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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 10, MLC Court 15 Adelaide St BRISBANE Qld 4000
(PO Box 38 Roma St Brisbane Qld 4003) Tel:(07)3229-5957 Fax:(07)3229-5996
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER BACON
C2002/3405
C2002/4355
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
and
BELTANA HIGHWALL MINING PROPRIETARY LIMITED AND OTHERS
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
and
AIRLY COAL PROPRIETARY LIMITED AND OTHERS
Notification pursuant to Section 99 of the Act
of a dispute re wages and working
conditions (log of claims)
BRISBANE
10.17 AM, FRIDAY, 8 NOVEMBER 2002
Continued from 28.10.02 in Sydney
PN278
THE COMMISSIONER: Can I take the appearances, please?
PN279
MR C. POLLARD: May it please the Commission, Pollard, initial C, of Jones Ross, appearing Achieve Cleaning Services Proprietary Limited.
PN280
THE COMMISSIONER: Thank you, Mr Pollard.
PN281
MR A. HERBERT: May it please the Commission, I seek leave to appear as counsel for Transpacific Industries Pty Ltd.
PN282
THE COMMISSIONER: Thank you, Mr Herbert.
PN283
MS J. GRAY: May it please the Commission, Miss Gray, initial J, together with MR T. CONROY for the CFMEU.
PN284
THE COMMISSIONER: Thank you, Miss Gray.
PN285
MR J. SPRECKLEY: If the Commission pleases, Spreckley, initial JB, seeking to intervene pursuant to section 43 subsection 1 on behalf of the Australian Liquor, Hospitality and Miscellaneous Workers Union. I understand from discussions with other parties present that they don't have objection to our appearing. We have rights that may be affected by the outcome of the proceedings and members who have rights that may be affected. We are party to a state of order state agreement which has touched upon the matters relevant to the proceedings and we wish to reserve our rights just to these matters on that basis, if the Commission pleases.
PN286
THE COMMISSIONER: Thank you, Mr Spreckley. Can I deal with the application for leave. Is there any objection to that?
PN287
MS GRAY: No objection from the union, Commissioner.
PN288
THE COMMISSIONER: Thank you.
PN289
MR POLLARD: No objection.
PN290
THE COMMISSIONER: Leave is granted, Mr Herbert.
PN291
MR HERBERT: Thank you.
PN292
THE COMMISSIONER: Can we now deal with the application for intervention. Does anyone oppose the application?
PN293
MS GRAY: As I understand the application is for, in effect, a watching brief, Mr Commissioner, and on the basis that the LHMU, although reserving its right, is not here seeking to oppose the application, then we have no objection to the intervention.
PN294
THE COMMISSIONER: Very well. Thank you. Well, leave to intervene is granted, Mr Spreckley. Miss Gray.
PN295
MS GRAY: Mr Commissioner, we have, or we had, six witnesses lined up for today. That was two company witnesses and four union witnesses. We anticipate that probably the most that we can reasonably hope to achieve today will be to get all of the evidence in the matters and, on that basis, we would then be seeking to have submissions done in writing and programmed at the conclusion of the hearings if it, in fact, turns out to be the case that we've used up all our time on evidence. Mr Herbert has just handed me three other statements in respect to his client, Transpacific. Apparently Mr Herbert's instructing solicitors had sought to serve those on the union yesterday. I haven't received them until Mr Herbert handed them to me a few moments ago.
PN296
That would mean that there would be an additional two witnesses, because one of those witness statements is a further one of Geoffrey Sparks, who had already lodged one. What we would be seeking to do, Mr Commissioner, is to have about a - perhaps if we could take the evidence from Achieve, and then have a 15, 20 minute adjournment for us to go through these additional witness statements, and then cross-examine the Transpacific witnesses. And then after that, bring on the union ones. We would need to bring on Mr Pierce first as - of our witnesses, Mr Commissioner, because he needs to leave by 1.30. So we're hoping that that can all be achievable.
PN297
THE COMMISSIONER: Thank you. Does anyone want to suggest that that is an inappropriate course to adopt?
PN298
MR HERBERT: No, Commissioner.
PN299
THE COMMISSIONER: Well, the balls back at your feet, Miss Gray.
PN300
MS GRAY: Well, it is, I think, back at Mr Pollard's feet, Mr Commissioner, in terms of calling his witness.
PN301
MR POLLARD: Commissioner, we only have one witness to call today. Do you want - would you like to have some opening submissions, or just go straight into the evidence at this point?
PN302
THE COMMISSIONER: It's up to you, Mr Pollard, whatever you are most comfortable with. I should indicate that I have read the bulk of the material that is, or was, before Commissioner Roberts. And I have read all of the material that has been provided in accordance with the Commissioner's directions for today's proceedings.
PN303
MR POLLARD: Okay. In that case, Commissioner, I'd just call Mr John Powell as a witness.
PN304
MR POLLARD: Could you please provide the Commission with your full name and current address?---John Warren Powell, Halfpenny Road, Gracemere.
PN305
And what is your current occupation, Mr Powell?---General Manager for Achieve Cleaning Services.
PN306
Mr Powell, have you seen the statement that was prepared and submitted on your behalf?---Could I please read it?
PN307
Are there any changes you'd like to make to the statement at this time?---I would look at section 8, or paragraph 8. Subcontracting is not actually what I call the company. I call it labour hire. So I think we've made a mistake in the way we've pronounced the situation here. So really I would say labour hire is what that should be there.
PN308
So just to confirm here, what you're suggesting is the companies that subcontract to you do so on a labour hire basis?---On a labour hire basis. Yes.
PN309
Okay. Commissioner, I have no further evidence from this witness. I have no further questions.
PN310
THE COMMISSIONER: Well, what specifically does he want to do to amend the statement?
PN311
MR POLLARD: Commissioner, perhaps if we could reword the statement, from my understanding of the witness's evidence, to say that, "These contracts are operated on a basis with other companies providing labour hire."
PN312
THE COMMISSIONER: So, "These contracts are operated"?
**** JOHN WARREN POWELL XN MR POLLARD
PN313
MR POLLARD: Yes.
PN314
THE COMMISSIONER: Is that what you're saying. "Are operated by other companies supplying labour hire."
PN315
MR POLLARD: Yes, Commissioner.
PN316
THE COMMISSIONER: And so the first two words in the sentence remain, and the rest of the sentence is deleted, and replaced by those new words. Is that what I understand is happening?
PN317
MR POLLARD: That's correct.
PN318
THE COMMISSIONER: Very well. Thank you.
PN319
MS GRAY: Commissioner, could I have those new words again?
PN320
THE COMMISSIONER: Certainly.
PN321
MS GRAY: Thank you.
PN322
THE COMMISSIONER: The sentence will now read:
PN323
These contracts are operated by other companies supplying labour hire.
PN324
MR POLLARD: If the Commission pleases.
**** JOHN WARREN POWELL XN MR POLLARD
PN325
THE COMMISSIONER: Do you have any questions for this witness, Mr Herbert?
PN326
MR HERBERT: No.
PN327
THE COMMISSIONER: Mr Spreckley?
PN328
MR SPRECKLEY: No, Commissioner.
PN329
THE COMMISSIONER: Ms Gray.
PN330
PN331
MS GRAY: Mr Powell, when you refer in paragraph 8 to the contracts being operated by other companies supplying labour hire, those other companies are Mines Maintenance, Power Maintenance and Belaruse?---Correct.
PN332
Now, do you hold any positions, directorship, secretary role, or as an employee of those labour hire companies?---No, I do not.
PN333
So you have no connection with those labour hire companies?---No connection whatsoever.
**** JOHN WARREN POWELL XXN MS GRAY
PN334
Now, when you say that the contracts are operated by other companies supplying labour hire, it's true, isn't it, that Achieve directly employed in relation to some or all of those contracts at least for some period?---When the company first started in the coal industry, Achieve was the major employer of these people. Going back probably to three years ago when a lot of the Coal Act changes as far as employees, as far as the fact mine medicals, TSDs, all this sort of thing came into it. Achieve management advised me that they were going to look at labour hire and that's where it all started, from there.
PN335
And from that answer, what you're saying is that those responsibilities were decided by Achieve to be too onerous?---No, Achieve management - Achieve board actually were the ones that advised me of what was happening, to the fact that we were going to use labour hire to get our staff.
PN336
And that was so the accountability or responsibility in respect to mine medicals and so on would be that of the labour hire companies and not Achieve?---Yes.
PN337
And what other things changed in terms of the way that Achieve performed its work under those contracts?---Not really. The whole thing was the agreement between I think the labour which Achieve would make between the labour hire companies and Achieve, was the fact that I was, on behalf of Achieve Services, to make sure that the contracts run smoothly for Achieve, the contracts we held with BHP. So the fact that, what I can gather, my role there was to make sure the contracts run and they would supply the people, the labour hire would supply the people. I would interview and with that agreement, if we had a problem, I could contact Achieve and we could remove staff from site if they weren't applying to our rules and regulations.
PN338
So the labour hire companies brought people to you, you interviewed, and if you weren't satisfied with their performance at any time, Achieve dismissed them?---We had the right to, yes.
PN339
And that was also at Callide Coalfields?---Yes.
**** JOHN WARREN POWELL XXN MS GRAY
PN340
Why is it, Mr Powell, that those three labour hire companies utilised in respect to the Achieve work at each of the mine sites?---Please rephrase.
PN341
Well, you don't have, for example, Belaruse being the labour hire company for employees at Callide and Mines Maintenance for the ones at Saraji. As I understand it, the three companies are utilised at each of the mine sites?---Mm.
PN342
Are you aware of the reason why that decision was made?---Not really, no. I don't - that's not my part of it all. I'm approached. If I need staff, as I said, I will talk to the company and they will advise which labour hire company is going to supply. So I've got really - I've got no access where they're going to come from or who supplies them.
PN343
But it's always from those three labour hire companies?---Well, that's the three that they've been utilising since I've been with them, yes.
PN344
And that's been for about the last three years?---It's been close to that, I'd say, yes, close.
PN345
You say that you interview, so in fact in respect to two of the witnesses who are giving evidence for the union today, Debbie Ferry and Lance Keynes, you interviewed both of those employees for employment at Callide?---I did.
PN346
You also offered the position of leading hand to Debbie Ferry after she had commenced at Callide for a few weeks?---That's correct.
PN347
And when Debbie Ferry went to work for Trans Pacific, after a time you replaced her with another leading hand and that was your choice and your decision?---Yes, well, she was nominated by the company, yes.
**** JOHN WARREN POWELL XXN MS GRAY
PN348
Nominated by?---She was nominated by - I just can't actually - I haven't got the record with me but she was nominated by someone for the fact that she was a possible material for a leading hand so we interviewed her.
PN349
And did somebody nominate Debbie Ferry or did you just simply observe her work and make a selection?---No, it would have came through probably an ad we run or something that the labour hire company has run and it was answered through - yes, I think she'd worked somewhere pretty close to Callide Coalfields previous to the fact or on the Callide Coalfields site previous to our employing her.
PN350
Now, the on-site leading hand, whether it be Debbie Ferry or her replacement, answered to yourself - contacted you in respect to any problems or difficulties at work?---Yes.
PN351
And in terms of orders for supplies, they were sent to yourself from the mine site?---Yes, they'd come to my office, yes.
PN352
And then you fulfilled those orders and had them delivered back to the mine site?---Yes, correct.
PN353
You provided the equipment - Achieve provided the equipment that was used at the mine site?---Yes.
PN354
And the time sheets were sent to yourself by the leading hands and in the absence of a leading hand by the employees?---Yes.
PN355
You provided uniforms to the employees?---Yes.
PN356
And was there any signage on the uniforms?---There was.
**** JOHN WARREN POWELL XXN MS GRAY
PN357
What was the signage?---Achieve Cleaning Services.
PN358
And that was regardless of which labour hire company had proposed them?---It had to be.
PN359
Any repairs to equipment that was supplied at the mine site was Achieve's responsibility?---No, no, we do not repair equipment. You know, it would have to be a very, very minor thing for us to even look at or touch it. It would go to either a mechanic or an electrician maybe so there'd be nothing on site. Maybe mop handle changed, something like this, but anything other than that goes to town which a reputable, respected person.
PN360
Right. And when it's repaired in that manner, Achieve pays the account?---Yes.
PN361
The Achieve manual, employee manual, is given to the employees who work at the mine sites under these contracts?---Correct.
PN362
And if there is any concern or need to change policies of Achieve for this mine site work, then that also comes from Achieve. So if there's an issue that arises that requires a policy change to Achieve work, that comes from Achieve?---It does.
PN363
Now, when one of the employees moves on, what's the process then? Do you contact the labour hire company to produce a selection of employees for you to choose from?---Unless there was someone there on the site, yes, we would have to. It's the only way we can do it because of the fact you just cannot pick up anyone and bring them on site now. They have to be, you know, generic mine passes, medicals and that sort of thing, yes.
**** JOHN WARREN POWELL XXN MS GRAY
PN364
And any training that they have to do of course has to be up to coalmining industry standards?---Whatever their - all mine sites we go to have different requirements. There's no doubt different areas. If they're a cleaner or if they're a ground maintenance person, whichever needs to be, progress will be done, yes.
PN365
And you used to be a director of Achieve in the past, didn't you?---Well, that was something way back - probably the first year I joined the company and it was for a very short period.
PN366
The selection of the three labour hire companies - are you aware of how those companies were selected by Achieve? What criteria was used?---No, sorry. I'm not involved in that part of it, no. I wasn't privy to that information.
PN367
Are you aware of any connection between those labour hire companies and Achieve? You've said that there's no - they're not subsidiaries of Achieve or not owned by Achieve. Are you aware - - -?---No, I've had no - - -
PN368
- - - of any connection?---Sorry. I've had no reason to even - to look or to think if there was or - for whatever reason. I've - you know, they've done their job as far as what they were there to do and I haven't had to query that.
PN369
But to your knowledge, there's no connection between Achieve and those three labour hire companies?---No, not with me.
PN370
Leanne Case is a director of Belaruse. She, in her - in the corporate records, has an address which is the same as yours - Lot 3, Halfpenny Road, Gracemere?---Mm.
PN371
Is there any relationship between you and Leanne Case?---Has that got anything to do with the matter? As far as I - I don't have - and that's ..... information.
**** JOHN WARREN POWELL XXN MS GRAY
PN372
Are you prepared to answer the question?---It's personal.
PN373
I mean, you've said, Mr Powell, that there is no connection between Achieve and the labour hire companies, but one of the directors of one of the labour hire companies shares your residential address so I thought that perhaps you could advise the Commission if there was - - -?---Oh yes, fair enough. I - we could look at it - we can look at it - - -
PN374
If you were related, for example, to Leanne Case?---Yes, we are in a de facto relationship.
PN375
Are you aware of the directors of - or previous directors of the other labour hire companies being in common with directors of Achieve?---Possibly.
PN376
But you don't know?---I'm not 100 per cent sure, no.
PN377
So it's only the director of Belaruse that you know of a connection between that company and Achieve?---Yes.
PN378
Did you want to make a change to paragraph 9 - a consequential change to insert "labour hire companies" rather than "sub-contractors", for consistency, Mr Powell?---Yes.
PN379
Mr Powell, if somebody wasn't performing - - -
PN380
THE COMMISSIONER: Well, just before - - -
PN381
MS GRAY: I'm sorry, Mr Commissioner.
**** JOHN WARREN POWELL XXN MS GRAY
PN382
THE COMMISSIONER: What change are we making - or is Mr Powell making to his statement?
PN383
MS GRAY: That's paragraph 9, Mr Commissioner, with "sub-contractors" being removed and "labour hire - - -?---Labour hire put in.
PN384
- - - companies" - - -
PN385
THE COMMISSIONER: Do you agree with that, Mr Powell?---Yes, yes.
PN386
Thank you.
PN387
MS GRAY: Mr Powell, you said that if any of the employees who do the Achieve work at the mine sites don't work out that Achieve dismisses them. Now, do you have any counselling process or dispute resolution process in respect of that?---Yes, we do. Yes. I think we can look at our records and be quite proud of the fact that since I've been with the company, you know, I can probably say only due to theft or alcohol beverages on site - I've never really had to sit down and give anyone the three letters. Either they have been warned of different things - they've known they've made a mistake and they've left on their own accord or if they've gone over the boundaries of what our employment category is and they've either come to site with alcohol, which is definitely a no-no, or a drug or being caught for stealing - theft. I, myself, cannot really go up and say in the last nine years that I've had to actually give three letters and sack someone off-site. You know - because they've left and that fact - unless my memory slips, but I don't think I have. And I think I can be pretty proud of the way that we handle ourselves and the way we look after our staff and so our - you know, there's probably people here today that's had warnings or something - maybe a witness that will come in later and has had a couple of warnings on different things, but it has been a warning with myself, a supervisor sitting down and going through the factors and saying, "Hey, you know, let's work - let's get this thing right". And that's always been the way that we've worked and we've found we've got on very well with it - it's
**** JOHN WARREN POWELL XXN MS GRAY
successful. There is some people out in our field we find are not quite cut out for job, but, you know, we try to train them in the field that they can work and pick up the facts so that - it's not good for us. It's a very expensive program for anyone else to find staff in the mine fields these days due to the fact that generic passes - $350 mine medicals, time factors, you've got to pay. It's very expensive to sack people. The training of them - because the liaison with a person makes life so much more easier for both parties. And that's the track we've taken ever since Achieve has actually got on the ground properly.
PN388
Okay. Now, you mentioned three letters being part of the process and that verbal warnings might come - what, before those letters?---Oh yes, yes.
PN389
Yes. And you've said that, you know, it might be an occasion of sitting down with an employee with a supervisor. When you're saying "supervisor", are you talking about a mine site supervisor or are you talking about a leading hand?---No, no. It would generally be a leading hand. We've had a situation where we have had staff and the staff has requested someone from the CFMEU be there. I haven't had a problem with that. We sat in a park and sat down with the CFMEU member from maybe Norwich Park or somewhere like this and they've sat down with the criteria and went through it to resolve the fact. And I've probably done that three or four different times. Even at some of the - some of the staff meetings we've had the same thing has happened. On site, we've had a - where maybe a supervisor and staff. No - I won't - - -
PN390
I'm sorry, Mr Powell?---Yes. I'm sorry too. I won't talk for long.
PN391
Yes. So when you've had those meetings, one of those would have been in terms of the presentation of a proposed State certified agreement to the employees of Achieve that were working on the mines sites - back in June?---Yes. That would have been the voting situation, yes.
PN392
Yes. And you did a tour, basically, through the mine sites - Callide and the BHP mine sites - called together and had a meeting of your employees to put to them this proposed certified agreement. And when you did that, you've mentioned that a CFMEU official has attended some meetings. Was that one of them?---Possibly.
**** JOHN WARREN POWELL XXN MS GRAY
PN393
For example, the Dysart meeting?---Yes, possibly, yes. Yes.
PN394
You don't recall?---Yes.
PN395
You do recall?---Yes.
PN396
And Mr Pierce was there?---Indeed.
PN397
And was the complaint raised that the document that was being produced wasn't a complete document?---Page - I think it was after they went through it, page 34 was not there.
PN398
And the annexure - the appendix to the document which actually lists the respondents - - -?---I'm not really sure on that, but I think that what I got back, 34 was missing.
PN399
Yes. And were complaints also raised that people weren't given a copy of that agreement for a 14 day period?---It was brought up after, but I think the way that it was worded - well before that - a month before this came up - with their pay slips. Everyone was advised on the bottom of their pay slips with an extra piece of paper to say that would be available for their viewing and that - which it was made available for their viewing a month before. Now, if people did not want to view it, well, then there was not much more we could do ..... but it was made available for their viewing a month before.
PN400
And then you conducted the ballot at the same time as the presentation, did you?---Yes, we did.
PN401
But if that was sent through - people were advised a month before that they could have a copy of the proposed agreement?---The supervisors had the copies of them and people could view it any time they liked. It would be made available to them any time they liked.
**** JOHN WARREN POWELL XXN MS GRAY
PN402
And that was, in fact, what turned out to be an incomplete copy, for example, page 34?---Page 34.
PN403
At the northern mines at least and at Callide every second page?---But that was rectified because it was - it was a - probably a faxing error. It was double-paged and it wasn't turned over when it was photocopied, but that was rectified immediately that was found out. We didn't know. It was straight down and got it recopied and re-done and viewed.
PN404
So how long before the ballot would that have been available at Callide?---Yes, well, the thing was - how long before the ballot? About an hour.
PN405
Okay. No further questions, thank you, Mr Powell?---Thank you very much.
PN406
PN407
MR POLLARD: Mr Powell, if I could just clarify something that was raised. You indicated to the Commission that it was the employees of Achieve in regard - who were present at these meetings for the certified agreement. Is that, in fact, the case? They were employees of Achieve?---No, no, they weren't - they're on - they're sub - company employees.
PN408
So they are employees of these other companies?---These other companies, yes.
PN409
Okay?---I have no employees of Achieve up - up in that area.
PN410
Okay, thank you. No further questions.
**** JOHN WARREN POWELL RXN MR POLLARD
PN411
PN412
MR POLLARD: If it pleases the Commission I have no further witnesses at this point.
PN413
THE COMMISSIONER: Very well, thank you. Is it at this time you wanted your adjournment, Ms Gray?
PN414
MS GRAY: Yes, thank you, Mr Commissioner.
PN415
MR HERBERT: Commissioner, could I inquire - there were three witnesses mentioned, three further very short statements filed yesterday, I understand. Did the Commission receive them?
PN416
THE COMMISSIONER: Yes, I have.
PN417
MR HERBERT: They will - they together with the initial statement filed will be the material on which I rely. The three further statements were filed yesterday following the filing by the CFMEU of a written submission in which they raised a raft of new issues that had not been in the proceedings before and rather than give viva voce evidence today about those matters we attempted to - well, we have filed those statements late. And just so, Commissioner, you have that material and you understand the nature of the proceedings.
PN418
Could I also say Ms Gray has to read those three statements. We faxed them to the national office yesterday. We didn't know she was here. And they haven't sent them on. But the position in relation to Transpacific, which is the party served with the log, isn't set out in those proceedings, that it has no employees on any coal mine anywhere in Australia. It is not, it appears, that the log seeks a dispute in relation to their employees engaged in the coal industry.
PN419
They don't and they - and that seems on the material to have at least been accepted by everybody that they are not and that the true - the employer of the employees whom it appears are being - in respect of which the dispute is being sought is another company which has also been logged and that there's simply no purpose in pursuing Transpacific. Now, that's in a nutshell the case and I can expand on that to the extent that I need to later, Commissioner, so that if you're reading the material or Ms Gray is reading the material you understand the nature of the case that we bring.
PN420
THE COMMISSIONER: The other company to which you referred has also been logged, is it - has it been found to be party to a dispute?
PN421
MR HERBERT: No, it's only just been logged recently.
PN422
THE COMMISSIONER: I see.
PN423
MR HERBERT: My solicitors have been writing since the first log was served on Transpacific saying Transpacific sold that business in April of this year to another entity, in effect, go fetch. And the union ultimately has taken that advice very recently and logged that company, but the matter has not come before the Commission yet.
PN424
THE COMMISSIONER: Very well.
PN425
MR HERBERT: But Transpacific got out of the business a long time ago is apparently the view of everybody but there still seems to be a view that this Commission has some sort of jurisdiction over it in relation to a dispute finding on this log. It's really a very simple matter, a very short matter. I'm not too sure the matter will require any further evidence or any lengthy submissions.
PN426
THE COMMISSIONER: Very well.
PN427
MR HERBERT: But I will leave that until Ms Gray has read the material. That might cast a little more light on the position.
PN428
THE COMMISSIONER: Very well, thank you, Mr Herbert. Mr Pollard, there's a matter I want to discuss with you for a moment and that is that in your outline of submissions - I think we can take it that there's an application made pursuant to section 111AAA of the Act.
PN429
MR POLLARD: That's correct.
PN430
THE COMMISSIONER: Is that a fair summary of the submission?
PN431
MR POLLARD: Yes. As well as a few alternative ones as well.
PN432
THE COMMISSIONER: I - I mean, there's - in the face of such a submission there are certain things the Commission must do. At least one of them can be found at sub-section 36(3) of the Act. But what I want to talk to you about is whether or not in your submission section 111AAA is at this stage enlivened. As I understand it the submission is there is no industrial dispute here.
PN433
MR POLLARD: Yes.
PN434
THE COMMISSIONER: And my question therefore is this. How could section 111AAA come into play given that it's a direction from the Parliament that the Commission in the face of such an application cease dealing with the dispute?
PN435
MR POLLARD: I understand the Commission's difficulty. Commissioner, the 111AAA response, I suppose, it's an automatic one that we fire in now in the State jurisdiction and - - -
PN436
THE COMMISSIONER: Well, you're not there.
PN437
MR POLLARD: No. But the reason - I suppose it was - the difficulty I faced, Commissioner, when we drafted this was I was faced a situation where they've logged a company that does indeed have employees. The problem is none of those employees work in the mining industry. So, if you like, my submission is broken into two parts. First of all we don't have any employees in the mining industry, so therefore there can be no dispute.
PN438
The second part of our argument is if, however, it is found that the CFMEU can log a company that does indeed have employees, although they don't work in the mining industry, then these employees are covered by a certified agreement registered in the State of Queensland, in which case section 111AAA does come into play. However, the very first leg of our argument, and I would submit the strongest part of our argument, is the fact that we do not actually employ any person in mine sites in Queensland.
PN439
THE COMMISSIONER: Which brings us back to my question. Do you at this stage press the 111AAA point or do you intend to raise it in the event that a dispute finding is made involving - - -
PN440
MR POLLARD: If a dispute finding is made then I will press the 111AAA. At this point, however, Commissioner, we would be pressing that there is no dispute.
PN441
THE COMMISSIONER: Very well, thank you. So I will leave it to you, Mr Pollard, whenever you think the time is right to jump up and say, "We now make the application pursuant to section 111AAA". Because there is a requirement in the Act that the President must consider immediately on such an application certain things and so I would have to seek his Honour's view and advise him of the fact of the application when it's made. And that is why I raise it with you now.
PN442
MR POLLARD: Thank you, Commissioner.
PN443
THE COMMISSIONER: Ms Gray, how long might you need for your adjournment?
PN444
MS GRAY: 20 minutes will suffice, thank you, Mr Commissioner.
PN445
THE COMMISSIONER: Very well, we will resume at a quarter past 11.
SHORT ADJOURNMENT [10.55am]
RESUMED [11.20am]
PN446
THE COMMISSIONER: Mr Herbert?
PN447
MR HERBERT: Commissioner, there are three witnesses who have provided four witness statements and I don't intend to lead any further evidence from any of them except to correct one very small matter but apparently they're required for cross-examination. So on that basis I call Geoffrey Sparkes.
PN448
THE COMMISSIONER: Just while Mr Sparkes is doing that, I've omitted to mark Mr Powell's statement which I will mark as Achieve 1. Sorry, Mr Herbert.
PN449
MR HERBERT: Mr Sparkes, could you tell the Commission for the record please your full name and your address and your occupation?---My full name is Geoffrey Francis Sparkes. My address is 42 Saunders Street, Indooroopilly in Brisbane. My occupation is an executive director of Transpacific Industries.
PN450
Mr Sparkes, have you prepared one affidavit and one statement of the evidence you're able to give in these proceedings?---Sorry?
PN451
Have you prepared one affidavit and one statement containing evidence you're able to give in these proceedings?---That's correct.
PN452
And the affidavit is dated 1 October 2002?---That's correct.
PN453
And consists of 12 paragraphs. Is that right?---That's correct.
PN454
And the statement is dated 7 November 2002 and consists of 10 paragraphs?---That's correct.
PN455
In relation to the affidavit, Mr Sparkes, I draw your attention to a typographical matter. At the outset you recite that you are executive director, Transpacific Industries, but paragraph number 1 says you're employed as human resource manager. Is that latter reference incorrectly included in there?---That's incorrect.
**** GEOFFREY FRANCIS SPARKES XN MR HERBERT
PN456
The first statement is correct - you are the executive director?---I am one of the executive directors, yes.
PN457
And you're not employed as human resource manager?---I am not, no.
PN458
And you ask the Commission to delete any reference to paragraph 1?---I do.
PN459
Thank you. Other than that correction, Mr Sparkes, are the facts and circumstances set out in that affidavit and that statement to the best of your knowledge true and correct?---That's correct.
PN460
I tender those two files of documents, Commissioner.
PN461
THE COMMISSIONER: I'll mark the affidavit as exhibit Transpacific 1, and the statement will be Transpacific 2.
EXHIBIT #TRANSPACIFIC 1 AFFIDAVIT OF MR G.F. SPARKES DATED 1/10/2002
EXHIBIT #TRANSPACIFIC 2 STATEMENT OF MR G.F. SPARKES DATED 7/11/2002
PN462
MR HERBERT: That's the evidence of this witness.
PN463
THE COMMISSIONER: Do you have any questions, Mr Pollard?
PN464
MR POLLARD: No, Commissioner.
**** GEOFFREY FRANCIS SPARKES XN MR HERBERT
PN465
THE COMMISSIONER: Mr Spreckley?
PN466
MR SPRECKLEY: No, Commissioner.
PN467
THE COMMISSIONER: Thank you. Ms Gray.
PN468
PN469
MS GRAY: Mr Sparkes, could I take you to paragraph 4 of your affidavit, Transpacific 1. You've said there that, "Transpacific was again served with a log of claims by the CFMEU. Annexed and marked C is a copy of this second log of claims." If you go to exhibit C, you'll actually see that it's a service of notice of re-listing a form 5 notice rather than a second log of claims. I only bring that to your attention for accuracy, I suppose. Would you agree with that?---Yes.
PN470
Now, you say in paragraph 6 that, "Before 5 April 2002 Transpacific Industries Proprietary Limited operated vision called Zappaway Industrial Cleaning." Now, that wasn't a separate legal entity, was it? That was in fact just a business name that - - -?---It's the trading division, yes.
PN471
And the corporation carrying on the business was Transpacific?---That's correct.
PN472
In paragraph 7 you say that, "Zappaway Industrial Cleaning transferred all employees and assets." It was actually Transpacific that transferred the employees and assets, isn't that so?---Yes, that would be correct, yes.
**** GEOFFREY FRANCIS SPARKES XXN MS GRAY
PN473
Are you aware of what consultation was held with the employees affected prior to their transfer?---No, I'm sorry, no, I wasn't involved in that.
PN474
Are you aware if Transpacific sent out any information to employees that they were to be transferred?---I believe that information was sent out, plus consultation with the employees but I have no direct involvement and I couldn't say when or by whom.
PN475
But you have a feeling that something was sent out?---Certainly.
PN476
Were the employees terminated from Transpacific and re-employed by Zappaway Steamit?---Zappaway Steamit, that's correct.
PN477
So their accrued entitlements and so on were paid out?---The accrued - - -
PN478
Annual leave and things of that sort?---All accrued entitlements were paid out, I should imagine, at settlement took place. For things like long service leave, just went over to the new company and an adjustment made at that time. So certainly long service leave wouldn't have been paid out but all other leave that was accrued I believe was paid out.
PN479
Do you know that or it's just your assumption?---No, I don't.
PN480
So it would be fair to say, Mr Sparkes, that you don't actually have knowledge or detailed knowledge of the method of transferring those employees from Transpacific to the other company? That wasn't your area?---That's not my area of expertise, no.
PN481
Now, aside from the substantial shareholding that Transpacific has in Zappaway Steamit - there's 41.87 per cent?---Correct.
**** GEOFFREY FRANCIS SPARKES XXN MS GRAY
PN482
There's also some commonality of directors and corporate positions, isn't there?---Commonality of directors between whom?
PN483
Between Transpacific and Zappaway Steamit Industrial Services?---There is one on a board of four.
PN484
And that's Mr Peabody?---That's correct.
PN485
And the secretary of both companies is Mr Pike?---That's correct.
PN486
And the registered office and principal place of business for both companies is level 10, Toowong Tower, 9 Sherwood Road, Toowong, Queensland 4066?---That's correct.
PN487
In your statement rather than your affidavit, if I could ask you to go to paragraph 10. Are you able to tell the Commission when that payroll referred to in paragraph 10 was set up?---Not exact dates, no. There was a small period there where we were setting up - Zappaway Steamit was setting up EFT facilities and the payrolls would have come through Transpacific with then Zappaway Steamit reimbursing Transpacific. It was just a matter of doing that whilst the banking facilities were set up but just how long that was, I can't recall.
PN488
So there would have had to have been, for those banking facilities to be set up, authorisation or information from the employees to Zappaway Steamit of their account numbers for payment and so on, or was that just transferred straight from Transpacific to Zappaway Steamit?---It was transferred across, yes.
PN489
I have no further questions of Mr Sparkes, thank you, Mr Commissioner.
**** GEOFFREY FRANCIS SPARKES XXN MS GRAY
PN490
THE COMMISSIONER: Mr Herbert?
PN491
MR HERBERT: I have no re-examination. May Mr Sparkes be excused.
PN492
PN493
MR HERBERT: I call Alexander Leonard Penman.
PN494
THE COMMISSIONER: We might just take a brief adjournment.
SHORT ADJOURNMENT [11.31am]
RESUMED [11.33am]
PN495
MR HERBERT: Mr Penman, for the record could you tell the Commission your full name, address and occupation, please?---My name is Alexander Leonard Penman. I reside at 4 Sweetapple Place, Manly West. My current occupation is an executive director and general manager of Zappaway Steamit Industrial Services.
PN496
Is that a Pty Ltd company?---Pty Limited, yes.
PN497
Mr Penman, have you prepared a statement consisting of 12 paragraphs dated, 7 November 2002, setting out evidence that you're able to give in these proceedings?---I have.
PN498
And, Mr Penman, are the facts and circumstances set out on that statement to the best of your knowledge true and correct?---They are.
PN499
I tender that statement, Commissioner which is filed.
PN500
THE COMMISSIONER: I will mark that as exhibit Transpacific3.
EXHIBIT #TRANSPACIFIC3 STATEMENT OF ALEXANDER PENMAN DATED 07/11/2002
PN501
MR HERBERT: That's the evidence-in-chief of Mr Penman.
PN502
**** ALEXANDER LEONARD PENMAN XXN MS GRAY
PN503
MS GRAY: Yes, thank you, Mr Commissioner.
PN504
Mr Penman, you had a substantial role with Transpacific trading as Zappaway Industrial Cleaning prior to commencing your current role, didn't you?---Prior to this role I was employed as general manager, industrial cleaning of the Transpacific, yes.
PN505
And in that role you looked - you oversaw the operations of Transpacific at the Callide mine site?---I did, yes.
PN506
And who reported to you?---In that operation Brian Kelly as the site manager who reported directly to John Flesser, the Gladstone Branch Manager, who, in turn, reported to me.
PN507
Was Mr Bird in that chain of command at all?---From November of last year Mr Bird took over as area manager of that area.
PN508
From Mr Flesser was it?---No. He was a position superior to Mr Flesser and Mr Flesser, in turn, reported then to Mr Bird.
PN509
So everyone from general manager down, you say, was transferred over from Transpacific to Zappaway Steamit?---That is the case.
PN510
Including the main site employees?---That is the case.
PN511
And when that transfer occurred were the employees terminated by Transpacific and employed by Zappaway Steamit or were they simply transferred over?---No. They were terminated effectively and then re-employed by Zappaway Steamit Industrial Services.
**** ALEXANDER LEONARD PENMAN XXN MS GRAY
PN512
So their annual leave and so on was paid out?---No. Their annual, all their entitlements as part of the business sale agreement was taken up and an allowance made and all indemnity passed on to Zappaway Steamit so that Zappaway Steamit became responsible for all their entitlements. A cash settlement was made at point of agreement from - not only from Transpacific but from the other shareholding companies were merged into that operation.
PN513
You've said in paragraph 6 of your statement that:
PN514
On 28 June 2002 Zappaway Steamit Industrial Services acquired Gardner Perrott -
PN515
?---Gardner Perrotts, yes. That's correct.
PN516
Continuing:
PN517
a division of Brambles.
PN518
?---That's the case.
PN519
I'd like just to have you look at a couple of documents here, if you would please, Mr Penman? I'm afraid I don't have copies, Mr Commissioner, but it may not be necessary. If we're going to tender them we will have copies made?---Yes.
PN520
Now, those documents effectively say that that business was sold to Transpacific not to Zappaway Steamit Industrial Services, doesn't it?---That's the case but it certainly wasn't put out by - this information certainly wasn't put out by Zappaway Steamit Industrial Services, or, I believe, Transpacific.
**** ALEXANDER LEONARD PENMAN XXN MS GRAY
PN521
That was put out by Brambles?---It was put out by Brambles, I guess, yes.
PN522
And Brambles selling its business said it was selling it to Transpacific. That it was mistaken, you say?---I can only assume that it's a mistake that their public relations officer has made because certainly all the agreements for the purchase of that were signed in the name of Zappaway Steamit Industrial Services.
PN523
I will just take those back. Now, when were the uniforms changed? You've said that - did you mention uniforms in your statement - only pay-slips?---I don't believe I've made reference to pay-slips so far.
PN524
Are you aware of when the pay-roll system for Zappaway Steamit Industrial Services was set up so that they were directly paying the employees?---The pay-roll system was set up effectively from 1 April. The payments were made by Transpacific to the employees' bank accounts for a period of some three weeks until electronically funding transfer systems were set up with the new bank account for Zappaway Steamit Industrial Services. But pay-slips, I believe, were printed in the name of Zappaway Steamit Industrial Services.
PN525
By Transpacific until such time as Zappaway - - -?---Until such time as Zappaway took over the physical role.
PN526
No further questions for Mr Penman, thank you, Mr Commissioner.
PN527
PN528
MR HERBERT: Only one matter, Mr Penman. The question of uniforms was raised with you a minute ago. Was in fact a uniform issued to your company's employees with your company name on it?---Order were placed, I believe, for the purchase of uniforms in early May.
**** ALEXANDER LEONARD PENMAN RXN MR HERBERT
PN529
Yes?---As to exactly when the distribution of those uniforms took place I can't.
PN530
Approximately how long after that?---I should imagine that they would have been late May to some time in June they would have progressively started being issues with uniforms.
PN531
And that uniform had Zappaway Steamit Industrial Services - - -?---As the logo on the shirt.
PN532
- - - engrossed on the uniform. When Transpacific were operating that business unit did they have uniforms?---They had uniforms with Transpacific Industries, I believe, monogrammed on the shirts, yes.
PN533
So there was a change of uniform at about this time?---No, I'm sorry. They would have had shirts with Zappaway Industrial Cleaning.
PN534
Zappaway Industrial Cleaning?---Zappaway Industrial Cleaning monogrammed on the shirts.
PN535
So after the sale of the business to the present company the uniforms also changed?---Yes. They've been progressively changed right through the merged operations since 1 April.
PN536
All right. When you say the merged operations there were - you refer in your statement to a number of other operations which were business units of other companies that were acquired by your company over time. Were the uniforms worn by those people under their previous employment also changed over to the present company uniforms?---They were or they are progressively being changed. In some instances, I believe in Mount Isa, for instance, some of our employees are still wearing uniforms that carry the Steamit Group logo.
**** ALEXANDER LEONARD PENMAN RXN MR HERBERT
PN537
All right. Thank you. That's all I have. Might this witness be excused?
PN538
PN539
PN540
MR HERBERT: Mr Byrd, could you tell the Commission, please, your full name, your address and your occupation?---My name is Geoffrey Clarence Byrd. I am the Area Manager North and my address is 11 Linley's Road, the Caves via Rockhampton.
PN541
So Area Manager North for what company?---Zappaway Steamit Industrial Services.
PN542
And is that a Proprietary Limited company?---Yes, it is.
PN543
And are you - Mr Byrd, have you prepared a statement containing the evidence you are able to give in these proceedings which consists of three paragraphs and is dated 7 November 2002?---That is correct.
PN544
Mr Byrd, are the facts and circumstances set out in that paragraph to the best of your knowledge true and correct?---Yes, I believe so.
PN545
I tender that statement - filed statement, Commissioner.
PN546
THE COMMISSIONER: I will mark it as exhibit Transpacific 4.
EXHIBIT #TRANSPACIFIC 4 STATEMENT OF GEOFFREY CLARENCE BYRD DATED 07/11/2002
PN547
MR HERBERT: You have given your private address in giving your personal details, Mr Byrd. In the statement you've listed an address of 25 Shannon Place, Virginia. What is there?---That is our Head Office. Zappaway Steamit's head office.
**** GEOFFREY CLARENCE BYRD XN MR HERBERT
PN548
All right?---Or known head office.
PN549
And I think you may have been present in the Commission and you heard some mention about uniforms. Was there a change in the uniform worn by employees from the uniform worn under the earlier Zappaway business unit when operated by Transpacific to the uniform which is worn by employees of your company?---Yes, that's correct.
PN550
And what is the present uniform?---It's the same logo as I'm currently wearing on my shirt.
PN551
Mentioning the name of your company?---Zappaway Steamit Industrial Services.
PN552
All right. And what was the uniform that was worn - or the indicia of the uniform that was worn when the business was operated by Transpacific?---Zappaway Industrial Cleaning.
PN553
And one final matter, Mr Byrd. Were you employed by Transpacific in the Zappaway Industrial Cleaning Business Division?---Yes, I was.
PN554
You have now told the Commission you are employed by Zappaway Steamit Industrial Services Pty Ltd. When and how was your employment transferred across?---When the new company Zappaway Steamit was formed and Steamit was bought out, the Steamit Group was bought out and formed into that company as well as Gardner Perrott was bought, so it was formed up to one full company. At that stage my employment went from being Transpacific to Zappaway Steamit Industrial Services.
PN555
And was your employment with Transpacific terminated and you were engaged by - - - ?---Yes, it was.
**** GEOFFREY CLARENCE BYRD XN MR HERBERT
PN556
- - - Zappaway. By your present employer?---Yes.
PN557
Is that - was that also the case with the persons who were employed by Transpacific at, for example, the Callide mine site?---That is the case.
PN558
Were those employees informed by any means of that fact, the fact of the transfer of their employment from one company to another?---Yes, they were.
PN559
And how did that occur?---A series of meetings. Myself and Lex Penman and Vicki Lurch were involved in one meeting on site. I could probably give names of people that were present at that particular meeting and various site meetings that I had - or very site visits that I carried out during the course of the - the buy-out and take-over.
PN560
All right. So various site meetings. How many sites did Transpacific have employees at in your area of operation?---As in mine sites just the one but branches with - various branches throughout Queensland that I visited.
PN561
Yes. Various branches at other places - - - ?---Gladstone.
PN562
- - - that weren't mine sites?---That weren't mine sites. Gladstone, Mackay, Townsville, Mount Isa and Brisbane.
PN563
All right. And you visited those various sites - - - ?---Yes, I did.
PN564
- - - throughout this period?---Yes, I did.
PN565
And told employees what was happening about their employment?---That's correct.
**** GEOFFREY CLARENCE BYRD XN MR HERBERT
PN566
And did you personally visit Callide?---Yes, I did.
PN567
There is a witness who is suggested to be giving proceedings in this matter, a Ms Ferry, do you know her?---Yes, I do.
PN568
Is she an employee of your company?---Yes, she is.
PN569
Was she formerly an employee of Transpacific?---Yes, she is - was.
PN570
To your knowledge was she present at any of the meetings that you had when this question of the transfer of employment was discussed?---Not to my knowledge. I didn't - I don't remember Debbie being at any of those meetings. Debbie - - -
PN571
Can you remember whether she was or she wasn't or do you just not know?---No, she wasn't. She was not there at the meetings that I held on site.
PN572
How many employees were there at Callide of Transpacific that were transferred across?---The manager and I think it was a total of six others at the time.
PN573
All right. And do you recall she was not at those meetings?---No. Debbie was located at Boundary Hill, which is the other side of the mine site. I think it's about 20-odd kilometres away and predominantly worked over there at that time.
PN574
All right, thank you. That's the evidence of this witness.
PN575
THE COMMISSIONER: Ms Gray?
**** GEOFFREY CLARENCE BYRD XN MR HERBERT
PN576
PN577
MS GRAY: Mr Byrd, if I can start where you've just finished which is your meetings. How many meetings do you say you held at Callide in respect of the change from Transpacific to Zappaway Steamit?---Approximately three.
PN578
Three meetings. Do you recall the dates?---No, I don't but I could possibly get that from my diary. I think I've got them recorded in my diary.
PN579
Have you got your diary with you?---No, I haven't, I'm sorry.
PN580
The three meetings, they would have been in what month?---April and May.
PN581
April and May. So some of those meetings in terms of May would have been - at least the May one would have been after that transfer had occurred of employees?---Yes, it was - I visit the site fairly regularly. I would have to go - refer back to a diary to see exactly what dates I was on site.
PN582
Okay. So perhaps one or two meetings prior to the transfer and perhaps one meeting after the transfer?---I believe so, yes.
PN583
And what sort of time of the day did you arrive at the mine site?---I usually arrive in the mornings.
PN584
So your people there work shiftwork?---They do.
PN585
And how many employees? You said seven?---Six. There's the manager, which is Brian Kelly, and at that stage I think there were six - six casual - permanents and - a mixture of permanents and casuals.
**** GEOFFREY CLARENCE BYRD XXN MS GRAY
PN586
Right. So six employees plus the on-site supervisor. And how did you manage to see - you say that you saw all of the other employees but Debbie Ferry?---No, I didn't say that at all.
PN587
Right. How many employees would you have spoken to in those - - - ?---Various numbers.
PN588
As a total of the three meetings?---Various numbers. Most of the meetings were informal meetings. They weren't actual sit down structured agenda type meetings. I had a site manager on there, Brian Kelly. I would arrive on site, go through the process of getting access to the site, which is signing in, and the people, Grant Ingles - Inglis is one person that was at the meeting. Greg Zonka was there, Alice Payne. Cameron, I think his name is, a blond-headed guy. I'd have to - that's a mate of - Cameron - yes, I'd have to have a good hard think of who else but those people I know for certain were at various meetings that we had on site.
PN589
And how did you advise the employees that you would be conducting these meetings?---They were mainly informal meetings sitting around the crib room, which is in the centre of the building, and they were information sessions, effectively; I called them information sessions.
PN590
So they were called off the job on your arrival?---Most the times it was at smoko-time or lunchtime.
PN591
But I guess my point is, there was no prior notice that you would be conducting these information sessions?---Only to the manager on site.
PN592
You refer to a meeting that Mr Penman and Vicki Lurch, was it?---Yes.
PN593
- - - attended. Was that at Callide?---Yes, it was, it was a quarterly review meeting, for whichever quarter we hold.
**** GEOFFREY CLARENCE BYRD XXN MS GRAY
PN594
And did they address the employees about the changeover?---Lex did, I believe, I was at that meeting, I believe he had words about it.
PN595
So that is a, what, total of four meetings held on this?---Directly to this, no. When you say held - can you rephrase that again?
PN596
There were four meetings?---Yes.
PN597
Where the employees were advised that they were being transferred from Transpacific to Zappaway Steamit?---There was four meetings held to advise employees what was happening with the purchase and the buy-out of Gardner Perrott, and the forming of the new company, yes.
PN598
And Debbie Ferry managed to not be able to attend any of those meetings?---No, she didn't attend any of those meetings.
PN599
And she wasn't advised that those meetings were being held?---I would have to ask my manager on site whether he had advised her or not.
PN600
Did the Transpacific send out any information to employees to tell them that they were going to be dismissed and re-employed by a new employer?---There was a note sent out by the chairman of the company to all the managers to go on notice-boards to inform them of the new company, yes.
PN601
And the effect on the employees?---I am not - I can't remember the exact wording of what the letter actually said, whether it actually went into detail about their employment; I just can't remember the wording of the letter, sorry.
PN602
Can you remember if it actually advised people that they would be no longer employed by Transpacific?---No, I can't remember that - exact wording.
**** GEOFFREY CLARENCE BYRD XXN MS GRAY
PN603
Now, Mr Bird, you have got a different recollection as to the words used at the meeting with the CFMEU in relation to enterprise agreement negotiations. In your paragraph 3 and your paragraph 4, paragraph 4 says what Mr Alec Andrews' recollection of that conversation was, and paragraph 3 is your recollection?---Yes.
PN604
And you say that that meeting was held on 31 March?---Yes, I believe that was the date.
PN605
And the new company was formed on 6 March, with the transfers happening sometime in April?---Yes, that is correct.
PN606
So you were aware at that meeting that you were - that Zappaway Steamit Industrial Services Pty Ltd had been registered?---No, I wasn't aware of the actual registration.
PN607
Which had occurred almost a month before?---That is correct.
PN608
And when did you become aware that there was a new employer?---I knew that there was - I knew that we were forming a new company, I knew that the company was going ahead for registration, and I didn't know what the company name was, and at that stage there was a number of names being bandied around, so I didn't actually know the title of the company at this particular meeting, what the name of the company was going to be.
PN609
And you didn't know at this meeting that the company had actually been - - -?---Registered, no.
PN610
- - - registered?---I knew it was in the process of being done, but I didn't know it actually had been completed and finalised.
**** GEOFFREY CLARENCE BYRD XXN MS GRAY
PN611
Okay. So if you knew at this meeting that the process was occurring, that it was imminent?---Yes.
PN612
Not that it had already occurred, but it was imminent, why were you conducting enterprise agreement negotiations on behalf of Transpacific trading as Zappaway Industrial Cleaning with the CFMEU at Callide?---At that point in time my knowledge was that it hadn't been formed yet, therefore I was still trading, as I understood it, as Transpacific, as an employee of Transpacific.
PN613
But I mean, what would be the point of negotiating an agreement if you weren't to be the employer a week, two weeks, or one month down the track?---Regardless, at some point in time, my employment was transferring across; it was then a case of starting negotiations under the new company name.
PN614
So you had intended to continue with those negotiations, but then as Zappaway Steamit - - -?---As an employee of whatever the new company was.
PN615
I have no further questions, thank you, Mr Commissioner.
PN616
THE COMMISSIONER: Thank you. Mr Herbert?
PN617
MR HERBERT: I have no re-examination. Might Mr Bird be excused?
PN618
PN619
MR HERBERT: That is the witness evidence for Transpacific.
PN620
THE COMMISSIONER: Very well, thank you. Ms Gray?
PN621
MS GRAY: Thank you, Mr Commissioner. We would seek to call Mr Steve Pierce.
PN622
MR HERBERT: Commissioner, can I say for my part, we have - I have received statements in relation to the interests of Transpacific, from a Ms Ferry and a Mr Andrews, Alec Andrews. I don't require either of them for cross-examination. I don't know about Mr Pierce, I don't know whether his evidence is relevant to my client. I have not heard that, and I have no statement from him, but I don't require either of those witnesses for cross-examination; both of them confirm the evidence given by my client.
PN623
MS GRAY: Mr Pierce's evidence doesn't go to anything in relation to Mr Herbert's client.
PN624
THE COMMISSIONER: Very well, thank you.
PN625
MR POLLARD: Perhaps it might assist, Commissioner, I don't actually intend to ask any questions in cross-examination of Mr Pierce at all.
PN626
THE COMMISSIONER: Well, that means he can catch his plane.
PN627
MS GRAY: Mr Commissioner, we would like to call Mr Pierce, have him confirm his evidence, ask him a couple of additional questions, and have the witness statement marked, so I call Mr Pierce.
PN628
PN629
MS GRAY: Mr Pierce, have you prepared a witness statement for this matter?---I have.
PN630
Do you have a copy of it with you?---I do.
PN631
And do you confirm that your name is Steve Pierce of 2 Kellaway Street, Dysart in the state of Queensland?---That's correct.
PN632
And that you are a Queensland District Vice President for the Mining and Energy Division of the CFMEU?---That's correct.
PN633
Mr Pierce, are there any corrections that you need to make to your witness statement?---Yes. The - in the area of where I work, Collinsville Open-Cut Coal Mine as an auto-electrician carrying out maintenance there on a contract basis.
PN634
And so you weren't employed by the mine site operator?---Not directly by the mine, no.
PN635
Who were you employed by?---Bowen Earthmoving and Haulage.
PN636
And did you receive terms and conditions under the Coal Mining Industry Award?---Mine site rates of pay and conditions.
PN637
Are there any other changes you need to make?---Not that I'm aware of.
PN638
THE COMMISSIONER: Well, just before you go on, is there a change - is that a change to the statement? The statement doesn't actually - this is in paragraph 2 - doesn't identify who might have been your employer at Collinsville. It just says that you worked at the Collinsville Open-Cut for two years. Is that clarification, or an actual change.
**** STEVE PIERCE XN MS GRAY
PN639
MS GRAY: It's clarification. It doesn't need - require a change to the document.
PN640
THE COMMISSIONER: Very well.
PN641
MS GRAY: Thank you, Mr Commissioner. We seek to have that statement of Steve Pierce marked as an exhibit, Mr Commissioner, and I'm just trying to recall how many CFMEU exhibits have been in this case.
PN642
THE COMMISSIONER: Well, what I might do is - - -
PN643
MS GRAY: Start a new lot.
PN644
THE COMMISSIONER: - - - as it were, start a new series, and this will be exhibit CFMEUQ1.
PN645
MS GRAY: Thank you, Mr Commissioner.
PN646
Mr Pierce, we've heard from Mr Powell in his evidence today that you attended a meeting at Dysart?---That's correct.
**** STEVE PIERCE XN MS GRAY
PN647
Can you outline for the Commission your recollection of that meeting, and what occurred?---Yes. I was contacted in the middle of the afternoon by some of the ladies who are our members, asking me to attend the meeting because they believed that there was going to be an agreement put to them, and they were unsure of what the process was going to be, and sought my attendance for their representation. I went to that meeting at the Dysart Aussie rules ground that afternoon, I think about approximately 4 o'clock. There was some discussion with Mr Powell with regards to my attendance, which was resolved. There was some discussion initially with the ladies with regards to use of chemicals, of which I didn't attend that part of the meeting. There was then a presentation to the employees of a certified agreement. There was - a lady made the presentation. She indicated to our members and the others that were present that there were no copies there for them, but she would read out the changes from the previous agreement. And there were some gentlemen there that were involved in the dragline cleaning, and it was indicated to them that the agreement didn't really have anything to cover them, but they would vote on it afterwards. And then the new areas were outlined in the document and people were asked for discussion on it. I raised concerns that everybody did not have a document, that it appeared that there were some areas missing out of the document, and that I believed that the process being followed was not a correct one, and that people should have had the document for 14 days before they were asked to vote on it. There was, I believe it was Mr Powell, then indicated to the ladies that he would make some copies of the documents the next day and get them copies of it. But there was a requirement to have them vote on it - and that was on a Monday - I think it was by the - that Wednesday or the following Wednesday, to be able to have all of the information down to Brisbane to have the document registered.
PN648
Do you recall what date it was that you attended that meeting?---24 June, I think it was.
PN649
2002?---That's correct.
PN650
Mr Pierce, in the witness statement that's being tendered in these proceedings by the union in respect of Mr Keynes, there's reference to Mr Powell having said to Achieve workers at Callide that the CFMEU had been pressuring Achieve workers at the northern mines, the BHP mines. Now, that's your area of responsibility, the BHP northern mines, isn't it?---That's right.
**** STEVE PIERCE XN MS GRAY
PN651
So were you aware of any pressure being put by the union, yourself or any other union official, on Achieve workers?---No. My understanding is the only contact we have had with them is when they've come to see us to seek clarification or information on issues.
PN652
But has the company accepted that people have chosen to become CFMEU members at these mine sites?---From the discussion I've had with some of the ladies and the correspondence I've seen, no.
PN653
And what correspondence? Well, can you give any examples?---There is a letter that was distributed to the employees up on the Bowen basin. I believe it was from a legal - legal representatives that Mr Powell sent out, saying that the CFMEU did not have the coverage of those employees.
PN654
And that was given to the Achieve workers by Mr Powell, was it?---I'm no aware if he gave it to them directly, but it was presented to all of the employees. A copy was presented to them all.
PN655
Mr Pierce, on page 4 of your statement at paragraph 8, you've outlined the nature of the work being done by the Achieve workers at the BHP sites. Now, can you briefly describe the conditions under which that work is being done?---Basically, it's coal mining conditions. The crib huts would be, depending on the weather, would depend on how difficult they are to clean. The dry spell we're having at the moment, most of them can probably be probably just be swept and mopped. When there is excessive water around, or when the water truck drivers go a bit rank, there have been times when - when we've seen the necessity to use shovels to lift the dirt off the floors before they're swept and mopped. The bath houses, because of a lack of compliance by both members and management, there is no clean and dirty end, and we have - we have people, particularly from the preparation plant areas, using those, coming up with work boots covered not only with coal dust and mud, but with flocculant, which is a frothing agent, which tends to get a very slippery consistency when it gets wet which takes a deal of cleaning to get off. Similarly with all of the mobile crib huts, when they're only cleaned once in a 24 hour period, if it is wet weather, or there's a fair bit of water around, particularly the pre-strip ones, which are basically only set out on a clay pad, then they can be very difficult to clean.
**** STEVE PIERCE XN MS GRAY
PN656
And you made mention when you were giving your evidence about the meeting on 24 June that you attended that Mr Powell addressed on the agreement, that he had said to some of the blokes who clean the drag line, there was nothing in the agreement for them, but they needed to vote on it anyway. Were they Achieve workers?---Mr Powell didn't actually say it to them. It was the lady that was addressing the meeting.
PN657
I'm sorry. Yes?---I'm not sure whether they were Achieve workers or not. But they were all there with the rest of the people that carry out the cleaning at Seraji and Norwich Park, so I imagine they were employed by one of the companies.
PN658
Are there - but the companies, you're talking then about the labour hire companies?---Yes, that I became aware of after we raised the issue of Achieve not following what we believed was the process for carrying out the ballot procedure on enterprise agreements.
PN659
But leaving aside the issue of who may or may not be the employing entity, whether a labour hire company or Achieve, were these people who were doing the drag line work doing the work - the Achieve work?---Yes.
PN660
No further questions for Mr Pierce, thank you, Mr Commissioner.
PN661
THE COMMISSIONER: Is there any cross-examination arising?
PN662
MR HERBERT: Not by me, sir.
PN663
MR POLLARD: No, Commissioner.
PN664
PN665
THE COMMISSIONER: Ms Gray, were you - was there any further evidence to be lead from either Ms Ferry or Mr Andrews?
PN666
MS GRAY: Yes, there is a small amount of additional evidence, Mr Commissioner. There isn't additional evidence in respect to Mr Andrews - there's a correction to make, but there is some additional evidence from Deborah Ferry.
PN667
THE COMMISSIONER: Very well.
PN668
PN669
MS GRAY: Is it Ms or Mrs?---Mrs.
PN670
Mrs Ferry, is your full name Deborah Elaine Ferry and your address, Lot 5, Dawson Highway, Biloela, in the state of Queensland?---Yes, it is.
PN671
Have you prepared a statement for these proceedings?---Yes, I have.
PN672
Do you have a copy of it with you?---Yes, I have.
PN673
Are there any corrections that you need to make to that?---Yes, I do. On 8 and 13, it was a date, 1 December - October, sorry - not 10 October.
PN674
THE COMMISSIONER: I'm sorry - the correction was?---1 October - - -
PN675
Very well. Thank you?--- - - - not 10th.
PN676
MS GRAY: And that's also in paragraph 13, the change from - - -?---Yes, it is.
PN677
- - - 10 October to the 1st? And the rest of the statement is true and correct?---Yes.
PN678
We would seek to have that marked as an exhibit, thank you, Mr Commissioner.
PN679
**** DEBORAH ELAINE FERRY XN MS GRAY
PN680
MS GRAY: Now, you've said in paragraph 4, Mrs Ferry, that you were employed as a leading hand cleaner at Callide doing the Achieve cleaning work?---Yes.
PN681
How were you employed? How did you - - -?---By Mr Powell.
PN682
How did you come to be employed there?---Through cleaners that worked for Mr Powell - for Achieve.
PN683
What, they told you about the position?---Yes.
PN684
And what did you do then?---I - - -
PN685
When you heard about the position?---I left my phone number and he got in contact with me.
PN686
You left your phone number with one of the cleaners at - - -?---Yes.
PN687
- - - Callide doing the Achieve work?---Yes.
PN688
Mr Powell then contacted you?---Yes.
PN689
And what happened then?---I had a meeting with him at the mine site - outside the administration building, in the car-park.
PN690
So you went out to the mine site and met with Mr Powell in the car-park and what was the interview process?---He asked me a little bit about myself - basically said that he'd heard that I was a good cleaner and I was to start work in January - I think 4 January I started.
**** DEBORAH ELAINE FERRY XN MS GRAY
PN691
Did you start as a leading hand?---No.
PN692
When were you made a leading hand?---Approximately - probably four to six weeks - not straight away.
PN693
After you started?---Not straight away.
PN694
Now, are you sure that you didn't answer an advertisement from a labour hire company?---I'm positive.
PN695
Did you fill out and hand in an application form for the position?---Not to my knowledge.
PN696
So it was a verbal discussion with Mr Powell who, when he heard what experience you had, - - -?---Yes.
PN697
- - - took you on?---Yes.
PN698
When you were leading hand, did you have any responsibilities for supplies and equipment?---Yes, I did.
PN699
And ordering of supplies?---Yes.
PN700
And they were done to Mr Powell?---Yes.
PN701
When the supplies that were ordered were delivered, where did they come from?---From John Powell, from Achieve.
**** DEBORAH ELAINE FERRY XN MS GRAY
PN702
In April and May of this year, were you working predominately over at Boundary Hill?---Callide.
PN703
Callide. Were you - - -
PN704
THE COMMISSIONER: Was the - sorry. Is the answer to that, no, you weren't at Boundary Hill?---Sorry, could you say that again?
PN705
MS GRAY: In April and May - - -?---Yes.
PN706
- - - of this year, were you mainly working at Boundary Hill?---Yes, I was.
PN707
Did you have daily or regular contact with your on-site supervisor?---No, I didn't.
PN708
How often would you have spoken to him?---Once a week, for safety meetings.
PN709
And at those safety meetings, were you advised that upper management of Achieve would be - I'm sorry, that Transpacific would be coming out to the mine site to discuss the changeover of your employment?---No, I didn't.
PN710
Were there any - do you have a notice board?---Yes, I do.
PN711
Were there any notices up over that period of time advising that Mr Penman and also Mr Bird would be attending the site to address the employees about the changes to the company - - -?---No.
PN712
- - - Transpacific?---No.
**** DEBORAH ELAINE FERRY XN MS GRAY
PN713
Did you receive anything in the mail - - -?---No, I didn't.
PN714
- - - from Transpacific?---No.
PN715
Were you advised you were a permanent employee at this stage?---Yes, I was.
PN716
Did you receive any pay out of annual leave?---No, I didn't.
PN717
Did you receive any notification that you had been dismissed by Transpacific and re-employed by - - -?---No, I didn't.
PN718
- - - Zappaway Steamit? Do you have any contact with any of the other Transpacific and Zappaway Steamit employees at Callide?---Yes, I do.
PN719
Has anyone mentioned to you that there were meetings of management to advise employees at the changeover?---No.
PN720
When you commenced working for Transpacific, did you sign a letter of offer or employment agreement with Transpacific trading as Zappaway Industrial Cleaning?---Sorry. Can you do that again?
PN721
When you commenced employment with Transpacific trading as Zappaway Industrial Cleaning, did you sign a letter of offer or employment agreement?---Only when I became permanent.
PN722
And you became permanent when?---February this year.
PN723
Okay. So at that stage you signed an employment agreement - - -?---Yes, I did.
**** DEBORAH ELAINE FERRY XN MS GRAY
PN724
- - - or something of that sort? Have you signed a similar document with Zappaway Steamit?---No, I haven't.
PN725
Is there any signage up around Callide in respect to Transpacific, Zappaway or Zappaway Steamit?---There is on the office. We call it an office; it's a shed that we call our own. It has Zappaway on the shed.
PN726
And has that been changed to Zappaway Steamit?---Not to my knowledge.
PN727
Are there any forms still being used in your work since April of this year that have Zappaway Industrial Cleaning on them?---Yes, there is.
PN728
And what form would that be?---We have a log for an ambulance clean at work. And we fill it out if we clean the exterior or interior of an ambulance and that's still there.
PN729
And it's still being utilised?---Yes.
PN730
When was the last time you filled in that log roughly?---About the sixth month.
PN731
I'd like you to have a look at a document, if you would. Could you identify that document for us, please, Mrs Ferry?---Yes. This document here is - when we fill out our timesheets, every cleaning area that we have on the site goes under these areas here.
PN732
So that's an exhaustive list of the areas of cleaning?---Yes.
PN733
That you do in relation - for your Zappaway work?---Yes.
**** DEBORAH ELAINE FERRY XN MS GRAY
PN734
I seek to tender a copy of that, thank you, Mr Commissioner.
PN735
THE COMMISSIONER: I'll mark that as exhibit CFMEUQ3.
EXHIBIT #CFMEUQ3 COPY OF EXHAUSTIVE LIST OF THE AREAS OF CLEANING
PN736
MS GRAY: I'd like you to have a look at another document if you would. Can you identify that?---Yes, I can.
PN737
What is it?---It is certifications that we have on the mine site of anything that we have been trained or we can use on the mine site.
PN738
And who is Gregory Zonka?---He's a fellow employee.
PN739
A fellow employee of Transpacific and perhaps Zappaway Steamit?---Yes.
PN740
MR HERBERT: Commissioner, I object to that evidence being put in that way. The witness being told that some person is a employee of Transpacific and the witness adopting in that way. Apart from being leading, nothing was put to Mr Bird who gave evidence about who were employees of whom; that Mr Zonka was in fact an employee of - Mr Zonka was an employee of Transpacific was not put to him. It's now being put to this witness for the purposes of adoption, and in case some reliance might be placed on it later, I should object to that evidence being received.
PN741
MS GRAY: Well, I'll rephrase that, Mr Commissioner.
**** DEBORAH ELAINE FERRY XN MS GRAY
PN742
I'll say, was Mr Zonka an employee of Transpacific trading as Zappaway? In other words, was he employed prior to April of this year?---He definitely was.
PN743
And was he employed at Callide mine site subsequent to that?---
PN744
Is he still employed there?---Yes, he is.
PN745
And I'd seek to tender a copy of that, thank you, Mr Commissioner.
PN746
THE COMMISSIONER: I'll mark that as exhibit CFMEUQ4.
EXHIBIT CFMEUQ4 CERTIFICATIONS
PN747
MR HERBERT: Could I register a notional objection to this, Commissioner. It's completely irrelevant to the question we're here to decide. It has nothing to do with the question as to whether any of these people are employed by my client.
PN748
MS GRAY: No, I don't think that's the case, Mr Commissioner. What we have on this is in the employee's identification, "Employer name, Zappaway". We think that's relevant and we'd be demonstrating the relevance of that in our subsequent submissions. I mean essentially what we are saying, Mr - - -
PN749
MR HERBERT: Commissioner, that's the first word in the name of his employer. Zappaway Steamit Industrial Services; it's the name of the company. I'm not sure what - if that is what the evidence is, then we're all really here wasting our time but with respect, Commissioner, it doesn't go to anything. None of this material was put to the witnesses. I've called witnesses from both companies and none of this was put to them for their comment. It's
**** DEBORAH ELAINE FERRY XN MS GRAY
really quite unfair to proceed with it in this way and ask that inferences be drawn from material that has not been put to the company witnesses. We've produced them all and they've not been given an opportunity to comment on any of this material. I object to this being done.
PN750
MS GRAY: We'd be more than happy for those witnesses to be recalled for that purpose if that would address Mr Herbert's concerns, Mr Commissioner.
PN751
MR HERBERT: Well, that - - -
PN752
MS GRAY: No difficulty. I understand they're all still here in the room.
PN753
MR HERBERT: Commissioner, that's no answer; that's no answer to the objection. The material wasn't put and now it's being adduced, and on the face of it is completely irrelevant to the question. Could I say this, Commissioner? In addition to that, Mr Penman and Mr Bird, each of - and Mr Sparks all said, "There are no employees of Transpacific employed at this mine site. There was a sale of the business; they've transferred the employees; it's all done and dusted." They weren't challenged on one iota of that evidence: not a suggestion that what they said was wrong and they both said it in terms. They've indicated who is on the board, who are the shareholders. They're two different companies.
PN754
On the face of the material, they have different ABN numbers, they're different corporate entities and none of that was challenged in any way, shape or form in cross-examination. We've produced them. And now this seems to be a suggestion that by producing a couple of pieces of paper that don't appear to say anything other than name Zappaway as being the employer, that they're relevant to some issue. Frankly, I'm not sure what the issue is, given that none of the evidence that has been given has been challenged. It's all uncontroverted. Nothing was put to those witnesses about any of those issues that might indicate that there is any dispute about their evidence. Commissioner, there's - I'll object to any further material of this kind being put in this way, if there is to be any more. But I certainly object to that material being put forward now as being completely irrelevant.
PN755
MS GRAY: Mr Commissioner, as we said in our outline of submissions in this case, what we say is that Transpacific either continues to employ the Zappaway workers at Callide or it effectively can control the reaction of the new employer, Zappaway Steamit, to the log of claims served on them. And in that way, we say that we will be seeking and we're pressing for a dispute finding against Transpacific because of its corporate relationship to Zappaway Steamit or because of its direct employment relationship with our members at Callide.
PN756
And we say, Mr Commissioner, that although it is an unusual course for a non-employer to be made party to a dispute, it certainly isn't unique, that it has been done on certain occasions in the past, that we would be seeking the dispute finding, that these employees, we say, had no knowledge of any transfer, if it in fact occurred, and the company's evidence is that it did, that the relationship between Transpacific and Zappaway Steamit is such that a dispute should be found to which Transpacific is a party because of its relationship in terms of control of the employees on site and because of its corporate relationship with Zappaway Steamit.
PN757
And we see that this evidence that Mr Herbert is objecting to, is perhaps beyond that very narrow point. The one that relates to the training of Mr Gregory Zonka, we say is supportive of our argument that the employees were unaware that there were - any transfer occurred of their employment, and the use of the word Zappaway in both the old employer's name and the new employer's name, if in fact there was a transfer of employment, was there to ensure that employees had that misconception or lack of knowledge about the change in their status.
PN758
In terms of the other one, Mr Commissioner, we have tried to answer some of the, not only the very limited points that Zappaway - that Transpacific has raised in this matter, but also anticipating that there is an argument that they are not doing work in the coal mining industry, so having Mrs Ferry here to give evidence, we felt it was important, at least in a background sense, for the Commission to be aware of the nature of the work that was being done in terms of finding a dispute in the coal mining - relating to the coal mining industry. That's really all I can say about that, Mr Commissioner.
PN759
MR HERBERT: Commissioner, I can say something about a lot of what was just said in terms of the overall thrust of these proceedings but it's not really germane to the objection; it might be quicker for me to say nothing about any of that, and we'll get to the end of this quicker.
PN760
THE COMMISSIONER: Where did this start again?
**** DEBORAH ELAINE FERRY XN MS GRAY
PN761
MR HERBERT: Commissioner, it started with me objecting to this material being irrelevant to the question to be decided, and the question we're asking you to determine is: does Transpacific have any employees relevant to these proceedings, namely, persons who are engaged at Callide, and this is material being produced to show what the employees of Zappaway Steamit Industrial Services do. It's not relevant to the question of whether they are employees of Transpacific. The names - in the first exhibit, I'm sorry, I didn't get the number but the one which is the standing work orders, it's actually got Zappaway Steamit at the top of it.
PN762
That's not my client's name and never has been a trading name of my client. It's the name of the new employer, on the top of the work order, so I didn't object to that, because that actually proves my case, but the next one just went out into the - well out into the pale because it deals with the qualifications held by one of Zappaway Steamit's employees. It says nothing at all about the question of whether he's an employee of Transpacific; it says what qualifications he has. Now that's just getting into the wild blue yonder in terms of relevance to the proceedings which is why I objected to that point.
PN763
We're heading off into a case of what it is that Zappaway Steamit's employees do which is the next case we'll have when Zappaway Steamit's dispute finding comes before you - well, not you perhaps, but before this Commission but that's another case for another day. We're really trying to determine the question of whether they're employees of Transpacific and if not, that's the end of the case, but this has nothing to do with that, and that's what my objection was about.
PN764
THE COMMISSIONER: Ms Gray, what was the purpose of this document?
PN765
MS GRAY: The purpose of it was, Mr Commissioner, to show that there was, on official company documentation, the word Zappaway used, rather than Zappaway Steamit or Transpacific trading as Zappaway Industrial Cleaning. It was simply called Zappaway, that that is consistent with the thrust of our evidence that people didn't even know that they were being transferred if in fact they were, from one employer to another, and the use of the common word Zappaway is indicative of that.
**** DEBORAH ELAINE FERRY XN MS GRAY
PN766
MR HERBERT: Commissioner, can I add a further ground of objection having heard that. How could this witness know what Mr Zonka knew or thought in relation to the transfer of his employment. The evidence has been given: he was at the meetings where this was discussed, so putting Mr Zonka's document in, this witness isn't privy to this document as I understand it. She's been handed it by the union. This is not the witness's document. I mean, it's some personal details of Mr Zonka who is another employee. How can this witness possibly say anything about what that means about anybody.
PN767
Mr Zonka might say, because I understand it him having been at the meetings, he'll say something quite different than what's been put, so it can't be identified by this witness as anything can't be proved through this witness for any reason. So I'd add that to my grounds for objection.
PN768
THE COMMISSIONER: I'm going to uphold the objection. Ms Gray.
PN769
MS GRAY: We have no further questions of Mrs Ferry, thank you, Mr Commissioner.
PN770
PN771
MR HERBERT: Very quickly, just a couple of things related from that new evidence.
PN772
Mrs Ferry, attached to your statement, you have copies of pay slips?---Yes, I do.
PN773
Your pay slips, February/March, were in the name of Transpacific Industries Pty Ltd, as your employer; is that right?---Yes, they were.
**** DEBORAH ELAINE FERRY XXN MR HERBERT
PN774
The next one that you produced is in September and the employer is listed as Zappaway Steamit Industrial Services?---Yes.
PN775
Is that right. It's not just the name though, there's an ABN number next to it; is that right, and were you aware the ABN number is part of the name of the company?---No, I'm not. No.
PN776
They are different numbers, aren't they? When did it change from Transpacific Industries Pty Ltd to Zappaway Steamit Industrial Services, do you recall?---No, I don't.
PN777
Did you care?---I did.
PN778
Why?---I like to know who I'm working for.
PN779
I see. And did anything change in relation to your remuneration?---Could you explain that?
PN780
Yes. Did you get any more or less money when the changeover occurred?---Not that I'm aware of.
PN781
Did your pay accruals keep - I'm sorry, your leave accruals keep accruing?---Yes, they did.
PN782
You see, in the February one there that you have it's - you've got point 6 days as at 15 February. You must have just taken leave, did you, or had you just come on board in February as a permanent?---In February I was just permanent then.
**** DEBORAH ELAINE FERRY XXN MR HERBERT
PN783
You had just started. So you had point 6 of a day. By September you had accrued 11.11 days?---Yes.
PN784
So that you were accruing throughout the whole of that period from February to September continuously, would that be right?---Yes.
PN785
And there was no break - no payment out and re-setting of a clock with your leave accruals, was there?---No.
PN786
I see. And other than liking to know who you work for did you have any other concern about being employed by Zappaway Steamit Industrial Services Pty Ltd as opposed to Transpacific Industries Pty Ltd?---Could you rephrase that?
PN787
Yes. Other than liking to know who you're working for do you have any other concerns about your employment being transferred from one company to the other?---Only any changes that would mean - for us as employees, yes.
PN788
Yes, but there were no changes, were there?---No, there wasn't.
PN789
The management came across with you, didn't they?---I beg your pardon?
PN790
The management that you were aware of - the people you reported to - - - ?---Yes.
PN791
- - - they were all transferred across as well?---I'm not sure of that side of things.
PN792
You didn't - well, you were still reporting to the same people?---Yes.
**** DEBORAH ELAINE FERRY XXN MR HERBERT
PN793
And you were still seeing the same supervisory people. They all went across lock, stock and barrel with yourself?---Yes.
PN794
You understand that. When did you first become aware that you were employed by Zappaway Steamit? When do you recall that you became aware that you were employed by Zappaway Steamit Industrial Services Pty Ltd?---I got two taxation declarations from different companies.
PN795
You got two group certificates?---Yes.
PN796
One from Transpacific and one from Zappaway Steamit?---Yes.
PN797
To show that you had been employed by two companies during that financial year?---Yes.
PN798
And that was in about June/July at the end of the tax year?---June.
PN799
June. Did you bring this up with anybody from the company saying, "What's going on here"?---Yes, I did.
PN800
Yes. And what - who did you bring it up with?---A fellow worker.
PN801
Nobody with either - no senior person with either of the companies?---No, I didn't.
PN802
Did you complain - - - ?---No, I didn't.
PN803
- - - to anybody. Were you upset in any way?---No.
**** DEBORAH ELAINE FERRY XXN MR HERBERT
PN804
Thank you. I have nothing further, thank you.
PN805
THE COMMISSIONER: Very well, thank you. Any re-examination, Ms Gray?
PN806
MS GRAY: No, thank you, Mr Commissioner.
PN807
THE COMMISSIONER: All right, thank you.
PN808
MR POLLARD: Excuse me, Commissioner, may I just ask some questions - a few questions?
PN809
MR POLLARD: Ms Ferry, you indicated that you can't recall, is that correct, signing an application form or filling out an application form to work for Power Maintenance?---Yes, that's correct.
PN810
You can't recall? Thank you. On the pay-slips that you've provided in your evidence for Power Maintenance there's some handwriting on those pay-slips. The first one at the top says, "Achieve Cleaning Office Cleaning". The one below that says just "Achieve Cleaning". Can you tell me who wrote that?---Can I have a look at it, please? Or have we got it in here?
PN811
It should be within your - within your statement but I have a copy here if you want it?---I wrote that.
PN812
When - can you tell me when did you write that? Is that recent or - - - ?---Yes, it was. I don't have a date but it was recent.
**** DEBORAH ELAINE FERRY XXN MR POLLARD
PN813
Okay, thank you. I have no further questions.
PN814
MS GRAY: Nothing in re-examination, thank you, Mr Commissioner.
PN815
PN816
MS GRAY: Mr Commissioner, that leaves us with our next witness, Mr Lance Keynes.
PN817
MS GRAY: Mr Keynes, is your full name Lance Geoffrey Keynes and your address 21 Lake Callide Drive, Biloela?---Yes.
PN818
Have you prepared a witness statement in these proceedings?---Yes.
PN819
Do you have a copy of it with you?---Yes.
PN820
Is it true and correct in all regards?---Yes.
PN821
We would seek to have that marked, thank you, Mr Commissioner.
PN822
THE COMMISSIONER: Mr Keynes' statement will be marked as exhibit CFMEUQ3 - 4, I'm sorry.
PN823
PN824
MS GRAY: Mr Keynes, can you outline the supervision structure of the Achieve workers at Callide?---Yes. John Powell is recognised as manager - our manager and his work instructions will come to me normally through a on-site leading hand or occasionally direct to me from John.
PN825
And do you wear a uniform?---Yes, we have - we have protective clothing. A shirt, King Gee shirt with Achieve Services on one pocket and our name on the other.
**** LANCE GEOFFREY KEYNES XN MS GRAY
PN826
Now, what has happened to your time-sheets over the time that you have worked - done the Achieve work at Callide?---Well, initially my time-sheets - because I work - tend to work day work and the others work at night the supervisor - leading hand tends to work an earlier shift than me. I was posting them or faxing them to Brisbane but since - since then they're done through the leading hand and on a couple of occasions directly from myself to John.
PN827
When you were first employed could you please outline how that occurred; first employed to do the Achieve work?---Yes. Word came to me via a - a storeman at Callide that John Powell from Achieve was looking for someone to do his - or do the gardening yard maintenance at Callide and through that made contact with John and from memory it was a Sunday or a Public Holiday and John was on site and I went in and did a couple of hours work with John and from there I - I got my job and have worked since.
PN828
Now, are you sure that you didn't answer an advertisement from a labour hire company about this position?---No. My - my contact was - work came through the storeman.
PN829
Now, you've mentioned in your witness statements some concerns about victimisation. Have you suffered any diminution of your treatment in your Achieve work since you started to become involved in this case?---The only thing that comes to mind is that we have a weekend style roster to cover bathhouse and other essential cleanings on weekends and this last month - actually last weekend through for the next four, five weeks and my name was not on the list. I haven't been faced with whether there's a shortage and someone doesn't turn up and I get a call but my name was not on the list that went on the noticeboard.
PN830
And it has been previously?---Yes.
PN831
I have no further questions for this witness, thank you, Mr Commissioner.
**** LANCE GEOFFREY KEYNES XN MS GRAY
PN832
THE COMMISSIONER: Very well, thank you.
PN833
MR POLLARD: Commissioner, I have no questions.
PN834
THE COMMISSIONER: Thank you.
PN835
MR HERBERT: Commissioner, I should say I have no questions. I don't have the statement and I understand this matter doesn't relate to my client or this evidence doesn't relate to my client.
PN836
PN837
THE COMMISSIONER: Ms Gray?
PN838
MS GRAY: We would like to call our last witness, thank you, Mr Commissioner, Mr Alec Andrews.
PN839
MS GRAY: Mr Andrews, is your name Alec Andrews and your address 7 B-a-u-e-r-l-e Court, Biloela?---Bauerle Court, yes, it is.
PN840
I think I've forgotten my Queensland vocabulary in the last few years. Have you prepared a statement for these proceedings, Mr Andrews?---Yes, I have.
PN841
And do you have a copy of it with you?---I certainly do.
PN842
Is it true and correct - are there any corrections that you would like to make to that statement?---Yes, there is one addition to clause 12 where - - -
PN843
And what is that addition?---After the first sentence where it says "I represented the union" it was "I, with Jim Lambley" who is our District Vice President out at Emerald.
PN844
So you would like to insert the words after "I", "with Jim Lambley represented the union"?---That's correct.
PN845
Could we have that change made, thank you, Mr Commissioner.
PN846
Now, with that addition, Mr Andrews, I notice - your paragraph 12 makes reference to - essentially following the disputes procedure that after that meeting you would then move up to district level but, in fact, at that meeting you had a district official in attendance?---That's - - -
PN847
Can you explain that?---That's correct. I asked our Vice President Jim Lambley to come along to that meeting as a - as an observer. At that stage we hadn't had discussions with Zappaway, namely Geoff Byrd. I - I asked that he come along to be an observer at that meeting prior to - in the hope that we could resolve some of the issues of the - our members at Callide.
**** ALEC ANDREWS XN MS GRAY
PN848
I have no further questions, thank you, Mr Commissioner.
PN849
THE COMMISSIONER: Very well, thank you.
PN850
MR HERBERT: I have no questions.
PN851
MR POLLARD: I have no questions, thank you, Commissioner.
PN852
PN853
THE COMMISSIONER: I will mark Mr Andrews' statement as exhibit CFMEUQ5.
PN854
MS GRAY: That's the end of the union's evidence, Mr Commissioner, other than I would seek to tender a copy of the Achieve Employee Manual which was referred to in the evidence of Mr Keynes and also Mr Powell.
PN855
THE COMMISSIONER: I will mark Ms Gray's exhibit CFMEUQ6.
PN856
MS GRAY: And we would also seek, at this stage, to tender a copy of historical searches which relate to the corporate entities involved in these matters, Mr Commissioner. There is one bundle which contains historical searches of Achieve and the three sub-contractors or labour hire companies that Achieve uses and there is another bundle which covers Transpacific Industries and Transpacific Steamit and the companies involved in that group.
PN857
THE COMMISSIONER: I'll mark those two exhibits in the order they were handed up as exhibit CFMEUQ7 and CFMEUQ8, respectively.
EXHIBIT #CFMEUQ7 HISTORICAL SEARCHES OF ACHIEVE AND THREE LABOUR HIRE COMPANIES
EXHIBIT #CFMEUQ8 HISTORICAL SEARCHES OF TRANSPACIFIC INDUSTRIES AND TRANSPACIFIC STEAMIT
PN858
MS GRAY: Mr Commissioner, what we would seek to have occur now is that CFMEU and the LHMU have had initial discussion about an area of common interest in these matters. That was done both at a branch and national level earlier this week. There are further discussions to be held between the unions and the position of our executives were that once the evidence had been taken in this case, that we would seek an adjournment in the Achieve matter so that the unions could have further meetings and then to advise the Commission through your Associate, Mr Commissioner, of when we would like the matter brought back on for programming of submissions.
PN859
In terms of Transpacific, what we would seek occur for that matter, Mr Commissioner, would be that the matter be concluded by written submissions in a reasonable time-frame of the Commission's choosing. We don't seek to have any break or adjournment in that case, only that it be concluded by written submissions.
PN860
THE COMMISSIONER: Very well. Thank you. I take it you don't have any objection to that course, Mr Herbert?
PN861
MR HERBERT: No. If - us having, as it were, put our cards on the table in relation to this issue, my only contention would be that the CFMEU should explain why it is that a dispute should be found so they - if they provide us with a written submission first and I can respond to that.
PN862
MS GRAY: Well, we've got no difficulty with doing it that way. I think that makes a lot of sense, Mr Commissioner.
PN863
MR HERBERT: I think it should be a fairly short exercise.
PN864
THE COMMISSIONER: How long would you like?
PN865
MS GRAY: I think - it would probably be helpful to have the transcript, Mr Commissioner, so three weeks?
PN866
THE COMMISSIONER: That would take us to the end of November. Mr Herbert, how - - -
PN867
MR HERBERT: Just to allow for - I know I'm out of town a fair bit at that point, but if we could have - I wouldn't need any more than two weeks to respond, just in case - I know I have a week in Melbourne, a few days in Mt Isa and some other things on at that point. So it should only take - that's just to allow for me being out of town. It won't be long.
PN868
THE COMMISSIONER: That should take you through until the - - -
PN869
MR HERBERT: Mid-November.
PN870
MS GRAY: Mid-December.
PN871
THE COMMISSIONER: Mid-December.
PN872
MR HERBERT: December, I mean, yes.
PN873
THE COMMISSIONER: 13 December.
PN874
MR HERBERT: I have no difficulty with that, Commissioner.
PN875
THE COMMISSIONER: And a reply, Ms Gray, by the 20th?
PN876
MS GRAY: Yes, that would be quite satisfactory to us, thanks, Mr Commissioner.
PN877
THE COMMISSIONER: Very well. Thank you. Well, that of course is acceptable to the Commission. I will issue directions in writing to that effect and issue them to the parties. They should issue next Monday. That takes us to you, Mr Pollard. I take it you have no objection to waiting for advice from the unions?
PN878
MR POLLARD: No, Commissioner. It's - I don't entirely understand exactly what they're going to be discussing between themselves, but we don't have any objection to this hanging over for a while. We would like to see an end to it eventually. Whether it's brought back for oral submissions or written submissions, we will wait for a further date to decide that matter.
PN879
THE COMMISSIONER: Well, after the unions have had their discussions, could you, Ms Gray, talk to Mr Pollard and whatever it is, if anything, you might agree might be advised to my Associate. If not - if there's no agreement then you might advise my Associate of that and I'll talk to the parties about how we might proceed in that event. There being nothing further, I'll adjourn the Commission on that basis.
ADJOURNED INDEFINITELY [1.08pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
JOHN WARREN POWELL, SWORN PN304
EXAMINATION-IN-CHIEF BY MR POLLARD PN304
CROSS-EXAMINATION BY MS GRAY PN331
RE-EXAMINATION BY MR POLLARD PN407
WITNESS WITHDREW PN412
GEOFFREY FRANCIS SPARKES, SWORN PN448
EXAMINATION-IN-CHIEF BY MR HERBERT PN448
EXHIBIT #ACHIEVE 1 STATEMENT OF MR POWELL PN449
EXHIBIT #TRANSPACIFIC 1 AFFIDAVIT OF MR G.F. SPARKES DATED 1/10/2002 PN462
EXHIBIT #TRANSPACIFIC 2 STATEMENT OF MR G.F. SPARKES DATED 7/11/2002 PN462
CROSS-EXAMINATION BY MS GRAY PN469
WITNESS WITHDREW PN493
ALEXANDER LEONARD PENMAN, SWORN PN495
EXAMINATION-IN-CHIEF BY MR HERBERT PN495
EXHIBIT #TRANSPACIFIC3 STATEMENT OF ALEXANDER PENMAN DATED 07/11/2002 PN501
CROSS-EXAMINATION BY MS GRAY PN503
RE-EXAMINATION BY MR HERBERT PN528
WITNESS WITHDREW PN539
GEOFFREY CLARENCE BYRD, SWORN PN540
EXAMINATION-IN-CHIEF BY MR HERBERT PN540
EXHIBIT #TRANSPACIFIC 4 STATEMENT OF GEOFFREY CLARENCE BYRD DATED 07/11/2002 PN547
CROSS-EXAMINATION BY MS GRAY PN577
WITNESS WITHDREW PN619
STEVE PIERCE, AFFIRMED PN629
EXAMINATION-IN-CHIEF BY MS GRAY PN629
EXHIBIT #CFMEUQ1 STATEMENT OF STEVE PIERCE PN645
WITNESS WITHDREW PN665
DEBORAH ELAINE FERRY, SWORN PN669
EXAMINATION-IN-CHIEF BY MS GRAY PN669
EXHIBIT #CFMEUQ2 STATEMENT BY DEBORAH ELAINE FERRY PN680
EXHIBIT #CFMEUQ3 COPY OF EXHAUSTIVE LIST OF THE AREAS OF CLEANING PN736
CROSS-EXAMINATION BY MR HERBERT PN771
CROSS-EXAMINATION BY MR POLLARD PN809
WITNESS WITHDREW PN816
LANCE GEOFFREY KEYNES, SWORN PN817
EXAMINATION-IN-CHIEF BY MS GRAY PN817
EXHIBIT #CFMEUQ4 STATEMENT OF LANCE GEOFFREY KEYNES PN824
WITNESS WITHDREW PN837
ALEC ANDREWS, AFFIRMED PN839
EXAMINATION-IN-CHIEF BY MS GRAY PN839
WITNESS WITHDREW PN853
EXHIBIT #CFMEUQ5 STATEMENT OF ALEC ANDREWS PN854
EXHIBIT #CFMEUQ6 COPY OF ACHIEVE EMPLOYEE MANUAL PN856
EXHIBIT #CFMEUQ7 HISTORICAL SEARCHES OF ACHIEVE AND THREE LABOUR HIRE COMPANIES PN858
EXHIBIT #CFMEUQ8 HISTORICAL SEARCHES OF TRANSPACIFIC INDUSTRIES AND TRANSPACIFIC STEAMIT PN858
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