of the Workplace Relations Act which states that:
PN2928
One of the principal objects of the Act is to provide a framework for co-operative workplace relations which promotes the economic prosperity and welfare of the people of Australia by...
PN2929
And at E:
PN2930
...providing a framework of rights and responsibilities for employers and employees and their organisations which supports fair and effective agreement-making and ensures that they abide by Awards and Agreements applying to them.
PN2931
Commissioner, the emphasis we seek to place in relation to our submissions today is on the provision of section 3E which looks at the agreement-making process being fair and effective, and we indicate to you that we submit that the process in relation to this matter was not fair and effective. In saying that we say to you, Commissioner, the Commission should give consideration to all of the circumstances surrounding the making of an agreement to ensure the agreement-making process was fair and effective in addition to ensuring that the specific provisions of section 170LK and section 170LT, in particular, have been met.
PN2932
As I have said, we submit that the process surrounding the making of this agreement was not fair and effective and therefore not in accordance with section 3E of the Act. I intend to take you now to a range of items which, I submit, demonstrate that that was the case. Firstly, Commissioner, in relation to the CAT team itself. The CAT team has been used by the company both in relation to the proceedings here before you and the bulletins to staff in order to indicate that employees were part of and involved in the decision-making process of the agreement and were represented effectively by employees who are members of the CAT team.
PN2933
There are a number of factors that point to the fact that this was not the case. In the first instance, the selection of the CAT team representatives was not by and from the employees themselves, but by the employees from a list of people provided to them by management of the organisation. In the initial sense there was no choice by employees as to the list of employees from which they selected. Those were provided by management, and they were only able to select from that list provided by management for those who should represent them.
PN2934
That fact was confirmed by the evidence of Ms Muir, Ms Anderson, Mr Anderson, Ms Owen, Ms Maxwell and Ms Toole. Secondly, Commissioner, the number and size of the CAT team representation was insufficient to ensure that employees could genuinely have their interest represented in the negotiations with the employer. We have provided evidence to the Commission about the particular concerns of employees in New South Wales in relation to the number and size of the CAT team representation.
PN2935
In particular, we would like to emphasise the fact that for a significant period of the time, in particular, the most significant period of the time; that is, the time between the actual agreement being finalised, it being explained to employees and a ballot taking place, there was one less person in New South Wales because there was no replacement on the CAT team for the person who was on extended leave, Ms Getsios.
PN2936
Representation, we submit, Commissioner, access to employees - ready access for employees to access to the CAT team members is an important part of the ability of those CAT team members to be able to represent employees and we say that the number and size of the CAT team, particularly in relation to people extending beyond distinct geographical boundaries across States, ensured that the CAT team representation was insufficient to adequately represent employees.
PN2937
Commissioner, we have also had evidence by Ms Maxwell that CAT team members were not trained in relation to negotiations, or their obligations in terms of negotiating on behalf of employees. In fact, Ms Maxwell said that the union had suggested this. In response to a question from Mr Swebeck that the company had suggested it Ms Maxwell said, in fact, it hadn't been the company, but the union had suggested it, but that that training never took place. Commissioner, contrast that with the fact that in these circumstances not only does the company have extensive human resources section of the organisation able to deal with these matters, and we have heard evidence of some of the experience of those people in those positions, but it also had engaged a human resource consultant, Mr Simon Lane, to assist the company in relation to the development of the Enterprise Agreement.
PN2938
Fourthly, Commissioner, we suggest that the treatment of the CAT team members in relation to, throughout the process, indicates that the process was not a fair and effective one. Firstly, I go to the fact that there were a number of comments in the bulletins to staff, and I refer specifically to bulletin number 12 in exhibit H2, and in particular the third page of that document, fourth paragraph down:
PN2939
If you can convince the ASU and the CAT to change their position and support the agreement in principle by next Friday the company will still back-pay you. All you need to do is tell them...
PN2940
Sorry, further down the page at the third paragraph under the list of names:
PN2941
All you need to tell them is that you have enough basic information to make a decision and that you are ready to vote. This does not mean you are voting either yes or no, it just means that you understand what our newsletters have said...
PN2942
Etcetera. Also, in relation to bulletin number 13 of the company. In the fist paragraph on page 1 where it characterised the negotiations in relation to the CAT team, and last Wednesday the ASU and CAT met with the company with a promise of being close to resolution of the agreement, could then commit to an agreement in principle, this was not the case, the ASU in conversation, etcetera. Then further down:
PN2943
The company told the ASU it had for the last time accepted a shift in goal posts and suspended its negotiations as of last Wednesday, the 3rd ...(reads)... local ASU member
PN2944
Then also in relation to bulletin 14 where on the first page the company indicates in the fourth paragraph down that we've had several conversations with CAT members both separately and collectively. I emphasise there myself, both separately and collectively, and it concludes with them actually stating that the in principle agreement now between the CAT team members. Commissioner, we say to you that the comments made in the bulletin in relation to the CAT team particularly when they refuse to give their in principle agreement originally to the document indicate the fact that the treatment of the CAT team members by the organisation was not fair and effective throughout this process.
PN2945
Further, under this head if you like, Commissioner, we say the requirement by the company, and it's no evidence before you that they did require an in principle agreement prior to those CAT team members seeing an agreement was another indication of the lack of fairness and effectiveness in relation to the process used to complete this agreement. I understand Commissioner in the evidence before you that it's now evidence of at least all of the CAT team members bar one that they had not seen the in principle agreement, a document purporting to be an agreement before they were required to give the in principle agreement sought by the company.
PN2946
In relation to that question of the treatment of CAT team members, again, I would also draw your attention to the treatment of the company under bulletin No.16 in Exhibit H2 of persons who decided to withdraw their in principle agreement in relation to this matter. Specifically on page 2, Commissioner, under the heading, What has happened recently, you may be aware that two CAT members have indicated that they as individuals would no longer support the in principle agreement. They reached on your behalf with the company in the proposed agreement we intended to enter into with our employees. Further down the paragraph
PN2947
We have assumed their decision was based on personal views and not ...(reads)... employees they represent. If we are incorrect in this assumption please let me know as soon as possible so I can address any issues you have.
PN2948
Commissioner, the evidence before you is that in fact people did see that as being incorrect and they will think it was the evidence of Ms Toole that employees did indicate to the company in support her position that she had not been exercising a personal view in relation to the withdrawal of her support for the in principle agreement but a representative view.
PN2949
Now, the company goes down in the next paragraph, I point out for the benefit of being fulsome in my position, that it supports their right as individuals to make this but you can understand within the workplace the effect of these documents in terms of the way the company is treating the CAT team members when they express a difference of opinion to what the company thought was the process they wanted to undertake in relation to these matters.
PN2950
Commissioner, within bulletins 15 and 16 the company makes a number of information assertions, if you like, to employees about the process that's being undertaken with CAT team members in relation to the agreement. Specifically, at the second page the company proposes a question, and this is the question and answer - - -
PN2951
THE COMMISSIONER: Which of the updates, 15 or 16?
PN2952
MS HEAP: No. 15 first:
PN2953
You said you've been drafting this with the CAT, what about the ASU ...(reads)...the enterprise agreement
PN2954
They are more explicit in this matter, Commissioner, in bulletin 16 where they say, in the first page, second paragraph:
PN2955
Both the CAT and the company proceeded to draft and review the final agreement in readiness for the publication
PN2956
This is a document dated 30 July 2002. We say to you that those comments to staff are misleading and we point to the evidence that's been adduced in these proceedings about the fact that the CAT team members themselves were not aware that they first saw a document on 17 July 2002 and that during the course of a teleconference on 18 July 2002 they were involved in discussions with the company that they understood were discussions about the content of that document but at least two of the CAT team members, Ms Maxwell and Ms Toole did not understand that they had finished or finalised negotiations in these proceedings.
PN2957
So we say two things about that Commissioner. Firstly, that the representation to the employees that the company was involved in as continuous process of drafting this agreement with CAT team members is false and misleading in a sense that CAT team members have given evidence that they never saw a document until 17 July 2002.
PN2958
Secondly, that the actual treatment of the CAT team members, in not advising them that they were going to put the agreement to employees in cutting off their opportunities to come back to the company on that last day of 18 July to finalise any further concerns they had with the document is evidence again of the fact that the processes and provisions in relation to the way this agreement has been reached were not fair and effective.
PN2959
In relation to this head, the question of section 3E of the Workplace Relations Act I would also like to take you to the actual nature of the employees information provided to employees themselves as being another indicator of the fact that this was not a fair and effective process. It's my submission, Commissioner, that the bulletins to staff prior to 18 July do not count as information about the agreement which was the subject of the vote. They were information bulletins to employees about another process that was under way. That process at that stage at least up until 3 July involved an agreement with the ASU and employees at the company.
PN2960
Whilst bulletins count for looking at the process in total they do not count as information about the agreement on which employees were meant to vote. To the extent that information contained in the bulletins was different to the provisions of the agreement that employees were required to vote on and was not corrected we submit in our view was also misleading to staff. Commissioner, the bulk of the bulletins happened prior to the agreement being finalised. There's a mass of information put out by the company about things it interprets maybe in an agreement up until that stage. We say the onus was on them once the agreement was in place to publish information which clearly sets out the provisions of the agreement, the subject of the vote, so that employees could understand it.
PN2961
Further we say to the extent that they didn't do that and that there are differences between what the information put out prior to 18 July and the agreement, the company has misled staff in a number of instances in relation to the content of the agreement.
PN2962
Commissioner, the manner and form of the bulletins themselves are something that we say goes to the fairness and effectiveness of the process. Put side by side with the agreement there are a number of provisions that the company asserts will be in the agreement, that are in fact incorrect. For example, Commissioner, at bulletin No 6, the bundle of exhibit H2, the very bold statement that this is obviously a bulletin around key component on the span of hours.
PN2963
I am not a shift worker, does any of this affect me? No. Can I forced to become a shift worker? No. What are span of hours? Span of hours or core hours are the hours between which no penalty payments are traditionally paid.
PN2964
Commissioner, all employees are affected by the proposed change in the agreement to core hours. That's false information.
PN2965
On the next page:
PN2966
Why is the company proposing this change for Saturdays? We work in the retail industry that in many cases and for a long time has not had penalty payments attached to Saturdays.
PN2967
In a sense it is a true statement and it is a statement of opinion about the retail industry generally but Commissioner the important factor was there in relation to the information to be provided to employees was what affect did it have on me in relation to my conditions of employment under the award? Not answered. Misleading.
PN2968
Commissioner, in bulletin 8(a) two-thirds of the way down under the heading:
PN2969
I don't currently work 39 hours, how does this affect me?
PN2970
In some parts of the company some employees may be working less than 38 hours already. This agreement will ensure that no one will be required to work 38 hours as per the award.
PN2971
Again, in the sense that the agreement provides for 37 1/2 I suppose that is true but what it doesn't say, Commissioner, is that employees who work less than 37 1/2 hours per week could be affected by the provisions of the agreement and we have had evidence from Ms Newell that arrangements in place for those less than full time employees, that the provisions of the agreement do override any custom and practice of contractual obligations that employees who work less than 38 hours may have.
PN2972
Perhaps one of the biggest concerns, Commissioner, is the concern in relation to matters contained in bulletin No 9 because this is in fact the only time a table of form of agreement provisions is given to employees for them to consider the effect on them. On the second page of that document, the seventh box down under the heading Payment in Excess of Span.
PN2973
All employees over the span maximum will receive the guaranteed base rate.
PN2974
Now, we've had direct evidence from Ms Newell that's not the case. Mr Anderson also indicated that he understood that that is not the case. Again under Redundancy in that box, the final sentence:
PN2975
Any employee with historic conditions that exceeds the agreement's offer will have those conditions honoured.
PN2976
Commissioner, direct evidence again given by Ms Newell that that is not the intention of the provisions of the agreement saying that the agreement will cover the field.
PN2977
Commissioner, in relation to shift payments.
PN2978
Generous shift penalties introduced for all shift workers.
PN2979
In a sense that does state what was eventually the position. Well partly states the position in relation to shift work for people under the agreement. However, again misleading in the sense that it implies that these are generous shift penalties being introduced without providing the comparison in relation to what current entitles are under the award. Some of the more obvious ones, Commissioner, are further on in the page, if you go over the page, over two pages:
PN2980
The union right of entry, the union training and dispute resolution procedures.
PN2981
Are not included in the final document. I could go through all of them and point out these problems but the point being made to you here at this point is that the manner and form of the bulletins, the fact that they spent such a detailed amount of time prior to 18 July going through potential provisions within the agreement and then after 18 July do not provide any corrections in relation to the statements that they have been making in those documents, is misleading and a concern in relation to the fairness of the process that is being used to reach these agreements.
PN2982
I'd also say, Commissioner, in terms under this subhead of the manner and form of the bulletins, submit to you that there are coercive elements contained within the provisions. Coercive statements contained within the bulletins themselves.
PN2983
If I refer you to bulletins 12 and 13. Commissioner, you note that this is at a time where people have - and the ASU - have withheld their principal support for the document and the company gets involved and starts saying he's what you should do to try and convince the ASU and CAT. Importantly in the paragraph that I read out previously:
PN2984
- if you can convince the ASU and CAT to change the position and support the ...(reads)... will still back pay you.
PN2985
All you need to do is tell them that you've got enough information to make a decision and that you are ready to vote. Commissioner, this isn't a situation where not even the CAT team members have actually been provided with an agreement and the company is out there whipping up the employees to tell their CAT team members and the ASU we're ready to vote.
PN2986
We say problematic in terms of the intention of the employer to try and coerce from, at least the CAT team members, if not everyone, this in principal support even prior to receiving the bulletin. Similarly treatment, as I think I've already pointed out, in bullet No 13. So we say that again in bulletin 14 the comments in relation to - on the third page at the bottom explaining to employees, you will get them in your pay deal, the back pay, unless it is somehow blocked by the ASU in the Commission. In some sense is a statement of fact but in the context of all of the documents going before them, problematic. In the bottom of the second page comments in relation to the CAT undertaking, giving their commitment to the undertaking in relation to the MLM, the ASU won't unless it's in the agreement. The ASU will not be running any MLM so there is no necessity for them to be part of the agreement.
PN2987
We say, Commissioner, again at bulletin 15 references in this document to the ASU are blocking the agreement and again we point to the treatment of CAT team members to remove their in principle support at lodgment 16. Also contained within that lodgment, Commissioner, on the final - the second last page under the heading, "What happens now".
PN2988
We have continued to correspond with the ASU and will send a copy of the agreement to the ASU (on a confidential basis) to assist and advising its members about the content of the agreement.
PN2989
Commissioner, in relation to that statement and given the evidence that has been before you, we say that's a complete misrepresentation of what the company actually did in relation to the agreement providing the copy of the agreement to the ASU. It implies for employees that the ASU will be sent a copy of the agreement. It doesn't say the ASU will be required to sign a confidentiality clause before the ASU will be sent a copy of the agreement.
PN2990
THE COMMISSIONER: Ms Heap, did the ASU undertake any campaign of contrary advice or complimentary advice and information to impleads of Travelex whether they were members of the union or not?
PN2991
MS HEAP: Yes, Commissioner, the ASU did.
PN2992
THE COMMISSIONER: Do I have any of that material before me?
PN2993
MS HEAP: You don't have any of the material before you.
PN2994
THE COMMISSIONER: So I can't take it into account.
PN2995
MS HEAP: You can't take it into account - well I could probably provide it for you now if you like. But I think I didn't raise that material before you because of the concerns that had been expressed earlier about the ASU, presenting evidence of the ASU versus evidence of what the ASU on behalf of its people in these proceedings have - - -
PN2996
THE COMMISSIONER: You tell me that the ASU did make attempts to inform employees whether they were members or not?
PN2997
MS HEAP: Yes, the ASU published regular bulletins to employees about its concerns of the process and corrected some of these concerns that was had. Commissioner, in relation to this whole question of the manner and form of the bulletins, I'd also want to point out to you the fact that in a number of bulletins, they being bulletins 15, 17 and 18, the company made reference to employees having access to a ready reckoner as it called it, for them to be able to calculate the impact of the agreement on them and make an assessment of the advantage or disadvantage under the agreement.
PN2998
Significantly, Commissioner, the dates of those bulletins are that bulletin number 15, so we've gone through is the 19 July, 16 and 30 of July, 17th, 7 August and 18 the 12th if August. Commissioner, if I could take you to specifically the number 18 which is on 12 August. At this stage if I can just find the reference to it. At the bottom of the second last page. The company in response to the question:
PN2999
You mention that a ready reckoner was being built to allow us to calculate the value of the new arrangements for each of us, I haven't seen it? Unfortunately has taken longer to build than we expected. At the time of writing this it was nearing completion. Please keep checking the intranet as it will be their shortly.
PN3000
As late as 12 August, Commissioner, the company is encouraging people to hang out for a ready reckoner as a mechanism by which they can calculate the impact of the agreement on them. The ballot closes on the 15th August. So not only had they been promised over a continuous period through the period after the agreement has been sent to them for consideration, the ready reckoner and doesn't arrive. But also they are being encouraged to - it's nearly there, keep checking for it. If it was clear to the company it wasn't going to be available and my submission to you is that as soon as the ballot papers went out this ready reckoner should have been there beforehand not afterwards.
PN3001
Then the company should have advised its employees that it wasn't going to be available within a time for them to be able to use it in order to assess the impact on themselves. They should have actually provided an alternative mechanism. In relation to this question of coercion, Commissioner, I'll come to this further in my submissions. We say and I say it generally here that the confidentiality requirements around the showing of the document to independent third parties to receive advice, including the union, was also an aspect of coercion and goes against this process being seen as a fair and effective process in accordance with section 3E of the Workplace Relations Act.
PN3002
THE COMMISSIONER: Hasn't it been explained as a matter of commercial confidentiality? Isn't it the evidence that no one was precluded from discussing the agreement or their concerns with either managers, the union or CAT members? So why was the confidentiality - why does that equate to being a coercive Act?
PN3003
MS HEAP: Because, Commissioner, I submit to you that a prerequisite to being able to receive advice in relation to the content of the document is to be able to show - - -
PN3004
THE COMMISSIONER: That was available, subject to written permission. Clearly stated. I think the evidence is contradictory on this, Commissioner. There is evidence for employees who say they didn't know they could have a written copy of the document.
PN3005
THE COMMISSIONER: But the simple fact is I have a document in front of me tendered that says it clearly on the front of it.
PN3006
MS HEAP: Commissioner, if you look at the document that's in front of you, closely, it doesn't say what you might be concluding, if I can be so rude. I am sorry to put it that way. I think it was exhibit S2. The top of the document says:
PN3007
You are about to view material that is confidential and must not be distributed, emailed copied or forwarded to any person who is not an employee of the Travelex Group. If an employee is found to have breached this obligation, disciplinary action will be taken that may include termination of employment.
PN3008
Headed at the top of the document. At the bottom of the document it says, "this is a draft working paper". That's an interesting characterisation of a final agreement out to vote but never mind:
PN3009
And remain strictly private and confidential and shall not be copied or distributed, discussed or provided in part or full by any party without the express written permission of John Gallagher.
PN3010
Commissioner, those two things can sit side by side and in my submission to you that's the way if employees had turned their mind to it they'd see it. An absolute statement not to provide it to a third party outside of the organisation. But an ability in some other circumstances to copy and distribute it if you've actually received written permission. Now, potentially for example within the organisation. So put that if you like with the evidence from a number of witnesses that specifically when asking the question of John Gallagher whether or not they could provide it to third parties and they were told, no, at the road shows.
PN3011
Commissioner, put specifically as well with the content of the letter which has now formed exhibit H9. Sorry, exhibit H10, it's clear what the company's position was. Can I read to you from that exhibit H10; this is in response to the letter that the union sent to them on 26 July requesting a copy and outlining to them why they believe it's a breach of the Workplace Relations Act to not provide one. In the first paragraph - this is written by John Gallagher:
PN3012
The draft agreement has been made available to all relevant employees on a confidential basis. The employees are free to seek advice about the draft agreement content from anyone they wish, subject to the actual document not being released to individuals who are not employees of the company who might become a party to it.
PN3013
IE, hint, the ASU.
PN3014
THE COMMISSIONER: This is a letter to the ASU. This is not a letter to the employees. The employees have in front of them S2 which says you can with written permission.
PN3015
MS HEAP: Commissioner, but they have in front of them S2 which on its face can be, the two can be read together, and the understanding that the employees themselves have given evidence that they had, can be an outcome of that. It's not impossible the employees could understand that they couldn't have permission to send the document to a third party. It's also their specific evidence, Commissioner, not cross-examined but not shaken from that evidence that when asking the specific question to John Gallagher he said no. Not that he said you could have it if you give me a letter saying that you want to give it to somebody. He said no.
PN3016
Now, the reason for referring you to exhibit H10, Commissioner, is that that, in my submission to you, that's a statement of what the company's mind was at the time, and that that's what was made clear to employees also at the time. Commissioner, in relation to submissions I would like to move on now to the question of whether or not the requirements in the provisions of section 170LK were met. I submit to you that the requirements contained in the provisions of section 170LK are mandatory, and I refer you in particular to the provisions of section 170LH of the Act which states that:
PN3017
This division sets out requirements that must be satisfied for applications to be made to the Commission to certify agreements between employers who are constitutional corporations of the Commonwealth and their organisation of employers or employees.
PN3018
So it's a must. There is also authority for that submission, Commissioner, and I just hand to you two authorities in this respect. Commissioner, in relation to the first authority I take you to, which is the Full Bench in what's referred to as I understand as re Shop Distributive and Allied Employees Association. It's the Mobile Food Vans Enterprise Agreement 1998, print R4468, decision on 6 May 1999. Commissioner, in relation to this I would just take you to the content of paragraph 30 of page 13 of this printed version of the authority, which states that:
PN3019
Section 170LK at subsections 2, 3, 4, 5, 6, 7 and 8 provides a series of steps and requirements designed to protect the interests of employees and provide fairness in the process where an employer seeks to make an agreement with a valid majority of employees.
PN3020
Over the page at paragraph 31:
PN3021
Throughout section 170LK the Parliament in setting out the requirements in the various subsections has done so by stating that the obligations placed on the employer must be undertaken ...(reads)... will render an application for certification invalid.
PN3022
Commissioner, that authority of the Full Bench is followed by Senior Deputy President Williams in the decision that I put before you Eagan Brothers Plumbing v Building Services Pty Limited, print S9378. Commissioner, I have just put down my marked copy of it, but at paragraph 16 of page 4 of that decision his Honour, Senior Deputy President Williams, talks about the provisions of section 170LK(1) and the other subsections and emphasises that the word "must" is a word of absolute obligation. It's not merely directory:
PN3023
An agreement can only be made under section 170LK(1) if the requirements of the subsections are met.
PN3024
And he applies the authority of the Full Bench in this matter. Commissioner, generally we think, I would submit to you, that the approach of Senior Deputy President Williams in this decision, both in relation to that application and the application of section 3E of the Act, is one that we would encourage you to adopt in relation to these proceedings. Commissioner, I will move then to the specific requirements of section 170LK. Firstly, the requirements of section 170LK(1):
PN3025
The agreement must be made with a valid majority of employees.
PN3026
The definition of the valid majority of employees is contained at section 170LE of the Act and, in particular, I would like to draw your attention to the provisions of section 170LE(c) of the Act, that:
PN3027
The valid majority is only met if...
PN3028
At (c):
PN3029
...the employer gives all of the persons so employed a reasonable opportunity to decide whether they want to make the agreement or give the approval.
PN3030
The emphasis I would place there, Commissioner, is on employees being required to be given a reasonable opportunity to decide whether they want to make the agreement. The submissions that I am going to make now in relation to whether or not the rest of the provisions of section 170LK of the Act have been met, and also in relation to whether obligations under section 170LT have been met, I suggest to you indicate that employees were not given a reasonable opportunity to decide whether they want to make the agreement or give the approval as envisaged in section 170LE(c).
PN3031
I won't go into detail about those matters now, because I intend to take you through section 170LK. In terms of 170LK(2) the provisions require that:
PN3032
The employer must take reasonable steps to ensure that every person employed at the time ...(reads)... not be made before those 14 days have passed.
PN3033
I submit to you, Commissioner, that the relevant period of time for notice period in relation to this matter is between - or any matter under section 170LK(2), is the period between when employees receive written notice of the intention in accordance with section 170LK(4) and when the ballot opens.
PN3034
On some of the evidence, Commissioner, the notice to employees was sent to employees on 18 July 2002. I emphasise the word, sent, Commissioner, not received. Now, I also want to draw your attention however to a fact that may cloud that 18 July is the opening time in relation to when we can consider any notice. In Bulletin 15 that the company sent to employees the date of that document is 19 July 2002.
PN3035
On the third page in, under the heading, the new agreement talks about new pay standards instead of job grades, how do I find out what my grade is. The response to that is, and then are marked strictly private and confidential were sent to your work address today containing your current job grade status. This will help you understand we're on the new standards, your transition towards the agreement goes ahead.
PN3036
Commissioner, you will be aware given the evidence that's been before you in these proceedings that that grading notice was also the way in which the company sent out the notice of intention along with the grading notice so in accordance with at least this document the company is indicating that on 19 July that document is going out to employees and I emphasise being sent not being received.
PN3037
So on the best case scenario of the evidence for the company the 18 July but question mark, there is other evidence that it's only been sent out on 19 July and the evidence of Ms Muir is the ballot opens on 1 August 2002. If we take the best case scenario - - -
PN3038
THE COMMISSIONER: What's the authority for your proposition that the 14 days runs from date of receipt of the notice and the date when the ballot opens as distinct from the period of the ballot which may be longer than one day?
PN3039
MS HEAP: I don't have authority for it but I would like to take you to that, Commissioner. For example, in terms of dealing with the date on it being received I think that's uncontroversial. The requirements of the Act in relation to the employer providing the document are about the, the whole emphasis of the act is about employees having the notice and knowing what's going on so I don't see any submission that can be made that says it doesn't matter when the employer sent it out, it doesn't matter when employees received it, if the employers send it out in one day it doesn't make any difference, it has to be when they received it and we emphasise the reasonable steps requirement here.
PN3040
But if it wasn't, if the relevant period wasn't when the ballot opens then you can imagine some relatively ludicrous scenarios for example, not in this base but, for example, that the employer gives one day's notice of intention to employees but sends out on one day and opens the ballot the next but holds it open for 14 days, in that scenario I submit to you, Commissioner, the intention of the Act that employees be able to have a clear period of 14 days where they can consider the impact of the agreement on them and whether or not they wish to agree to the agreement would be completely overridden by that scenario.
PN3041
So I say to you, Commissioner, that it's contained on a reading of the understanding of what the provisions of section 170LK are about which is fairness to employees, notice of the process, you couldn't conclude that the relevant period was the entire period of the ballot and in fact the employer in its bulletins to employees in many instances said that people won't be required to vote without 14 days notice. So they, clearly, in my submission understood the 13 days requirement as well. They might have got their calculations a bit wrong but they did understand it in the same sense that I'm putting to you, Commissioner.
PN3042
Commissioner, we say therefore that even on the best case scenario that the document was sent out on the 18th and employees received it on the 19th, the 14 day requirement is not met.
PN3043
THE COMMISSIONER: Very clearly there is some evidence that some employees didn't receive theirs until the 23rd.
PN3044
MS HEAP: That's correct, Commissioner.
PN3045
THE COMMISSIONER: Some in fact didn't see it until 20 August as it turns out.
PN3046
MS HEAP: That's correct, Commissioner so on the best case scenario if everything had gone right that 14 day requirement is not met but we have, as you said, got evidence in relation to Perth Airport and Brisbane airport at least that not only one or two individuals didn't receive it at that time but that the whole body of the employees didn't receive it before those dates and we've got evidence as well of Mr Zammit in Perth and Ms Toole herself of the fact that Mr Zammit never received it.
PN3047
We've got evidence that he's told Ms Green that he's never received the document and at least direct evidence from Ms Toole that she didn't receive it until 20 August. So we've got that scenarios as well as in the witness statement evidence of people on leave, conversation of people on leave who have indicated that they never received the notice also.
PN3048
Now, that's a mandatory requirement not met. I want to take you, however, to the question of what the Act says about reasonable steps. The emphasis in the Act is on:
PN3049
Must take reasonable steps to ensure that every person who is employed at the time of the employment will be subject to the agreement has at least 14 days notice
PN3050
We say to you, Commissioner, that the reasonable steps component of that section doesn't read down the requirement for 14 days notice because it's quite specific in that provision, it says at least 14 days notice which we say hasn't been met and I want to address you on the element of reasonable steps as well, Commissioner, in relation to these matters and say to you this, that the way the company chose the method of distribution in relation to the notice that the company chose was not a reasonable step in terms of, even if it was going to meet the 14 day requirement in terms of the provision of section 170LK(2).
PN3051
It determined that it would send it by ordinary mail - this is the evidence of Ms Muir - by ordinary mail to managers, to distribute to employees as they would distribute any other mail to employees. The specific I asked of Ms Muir, did you send instructions with them, this is important, it's got to be distributed immediately - no. The company did not turn its mind to the obligation under 170LK(2) and provide a reasonable process or take reasonable steps to ensure that employees would have this notice in time. They sent it as a normal piece of mail and didn't provide any writing instructions to managers and in my submission that wasn't a reasonable process.
PN3052
In terms of the importance of this time frame within section 170LK(2) of the Act. There was also evidence of Ms Newell that there was no process for establishing that employees who were not on shift would have ready access to the notice and there was also no process put in place for ensuring that employees on leave received the notice. I acknowledge that her evidence is that it was sent to them, albeit there is some controversy about it, but there was no follow up, ring to check to see if people had got it, and obviously they didn't know that they should have had it and are missing and if they hadn't got it, if no one rang them up to check that.
PN3053
Given all of that, Commissioner, and given that there is the evidence that we say is before you in relation to the time frame period within which people didn't receive the document, received the notice, we say the requirements of section 170LK(2) had not been met and that in relation to this matter is fatal, in relation to this application before you.
PN3054
Provisions of section 170LK(3) provide that at or before the time, and I emphasise at or before, the time when the notice is given the employee must take reasonable steps to ensure that every such person either has or has ready access to the proposed agreement in writing. The emphasise is on at or before the time when the notice is given and that they should take reasonable steps to ensure that every person has ready access to the document.
PN3055
You've had a number of evidence before you of the difficulties that people had accessing the agreement, many of which were not resolved until after the notice period has commenced. We have evidence before you, Commissioner, that some employees on maternity leave never saw the document. In relation to the evidence of Ms Newell, that the document was sent to employees on leave, we have two problems. The first is that there was no process to follow up whether they received it at all. We say that's not reasonable. You can't expect people to contact you and say I think I should have got these documents, I never got them.
PN3056
THE COMMISSIONER: Well, there is also plenty of authority that if a matter is properly posted it can be assumed that it is delivered.
PN3057
MS HEAP: We have had evidence that it was posted but she didn't provide the mail receipts or anything in relation to that. Also her evidence was that they were sent the documents with a full bundle of bulletins included and she was asserting that that gave them the information on which to make their assessment about the agreement. Now, the very dint of the fact that the bundle of bulletins is going to be provided to the employees on leave with the document, it has to have happened after the notice period because the bulletins themselves go beyond the timing which the notice of intention was sent to employees.
PN3058
We say that that is not reasonable and doesn't meet the requirement of section 170LK(3) at or before the notice was given, ready access is made available.
PN3059
We also have the evidence of Ms Oviedo today that she didn't have access to a document until another employee gave it to her. Around about if I understand, and if I recollect correctly, the 20th. So either 25 July, again after the notice of intention period. The fact the company distributed by internet itself is not a problem, it's the combination of the internet having problems with accessing the internet and the compacted time period which we say creates a problem particularly in an organisation where there are at least a significant number of people who are involved in shift arrangements such that they didn't take account in the time frame effectively of this process for the fact that there were shift employees in place. So didn't take into account the fact that they needed to provide them a document prior to the notice of intention or at the time the notice of intention was given out and give them reasonable time to review that document in this environment. On that basis, Commissioner, we say the requirement of section 170LK(3) are not met.
PN3060
We turn our mind then to the provisions of section 170LK(4). For the purposes of my submission to you I am going to address you on section 170LK(4) and (5) together. The provision itself of section LK170(4) is headed up as the contents of a notice of the intention but effectively by dint of the paragraph after small letter B provides a right for employees to make a request to an organisation to represent the person in meeting and conferring with the employer about the agreement.
PN3061
We are not taking issue with the content of the notice for this purpose, Commissioner, but we are saying to you that the outcome of section 170LK(4) is an effective right for employees to be able to request representation. We say the provisions of section 170LK(5) are clear, that if an organisation is requested by employees to represent the person, the employer must give the organisation a reasonable opportunity to meet and confer with the employer about the agreement before it is made. We emphasise there about the agreement being part of section 170LK(5).
PN3062
We say, Commissioner, that in this case, the circumstances surrounding the negotiations of the agreement can't be ignored in terms of looking at the provisions of section 170LK(4) and (5). The ASU has been requested by members and has been part of a process of negotiation and agreement throughout the period. That seems to me to be an uncontroversial fact in this proceeding.
PN3063
Bulletin 15 of the company, dated 19 July significantly, makes reference to the fact that - on the second page, Commissioner under the heading:
PN3064
Does this mean that we've broken off discussions with the ASU? ...(reads)... for the agreement.
PN3065
So it is uncontroversial that there is regular and continuing correspondence between the company and the ASU in relation to an agreement and then given that this document is dated 19 July in relation to the agreement, and I think also bulletin No 16 indicates that there is still discussions with the ASU occurring in relation to the agreement.
PN3066
The company answers questions scenarios in its bulletins based on the scenarios of ASU members asking these things about ASU representation, what the ASU is up to. We say, Commissioner, in relation to the entire circumstances of the case the Commissioner should find that it was false for the company to say that no request was made by ASU members to have representation about the agreement in accordance with section 170LK(4). In addition to that we also rely on the letter of the ASU on 22 July which is contained in exhibit H3 as evidence of the ASUs involvement in this process and we rely on the evidence of Ms Hutchins today that the company was aware that the ASU was consulting with the employees who were members of the union throughout the process and using teleconference as part of that. As a result of one of those teleconference there was a decision made for the union to approach the company about meeting in relation to the agreement. That the letter of 22 July is a consequence of that decision at the teleconference discussion of that.
PN3067
THE COMMISSIONER: I think it's clear though that it doesn't use the words, requesting a meet and confer, and Ms Hutchins consented as much. We have had a number of references made to that document.
PN3068
MS HEAP: Yes, I think it's part of her witness statement, Commissioner. It's attached to her witness statement if you're looking for it. I don't think if you look at the letter on its face I could say to you the words meet and confer were used in that, Commissioner. However, we say to you this is not a circumstance whereby the union has had no involvement in anything to do with the workplace and has trotted along at the last minute and said, us two please let's meet and the company is not aware of it.
PN3069
THE COMMISSIONER: Yes, I acknowledge that. But you are playing 170Lk by the book and here is a case where 170LK has not been played by the book by the ASU.
PN3070
MS HEAP: I suppose I am not conceding that even though it doesn't have the words, meet and confer in it, isn't a request to meet and confer.
PN3071
THE COMMISSIONER: You say it should be read as such?
PN3072
MS HEAP: That's correct, Commissioner, and also in relation to this provision, Commissioner, we'd say this. That the provision under 170LK5 is a provision that gives the right to meet and confer with the employer about the agreement before it is made. We say to you, Commissioner, that the company has fettered the right of employees to have the representation envisaged under section 170LK4 and 5 by refusing employees the right to show the agreement to third parties. Particularly in this case the ASU. By failing to allow the ASU to have access to the agreement in the circumstances and most of the circumstances are this.
PN3073
That where the company has directed employees not to provide a copy of the agreement to third parties including the union. It is one thing to say to the union, we don't have to give you a copy of the document, you can get it through your members if you want a copy of the document. It's another thing where there's at least evidence before you, Commissioner, that people understood that they weren't allowed to provide a copy of the document to the union to then say to the union, we are not going to provide it to you unless you sign some confidentiality agreement in relation to it.
PN3074
THE COMMISSIONER: But you concede the fact that there was an offer to the ASU for a copy of the agreement to be provided to the ASU subject to the ASU giving the necessary confidentiality consent.
PN3075
MS HEAP: We say that there was an offer if we signed a confidentiality agreement, if the union signed a confidentiality agreement, Commissioner. But we say the company doesn't have the right to fetter the rights under section 170LK4 and 5 in that way. The ability to meet and confer about the agreement is predicated on the basis that there is knowledge of the agreement and we say in this instance, the company has told employees they can't provide their representative a copy of the agreement and has placed restrictions on the union before it will provide a copy of the agreement. That the Act doesn't allow the right for the employees under 170LK4 and 5 to be fettered in that way.
PN3076
Commissioner, I also point out that there was evidence from Ms Muir that she hadn't even contemplated whether or not the letter of the 22 July was a request in accordance with the Act when she filled out her statutory declaration that no request was made. We say that the correspondence between the parties between 22 July 2002 and 31 July 2002 demonstrates that the employee knew the ASU was making requests on behalf of its members. The company's response to the ASU request prerequisites before it would meet and confer. If you look at the correspondence that's before you now in relation to exhibit H9. You can see throughout the course of this letter that the company's confused the requirements of the Act. It is saying to the ASU, unless you give us in principle agreement we can't meet with you, there's nothing to talk about. Tell us whether you are prepared to concede on these things.
PN3077
Can you please confirm that the ASU has not changed position on these issues and will not sign a document without change to its contents that will ...(reads)... committee.
PN3078
This is in response to the letter to request a meeting with them about the agreement. Further, in relation to the letter, exhibit H10, the company rejects the assertion that it has excluded the ASU from the agreement. We understand the union has made an informed decision on behalf of its members not to support the agreement the ASU seeks to become a party to the agreement. It may do so by informing me as soon as possible or an application before the Commission. It's mistaking the fact that under the Act it has an obligation to meet with the union and that that obligation can't be fettered by a requirement that the ASU give in principle agreement or that there be some clarification of the unions position and will only meet with the union if the union is prepared to move in relation to its objections in the past.
PN3079
So we say to you therefore, Commissioner, that this does not amount to giving the ASU a reasonable opportunity to meet and confer as required by section 170LK5 of the Act.
PN3080
THE COMMISSIONER: Isn't your position reinforced by the simple fact that no matter what the strategy being adopted by either side at the time, that parties did not meet having made a legitimate request to meet and confer.
PN3081
MS HEAP: That's exactly it, Commissioner, and we've got confirmation that the parties didn't meet as a result emanating from that letter on 22 July. We move, Commissioner, to an explanation to section 170LK7.
PN3082
THE COMMISSIONER: Ms Heap, can I remind you of the time. I have still to hear Mr Swebeck's submissions and I want you to complete your submissions today.
PN3083
MS HEAP: I am moving as fast as I can, Commissioner. In relation to section 170LK7. The requirement is that the employer, before the agreement is made, must take reasonable steps to ensure the terms of the agreement are explained to all persons who will probably be subject to it. We emphasise, before the agreement is made, the employer must take reasonable steps to ensure the terms and also emphasise the terms of the agreement are explained to all persons employed. We say, Commissioner, providing a copy of the agreement is not sufficient to meet the requirement of section 170LK(7). If so, there wouldn't be a separate provision under section 170LK(7) for the requirement to take reasonable steps to explain. There would just be the requirement that a copy of the document is made available. This is a separate obligation under the Act to that provision made, copy of the document.
PN3084
We say also in submission, Commissioner, that the relevant communication with staff for the purposes of assessing whether this provision has been made, is that between the 18 or 19 July, when the notice of intention was sent and 1 August 2002 when the ballot opened. Prior to 18/19 July a different agreement was being considered and the provisions of section 170LK(7) of the Act require that the consultation must be about the terms of the agreement. After 1 August 2002, the ballot is under way and is in the process of being made. Communication and explanation after this time, we say, Commissioner, cannot be counted.
PN3085
The consequence of our submission is that the only relevant bulletins that the company sent out to staff, are bulletin 15 and 16, because they are the only ones that fall in this period. Neither of these bulletins explain in detail the contents of the agreement. They have a go at explaining some of the content of the agreement, but not in detail the content of the agreement.
PN3086
Likewise, Commissioner, the only relevant Roadshow presentations are those conducted prior to 1 August 2002. There is at least evidence that one Roadshow occurred on 1 August in Perth and I have to say in relation to the evidence, the dates of Roadshows elsewhere are unclear. We know that some fall within the relevant period, but there is not a great deal of evidence exactly when those Roadshows occur.
PN3087
The Managing Director's web speech which the company relies on as part of its information to employees about the content of the agreement, appears in the week of 12 August. That date confirmed in the bulletin number 18 from the employer. Therefore, we say to you, Commissioner, that there is limited evidence or information put to employees about the terms of the agreement in the relevant period between when the notice of intention is sent and up until when the ballot opens.
PN3088
In addition, Commissioner, employees were promised a ready reckoner as part of the information to be provided to them to explain the impact of the agreement and that was never provided to them. The evidence before you, Commissioner, that the information provided at some of the Roadshows at least was unreliable in a sense that the evidence of Ms Green and Ms Maxwell at Perth airport that the information provided by John Gallagher was contradictory.
PN3089
There is also evidence before you, Commissioner, that where when employees raised concerns about the agreement, their concerns were not treated seriously in the Roadshows, and I take you to the evidence of Ms Oviedo and her witness statement that effectively, when they raised questions about the document, they were told by John Gallagher, if you don't like it, you can move on. Also on this head, Commissioner, we say the company relies on the CAT team members as a source of advice and assistance on the terms of agreement.
PN3090
We say in relation to that, firstly that the agreement was not ever really negotiated and finalised with the CAT team. In the evidence of Ms Maxwell, Ms Owen, Ms Getsios and Ms Toole, they had never seen the agreement in principle before, providing an agreement in that sense. Evidence of Ms Maxwell and Ms Toole that they weren't even aware of the fact that a document that they received for the first time on 17 July, was going to be sent to staff on 18 July and their evidence was that they thought they had more time for discussion and that they had a number of problems with the document.
PN3091
There was evidence from Ms Maxwell that the agreement didn't equate with what had been negotiated with the CAT team and she articulated a number of things, and I believe Ms Toole also today, a number of things that weren't within what they understood to have been agreed, didn't appear in the version of the document on 18. There is evidence before you that at least one of the CAT members, Mr Charles Anderson didn't understand the content of the statutory declaration when it came to the critical question of what did the agreement contain in terms of what disadvantages and what advantages employee.
PN3092
So, we say to you that reliance on the CAT team members as well as a source of information and assistance, is not something that the employees could place any emphasis on in terms of reasonable steps to ensure the terms of the agreement are explained. The only evidence about employees on leave is that they got a copy of the agreement and the bulletins only. Some indicate they didn't even get that. Obviously my submissions in relation to the fact that a number of the bulletins of the company were false and provided inaccurate statements of what was finally in the agreement to go to whether or not employees on leave could get a good understanding of the agreement and whether that was reasonable for the employers in terms of the explanation of the agreement of those people who were outside the organisation at that time.
PN3093
Commissioner, finally in relation to this point, we should contrast the lack of relevant information about the term of the agreement, provided to employees after the 18 July, with the fact that there is evidence from Ms Muir that the Hart Group has had at least a working document summarising the agreement, compared to the award provisions, but they never made that available to the employees. So in that situation, we say that was an unreasonable thing for the employer to do, to have nothing hardly about the terms of the documents released on 18 July in terms of explanation. At the same time she had a working document that could have clearly easily been made available to the employees which gave them some better sense of how they sat in relation to the awards position and the agreement.
PN3094
We certify that the amount of information released by the company prior to the agreement being reached about what may or may not be an agreement, versus the amount or lack of documentation after the actual agreement is finalised, is a factor to be taken into account as to whether or not the employer steps in relation to explaining the content of the document to employees was reasonable. On that basis, Commissioner, we say that section 170LK(7) of the Act has not been met.
PN3095
Commissioner, I've got to address you still on the no-disadvantage test and a range of other factors and I am wondering whether I should start into that now or whether or not we should commence making arrangements for how we are going proceed with this matter given the time restrictions we have today.
PN3096
THE COMMISSIONER: Well I clearly indicated that I wasn't prepared to give more hearing time for this matter after today. The options that are available is that you complete your submissions in writing and file those within a limited number of days from today, and Mr Swebeck, is then given an opportunity to present his final submission in writing. It seems to me the way that this is heading given the other commitments and arrangements that have been made for today. Is that course of action attractive to you? How long are you likely to be in dealing with the no-disadvantage test. That sounds to me like asking you, how long is a piece of string.
PN3097
MS HEAP: I think to do it justice, Commissioner, and there are also other aspects in relation to our submissions that we need to go to, it probably going to be another half to three quarters of an hour.
PN3098
THE COMMISSIONER: The only person that doesn't have time to do that is you.
PN3099
MS HEAP: I know, Commissioner, I am aware of that.
PN3100
THE COMMISSIONER: Mr Swebeck, do you have any views about the submissions being completed in writing. You would have the advantage I have to say, if it's not already there in the obvious. You will have the availability of the transcript.
PN3101
MR SWEBECK: Commissioner, I wasn't going to object to the submissions being completed in writing. I don't know if my friend's timetabling is - maybe we could get some view from the Commission as to when I would be receiving those and when mine should be - - -
PN3102
THE COMMISSIONER: Well I've said within a few days, so we will just go off the record for a moment.
OFF THE RECORD
RESUMES [4.01pm]
PN3103
THE COMMISSIONER: Whilst off the record I have discussed with Ms Heap and Mr Swebeck the future timetabling of this matter. I am prepared to give time for Ms Heap to file and serve the balance of the final submission up to the close of business on Friday, 4 October 2002, and for the company to then file and serve its final submission by the close of business on 11 October. I can indicate now that on receipt of those documents I will reserve my decision and deal with the matter as expeditiously as I am able to. That concludes the proceedings. The Commission adjourns.
ADJOURNED ACCORDINGLY [4.03pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
VIRGINIA LOUISE TOOLE, SWORN PN2162
EXAMINATION-IN-CHIEF BY MR SWEBECK PN2162
CROSS-EXAMINATION BY MS HEAP PN2169
RE-EXAMINATION BY MR SWEBECK PN2314
WITNESS WITHDREW PN2359
KAREN OVIEDO, SWORN PN2366
EXAMINATION-IN-CHIEF BY MS HEAP PN2366
EXHIBIT #H5 STATEMENT OF MS KAREN OVIEDO DATED 08/09/2002 PN2372
CROSS-EXAMINATION BY MR SWEBECK PN2446
RE-EXAMINATION BY MS HEAP PN2482
WITNESS WITHDREW PN2489
JASMIN RASONI, SWORN PN2492
EXAMINATION-IN-CHIEF BY MS HEAP PN2492
EXHIBIT #H6 WITNESS STATEMENT DATED 12/09/2002 PN2506
CROSS-EXAMINATION BY MR SWEBECK PN2525
WITNESS WITHDREW PN2587
CHRISTINE MARIE LANNAN, SWORN PN2587
EXAMINATION-IN-CHIEF BY MS HEAP PN2587
EXHIBIT #H7 STATEMENT OF MS CHRISTINE MARIE LANNAN DATED 13/09/2002 PN2593
CROSS-EXAMINATION BY MR SWEBECK PN2600
RE-EXAMINATION BY MS HEAP PN2673
WITNESS WITHDREW PN2685
LAUREN ELIZABETH BEAMER HUTCHINS, AFFIRMED PN2687
EXAMINATION-IN-CHIEF BY MS HEAP PN2687
EXHIBIT #H8 WITNESS STATEMENT DATED 13/09/2002 PN2693
CROSS-EXAMINATION BY MR SWEBECK PN2747
EXHIBIT #S4 LETTER DATED 12/04/2002 FROM MS WYATT TO MR GALLAGHER PN2767
RE-EXAMINATION BY MS HEAP PN2851
WITNESS WITHDREW PN2872
RE-EXAMINATION BY MS HEAP PN2890
WITNESS WITHDREW PN2917
EXHIBIT #H10 DOCUMENT PN2924
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