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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N VT10084
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT LACY
C2001/1736
C2002/2936
00758 of 1999
CAR PARKING (VICTORIA) INTERIM
AWARD 1995
Application under section 113 of the Act
by the Australian Liquor Hospitality and
Miscellaneous Workers Union and Another
to vary the above award re hours of work,
rates of pay and Trade Union Training
Leave
Application under section 113 of the Act
by Wilson Car Park and Others to vary the
above award re introduction of facilitative
provisions concerning hours of work, leave
entitlements and machinery provisions into
the award
Review under Item 51, Schedule 5,
Transitional WROLA Act 1996 re conditions
of employment
MELBOURNE
10.13AM, WEDNESDAY, 20 NOVEMBER 2002
Continued from 19.11.02
PN1889
THE SENIOR DEPUTY PRESIDENT: Good Morning. It might be a good idea if we see if we cant get this finished by tomorrow afternoon, otherwise we might be sitting in the basement I am afraid.
PN1890
MS FRENZEL: Well, we were actually contemplating the broom cupboard ourselves. I might indicate at this point in time that arising out of me looking at exhibits last night, I found that LHMU6, I think from memory, be one - sorry, 7, with respect to the history of the Motor Drivers Award, was missing two documents which my assistant kindly put on my desk last night and asked me what I would like to be done with them. So just for the sake of completeness they should go behind the Motor Drivers Award in that exhibit.
PN1891
THE SENIOR DEPUTY PRESIDENT: That is the industry award is it?
PN1892
MS FRENZEL: That is them, yes. And I provided copies - - -
PN1893
THE SENIOR DEPUTY PRESIDENT: Yes, thank you.
PN1894
MS FRENZEL: And I think now, your Honour, that I call Tony - Well, Anthony Duras, but commonly known as Tony Duras.
PN1895
PN1896
MS FRENZEL: Mr Duras, can you please state your full name and address for the record?---Yes. Anthony Michael Duras and the address is 37 Macarym Parade, Essendon.
PN1897
Thank you very much and, Mr Duras, have you prepared a statement of evidence for these proceedings?---Yes, I have.
PN1898
Can I show you this document and ask if that is your statement?---Yes, that is indeed my statement.
PN1899
And, Mr Duras, are there any amendments that are required to be made to your statement?---Yes, this statement states that I am employed by Secure Parking Financial Services. I am no longer an employee of Secure Parking.
PN1900
And when did you leave Secure Parking?---On 7 August this year.
PN1901
And did you resign or were you terminated?---I resigned.
PN1902
Okay. And with respect to your rates of pay, which I think you set out - I am sorry, I will just take you back one more point. With respect to paragraph 12 of your statement where you say you were employed on a casual basis as sales assistant at World Kitchen Factory Outlet, are you still so employed?---Yes, I am.
PN1903
Okay. And with respect to your rates of pay, understanding of course that this statement outlines rates of pay that were prior to the 2002 safety net, can I ask you to look at this photocopy of a pay slip and ask you if it is your pay slip and it reflects rates of pay post the 2002 Safety Net Adjustment?---Yes, that is correct. I believe the date that the changes came through was the first pay period commencing on or after 12 June this year.
**** ANTHONY MICHAEL DURAS XN MS FRENZEL
PN1904
And is your statement true and accurate in every other respect?---Indeed it is, yes.
PN1905
PN1906
THE SENIOR DEPUTY PRESIDENT: Did you wish to tender separately the pay slip?
PN1907
MS FRENZEL: Perhaps we could just append it to the back of LHMU11 with the other pay slips, your Honour.
PN1908
THE SENIOR DEPUTY PRESIDENT: Yes, all right.
PN1909
MS FRENZEL: Now, Mr Duras, if I can firstly take you to your terms of employment or former employment. You say at paragraph 2 that you were a permanent part-time employee?---Yes.
PN1910
And you have attached to your statement the Enterprise Agreement which provides for permanent part-time employment?---Yes, that is correct.
PN1911
And that is found at paragraph - sorry, clause 12.4 on page 9 of that Enterprise Agreement. Can I take you to that provision firstly?---Yes.
PN1912
And can you advise the Commission whether or not the hours of work that you worked were regular and stable hours or did the hours fluctuate?---
**** ANTHONY MICHAEL DURAS XN MS FRENZEL
PN1913
MR O'GRADY: Your Honour, I object at this stage on the basis of relevance. Why would it be relevant or whatever answer comes in response to that question, whether they were regular and stable or whether they fluctuated?
PN1914
THE SENIOR DEPUTY PRESIDENT: Does it go to the question of whether or not it was in fact a casual employment relationship, rather than a part-time one?
PN1915
MR O'GRADY: If it is being suggested that there was some breach of this agreement, then there are of course mechanisms for that to be pursued. In my submission the agreement provides for casual - for part-time employment and defines what that employment or basis of engagement will be. Whether those requirements have been met really doesn't go to, in my submission, whether or not the award variation being sought by the union should be granted. There are of course - - -
PN1916
THE SENIOR DEPUTY PRESIDENT: What about the award variations being sought by the employer in respect of casual employment and part-time employment?
PN1917
MR O'GRADY: It doesn't go to that either, in my submission. If the agreement has been breached it has been breached and there are enforcement mechanisms for that.
PN1918
THE SENIOR DEPUTY PRESIDENT: Well, I don't know that that is what it is about, but I will ask Ms Frenzel. What do you say, Ms Frenzel?
PN1919
MS FRENZEL: I am trying to elicit from the witness, your Honour, whether or not his hours were regular or whether there was some fluctuation of the hours arising out of the evidence of Mr Roach yesterday, where he said in his evidence that although Secure had a provision in their enterprise agreement for part-time employment, it was his evidence that those employees were treated more like casual employees with respect to fluctuating hours as opposed to regular hours and regular rosters. That is where the question comes from.
**** ANTHONY MICHAEL DURAS XN MS FRENZEL
PN1920
THE SENIOR DEPUTY PRESIDENT: And what issue before me is it relevant to?
PN1921
MS FRENZEL: It is relevant to the union's application with respect to regular part-time employment. It is also relevant as your Honour has pointed out to the application by the employer's about their provision for regular part-time employment. And given that this is the only company who doesn't employ part-timers who is currently before the Commission, I would have thought it was a good question to ask the single employee witness who would be happy to work part-time in the industry. I can probably deal with this another way rather than holding up the Commission with arguments about it.
PN1922
THE SENIOR DEPUTY PRESIDENT: Well, I mean I see it as perhaps relevant in that but what do you say, Mr O'Grady? I mean it seems to me that both parties are seeking a part-time employment provision in the award. There is also an issue regarding casual employment in the awards. The pattern of part-time employment in the industry is going to be something of an issue for me, isn't it?
PN1923
MR O'GRADY: I accept that, your Honour, and if it is confined to going to the pattern of part-time engagement then I don't object.
PN1924
THE SENIOR DEPUTY PRESIDENT: Yes, all right. I will allow the questions.
PN1925
MS FRENZEL: Mr Duras, did you work regular hours or did your hours fluctuate?---Well, throughout my employment at Secure Parking, or throughout my employment at Secure Parking I was always classified as a permanent part-time employee. However there was considerable fluctuation during the early hours of my employment at the company.
**** ANTHONY MICHAEL DURAS XN MS FRENZEL
PN1926
And can you explain exactly what that fluctuation was?---During the first six months I was working at a number of car-parks and I would say for at least a three month period I was objectively on-call in that the manager would ring up and say, "You are going to this car-park and you will be working the probably number of hours". There were minimum hours set for my employment of at least 24 hours during that fortnight.
PN1927
Could I ask you this question? Can I ask you to look at paragraph 12.4 - - -
PN1928
THE SENIOR DEPUTY PRESIDENT: Sorry, just before you do that, so that was in the first three months of your employment and then it became more settled after that, did it?---It did. My employment has changed and that has been by mutual consent and in the final six months of my employment it was far more regular.
PN1929
MS FRENZEL: And in these last months of your employment was it 68 hours per fortnight?---Yes, that is correct.
PN1930
And did you work those 68 hours per fortnight on regular days?---Yes, I did.
PN1931
With the same regular hours?---That is correct, yes.
PN1932
And prior to six months before, did you work 68 hours per fortnight?---No, I did not.
PN1933
And for the entirety of the period up to six months before you left your employment, were the changes that were made to your hours processed, for want of a better expression, by consent? In other words, was it by mutual agreement?---
**** ANTHONY MICHAEL DURAS XN MS FRENZEL
PN1934
THE SENIOR DEPUTY PRESIDENT: Well, I think he said that, didn't he? He said that the changes were by agreement.
PN1935
MS FRENZEL: I am just asking if they all were. Were they all by mutual consent?---Generally they were, yes.
PN1936
Okay. Good. You say at paragraph 4 that the duties you performed as a car-parking attendant were operating a cash register and EFTPOS machine, moving and parking vehicles, assisting customers and working with other attendants. Can I ask you with respect to your work, which car-park did you work at?---At the AMP Square Car-park.
PN1937
THE SENIOR DEPUTY PRESIDENT: Sorry, which one was that?---AMP Square.
PN1938
MS FRENZEL: How many spaces did that car-park have?---I would say approximately 450 spots.
PN1939
450. And were you rostered to work day or afternoon shift?---On a Monday I was rostered to work day shift, but the rest of the week I was working an afternoon shift.
PN1940
Okay. And the day shift commenced at what time?---At 8 o'clock.
PN1941
And finished at?---6 o'clock.
PN1942
And the afternoon shift?---At 3 pm.
PN1943
Yes?---And finished at 9 pm.
**** ANTHONY MICHAEL DURAS XN MS FRENZEL
PN1944
Okay. If I could firstly deal with the day shift. How many persons, including yourself, were rostered on to work on the day shift between 8 am and 6 pm?---Principally there is one person who was rostered to work that shift, but the nature of the shifts at the car-park were that one person was rostered from 7 am to 3 pm, another staff member was rostered from 8 am to 6 pm and then, for want of a better word, the afternoon shift commenced at 3 pm and finished at 9 pm.
PN1945
Okay. So I am just unclear about this. How many people would have been rostered to work, say, at 9 am?---There would be two employees.
PN1946
Two employees. And at 7 pm?---There would be one employee.
PN1947
Now you say at paragraphs 5 and 6 that you - you say you have been, but I take it now you were a delegate for the LHMU?---That is correct, yes.
PN1948
And you say that you assumed a number of roles in your role as delegate, and linking in with that, you say at paragraph 10 that you attended various dispute settlement training courses with the union?---That is correct, yes.
PN1949
Can I ask you this? How did your role as union delegate change after you had attended those courses?---The - attending the courses gave me the knowledge and the confidence to assume a greater role, formally in dispute matters, whether it be disciplinary hearings or employee grievances. Generally Mr Oates would have attended as the employees' representative, but following attending the dispute resolution courses, I took over a far greater percentage of this role and attended in a capacity as the employees' representative.
PN1950
Paragraph 7 of your statement you talk about - you say there was an extensive use of casuals in the industry. Can I ask you how you are able to make that statement about the industry generally?---From talking with other car-park attendants, not only at Secure Parking, but also at Kings and Wilson as well.
**** ANTHONY MICHAEL DURAS XN MS FRENZEL
PN1951
Did you talk to any car-parking attendants employed outside of what we call the three majors, being Secure, Kings and Wilsons?---Generally I hadn't, no.
PN1952
Okay. You say at paragraph 9 that through your involvement with the union you have become more aware of the rates and working conditions of other property services employees and you go on to define what you think property services means, and you say - you make the statement that:
PN1953
These industries are not unlike the parking industry in that they are all contract industries.
PN1954
Then you draw a direct correlation with cleaning and security. Can I ask you how you arrived at that conclusion, that the industries are not unlike each other?---Working as a car-park attendant generally brings me into - well, brought me into a great deal of contact with cleaners and particularly with security guards, and generally because at 7.30, 8 o'clock at night, really the only other employees in the building will be - who would come past would be security guards or contract cleaners, and you know generally at that time of night I might talk to them and, you know, discuss, you know, what is happening at work and things like that. So the nature of their employment comes to mind when referring to contract industries.
PN1955
If I could just bring you with the security issue, with respect to the security of the car-park you worked at, AMP Square, are you aware of whether or not there were specialised security staff engaged to patrol and guard the car-park?---As such there wasn't. There were security guards employed in the AMP Square building complex, but generally there was at least one security camera, but there were no security staff employed specifically to patrol the car-park.
PN1956
Okay. And did you have a duress alarm at the AMP Square car-park?---No, we didn't.
[10.37am]
**** ANTHONY MICHAEL DURAS XN MS FRENZEL
PN1957
Now, you refer to your personal circumstances at paragraph 11. Just as a matter of interest, Mr Duras, did you gain new employment which gave rise to your resignation with Secure?---That is correct, yes.
PN1958
And where are you currently employed?---At the Australian Council for Trade Unions.
PN1959
And your capacity there?---Is as a call centre organiser.
PN1960
Now, Mr Duras, you say at paragraph 14 of your statement, the last sentence, you say this:
PN1961
In my view, the increase in the shift and weekend penalties will reflect the proper compensation for working unsocial hours that car park attendants work.
PN1962
How do you define, or how did you arrive at the expression "proper compensation"?---Well, the - I suppose in two separate senses, and at Secure Parking employees are not paid weekend penalty rates and, more widely throughout the car parking industry, the rates for compensation for work on weekends are low. I think that adequate - in the sense of proper compensation would be to bring it in line with other industries and sort of standards as they are generally understood in the community.
PN1963
Now, are you aware that Mr Steinfort who was the operations manager for Secure Parking has filed a witness statement in these proceedings?---Yes, I am.
PN1964
And have you read a copy of that statement?---Yes, I have.
PN1965
Can I ask that the witness have a look at this and identify it as a statement he has read?---Yes, this looks to be the statement of Mr Steinfort.
**** ANTHONY MICHAEL DURAS XN MS FRENZEL
PN1966
All right. He makes some observations about your statement, and I want to take you to those points. Firstly, he says at paragraph 4:
PN1967
The available information indicates that casuals do not comprise the majority of the workforce at Secure Parking.
PN1968
He says:
PN1969
There are 55 car parking attendant employees at Secure Parking. Of these 27 are full time, 14 are part time, and 14 are casuals.
PN1970
So what he is saying is in contest, if you like, with your paragraph 7 where you say:
PN1971
There are many casual employees who work set shifts often for more than 18 months.
PN1972
Now, what do you have to say about the issues that Mr Steinfort raises in paragraph 4, and take some time to read paragraph 4?---I would suggest that it is a matter of perspective. Mr Steinfort's employment at Secure Parking I believe commenced in December of last year so his experiences of the company would be far more restricted. On the other hand, he has access to information that myself, as an employee, was not - did not have access to. For instance, the number of employees and the particular employment categories, the nature of employment at Secure in terms of the proportions of permanent part timers versus casuals, over the four years that I worked at Secure rose and fell depending on the number of sites that Secure Parking held as in car parking sites. And, indeed, Mr Steinfort undertook a review of the categories of employment, and I understand that several employees went from being casuals to permanent part timers.
PN1973
And how are you aware about that review?---I, myself, received a letter from Mr Steinfort confirming my hours of employment.
**** ANTHONY MICHAEL DURAS XN MS FRENZEL
PN1974
THE SENIOR DEPUTY PRESIDENT: When was that?
PN1975
MS FRENZEL: I am about to tender the letter, your Honour. Can I ask you if that is the letter that you received from Mr Steinfort?---Indeed it was, yes.
PN1976
PN1977
MS FRENZEL: Did you participate in consultative committee meetings in your role as delegate in Secure Parking?---Yes, I did.
PN1978
And who generally attended those consultative committee meetings?---Employee representatives or - who were in the main union delegates. Mr Roach attended a number of the meetings in his capacity as an organiser, and also over the course of time the various operations managers and business managers and area managers attended.
PN1979
And what sorts of issues were raised in those consultative committee meetings?---Health and safety matters, and also any grievances that employees might have, as well as some operational changes that the company intended to make were introduced. But frequently by the time we met it was simply notified that this change - this operational change has been made and we are informing you that that has gone through. So there was some consultation but it depended on the issue.
PN1980
Can you give the Commission an example of such an operational change?---Not - about a month or so before I left my employment the issue of collection of moneys from sites was raised. Previously the car park attendant, once they had closed their car park was expected to transport money to a particular site, a so called drop-off site. Mr Steinfort initiated a process whereby money would be left on site and collected at a later stage.
**** ANTHONY MICHAEL DURAS XN MS FRENZEL
PN1981
And how was it left; was it left in a drawer or in a - - -?---It would have been - generally it was left in a safe.
PN1982
THE SENIOR DEPUTY PRESIDENT: When did he institute that process?---I believe it would have been in early July, I believe.
PN1983
What was the reason given for that?---There were security concerns with the possibility of car park attendants being robbed of their takings. And generally a need to improve the security of people, and also the company's need to protect the day's takings.
PN1984
MS FRENZEL: Now, with respect to the consultative committees, were any other issues discussed such as industrial relations issues?---Could you clarify that?
PN1985
Not really, no. Let me ask you this, attached to your statement is the current enterprise agreement?---Yes.
PN1986
And there is also - that is annexure A which is a certified agreement, then annexure B?---If you mean was there negotiations for an enterprise agreement, they did take - - -
PN1987
That is what I am asking you?---Yes, they did take place.
PN1988
Okay, and when did they take place?---The negotiations for a replacement for the non-certified 1999 Secure Parking agreement basically took place over the course of 18 months. They commenced in January 2001 and I believe they are still ongoing at this point in time. However, a log of claims was served upon the company on 10 May 2001 and subsequently on 9 April 2002.
**** ANTHONY MICHAEL DURAS XN MS FRENZEL
PN1989
To the best of your knowledge, does annexure A - is annexure A the only certified agreement for Secure Parking?---That is correct, yes.
PN1990
Now, if I could take you back to Mr Steinfort's statement at paragraph 5, he says that:
PN1991
A large number of casuals were engaged by Secure at the Queen Victoria Market car park.
PN1992
Are you acquainted with that car park?---Yes, I am.
PN1993
Have you worked at that car park?---Yes, I have.
PN1994
Okay. He goes on to say that:
PN1995
There was a particular need for casuals to work at this site during the different level of demand in the area on market days.
PN1996
Now, are you able to tell the Commission how many spaces that car park has approximately?---No, to be honest, I am not.
PN1997
That is fine. And which days does the market operate?---The market days are Tuesday, Thursday, Friday, Saturday and Sunday.
PN1998
So from your experience working at the car park, where did the fluctuations that Mr Steinfort says occur, where do they occur?---
PN1999
If you read paragraph 5, he says:
**** ANTHONY MICHAEL DURAS XN MS FRENZEL
PN2000
It is necessary that Secure Parking staff the car park bearing these fluctuations in mind.
PN2001
What fluctuations did you experience?
PN2002
MR O'GRADY: Your Honour, at this stage we don't know anything about Mr Duras' experience at the Queen Victoria car park other than the fact that he worked there at some stage during his time with Secure. In my submission, he can't proffer an answer to that question.
PN2003
THE SENIOR DEPUTY PRESIDENT: Yes. You should establish what the parameters of his working history was there.
PN2004
MS FRENZEL: You are absolutely right, your Honour.
PN2005
How often did you work at the Queen Victoria car park?---I would say on and off I worked there at least 20 - at least 20 occasions, and I was the acting manager of the car park during the latter part of - oh, I think for about a four week period between mid December '99 and mid January 2000.
PN2006
THE SENIOR DEPUTY PRESIDENT: That is the Vic Market one, is it?---That is the Queen Victoria Market site, yes.
PN2007
MS FRENZEL: Okay. So returning to the fluctuations that Mr Steinfort - - -
PN2008
MR O'GRADY: Well, your Honour, I would repeat my objection in those circumstances. Twenty occasions in a two year period with some continuity over Christmas over two years ago, in my submission, isn't a basis upon which this witness could in any way meaningfully respond to what Mr Steinfort says is the situation.
**** ANTHONY MICHAEL DURAS XN MS FRENZEL
PN2009
THE SENIOR DEPUTY PRESIDENT: No, no, not what Mr Steinfort says, but there is no reason why he can't tell what his own experience of fluctuations were during the periods that he worked there.
PN2010
MR O'GRADY: As long as it is confined to those limited periods, yes.
PN2011
THE SENIOR DEPUTY PRESIDENT: Yes, all right.
PN2012
MS FRENZEL: When you were employed at the car park - we will do this in two parts, we will do it barring the time when you were the acting manager?---Yes.
PN2013
Okay. Those 20 occasions when you worked at the car park, was it your experience that there were fluctuations and, if so, what were they?---The only fluctuations that I could really ascertain would be that in the latter part of the week - Thursday, Friday, Saturday and Sunday - would be busier than the earlier part of the week. The weekend by far was the busiest period of time during the market's operation.
PN2014
THE SENIOR DEPUTY PRESIDENT: Tell me, Mr Duras, did you say Mr Steinfort began working for Secure Parking in December or he began working at your site?---He began working as - well, he was - I believe his employment at Secure Parking took over - commenced in December of last year.
PN2015
Of last year.
**** ANTHONY MICHAEL DURAS XN MS FRENZEL
PN2016
MS FRENZEL: With respect to that period between December and January when you worked as acting manager, what was your experience of the fluctuations there, bearing in mind, of course, it was a Christmas period?---A similar kind of fluctuation, but the latter part of the week was the busiest. I would suggest that in comparison to other times of the year that I have worked, it was busier because of the nature of the - particularly in the week preceding Christmas, it was particularly busy. However, even in the time after Christmas, in early January it is still - there was a good deal of regularity. I suppose the thing about the Queen Victoria Market is the large number of transactions that employees will do. We are talking somewhere in the area of two or three thousand transactions per day on a busier day.
PN2017
And that arises out of what?---Out of the very nature of the car park itself; that people will park for short periods of time to do their shopping at the market and then they will leave. The car park is quite large with several thousand bays, and people would commence leaving the car park as early as 8 o'clock in the morning and then, you know, continue to come and go until the car park closed around 7 o'clock.
PN2018
Now, what about on non-market days?
PN2019
THE SENIOR DEPUTY PRESIDENT: Sorry, just before you go on, how does that two or three thousand transactions per day compare with your experience at AMP?---Well, at AMP the - I would say that the number of tickets issued - I suppose the nature of the work is different because the work at AMP was a so called jockey car park whereas the work at the Queen Victoria Market was working in a booth.
PN2020
Yes?---But by far I would say that the Queen Victoria Market would be one of the busiest car parks in the CBD, if not the busiest.
PN2021
How many transactions a day would you do at AMP?---I would say somewhere near - depending on how busy the day was, probably 150 to 200 in that area.
**** ANTHONY MICHAEL DURAS XN MS FRENZEL
PN2022
It is a 450 car park space?---Yes, but vast majority of those, I would say two-thirds of those spaces, would be reserved for permanent parkers.
PN2023
And you don't have any interaction with permanent parkers at all?---Each permanent parker is issued with what is called a swipe card which allows them automatic access to the car park, so it would be only in the instance where, if their car wasn't functioning or they haven't received a card that we would have some interaction with them.
PN2024
Yes, sorry, Ms Frenzel.
PN2025
MS FRENZEL: You did say, however, that the AMP car park was a jockey car park?---That is correct, yes.
PN2026
So exactly what were your duties in that car park with respect to jockey parking?---I was moving cars, as well as operating the register and directing people to the particular bays.
PN2027
I will return to the issue of jockey parking in a moment, but just going back to the Queen Victoria Market issue did you have any experience working in the Queen Vic Market car park on non-market days?---Yes.
PN2028
What was the difference between market days and non-market days?---The difference is that trade on a market day would be consistent; that consistently busy because people were leaving throughout the whole day. On a non-market day it was still considerably busy but it was in the main because there was a - generally a flat rate charge on non-market days so that - which operated, in effect, like an early bird rate.
PN2029
And can you recall what that flat rate was the last time you worked there; if you can't recall, just say so?---Sure. As far as I can remember, the - sorry, there were a number of flat rates. At one point it was $6.60 but then that was later changed to $2.20 for two hours, $4.40 for four hours, and then $6.60 for six hours or for the rest of the day.
**** ANTHONY MICHAEL DURAS XN MS FRENZEL
PN2030
And how many exits does the Queen Victoria Market have, car parking exits?---Three.
PN2031
And on a market day, how many of those exits would be open in your experience?---All three.
PN2032
All three?---All three.
PN2033
And on non-market day?---Generally it would be two, except in the afternoon when there was sort of peak exit time and a third booth would often be opened.
PN2034
Now, if I can come back to the AMP car park?---Yes.
PN2035
And the jockey parking issue?---Yes.
PN2036
Mr Jackson yesterday gave evidence of the sort of problems that can arise in jockey car parks: people locking their keys and leaving their keys, break-downs, those sorts of things. Do you have any experience of those sorts of instances at the AMP car park?---In the - at the AMP car park the people locking keys in cars was a problem on many occasions. Given the nature of - that it was stack parking, that there would be - a car would park against the wall and then there would be a car generally parked behind it, that if someone took their keys with them or locked their keys in their car, that would be - present a considerable problem.
PN2037
And how did you set about resolving those problems?---Frequently it involved entering the car or, in the case of a car - keys locked in the car, we would try and contact the car owner and, with their consent, enter the vehicle. In terms of people taking their keys with them, it became a matter of if we possibly could moving - shifting other vehicles in order to extract the car or, on occasions if people were in a particular hurry, they would catch a taxi and then the company would reimburse them.
**** ANTHONY MICHAEL DURAS XN MS FRENZEL
PN2038
And you were paid an extra allowance, a valet allowance, for that sort of work, that jockey parking?---That is correct, 40 cents, yes.
PN2039
THE SENIOR DEPUTY PRESIDENT: Was that an hour?---Yes.
PN2040
MS FRENZEL: And, finally, Mr Duras, Mr Steinfort says at paragraph 6 of his statement that the correct hourly rate under the award is $12.84 based on a 38 hour week. Did your enterprise agreement have a 38 hour week, did it?---No.
PN2041
Did you work a 38 hour week which was a condition superior to the terms of your agreement?---No.
PN2042
I have got no further questions. Thanks, your Honour.
PN2043
PN2044
MR O'GRADY: Yes, thank you, your Honour. Mr Duras, just dealing with the point that you were just asked about, concerning the valet parking allowance of 40 cents per hour, that was provided for in the unregistered 1999 agreement, wasn't it?---Yes, but it was also provided in the 1996 agreement as well.
PN2045
So that just continued on?---Yes.
PN2046
Yes, I understand. Now, I understand, Mr Duras, that at the AMP site, whilst there was jockey parking or stack parking, there was - it wasn't an early bird site, was it?---That is correct.
**** ANTHONY MICHAEL DURAS XXN MR O'GRADY
PN2047
So you didn't have, if you like, this massive influx of people between the hours of six to nine that you might expect at an early bird site?---That is correct, yes.
PN2048
Yes. Is it fair to say that the majority of people at the AMP site were people who were commuting into town for work or whatever, as opposed to casual users?---No, there was a mixture of both.
PN2049
All right.
PN2050
[10.58am]
PN2051
Would you agree with me that the pattern of usage would be that most people would come into the site in the hours around 9 o'clock, maybe a bit before or maybe a little bit after, and most people would be departing the AMP site from say 4 o'clock to say 6 o'clock of the afternoon?---No, I would actually disagree with that.
PN2052
You would disagree with that?---The nature of the car-park was such that people - given that it wasn't an early bird rate charged - - -
PN2053
Yes?---And it was a site with a large number of solicitors and accounting firms in the building.
PN2054
Yes?---That many people would be attending meetings or conferences or what - the like, at various times of the day, so the - unlike, you know, quite a few car-parks with early bird rates, the peak time - there were really no peak times of entry.
PN2055
Okay. All right. I think you gave evidence that half or more than half of the people who used the AMP site were permanents. Is that the case?---That is correct, yes.
**** ANTHONY MICHAEL DURAS XXN MR O'GRADY
PN2056
All right. And I think your evidence is that those people were provided with a swipe card which would give them access and of course allow them to leave the car-park?---That is correct.
PN2057
And neither their entry to the car-park nor their leaving the car-park would require the intervention of a car-parking attendant unless something had gone wrong with their swipe card?---In terms of their immediate entrance or exit through the boom gates, that is correct. However, given the nature of the stack parking that occurs, many permanent customers would require vehicles either moved behind them from - who were casual parkers or other permanents parked behind them.
PN2058
Yes. So the extent to which there was stack parking, for which you received a specific allowance, there might have been some interaction with those individuals, but other than that, unless there was something wrong with their swipe cards, you wouldn't be involved with them?---No.
PN2059
No. And as I understand your evidence concerning the rostering at that car-park, there would be one person rostered on from 7 am till 8 am in the morning. Is that the case?---Yes.
PN2060
And then from 8 am until 3 pm there would be - those - well, sorry, at 8 am another person would come on and he would work with the first person until 3 pm, when the first person clocked off, if you like?---That is correct.
PN2061
But at the same time, at 3 pm the afternoon shift would commence, so another person would clock on, so there would be two people working continuously from 8 am until 6 pm, when the second day worker, if you like, clocked off and then once again you would have one person working from 6 to 9. Is that the case?---That is correct, yes.
PN2062
Yes. And I put it to you that the busiest time in the car-park with respect to the work the car-parking attendants had to do was between the hours of 8 am until 6 pm and at those times you had two people rostered on?---Generally that was the case.
**** ANTHONY MICHAEL DURAS XXN MR O'GRADY
PN2063
Yes. Now as I understand your witness statement, Mr Duras, you have recently completed your Masters of Arts. Is that the case?---That is correct, yes.
PN2064
When did you complete that, sir?---In November of 2000 - sorry, 2001.
PN2065
November 2001. And you were undertaking those studies whilst you were working for Secure, as you have described in this?---That is correct.
PN2066
And you were also able to hold down that second job at the World Kitchen Factory Outlet?---That is correct, yes.
PN2067
There is a - it is not uncommon is it, Mr Duras, for people who are working as car-parking attendants to also be undertaking some form of study?---Well, in the instance of Secure Parking I would say there were a small proportion of tertiary students undertaking study.
PN2068
Yes?---But I would suggest that the majority of employees of Secure Parking would have been - would not have been undertaking study.
PN2069
Yes?---And generally older workers for whom finding other work was more difficult.
PN2070
Okay. That is based on your experience in the industry?---That is correct, yes.
PN2071
THE SENIOR DEPUTY PRESIDENT: When you worked from 3 till 9 pm and you said the busiest periods were basically from 8 am till 6 pm and you had two people covering it then, the car-park stayed open till 9, did it, and closed at 9 o'clock?---That is correct, yes.
**** ANTHONY MICHAEL DURAS XXN MR O'GRADY
PN2072
That is the AMP car-park?---Sorry, it stayed - a correction, sorry, Commissioner, it stayed open until 8.30 and then there was half an hour also allocated for - to complete paperwork and the banking.
PN2073
Right. And I seem to recall there is a theatrette in that building, isn't there?---Yes.
PN2074
Does that operate frequently or not?---To be honest, Commissioner, I am not sure.
PN2075
All right. But it didn't affect your opening or closing time I should say of the - - -?---Unless - on occasions there were companies inside the building might have had functions or parties and so forth and they might request that the car-park open later, but generally the car-park closed at 8.30.
PN2076
All right. Thanks. Sorry, Mr O'Grady.
PN2077
MR O'GRADY: That is okay, your Honour. Now, Mr Duras, when you were working as a part-time employee, you received the - a pro-rata payment with respect to annual leave and the other elements of a full-time person's remuneration?---That is correct, yes.
PN2078
Yes.
PN2079
THE SENIOR DEPUTY PRESIDENT: Were you paid any penalty allowance or - - -?---No.
PN2080
No. What about overtime?---Generally the provisions of overtime at Secure Parking were that any employee, be they casual, permanent part-time or full-time, was expected - would only be paid overtime if they worked in excess of 10 hours in a single day or 160 hours in a four week cycle. So on several occasions when I was expected to work back on a Monday, or required to work back, I was paid overtime, but generally on other occasions I wasn't.
**** ANTHONY MICHAEL DURAS XXN MR O'GRADY
PN2081
So what was that again? In excess of 10 hours on any one day?---That is correct, or in excess of 160 hours in a four week cycle, and that is provided for by the agreement.
PN2082
Yes, sorry, Mr O'Grady.
PN2083
MR O'GRADY: Yes, your Honour. You were asked some questions about the casual rates of employment at Secure and as I understand your evidence, your views on that really reflected your discussions with other car-parking attendants, both working for Secure and elsewhere?---That is correct.
PN2084
And I think you quite fairly acknowledged that when Mr Styneford expressed a view as to the ratio of people engaged in a certain way, he had access to information that of course you didn't have access to?---That is correct, yes.
PN2085
And I think you also accepted - or you also stated, once again quite fairly, that when Mr Styneford started with the company he undertook a review of the situation and following on from that review there was a reduction in the number of people who were engaged on a casual basis and a move to more people being engaged on a part-time basis?---Well, yes, I would agree with that.
PN2086
Yes, yes. Now, you also expressed a view concerning the equivalence or the similarity between the work that a car parking attendant undertakes and the work that a cleaning or security person might undertake. Do you recall giving that evidence?---Yes, I did, yes.
PN2087
And one again, as I understand, the basis for that evidence is really discussions you have had with cleaners and security people that you met in the course of your function as a car parking attendant?---That is correct, yes.
PN2088
Would you agree with me that cleaning work has the capacity to be more physically onerous than car parking attendant work?---I would suggest it depends on the car park where one works.
**** ANTHONY MICHAEL DURAS XXN MR O'GRADY
PN2089
If, for example, you were doing the roster, or working say - of the rosters that you have given us, the afternoon shift, 3 pm to 9 pm. Let us assume for the moment that you weren't undertaking any jockey parking work, so you didn't receive the extra allowance, people weren't required to do that, and you were located in the booth as people were leaving and you were processing the transactions as they left. I put it to you that that work is almost invariably going to be less physically onerous than the work that a - - -
PN2090
MS FRENZEL: Can I rise to object? Perhaps my friend should ask Mr Duras if he has ever actually worked as a cleaner before he asks Mr Duras to compare the work between cleaners and - - -
PN2091
THE SENIOR DEPUTY PRESIDENT: But he gave - he gave evidence comparing the nature of the duties of a cleaner, didn't he, with - - -
PN2092
MS FRENZEL: My recollection of his evidence, your Honour, was that he gave evidence about the hours and those sorts of issues, but not about the duties themselves. I stand to be correct, of course, but that was my understanding of his evidence.
PN2093
THE SENIOR DEPUTY PRESIDENT: It's actually in his statement, isn't it, in paragraph 9?
PN2094
MS FRENZEL: He talks about rates and working conditions, he doesn't talk about the work itself.
PN2095
THE SENIOR DEPUTY PRESIDENT: Yes. And then you asked him to give some explanation as to how he can make those comparisons, from memory.
PN2096
MS FRENZEL: Yes, about the rates and the working conditions, not about the work itself.
**** ANTHONY MICHAEL DURAS XXN MR O'GRADY
PN2097
THE SENIOR DEPUTY PRESIDENT: Yes. What do you say, Mr O'Grady?
PN2098
MR O'GRADY: Your Honour, if the witness's evidence is confined to rates and does not extend in any way to the work that is being done by the individuals then I won't pursue it.
PN2099
THE SENIOR DEPUTY PRESIDENT: Well, of course you are at large in cross-examination, and provided what you are asking is relevant, you are entitled to ask the question, but what is the relevance of it?
PN2100
MR O'GRADY: Well, as I understand the union's case, your Honour, they are saying that these people, who are cleaners, get this much money, this is the essence of it; the car parking attendants do much the same thing, they should get the same sort of money. Now, the point is they are not doing the same sort of thing and this witness seems to be acknowledging that. It's a pretty fundamental point.
PN2101
THE SENIOR DEPUTY PRESIDENT: I will allow the question subject to confining it to his own area of knowledge or expertise in that particular work.
PN2102
MR O'GRADY: Mr Duras, obviously if you don't know, then just say so and I won't pursue it, but I put it to you that the work that would be undertaken by a cleaner in their normal shift where one might be having to vacuum the floors, empty bins, clean toilets, is going to be by its very nature more physically onerous than the work being undertaken by a car parking attendant who is sitting in a payment booth processing transactions?---I wouldn't know, to be honest.
PN2103
THE SENIOR DEPUTY PRESIDENT: You have never worked as a cleaner?---No, I haven't.
PN2104
No. All right.
**** ANTHONY MICHAEL DURAS XXN MR O'GRADY
PN2105
MR O'GRADY: With respect to security guards you also gave some evidence that you interacted with those people when you were working the - I think you said when you were working the afternoon shift there were not many other people around and so you would have a chat to them. Is that the case?---That is correct, yes.
PN2106
Have you ever worked as a security guard?---No, I haven't.
PN2107
Do you agree with me that there are once again going to be pretty fundamental differences between the types of tasks that a security guard might be expected to undertake in the normal course of their duties and the tasks that a car parking attendant might be asked to undertake in the duties that confront them?---Sorry, could you restate that question?
PN2108
Would you agree with me, putting to one side the hours that people work, and the fact that they might be rostered to work on weekends and those sorts of things, that there are fundamental differences between what a car parking attendant does and what a security guard does?---Well, there are - there are crossovers, I would suggest, in terms of a need to maintain the integrity of a structural space, as it were.
PN2109
Yes?---And maintain the security of persons or vehicles concerned. There is also, depending on the site, there might be some patrolling involved as well, checking, that car park attendants are required to do. And one might argue that aspects of the security - of security work are sedentary activities of for instance the security guard downstairs.
PN2110
Have you ever worked as a security guard?---No, I haven't.
PN2111
You are aware, aren't you, that security guards have to go through quite extensive training to perform their duties?---Yes.
**** ANTHONY MICHAEL DURAS XXN MR O'GRADY
PN2112
Are you aware that security guards are by their very nature expected to take a more proactive role if a security threat is perceived than say a car parking attendant whose overriding instructions would be to observe and then call for help?---I would say it would depend on the site.
PN2113
When you were working as a car parking attendant in the AMP building, you have given evidence that that car park there was - there was at least one security camera monitoring that car park?---That is correct, yes.
PN2114
And that would then be fed down to the security booth downstairs or something along those lines?---I would believe so, yes.
PN2115
If - and as I understand it you say that whilst there wasn't a duress alarm at the car park there would have been obviously telephone facilities that you could have used if there was an emergency or something that required assistance?---There would, but I think the security guard would have to at least travel down two or three flights of stairs or two or three floors to reach the sub-basement area, yes.
PN2116
I put it to you that whilst you were working at the AMP site as far as security issues were concerned, your instructions as a car parking attendant were to observe any incidents and to call for help, not to directly attempt to intervene in a security incident?---I don't ever remember receiving any specific instructions either way.
PN2117
I see.
PN2118
THE SENIOR DEPUTY PRESIDENT: Were you ever confronted with a security situation?---No, not as such, not at that car park.
PN2119
Any other car park?---No, not while I was on duty.
**** ANTHONY MICHAEL DURAS XXN MR O'GRADY
PN2120
MR O'GRADY: In paragraph 14, Mr Duras, you make the statement that - or you express the view that the increase in the shift and weekend penalties that are sought in the union application would reflect the proper compensation for working unsociable hours that car park attendants work. So you identify the unsociable hours as being the basis for the need to increase the shift and weekend penalties. Is that your evidence?---Yes, I would tender that.
PN2121
What analysis have you undertaken of wage rates generally in the community to form the view that it is necessary to have those increases to reflect proper compensation?---I would deem it a greater community standard rather than specific analysis that award by award or rate by rate comparison.
PN2122
Is it fair to say that this reflects your view, it is if you like your impression of what would be a fair thing?---Well, I can't speak for the entire Australian community.
PN2123
No?---Of course, any - and I fully acknowledge that this is my point of view, but I would suspect that if you took a straw poll of people on the street that they would consider it fair that workers working between the hours of midnight and 7 o'clock on a Sunday morning would be entitled to some form of adequate recompense.
PN2124
So that is - you haven't undertaken that straw poll?---No, I haven't.
PN2125
No. But you guess that that would be the outcome if you did?---I would suggest that it would be.
PN2126
Can I ask you some questions about enterprise bargaining. You of course worked in the only major that had an enterprise bargain, and as I understand paragraph 1 of your statement you say that the enterprise agreement which is the first attachment to your statement, attachment A, is still in force in that it hasn't been terminated by way of application to the Commission?---That is correct.
**** ANTHONY MICHAEL DURAS XXN MR O'GRADY
PN2127
The union at one stage I think was contemplating doing that, but he withdrew that application. Is that the case?---That is correct.
PN2128
Yes. And that the Secure Parking entered into negotiations with the union that led to the second attachment to your statement, the 1999 agreement?---Yes.
PN2129
And that contained pay increases for car parking attendants?---That is correct, yes.
PN2130
And ensured that they were not worse off as far as rates are concerned when compared to the award?---When you say "rates", do you mean rates for weekend work or for shift - - -
PN2131
Well, your statement. I am just saying what you say in paragraph 1. You say:
PN2132
Secure Parking offered a 3 per cent pay rise and maintenance of award rates.
PN2133
That is what they did?---Indeed.
PN2134
Yes. And that the union as opposed to the employer made the decision that this agreement shouldn't be certified?---As far as I can tell, yes, although the Secure Parking made - in and of itself made no attempt to certify the agreement aside - you know, apart from assurances to the contrary.
PN2135
Yes, yes, but if the union has indicated, well, we are going to object to certification it makes it a bit hard for Secure Parking to come along and get it certified, doesn't it?
**** ANTHONY MICHAEL DURAS XXN MR O'GRADY
PN2136
THE SENIOR DEPUTY PRESIDENT: Except under 170L5.
PN2137
MR O'GRADY: The witness doesn't know, he doesn't know.
PN2138
In your statement you say that you understand the reason why the agreement is not certified. Is it the union refused to agree to it? That's what you say?---Yes, that's correct, but it also says that Secure did not make an application for certification, either.
PN2139
In any event, as I understand your evidence you say that people are being paid pursuant to the terms of the 1999 agreement?---Yes, that's correct.
[11.20am]
PN2140
And your evidence is that there have been ongoing negotiations with Secure with respect to a further enterprise agreement to replace the 1999 agreement?---Yes, they have been ongoing, although one might argue that it has been a controlled exercise in futility over those 18 months.
PN2141
It was the case, of course, wasn't it, that the union had a - initiated a bargaining period against Secure with respect to its claims for a new enterprise bargaining agreement?---I wouldn't be sure of that, though I know that a log of claims were lodged - or several logs of claims were lodged with the company.
PN2142
And with respect to that log of claims, I put it to you that many of the items that are the subject of the union's application in this case were raised in those log of claims.
PN2143
MS FRENZEL: Could I ask my friend is he is going to raise the issue of the log of claims, perhaps he should show the witness the log of claims he is referring to.
**** ANTHONY MICHAEL DURAS XXN MR O'GRADY
PN2144
THE SENIOR DEPUTY PRESIDENT: Are you referring to the log of claims in evidence?
PN2145
MR O'GRADY: The log of claims in evidence wasn't directed to Secure, as I understand the situation, your Honour. It may well have been an identical one. I am asking the witness a general question as to whether or not the similar issues were raised; he may not know the answer, of course, your Honour. Exhibit R7, your Honour, does relate to Wilson Parking.
PN2146
THE SENIOR DEPUTY PRESIDENT: Only, is it?
PN2147
MR O'GRADY: Well, the document itself. There may well have been an identical document that related to Secure, I don't have a copy of that, and I am asking the witness whether the issues were the same. The witness has given evidence of a familiarity both with what was being asked for in the enterprise bargaining agreement and what is the subject of this union's application here, so he should be in a position to answer that.
PN2148
THE SENIOR DEPUTY PRESIDENT: Well, perhaps just clarify with the witness. He has already given the evidence about the fact that there were claims or negotiations ongoing for 18 months. That is the one you are talking about, isn't it, that is the - - -
PN2149
MR O'GRADY: Yes, yes, and as I understand his evidence, your Honour, he says that there were several log of claims that have been filed by the union with respect to those negotiations and he has also, of course, given evidence that he understands what this application is about because he thinks it is appropriate, and I am asking him, well, a lot of the things that you asked for in the log of claims were what you are asking for here.
PN2150
THE SENIOR DEPUTY PRESIDENT: Do you have copies of the logs of claims that you are referring to?---Not with me, no.
**** ANTHONY MICHAEL DURAS XXN MR O'GRADY
PN2151
Are you able to recall the content of them?---Not specifically, within a very general sense.
PN2152
Well, to the extent that you can recall the content of those, you could answer the question.
PN2153
MR O'GRADY: Yes, thank you.
PN2154
Did the log of claims deal with classification structures as far as you can recall?---To the best of my knowledge, the classification - in terms of the Secure Parking agreement - - -
PN2155
Sorry, please - - -?---Sorry.
PN2156
Mr Duras, if you could listen to my question and focus on that?---Yes.
PN2157
Did the log of claims refer to classification structures as far as you can recall?---Yes, it did, but in the specific - - -
PN2158
Sorry, no, thank you. Thank you, Mr Duras. Obviously, as you will appreciate, Ms Frenzel will have a chance to re-examine if she wishes to. Did the log of claims refer to a commitment to permanents' engagement as opposed to engagement on a casual basis as far as you can recall?---No.
PN2159
No, all right. Did it raise the issue of meal and crib breaks as far as you can recall?---Yes.
PN2160
Did it relate to the provision of a minimum amount of work for employees engaged?---No, there was no mention of that.
**** ANTHONY MICHAEL DURAS XXN MR O'GRADY
PN2161
All right. What about shifts; did it deal with the issue of shifts, the definition of shifts and the allowances payable on shifts?---Not to the best of my knowledge, no.
PN2162
All right. What about a move from a 40-hour week to a 38-hour week?---Yes, it did.
PN2163
The issue of training for delegates or dispute resolution; was that raised?---No, I don't believe it was.
PN2164
What about a wage rise; was that covered in the log of claims?---Indeed it was.
PN2165
And the level fo the casual loading, was that covered in the log of claims?---Indeed it was, yes.
PN2166
Were allowances generally covered in the log of claims?---There were - there was reference to allowances.
PN2167
The rates of pay for weekend work; was that an issue dealt with in the log of claims?---Yes, it was.
PN2168
Yes, thank you, Mr Duras. You also gave some evidence, Mr Duras, that with respect to the work you were doing at AMP, Mr Steinfort introduced a process whereby moneys would be left on site and collected whilst you were there?---Yes, that is correct.
PN2169
Yes, all right. And that obviously had the impact of reducing the security exposure, if I can use that as a pretty rough phrase, of car parking attendants who previously had transported these moneys for deposit?---Well, it did reduce it, yes.
**** ANTHONY MICHAEL DURAS XXN MR O'GRADY
PN2170
Yes. With respect to the work you undertook at the Queen Victoria car park, as I understand your evidence, you did seem to acknowledge that there was a difference between the market days and the non-market days?---That is correct, yes.
PN2171
Yes. And as I understand your evidence, that difference was reflected in the level of people who were rostered on to work on those car parks?---Yes, I believe there was some difference in the rostering.
PN2172
And it also was reflected in the number of exit booths that were open. I think your evidence was that on market days all exist booths would be open, whereas on non-market days you would have two - generally you would have two, but at the peak time, the afternoon exist time, you would have a third person rostered on?---That is correct.
PN2173
Yes. Are you aware, Mr Duras, of the trend towards automation in car parks either at the sites that you worked at or more generally within the industry?---I understand that the Wilson car parking company is putting in a number of so-called SKI data machines.
PN2174
And those machines enable people to pay for their parking without having to do - or having to make contact with a car parking attendant, they do it by inserting their card and putting in the money that the machine tells them to put in?---As far as I know, yes.
PN2175
As far as you know. You haven't had any direct involvement with that sort of machinery?---No, I haven't.
PN2176
I understand. In paragraph 12 of your statement, Mr Duras, you draw a comparison - in 13 you draw a comparison between the work that you did as a shop assistant for the World Kitchen factory outlet and the work that you performed as a car parking attendant. Do see that, sir?---Yes.
**** ANTHONY MICHAEL DURAS XXN MR O'GRADY
PN2177
What was your task when working for the World Kitchen factory outlet?---As a - basically as a shop assistant to utilise the cash register and EFTPOS machine and customer service as well.
PN2178
I am not familiar with the World Kitchen factory outlet but I assume you sell kitchen equipment and cooking facilities?---That is correct, yes.
PN2179
It is a specialist store, I take it?---Reasonably so, yes.
PN2180
And you had been there for some six years as I understand it?---That is correct, yes.
PN2181
And over that time you would have developed a degree of expertise with the product range that was sold by that enterprise?---I suspect so, yes.
PN2182
And I would have thought that in your capacity as an assistant in that shop people would seek to rely upon your expertise in making a decision as to which stove or cooking appliance they purchased as opposed to one or the other when they had to choose between brands and styles?---In a very limited scope of which colour would you prefer.
PN2183
Did you have different types of stoves?---Well, as I say, when you kitchenware, it is more kitchen appliances. There was no electrical or gas appliances as such.
PN2184
Yes, all right. I put it to you that it is only in the broadest of sense that you could say that you were undertaking similar tasks when you were working as a store assistant in that sort of environment as the tasks that you were undertaking when you were a car parking assistant. You are not required to drive a car when you are working for the World Kitchen factory outlet?---That is correct, no.
**** ANTHONY MICHAEL DURAS XXN MR O'GRADY
PN2185
You are not required to break into cars in order to move them as required, are you sir?---I tend to do it as a recreational activity.
PN2186
In a past life I had many clients who also pursued that. I would advise you to give it up, Mr Duras. I understood that you always made every endeavour to contact the owners of vehicles when you were required to access them when you were working at the AMP site. But the point is simply this, that I put it to you that whilst you may be working similar hours and you may be required to interact with customers, that beyond that, there is no real meaningful similarity between what you were doing for the World Kitchen factory outlet and what you were doing for Secure, working in the AMP site?---I agree with that, yes.
PN2187
I have no further questions, your Honour.
PN2188
THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr O'Grady. Re-examination?
PN2189
PN2190
MS FRENZEL: Mr Duras, if I can just briefly take you to paragraph 1 of your statement, where you talk about the history of, albeit in a plotted way, of enterprise bargaining at Secure Parking. If I can ask you whether or not you were employed - I will withdraw that. Were you involved in the negotiations for the 1999 agreement?---No, I wasn't.
PN2191
You were employed at the time, however?---That is correct.
PN2192
Were you a union delegate at the time?---No, I wasn't.
**** ANTHONY MICHAEL DURAS RXN MS FRENZEL
PN2193
Now, are you aware of whether or not - and please say no if you are not aware - are you aware of whether or not employees, in actual fact, voted for that '99 agreement?---Yes, they did. They did vote for it.
PN2194
There was a ballot for that 1999 agreement?---Yes.
PN2195
Did you vote in that ballot?---Yes.
PN2196
And how was the ballot conducted, can you remember?
PN2197
MR O'GRADY: Your Honour, I arise on the question of relevance.
PN2198
THE SENIOR DEPUTY PRESIDENT: Well, you asked some questions about the union not seeking to certify the agreement, and the witness gave that evidence, and also said, as he does in his statement, that neither did the employer seek to - I think it just gives the detail of what has been asked. I think it is relevant.
PN2199
MR O'GRADY: If your Honour pleases.
PN2200
MS FRENZEL: Can you recall how that ballot was conducted?---In the first instance there were several meetings conducted, at which there was a vote taken. However, these proved to be, I understand, of varying degree of success, and to get the requisite number of ballots from employees one of the employees and an area manager, I believe, or the business manager at the time, went from site to site collecting ballots.
PN2201
Was your ballot collected in that way?---No. I attended the meeting.
**** ANTHONY MICHAEL DURAS RXN MS FRENZEL
PN2202
And who conducted the meeting; was it the employer or the union, to make it easier?---I believe it was conducted by the employer, however, Mr Oates was in attendance at the meeting.
PN2203
Was it your understanding at the time that a majority of employees had voted for the agreement?
PN2204
THE SENIOR DEPUTY PRESIDENT: That is a bit of a leading question.
PN2205
MR O'GRADY: I think he has already given the evidence, your Honour.
PN2206
THE SENIOR DEPUTY PRESIDENT: That is what I was just going to say, I think the evidence has already been - - -
PN2207
MS FRENZEL: He did say people voted for it, but he didn't say whether or not the majority did.
PN2208
THE SENIOR DEPUTY PRESIDENT: Well, do you know what the majority outcome was?---My understanding is that a majority of the ballots did indicate support for the agreement.
PN2209
MS FRENZEL: In response to a question by my friend about your recollection of the log of claims, he asked you if the issue of classifications formed part of that log, and you indicated that it did. What was the issue about classifications in that log; can you recall that?---Yes. It dealt specifically with the enterprise agreement in offerance at Secure Parking. It contained a structure of four classification levels, and we sought to abolish the first level to bring it in line with that of the Interim Car Parking Award.
PN2210
Now, you have also given evidence that the method of the transportation of the takings at the end of the day, for want of a better expression, changed. I don't recall if you gave evidence of when that changed?---I believe I said it occurred in late July.
**** ANTHONY MICHAEL DURAS RXN MS FRENZEL
PN2211
Were you still required to do the balance sheets at the end of the day?---That is correct, yes.
PN2212
How much time were you given to do those balance sheets?---Prior to cash collection taking place, or when car park attendants were required to deposit their money at a central location they were given, allocated half an hour to complete their banking. And I understand, it is my understanding that subsequently, well, in discussions at the consultative committees that was reduced to 15 minutes.
PN2213
When you were doing your balance sheets at the end of the day on the days you worked afternoon shifts, what times did you work doing that; was it half an hour or 15 minutes?---I received half an hour.
PN2214
THE SENIOR DEPUTY PRESIDENT: That was when the AMP car park closed at 8.30, was it?---That is correct. Hence I was paid till 9 o'clock.
PN2215
MS FRENZEL: I have got no further questions, thanks.
PN2216
THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Frenzel.
PN2217
Just one matter. You may have already stated this; what is your current position, or occupation?---I am employed as a call centre operator at the Australian Council of Trade Unions.
PN2218
Yes, all right. Thank you very much.
PN2219
MR O'GRADY: Sorry, your Honour, just to clarify that.
PN2220
Call centre operator or organiser?---Call centre organiser, sorry.
**** ANTHONY MICHAEL DURAS RXN MS FRENZEL
PN2221
PN2222
THE SENIOR DEPUTY PRESIDENT: Is that the evidence for the LHMU?
PN2223
MS FRENZEL: Save and except for that evidence that we wished to tender through the employer's witnesses, which I alluded to in correspondence.
PN2224
THE SENIOR DEPUTY PRESIDENT: Yes. Have you provided copies of that to Mr O'Grady?
PN2225
MS FRENZEL: Yes, I have. That is the evidence for the case of the union with respect to both applications.
PN2226
THE SENIOR DEPUTY PRESIDENT: Thank you. Mr O'Grady?
PN2227
MR O'GRADY: Yes, thank you, your Honour. Ms Frenzel was kind enough to provide me with those documents this morning. I haven't had a chance to have a look at them at this stage. Your Honour, after discussions between Ms Frenzel and myself yesterday afternoon, what we thought might be an appropriate course, if your Honour agrees with this, is that I would open very briefly on behalf of the respondent employers with respect to both the union's application and our application.
PN2228
We realised yesterday that, of course, Ms Frenzel has yet to have opened with respect to the employer's application. But in light of the fact that she is not going to call any evidence other than these documents, what we thought we might do, if it is all right with your Honour, is that after I open with respect to the employer's position, Ms Frenzel will open the union's case with respect to the employer's application.
PN2229
THE SENIOR DEPUTY PRESIDENT: Yes. You sort of did the same sort of thing when Ms Frenzel opened, you might recall. I anticipated we might do the same thing with your opening.
PN2230
MR O'GRADY: Yes. And I must say, your Honour, I don't intend to take up too much time by way of opening this morning.
PN2231
THE SENIOR DEPUTY PRESIDENT: I am pretty familiar with the issues now, but if you want to define those in any way for your own purposes, that is fine, I would like to hear that.
PN2232
MR O'GRADY: Well, your Honour, if I can start with the union's application, if you like, and then move on to our application, and this is very much along the lines that I indicated after lunch on the first day. In our submission it is not open for the union to seek to vary this award simply by reference to the fact that in the Security Award, the Pest Control Award and the Cleaning Award, to give them a shorthand description, there are provisions along the lines that the union seeks to insert into this award.
PN2233
THE SENIOR DEPUTY PRESIDENT: I just wonder about that, whether or not it does constitute comparative wage justice, to look at it in those terms, is it?
PN2234
MR O'GRADY: Well, your Honour, in my submission that is not the way it is being put by the union.
PN2235
THE SENIOR DEPUTY PRESIDENT: No. But I was thinking about it when we had some - I think you raised that issue the other day, and that is what it occurred to me as. The way in which it is characterised was not necessarily as comparative wage justice, but I wonder whether it could properly be characterised as such.
PN2236
MR O'GRADY: Well, your Honour, what we would say, is that the principles make it very clear that one thing that your Honour has to consider when considering whether or not to grant these variations, is whether it would lead, if you like, a leap frogging. And that is a vice, of course, that the Commission has been concerned with for many years, and it is a vice, your Honour, that is particularly pointed when the awards that are sought to be the basis of the variation haven't been the subject of any real scrutiny by the Commission that is, if you like, being told to rely upon them.
PN2237
We don't know, your Honour - and the union has completed its case now - what was the basis upon which these provisions were inserted into the Pest Control Award, the Security Award or the Cleaning Award. We don't know to what extent the particular provisions that are relied upon by the union were consented to by the employer respondents to the award.
[11.45am]
PN2238
And whilst the fact that a provision might have been consented to in one award does not mean that it cannot be referred to and adopted by the Commission when considering what terms to insert into an award that is sought to be varied. As long ago as the MOA case reported in volume 165CAR 1975 478 the Commission stated that the principles relating to the effect and weight to be given in arbitral proceedings to the provision of consent awards are well known. They do not mean that it is always wrong to flow or otherwise extend a provision in a consent award by arbitration. But the principles are designed to ensure that consent provisions will not extend to unconsenting parties unless the provisions in question are fair, proper and reasonable in all the circumstances.
PN2239
So we say that the fact that these provisions are present in other awards in the absence of any evidence as to how they got there - - -
PN2240
THE SENIOR DEPUTY PRESIDENT: Consent awards you mean?
PN2241
MR O'GRADY: Well, at this point in time the union hasn't sought to lead any evidence about these other awards. What we say is really the union's case, as far as it relies on these other awards, is simply saying look, there has been a form of words used in these other awards and we think that they are appropriate to be used here. And as far as that proposition goes we don't take issue with it. The union is entitled to say that.
PN2242
THE SENIOR DEPUTY PRESIDENT: But all but one of them has been simplified.
PN2243
MR O'GRADY: Yes.
PN2244
THE SENIOR DEPUTY PRESIDENT: Whether - even if they were consent awards they ought to have been - well, not necessarily I suppose - pared back because you can't take away existing rights. But, yes.
PN2245
MR O'GRADY: I am not saying, your Honour, that those provisions are not - to pick up the language in the MOA case - fair proper and reasonable in the circumstances they confronted the Commission that made those awards. But what I do say, your Honour, is that it is incumbent upon the union in this case to establish that they are fair, proper and reasonable provisions to be inserted into the Car Parking Award. And in my respectful submission the evidence that has been led by the union with respect to its application just does not go that far.
PN2246
Indeed, one has to have very real doubts about the weight that can be given to the assertions by the witnesses called by the union that the cleaning industry or the security industry or the pest control industry are appropriate comparators - if I can use that phrase derived from another jurisdiction - for the purposes of undertaking this task with respect to this award. The basis - the factual basis for saying that because the Security Award has a certain provision in it that that provision should be imported into the Car Parking Award just hasn't been made out, with respect, we would say.
PN2247
Your Honour, there is a further vice that flows from the fact that the union has not just picked an award and said that award has provisions dealing with this range of issues and we want to import them lock, stock and barrel into the Car Parking Attendants Award but rather has said we like that bit of this award, we like that bit of this award, we like that bit over here in a third award and what we want to do is we want to , in effect, cherry pick the best bits and lump them all into the Car Parking Award because as your Honour would be aware, and indeed as Ms Frenzel would be aware, the making of awards often involves a degree of compromise by the parties to the award.
PN2248
And sometimes the employers might give ground on a particular issue in order to gain an advantage with respect to another issue. Sometimes the converse will be the case. Now, at the moment, your Honour, we don't know because the union has not told us. and in those circumstances, in my submission, it would not be open, with respect, for the Commission to act on the basis that these provisions were appropriate to be inserted into the Car Parking Attendants Award. Your Honour, on Monday I went through the provisions that were the subject of the union's application and indicated where we have a degree of common ground and where we don't and I don't intend to repeat those submissions in opening at this stage, your Honour.
PN2249
As your Honour noted on Monday there was a - there is a point taken in our outline with respect to the dispute training leave, or the trade union training leave depending which label one wants to attach to it, as to the ability of the Commission to make an award of that type. We would simply note at this stage, your Honour, that the evidence of the witnesses called by the union suggests that the leave that is being considered or that is - the leave that is referred to and put into evidence in support of that provision sounds a lot more like trade union training leave than training that is peculiarly adapted to dispute resolution. And, of course - - -
PN2250
THE SENIOR DEPUTY PRESIDENT: Why do you say that? I mean the three items as I recall, without going back to my notes, that were the subject of education in the course - one was award interpretation, one was negotiation and I just can't think what the third one was but - - -
PN2251
MR O'GRADY: Occ health and safety - - -
PN2252
THE SENIOR DEPUTY PRESIDENT: Yes, yes.
PN2253
MR O'GRADY: - - - according to all of the witnesses formed a major part of the - - -
PN2254
THE SENIOR DEPUTY PRESIDENT: Well, they seemed to be fairly topical types of subjects for the purpose of resolving disputes in the workplace.
PN2255
MR O'GRADY: But it was all material put in the context of informing people as to the role of the union and what could be done by a union delegate, we would submit on the evidence. And we would say the strongest evidence on that point is the evidence of Mr Oates himself who, of course, conducted some of this training. And in cross examination - and obviously the transcript can be had regard to in due course - we would say that the function of that training as far as Mr Oates perceived it was to enable these people to better undertake their task as delegates of the union.
PN2256
THE SENIOR DEPUTY PRESIDENT: You don't say then that dispute settlement or leave for the purposes of dispute settlement training is not allowable?
PN2257
MR O'GRADY: We do. We do, your Honour.
PN2258
THE SENIOR DEPUTY PRESIDENT: But the test case says it is provided it is directed to dispute settlement.
PN2259
MR O'GRADY: Well, your Honour, our submissions with respect to the allowability of it are set out in our outline.
PN2260
THE SENIOR DEPUTY PRESIDENT: Yes, yes.
PN2261
MR O'GRADY: But what we would say, your Honour, is that the leave that has been described in the evidence before the Commission is not allowable. And I won't take it any further.
PN2262
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2263
MR O'GRADY: Your Honour, can I turn to the employer's application and, your Honour, we have not as yet been able to produce a revised version of our application which corresponds with the numbering and the terminology of the simplified award. We have been endeavouring to do that outside of the hours that we have been sitting, your Honour, and we will tender a document in due course for the convenience of the Commission.
PN2264
THE SENIOR DEPUTY PRESIDENT: Yes, that would be helpful. I would be indebted to you if you would do that.
PN2265
MR O'GRADY: Yes, yes. I don't believe I need it for the purposes of opening, your Honour.
PN2266
THE SENIOR DEPUTY PRESIDENT: No.
PN2267
MR O'GRADY: But if I can briefly run through what appears in attachment A.
PN2268
THE SENIOR DEPUTY PRESIDENT: Just by the way, in doing the amended version will that take into account those matters that the companies have indicated they would give up pursuing because they sought to reduce the entitlement below the safety net? One was meal breaks or tea breaks I think.
PN2269
MR O'GRADY: Yes. Your Honour, if I can just simply obtain instructions on that.
PN2270
THE SENIOR DEPUTY PRESIDENT: Yes, sure.
PN2271
MR O'GRADY: Yes, your Honour, it will.
PN2272
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2273
MR O'GRADY: And as I say, your Honour, it is a work in progress.
PN2274
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2275
MR O'GRADY: And as you will appreciate, your Honour, we did not see the simplified award or the draft simplified award until Monday.
PN2276
THE SENIOR DEPUTY PRESIDENT: No, it wasn't available before last Friday or Thursday I think.
PN2277
MR O'GRADY: And it is not simply a matter of, if you like, changing the numbers and just plugging them in. You obviously have to make sure that the language is consistent.
PN2278
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2279
MR O'GRADY: Your Honour, however if I could take you to what is the proposed variation of the employers which is attachment A to the outline. And it might be appropriate, your Honour, at this stage to seek to tender both the employers outline with respect to the union's application and its outline with respect to its own application.
PN2280
THE SENIOR DEPUTY PRESIDENT: Yes. Perhaps before you do that, Mr O'Grady, if you don't mind I will just go back and mark the union's outline which I think I omitted to do.
PN2281
PN2282
MR O'GRADY: Sorry, that is the union's outline in response to our application?
PN2283
THE SENIOR DEPUTY PRESIDENT: Yes, that is right. I am going to your outline of submissions on behalf of Wilson Car Park, Kings Parking, Metro Parking and Secure Parking.
PN2284
MR O'GRADY: Is the one dated 26 June of 2002, your Honour?
PN2285
PN2286
MR O'GRADY: Your Honour, with respect to the employer's application to vary we would seek to rely on both R9 and R10.
PN2287
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2288
MR O'GRADY: As your Honour will have noticed when responding to the union's application the employer made reference to the provisions that it was seeking to have included in the award and obviously the sense in doing that, your Honour, was so that the Commission was aware of what - - -
PN2289
THE SENIOR DEPUTY PRESIDENT: Are the issues, yes.
PN2290
MR O'GRADY: Of the issues, yes. And indeed the variation sought by the employer is attachment A to exhibit R9.
PN2291
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2292
MR O'GRADY: Yes. Your Honour - - -
PN2293
THE SENIOR DEPUTY PRESIDENT: And you will replace that attachment - not replace - you will provide me with the - a document in the same terms as attachment A but with the amended clauses in it.
PN2294
MR O'GRADY: Yes, your Honour.
PN2295
THE SENIOR DEPUTY PRESIDENT: Yes. Thank you very much.
PN2296
MR O'GRADY: Your Honour will see that the first issue that is raised by the employer's application is the incidence of the award. And as I understand it, the point of contentions taken by the union with respect to clause 4 which deals with incidence is that it provides that the award will not apply to employees who earn wages for their ordinary hours of work more than 40 per cent above the ordinary rate set out for a car parking officer level 3B. The short point there, your Honour, is we submit that there is no need for a safety net award with respect to such persons. As your Honour is aware, the Commission in the Mitsubishi decision - a decision of Commissioner Foggo, upheld on appeal that I believe your Honour might have been involved in the Bench in that case - drew a distinction between classes of employees, those that require a safety net and those that don't. I don't want to go to that - - -
PN2297
THE SENIOR DEPUTY PRESIDENT: That was a bit different though, wasn't it? I mean, that was a case where there was a history of exemption - - -
PN2298
MR O'GRADY: Yes.
PN2299
THE SENIOR DEPUTY PRESIDENT: - - - for senior management, and this award doesn't have any history, does it, of exemption or - - -
PN2300
MR O'GRADY: Well, your Honour, what, of course, happens under this award is that persons who might be working as car parking attendants might become staff employees and, therefore, fall out of the ambit of the award as a whole depending on the duties that they are performing. What we are seeking to do is clarify the situation with respect to this clause. And you will notice, your Honour, it is a significant differential, if you like, that we are seeking to refer to in the clause. I don't want to take up any more time at this point in time, your Honour.
PN2301
Your Honour, in clause 8 there are classifications, and wages are dealt with. And your Honour will see that it is a different form of breaking up the work that is being done to that which exists in the current award, the proposed simplified award or that set out in the union application. We would say that the distinctions that are sought to be drawn in this classification are adapted to the work that a car parking attendant is required to undertake in the modern car parking environment in the CBD, and your Honour has heard some evidence about the nature of the duties that car parking attendants are required to undertake.
PN2302
Your Honour has also heard some evidence as to the increasing introduction of automated technology. That obviously has a real impact upon the work that car parking attendants are doing. An aspect of the work that car parking attendants are doing that is reflected in these proposed variations is the work of jockey parking, and your Honour has heard evidence about what that entails and, as I understand it, as stated in the evidence it would seem to be one of the more extensive or difficult tasks that car parking attendants are undertaking during the course of their duties and we say that that is reflected in the structure that we have set out here. There is also a distinction between the various types of car parks and the level of responsibility that would be expected of those more senior employees, depending on the number of employees who are answerable to them.
PN2303
THE SENIOR DEPUTY PRESIDENT: Is there any training associated with the progression through the different levels?
PN2304
MR O'GRADY: Your Honour, not in terms of the award itself. I think it is fair to say that training is contemplated but it is not a pre-condition, if you like, for progression through the different levels. Your Honour, turning to clause 9, this was an issue that was dealt with by me briefly in opening with respect to the union's application. It is the employer's position that they should have the option of rostering people or day workers either on a weekly basis of a 38 hour week roster or, alternatively, 76 hours over a fortnightly period, 114 over a three week period, and 152 over four weeks.
PN2305
We would say that so long as the maximum set out in clause 9(a) are not exceeded over the period, then all work should be paid at ordinary rates as opposed to being considered to be overtime. There is also a difference between the union's position and our position with respect to the hours of a day that would be considered to be ordinary time, and you will see the application sets out 6 am to 7.30 pm
PN2306
THE SENIOR DEPUTY PRESIDENT: We might find when - or in Ms Frenzel's response to you that there is no real issue in paragraph (a) of your clause 9.
PN2307
MR O'GRADY: Well, I am hopeful of that.
PN2308
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2309
MR O'GRADY: I think I indicated, your Honour, that we didn't really have a difficulty, we - - -
PN2310
THE SENIOR DEPUTY PRESIDENT: If you just added "award" to the end of the words.
PN2311
MR O'GRADY: Just to make it clear, so there would be no scope for dispute down the track. Your Honour, with respect to shift workers, the provision is set out in clause 9(c). The other - and with respect to both day workers and shift workers, we would be seeking that the individual employee have the ability to agree to working up to ten hours per day before there being any entitlement to overtime. Your Honour, there is also the issue of the introduction of a split shift in subparagraph (f).
PN2312
THE SENIOR DEPUTY PRESIDENT: Just on (g), sorry, what is the quid pro quo for agreeing to work a ten hour shift?
PN2313
MR O'GRADY: Sorry, your Honour?
PN2314
THE SENIOR DEPUTY PRESIDENT: What would be the quid pro quo, what would be the trade-off, if you like, for an employee agreeing to work ten hour shifts?
PN2315
MR O'GRADY: Well, it would - the employee could not be required to work those shifts unless he agreed to do so.
PN2316
THE SENIOR DEPUTY PRESIDENT: Yes, but what would be the benefit to an employee in those circumstances?
PN2317
MR O'GRADY: Well, the employee would be working longer hours and receive more remuneration but, beyond that, your Honour, it is not contemplated that there would be any specific benefit. And, of course, if an employee didn't want to work those shifts, then he wouldn't do so. And we have heard evidence, your Honour, of the fact that with respect to, if you like, public holiday work when employers, as they are entitled to under the current award, purported to offer public holiday work with either minimal penalties or no penalty rates payable, people didn't want to work on those days. And the evidence is, of course, your Honour, that with respect to all of the major car parking operators on public holidays, even though there is no obligation under the award to do so, they are paying people double time.
PN2318
There is reference there to a split shift in paragraph (f). We would say, your Honour, that the introduction of such a shift is in keeping with the constraints that the industry is subjected to at this point in time, and the nature of the work that people are required to perform. As the graphs that we tabled for identification at this stage make clear, this is an industry where in many car parks there are peaks and troughs in the work that has to be done and in the demands placed upon individual car parking attendants.
PN2319
THE SENIOR DEPUTY PRESIDENT: But you always have to have somebody there, don't you, in a car park?
PN2320
MR O'GRADY: Yes. Well, not necessarily, your Honour. With respect, the evidence will be that with respect to the automated machines that have been introduced by some of my clients there is no need to have anybody there. The evidence will be that with respect to some of those machines there is the capacity for a customer who has a jam or has a problem to push a buzzer which is connected to a mobile phone. And so you have a potential conveyed by the technology, your Honour, for these car parks to be unattended. Now, I am not saying, your Honour, that that is my client's intention.
PN2321
THE SENIOR DEPUTY PRESIDENT: But if they are unattended, you don't need to put staff there anyway, do you?
PN2322
MR O'GRADY: No, your Honour, you don't. But what I am saying, your Honour, is that it doesn't necessarily flow that these car parking stations need to be attended. And we would say that that is a factor that your Honour should take into account in considering not only our application, but the union's application. The evidence from the employers will be that there are very real financial constraints imposed on them with respect to the operation of these car parks. The move to a 38 hour week which is, of course, conceded by the employers has, in effect, a 5 per cent increase in wages flowing from that. On to that 5 per cent have to be added all of the on-costs associated with wages: Workcover, insurance, penalties, holidays, etcetera, etcetera. We would say that that is going to put a significant financial burden on to my clients, forgetting the rest of the union's application.
PN2323
Your Honour, if I can move to clause 10. There is obviously a real dispute between the employers and the union with respect to the quantum of shift allowances. And I won't say anything further about that at this juncture.
[12.10pm]
PN2324
Clause 11 deals with overtime and once again that is an issue where there is a significant dispute between what should be paid between the union and the employers. Your Honour, Saturday work, we would say that, as was acknowledged by Ms Frenzel in her opening, that the basis for treating pm Saturday work as work attracting a penalty - I don't want to misstate what Ms Frenzel said. I am being careful, as Ms Frenzel suggested I do. The distinction between am and pm work was based upon a different use or pattern of usage of city car parks to that which pertains now. I think we have got common ground about that.
PN2325
Ms Frenzel says, in effect, well, that is all well and good; we want penalties for the whole Saturday; there is no basis for removing - for only paying penalties for the afternoon in those circumstances. We would say that that is not the case, that really, the basis of that distinction having now gone, it is appropriate that Saturdays be treated like any other day of the week, other than Sunday, and not attract a penalty for Saturday work per se.
PN2326
THE SENIOR DEPUTY PRESIDENT: But isn't the only basis upon which work on Saturday attracts a penalty is if it is over and above the five days worked by the person?
PN2327
MR O'GRADY: No, your Honour, not according to the union's application. It was - - -
PN2328
THE SENIOR DEPUTY PRESIDENT: I must have misunderstood. I sought to clarify that with Ms Frenzel at one stage, I think.
PN2329
MR O'GRADY: Ms Frenzel sort of gave with one hand and then with the other she took back, we would say with the greatest of respect to her. But as I understand the position put by the union, it is that a penalty would be payable for Saturday work, whether it be am or pm work.
PN2330
THE SENIOR DEPUTY PRESIDENT: Yes, but if you worked a five day roster that went from Thursday till Monday or something and Saturday fell within it, and that was your normal day work, how does that attract a penalty on Saturday?
PN2331
MR O'GRADY: Well, as I understand it, clause 19.2 of the union's application provides for an additional allowance of 50 per cent of ordinary hours.
PN2332
THE SENIOR DEPUTY PRESIDENT: Yes, that is right. Sorry.
PN2333
MR O'GRADY: If Ms Frenzel, of course, wishes to withdraw that claim, that would be of assistance. Your Honour, we would say clause 13 with respect to Sunday and public holiday work is self-explanatory and I don't wish to take up time going through that. With respect to rest periods, we would say that there is really no great issue with respect to that. Ms Frenzel tells me that there is, but the position that the respondents say is appropriately is set out in clause 14 and I don't want to take up time now going through it.
PN2334
The meal interval is, of course, a live issue. When I was responding to Ms Frenzel's application on Monday I indicated the sorts of changes that we would be seeking with respect to that proposed clause for it to be palatable to my client. We would say that clause 15 is along the same lines as that which I flagged on Monday. Clause 17 deals with employment categories in terms of engagement. The issue, we would say, or the primary issue here, your Honour, is the casual loading and the position of the respondent employers with respect to the appropriate casual loading is set out in subparagraphs (c)(i) to (iii).
PN2335
The union's application is obviously squarely based upon the Full Bench in the Metals casuals case and we obviously have had regard to that decision in formulating our response. What was striking about that decision, and this is a matter that we have raised in our outline, your Honour, is that there there was established a pattern of abuse of casual engagement. We would say that in an industry where, putting to one side Secure Car Parking, there has been no capacity to engage people other than on a full-time basis or on a casual basis. Your Honour could not be satisfied of any such pattern here.
PN2336
And so, to the extent to which the union seeks to rely upon that decision, we would say that the evidentiary basis cannot be made out because, to date, employers haven't had the option to engage people on a permanent part-time basis other than on that one occasion in the - concerning Secure. And the evidence is, of course, that the rates of casual engagement for Secure employees would appear to be less than those with respect to the other car parking operators.
PN2337
THE SENIOR DEPUTY PRESIDENT: Well, that is because they have a part-time arrangement under an agreement, I suppose.
PN2338
MR O'GRADY: Yes, exactly, your Honour, and what we would say is that before the Commission really could revisit the issue of the appropriateness of the casual loading, what the Commission should do is insert an award provision that provides for permanent part-time employment.
PN2339
THE SENIOR DEPUTY PRESIDENT: Well, both parties agree about that, except for the terms - - -
PN2340
MR O'GRADY: Indeed, your Honour, but what we say is that it is only after that had been trialled and had failed that one could possibly form the conclusion that there is an abuse of casual engagement such as to give rise to the types of loadings that were contemplated Metals casuals case.
PN2341
Your Honour, you will note that clause 17 also deals with part-time engagement and, as your Honour says, there is a difference in the way in which the employers and the union would seek to describe such work. We would say that the provision that is set out in clause 17(f) is both fair to employees in that it does provide them with a minimal level of engagement, does provide them with access pro rata to all other entitlements that a full-time employee would otherwise receive but it also enables a degree of flexibility for employers, which we would say is appropriate in the circumstances of this industry.
PN2342
Your Honour, sick leave is dealt with in clause 19 and I don't want to take up any time referring to that at the moment, nor do I wish to, in opening, address the annual leave provisions or the payment of wages provisions. I think it is fair to say that whilst there may be some differences between the position of the parties, the focus of the dispute between the parties are on the clauses that I have already taken the Commission to. Your Honour, unless there is anything further you wish me to raise by way of opening, that is all I wish to say at this juncture.
PN2343
THE SENIOR DEPUTY PRESIDENT: No, thank you, Mr O'Grady. That is very helpful. I would perhaps ask Ms - or did you intend now to have Ms Frenzel respond to your opening?
PN2344
MR O'GRADY: Yes, if your Honour pleases.
PN2345
MS FRENZEL: Thank your Honour. I should raise one point of clarification which my friend might wish to make further submissions about from the outset with respect to our opening of their case - no, sorry, their observations about our case and our application in which my friend says, well, the evidence is finished. We say - - -
PN2346
THE SENIOR DEPUTY PRESIDENT: Well, it is, isn't it, save for the documents that you want to tender through the respondent's witnesses?
PN2347
MS FRENZEL: That is the issue which I now wish to come to, your Honour. I did make the observation in my submissions in support of our application and I did also very clearly make the observation during my opening that we would be tendering authorities and the like in support of the union's position. Now, if that - and part of those authorities obviously an issue raised directly by my friend, and that is the history of some of these clauses.
PN2348
Now, I did say to the Commission very clearly in opening I would be providing evidence of the history of the clauses. And I, in fact, drew observations about clauses drawn from the Security Employees Award which was subject to arbitration by her Honour.
PN2349
THE SENIOR DEPUTY PRESIDENT: When you say evidence, you mean reasons for decision for - - -
PN2350
MS FRENZEL: Those sorts of things.
PN2351
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2352
MS FRENZEL: Now, if they are the sorts of issues that my friend - now, I would describe those as being authorities and background, but if my friend describes those as evidence then we should perhaps clear that matter up now rather than at some point in the future having a debate about it. But the material that I wish to produce, which we do not regard as being evidence, relates to various orders of the Commission, various decisions of the Commission, and that sort of material in relation to and in support of the union's application, and also seeking obviously at the same time to refute elements, not all of it, but elements of the employer's application. Now that is evidence - - -
PN2353
THE SENIOR DEPUTY PRESIDENT: They are all documents of record, are they?
PN2354
MS FRENZEL: They are documents of record.
PN2355
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2356
MS FRENZEL: Save and except for a couple of exchange of correspondence between VECCI and ourselves which led to the Commission making the determination which is actually, dare I say, in the employer's favour with respect to the shift penalty clause, but I put that in by way of background for the people to be aware of how exactly this clause was determined. Now, if that is evidence then we should deal with it. If it is not evidence - - -
PN2357
THE SENIOR DEPUTY PRESIDENT: I do not think it is evidence.
PN2358
MS FRENZEL: Okay.
PN2359
THE SENIOR DEPUTY PRESIDENT: I think it is for clarity. What do you say, Mr O'Grady.
PN2360
MR O'GRADY: I certainly have no problem with Ms Frenzel referring to authorities. To the extent to which this correspondence that she wants to refer to, I obviously would say that is evidence and it maybe that it has to be properly proved. It maybe that it can go in by consent. But I haven't - my disadvantage, your Honour - - -
PN2361
THE SENIOR DEPUTY PRESIDENT: You have not actually seen that correspondence.
PN2362
MR O'GRADY: I haven't seen any of this, your Honour.
PN2363
THE SENIOR DEPUTY PRESIDENT: All right.
PN2364
MR O'GRADY: As I say, your Honour, to the extent to which Ms Frenzel wishes to rely on decisions, well, I do not object to that. But if she wants to rely on anything else, then obviously I do.
PN2365
THE SENIOR DEPUTY PRESIDENT: Well, subject to you seeing it and perhaps agreeing to it.
PN2366
MR O'GRADY: Yes, yes. Indeed, your Honour. But I would have thought the appropriate course would be for any documents that Ms Frenzel wishes to tender to be tendered as part of her case as opposed to in the course of submissions.
PN2367
THE SENIOR DEPUTY PRESIDENT: Well, except authorities and references and those sorts of things.
PN2368
MR O'GRADY: Sorry, your Honour, I am obviously not making myself clear.
PN2369
THE SENIOR DEPUTY PRESIDENT: No, no, I understand, I just wanted to clarify that you are not referring there to the authorities and references that she might take me to in her submissions.
PN2370
MR O'GRADY: No, no, to anything else.
PN2371
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2372
MR O'GRADY: Yes. I obviously, your Honour, do not want to be seen as conceding that that necessarily would satisfy the evidentiary onus that - - -
PN2373
THE SENIOR DEPUTY PRESIDENT: No, no, I understand that.
PN2374
MS FRENZEL: No. Look, I might just deal with that one point about the correspondence, because - and we can, I believe, deal with it fairly expeditiously. And it arises with respect to the provision in the Hours clause, which talks about, and it is in italics in our exhibit. I will just grab our exhibit.
PN2375
THE SENIOR DEPUTY PRESIDENT: Yes, which exhibit is this one?
PN2376
MS FRENZEL: This is the Union's draft order which is LHMU4.
PN2377
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2378
MS FRENZEL: Now the only place where there is correspondence arises with respect to clause 18.5. And following questions from your, your Honour, about the italicised section of that which reads:
PN2379
... except to meet in an emergency due to illness or other unexpected and unavoidable cause or by personal agreement from the employer and the employees.
PN2380
And I say it is derived from the award. That was a matter that was determined by her Honour Senior Deputy President Harrison. That particular provision was determined that way. Now, and the history of that matter, just so we are really clear about the Union's intentions because we are not trying to ambush anybody or behave badly, was that the matter was heard by her Honour in - and the transcript is on the file as well, which I will provide to the parties in due course. It was heard on 3 February 2000, and the transcript is on the file.
PN2381
Now for reasons, which I think to be fair to all the parties in the proceedings, escaped everybody, there was no determination of that matter made in a reasonable period. And when I say reasonable, I mean 12 months. So although we kept inquiring about its progress or otherwise - and I might say that matter was arbitrated, and Mr Diserio represented the employers in that case. In any event, her Honour called it on for conference in February 2002 and said we have got this file, we have got this matter, we haven't resolved it.
PN2382
She then provided a draft order to us for our comment. The correspondence goes to the comments that both VECCI on behalf of the security employers and myself, put in about the term of that clause. She then sent through her associate an e-mail, which is also on the file, so everybody can see exactly what has happened with clause, and determined the application accordingly by issuing an order. That is the correspondence.
PN2383
Now if people - I was of the view that people would ask me how did that order come about, and what is the background to it, the very point my friend raised previously, and what I have sought to do is make sure the background is there so there can be no doubt about what did happen, when it happened, and the outcome of that application. And that is the only correspondence contained within the matters which we wanted to put - which we say are historical data, and authorities. All the rest of it - - -
PN2384
THE SENIOR DEPUTY PRESIDENT: Is that included in the documents that you have given Mr O'Grady?
PN2385
MS FRENZEL: No, but it will be when I give it to him.
PN2386
THE SENIOR DEPUTY PRESIDENT: When will that be?
PN2387
MS FRENZEL: So, I just wanted to raise that point because I got a little bit concerned that he was saying there was no evidence and the like and we say that prints aren't necessarily evidence.
PN2388
MR O'GRADY: Your Honour, sorry to be taking up time with this, but I think it is important that we clarify it. As I said, to the extent to which Ms Frenzel wishes to adduce decisions of the Commission, prints of the decision, report or otherwise, obviously that is not evidence. She wants to refer to correspondence, transcript, other things. We would say that that is not something which should be in effect dumped on us in the course of her final submissions.
PN2389
We would say that that is the matter, that if she wants to - the Commission to rely upon that material, it is material that should be proved. Now, it may be that we can - it can go in by consent. But at the moment I don't know - Ms Frenzel hasn't clearly indicated that all she seeks to put in is decisions. And - - -
PN2390
THE SENIOR DEPUTY PRESIDENT: Well, perhaps it would assist the matter if Ms Frenzel was to provide you with those other extraneous materials, such as transcript and the correspondence - - -
PN2391
MR O'GRADY: Yes.
PN2392
THE SENIOR DEPUTY PRESIDENT: - - - so that you can have an opportunity to peruse that and then perhaps if appropriate agree to it going in by consent.
PN2393
MR O'GRADY: Yes, yes, your Honour.
PN2394
THE SENIOR DEPUTY PRESIDENT: Otherwise - - -
PN2395
MS FRENZEL: I haven't got a problem, your Honour.
PN2396
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2397
MS FRENZEL: I just wanted to deal with them, and we have dealt with that now, which is good.
PN2398
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2399
MS FRENZEL: Now, the Union's opening with respect to the employers' application is essentially this. Firstly, we should probably be clear about what the contested matters are. And I think to be fair, although some matters will be less contested than others I believe, every facet of the employers' application in some way or other, every clause, is contested.
PN2400
THE SENIOR DEPUTY PRESIDENT: Yes. Just on the Hours clause, do you have any objection to the proposal advanced by Mr O'Grady about adding the word, or, for example, at the end of the variety of structures of ours over the course of three weeks or four weeks or whatever?
PN2401
MS FRENZEL: We have no objection to that, but what we do want, is we want to have the basic principle with the Hours Clause of having a 38 hour week in there.
PN2402
THE SENIOR DEPUTY PRESIDENT: Yes, I understand that.
PN2403
MS FRENZEL: As opposed to an average we have of 76 hours.
PN2404
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2405
MS FRENZEL: And as I say, some of their levels of contest will be minute compared to other levels of contest.
PN2406
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2407
MS FRENZEL: But there will be debate about the terms of their proposed variations versus the terms of ours. Now, if I can briefly deal in my opening about the Incidence Clause, and we deal with these matters fairly clearly in our response submissions of November. But can I say, if an employer respondent to an award, or in this case a number of employer respondents to an award are essentially, with respect to the Incidence Clause, seeking to exclude persons who earn, on my estimations, around $700 per week, then they have got to put a pretty good case to this Commission to support that notion.
PN2408
We say in our response submissions that it is hardly, for want of a better expression, a king's ransom, and certainly on the material available right now, it appears to us there is no justification for such a variation to occur. Now with respect to the classifications and wage rates - - -
PN2409
THE SENIOR DEPUTY PRESIDENT: Just on that, what would be your position in relation to an exemption from some aspects of the award, but not necessarily all? For example, hours and perhaps some of those other things, like in the Club Managers Award, for example, or the Hotels Award, where they exempt employees from some aspects of the award. That is employees who are in managerial positions or members of staff, but not from all aspects, so that in fact they do not - they are not deprived of the unfair dismissal provisions and things of that nature, under the legislation.
PN2410
But in any event, I just raise that as a matter you might want to give some consideration to in due course.
PN2411
MS FRENZEL: We will consider that, but can I say that the primary position of the Union at this point would be that we oppose the amendment to the Incidence Clause in the terms sought.
PN2412
THE SENIOR DEPUTY PRESIDENT: Yes, I appreciate that, and I am not - by the way, I don't mean to indicate that I have formed a view either way on that.
PN2413
MS FRENZEL: I understand.
PN2414
THE SENIOR DEPUTY PRESIDENT: I am just asking whether the parties might want to consider that as a possible alternative.
PN2415
MS FRENZEL: With respect to the classification and wage rates issue, we set out in our submissions, our view about those as well. Now this issue of evidence cuts both ways, your Honour. And can I say that if an award is to be, from our assessment of the application, varied downwards, if it is to result in a compression of relativities, if it is to result in - - -
PN2416
THE SENIOR DEPUTY PRESIDENT: You mean, internal relativities?
PN2417
MS FRENZEL: Yes.
PN2418
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2419
MS FRENZEL: If it is to do all those things, then there has got to be pretty compelling reasons based on the work value principle. And in fact - - -
PN2420
THE SENIOR DEPUTY PRESIDENT: I think the employer says, well they are giving up 5 per cent by a 38 hour week, and that - - -
PN2421
MS FRENZEL: But they have got far more than 5 per cent worth of offsets in this application, your Honour. We are not talking about David Jones here, we are talking about Coles-Myer. And I will foreshadow to the employers also that the current classification structure in the award - and they would no doubt be aware of this through their research, but the current classification structure in the award was processed before the Commission under the minimum rates adjustment principle in 1997, where proper relativities were struck.
PN2422
THE SENIOR DEPUTY PRESIDENT: How did that come about?
PN2423
MS FRENZEL: Well, that is why I have got the folder.
PN2424
THE SENIOR DEPUTY PRESIDENT: Yes. Well, no, you needn't go to it now, but I mean, the award simplification process is just taking place now. As a general rule classifications and wage rates are dealt with as part of that process. I was just wondering how you come about doing the classification and wage rates in 1997, and the award simplification wasn't done.
PN2425
MS FRENZEL: It was a section 113 application to vary the award re minimum rates adjustments under the - from memory - the structural efficient principles. And there was an order issued, and that is found at print N8103. And I might indicate also that the - - -
PN2426
THE SENIOR DEPUTY PRESIDENT: Who did that by the way? Who did that?
PN2427
MS FRENZEL: That was done by Commissioner Gay. And that provided for phased increases to bring the car park attendants up, measured against particular relativities in the metal industry. And that was done by consent in '97.
PN2428
THE SENIOR DEPUTY PRESIDENT: Consent between VECCI and ALHMWU, or between VECCI - between all parties or - - -
PN2429
MS FRENZEL: As I understand the situation, VECCI were appearing for all the parties that are now pressing this application and there was a comparator done with the Parking Stations Employees' ACT Award with respect to the relativities.
[12.35pm]
PN2430
THE SENIOR DEPUTY PRESIDENT: Well, what is the key classification in the award?
PN2431
MS FRENZEL: Level 2.
PN2432
THE SENIOR DEPUTY PRESIDENT: Level 2?
PN2433
MS FRENZEL: Level 2. That obviously - as I say, the employees would have been aware of that, given that it was inserted fairly recently. We say the employers, to justify a change, firstly that their consent position and secondly to the fact that this award was MRAed recently, have to show fairly extraordinary changes in negative terms of the work value of these car parking attendants. We say also that if the employers are going to rely upon the principle relating to the hours clause with respect to minimising costs and the like, then they should have in their submissions pointed to where the Commission has done such things previously and they have failed to do so.
PN2434
THE SENIOR DEPUTY PRESIDENT: Whose application was the section 113 application?
PN2435
MS FRENZEL: It was an LHMU application and, in fact, an exhibit I have already tendered which is the Car Parking Industry Awards and the history of those, the OSIRIS history print-out shows it was a minimum rates application and when it was determined and by whom, so it is not like this has snuck up on anybody. With respect to the hours of employment clause, if anybody is cherry-picking in this process, your Honour, it is the employers. They are taking a bit from here and a bit from there. At least the union has put a proposition fairly and squarely that we are taking entire provisions because we regard those provisions as being Commission standards, not because it is convenient for us, not because it is better for us. We have taken provisions, warts and all, including that provision with respect to the hours out of the Security Employees Award which provides them with flexibility. We haven't said, oh, no, stop there, that matter was dealt with by SDP Harrison in a separate application and we are not going to be honest enough or up front enough to say, okay, here is the entire clause. We haven't done that. We haven't gone to an hours clause and said, oh, let us take out the 38-hour provision for one week's work and just start at 76 hours, when that is not the standard clause.
PN2436
THE SENIOR DEPUTY PRESIDENT: But their clause doesn't do that. Their proposed clause begins with, (a):
PN2437
The ordinary hours of work for day workers shall not exceed 38 hours per week -
PN2438
and then -
PN2439
or -
PN2440
then it has got the others.
PN2441
MS FRENZEL: Well, maybe I am misunderstanding what the intent of that clause is and maybe I need to go back and look at that some more but my understanding of it most certainly they were starting with an averaging of 76 hours. That was my understanding. Now if it is incorrect I withdraw the submissions.
PN2442
THE SENIOR DEPUTY PRESIDENT: Well, I might be reading it wrong but it seems very clear to me that, you know, the ordinary hours of work - - -
PN2443
MR O'GRADY: Your Honour, if I could clarify. Your construction is the correct one. We would say that it should not exceed 38 hours per week or 76 hours in any period of two weeks. We would say, your Honour, of course that if an individual worked 76 hours in a two week period then the fact that they worked 40 of those hours in one week and 36 in the second week wouldn't give rise to an entitlement to overtime but they are alternatives in the way in which we - - -
PN2444
THE SENIOR DEPUTY PRESIDENT: Yes, well, the overtime is a different issue because the LHMU seeks to have on a daily - - -
PN2445
MR O'GRADY: Yes, yes.
PN2446
THE SENIOR DEPUTY PRESIDENT: - - - calculation and yours seeks a different - - -
PN2447
MR O'GRADY: We would say there would be no difference in the construction of clause 9(a) if (i) was inserted before the 38 and then we went down to (iv) if that - - -
PN2448
THE SENIOR DEPUTY PRESIDENT: Yes, yes. So that you say:
PN2449
...shall not exceed:
PN2450
(i) 38 hours per week, or
PN2451
(ii) -
PN2452
and so on, yes.
PN2453
MR O'GRADY: Yes. Yes, your Honour.
PN2454
THE SENIOR DEPUTY PRESIDENT: Does that - - -
PN2455
MS FRENZEL: Yes. That clarifies that.
PN2456
THE SENIOR DEPUTY PRESIDENT: Clarifies?
PN2457
MS FRENZEL: We do have an opposition obviously to the spread of hours being extended.
PN2458
THE SENIOR DEPUTY PRESIDENT: Yes, to (b) and (c) and (d), as I understand it.
PN2459
MS FRENZEL: Yes, that is correct.
PN2460
THE SENIOR DEPUTY PRESIDENT: And (e), yes. And (f).
PN2461
MS FRENZEL: And they have also - your Honour, they have also - they keep talking about the 5 per cent wage increase arising out of the 38 hour week. I would have thought that it was also incumbent upon them to provide evidence of their costings with respect to how much is an extended spread worth and it what circumstances as part of their case because right now there is nothing in front of us to indicate what that benefit to the employers is worth in real terms and there is nothing in the statements of evidence that indicate that either.
PN2462
THE SENIOR DEPUTY PRESIDENT: But don't - I mean, to get the 5 per cent, and this might be over-simplifying it, don't you take 1/35th of the current weekly rate pay and then calculate that fraction as a proportion of the existing hourly rate of pay.
PN2463
MS FRENZEL: You do, but the wage fixing principles doesn't say it has got to be cost neutral.
PN2464
THE SENIOR DEPUTY PRESIDENT: No, no, I appreciate that but I am just saying that - I don't know whether it does give 5 per cent but if you take that calculation it will give you a percentage increase, it must be a percentage increase, for the hourly rate and then I suppose it is a question of working out what the differences are in penalties and other changes that are being sought to see whether or not that 5 per cent, as I have said, or whether there is still more than 5 per cent or 5 per cent or more as a result of the overall calculation.
PN2465
MS FRENZEL: That is right. But if they are going to substantiate their case to this Commission to reduce what we say is a pretty poor safety net in any event then they have got to put that evidence forward and they have got to put forward the costings and as I say principle 7 doesn't say it has got to be cost neutral, it just says that a cost impact must be minimised.
PN2466
THE SENIOR DEPUTY PRESIDENT: No, no, I appreciate that but I was just wondering about the evidence in the calculations. I mean it seemed to me to be more a question of mathematics than anything else and at the end of the day hopefully somebody else is going to work it all out for me but - - -
PN2467
MS FRENZEL: I can remember - as an aside, I cam remember, it would have been 19 - I am showing my age - it would have been 1995, a Full Bench with an hours case for the ABC awards - there were three of them at the time and it was back in the bad old days when the Full Benches had to determine hours and it had to be by consent - and I will never forget Justice Coldham counting it down to the last cent, and I am no good at maths, and it was torture. But in any event the application was processed. So there are those issues about the spread.
PN2468
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2469
MS FRENZEL: And the justification for the spread. There is the justification for the split shift which your Honour took my friend to. There is the issues about the shift definitions and in particular once again it is the spread. I mean, once you start talking about the shift definitions and the spread the two become fairly inter-related.
PN2470
THE SENIOR DEPUTY PRESIDENT: Where - the definitions - sorry, there are issues about the definitions you said?
PN2471
MS FRENZEL: The shift definitions are found at - - -
PN2472
THE SENIOR DEPUTY PRESIDENT: Yes, but you say there are issues about that?
PN2473
MS FRENZEL: Yes, well, there are because with the day work spread they have sought to extend that by an hour and a half, as I understand it.
PN2474
THE SENIOR DEPUTY PRESIDENT: Yes. That is right, but is that the only one.
PN2475
MS FRENZEL: Now we also have the possibility of the spread being extended by agreement between the employer and the majority of employees or between an individual employee and an employer. If you are working time and a half and overtime under the current award, at the end - say, for argument's sake you have been required to stay back - that is a 50 per cent penalty and yet for that 50 per cent penalty the maths don't add up when you talk about a 5 per cent increase over a week. You could wipe out the entire benefit of the 38 hour week just by, on my calculations, working two hours in a week by agreement and extending your spread.
PN2476
That alone would have the ability to wipe out the net hourly rate increase. The shift penalties at clause 10 are contested as well obviously. We say because we are seeking Commission standards. To be fair to my friend it is fair to say, yes, we have focussed narrowly on a number of awards we say inter-relate in this industry but what it can't escape and what it won't escape is the fact that those awards contain Commission standards with respect to hours, with respect to shift penalties and the like. He won't be able to escape that.
PN2477
Then we have the really interesting problem that arises with respect to clause 11. I am not saying it is the only problem but it is one that sort of leaps out of the page and that one is that casual employees will not be entitled to any overtime payment. So if one looks at that then it is possible a casual employer could work perhaps 50 hours, 60 hours, in a week in direct contravention of the hours clause but not get any overtime because that means that the hours clause doesn't operate for casuals. That means that casuals are somewhere out there and covered by the terms of the award in some respects but not in others.
PN2478
The inter-relationship between an hours clause and penalties clauses and overtime clauses is very important because the hours clause in actual fact underpins the rest of it and that is what I have put in my submissions as well. Now the Saturday work - just so we are very clear about the Saturday work - they say it should be ordinary time. We say ordinary time worked on the five days would be time and a half on Saturday. Overtime, if it was worked in excess of five days, would be time and a half first two hours, double time thereafter.
PN2479
THE SENIOR DEPUTY PRESIDENT: But if the week isn't run Monday to Friday, and I gather from the way in which you have put forward your variations or proposed variations that it doesn't necessarily run Monday to Friday, why would there be any penalty for Saturday if a person's five day week ran something different from Monday to Friday?
PN2480
MS FRENZEL: Because Saturday - because Saturday is still regarded as being a leisure day, point A. Point B, it is a well settled fact that penalty rates, in varying degrees I might add, apply in awards of this Commission. There is no good reason just to do away with it. What they are trying to do is do away with it. What we are saying is, hang on a minute, you have got a time and a half penalty for shift workers already sitting in Saturday, it is already there, and they are saying, oh, no, there is not going to be any time and a half for shift workers, or anybody else for that matter, on Saturday and they have with respect to the day workers a provision where people are paid double time after 1 pm and they are paid time and a quarter before 1 pm and their claim is - it isn't a question of us justifying our time and a half, it is actually already there.
PN2481
They are saying, no, we are just going to strip that and we are going to make it ordinary base rates on Saturday. So we are going to do away with the time and a half for the shift workers and we are going to do away with the time and a quarter and double time for the day workers. How does that get justified under the current principles? How does that get justified under the Act? How does that get justified under the notion of the award safety net and the maintenance and the integrity of the award safety net. It is unjustifiable. That by itself is unjustifiable.
PN2482
They can't just - well, I suppose they can and they have but it is going to be a matter of great interest to me, your Honour, to see them justify a position like that. Now it will also be absolutely fascinating to see how they justify that public holiday work should only attract double time. The Commission standard says double time and a half. It will also be even more fascinating to say - for them to justify their position about rotating shift workers getting paid time and a half for each hour worked on a Sunday and public holiday.
PN2483
All this is an attempt to reduce, carve back, strip - describe it as you will - existing award safety net conditions and we say the award safety net is deficient and in fact it is not a proper safety net award in any event at this point in time.
PN2484
THE SENIOR DEPUTY PRESIDENT: How much longer do you think you might be?
PN2485
MS FRENZEL: Not long, your Honour; not long at all. The rest period provision, what this says is it says, well, if you don't get a chance to take your rest break tough luck. You are not going to get it. So if they don't get an opportunity because of work demands to take a break then they have worked it and there is no recompense, no recognition. Now with the meal interval clause they say, by agreement we will waive it altogether. The meal break can occur not more than five hours, may be extended with agreement between the employer and the employee given the evidence that we have put before the Commission already about the disparate nature of the industry and people working in ones and twos.
PN2486
I am not sure how the agreement is going to be struck and how valid that agreement would be but that is up to the employers to justify, not us, and then they say:
PN2487
It can be extended to 7.6 hours or waived altogether.
PN2488
And they say, but we will pay you ordinary time if that occurs. The tea money issue has been resolved. The employment categories, there are a number of issues here but in broad terms their proposed 17C is a replica of what we have now. We say it is not an appropriate award safety net and that is the premise of the entirety of the union's case I might add, what is the safety net. That is why we keep referring to Commission standards. That is why we keep referring to those sorts of points because it is all about whether or not this is a proper safety net award.
PN2489
What my friend should look at is the history of the Motor Drivers Award because they will find, much to their - well, I don't think it would surprise them - that that provision was inserted into the Motor Drivers Award in 1962 together with the 40 hour week and a few other bits and pieces. That was when car parking attendants actually became covered by an award and that provision hasn't changed and we are talking about 40 years later and they are talking about maintaining it.
PN2490
The regular part-time employment provisions we say clearly do not comply with Full Bench decisions of this Commission and it is not an issue of the possibility of abuse, it is just a question of making sure that part-timers actually have regular rostered hours and their entitlements are clear. It also comes back once again to the safety net. I gather that they are going to reinsert the fifth weeks annual leave which they sought to delete arising out of our raising it as part of the safety net issue. It might actually be helpful, I think, if the employers were to say - I am going to use my friend's words against him - but it might be helpful for the employers to say which claims, if any, they are abandoning in the face of the simplified award and I say that with respect to the sick leave provision.
PN2491
We say it has been dealt with as part of the simplification process. If that is not going to be an issue between the parties we may as well try and limit the areas of argument as opposed to arguing the toss about everything and the same thing also says - the same submissions can also be used with respect to annual leave and then there is a number of clauses at the end: clause 25, right of entry, that has been dealt with, it is not allowable; clause 26, shop stewards, that is not allowable; clause 27, uniforms and protective clothing, that is now found in the allowances clause.
PN2492
Clause 31, mixed functions, that is clearly allowable and contained in the draft simplified award; payment of wages clause my friend didn't take you to but they would need to justify, according to their operational requirements, why the wages should be paid no later than the end of Friday; and the introduction of change provision is obviously not allowable as well. It is a reduction of the safety net. We have said, in our submissions, and we don't resile from this, we have said in our submissions that the claim is of such a scope that it borders on an abuse of the Commission's processes to have a claim like this, a counter claim like this, being made and being heard, because the truth of the matter is, your Honour, that there is little or no basis upon which the Commission could grant this application. If the Commission pleases.
PN2493
THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Frenzel. Would that be a convenient time? We will adjourn till 2.15.
LUNCHEON ADJOURNMENT [12.57pm]
RESUMED [2.33pm]
PN2494
THE SENIOR DEPUTY PRESIDENT: Sorry to hold you up. Yes, Mr O'Grady.
PN2495
MR O'GRADY: Thank you for the time, your Honour. Before Mr Larkin goes into the box - and he will be the first of the respondent's witnesses - there is an issue between myself and Ms Frenzel concerning some material that we would seek to put before the Commission which relates to the impact on profitability of any wage increase. Now, your Honour, the problem is that the material that I would seek to put before the Commission is, from my client's point of view, highly confidential and commercially sensitive and I have shown Ms Frenzel a document which she has - along the basis that she would keep it confidential and not disclose its contents to either her instructor, Mr Oates, or anybody else.
PN2496
She, as I understand it, has some concerns as to the relevance of the material that we have generated and what I would ask your Honour is that, if your Honour is prepared to do this, to hear submissions about this issue in the absence of witnesses and, indeed, in the absence of instructors because Ms Frenzel says that I shouldn't have an instructor if she can't have one, and we can resolve these issues.
PN2497
THE SENIOR DEPUTY PRESIDENT: Well, I think that is a sensible way to deal with it, isn't it?
PN2498
MR O'GRADY: Yes, your Honour.
PN2499
THE SENIOR DEPUTY PRESIDENT: All right. And do you want it recorded on the transcript and made confidential?
PN2500
MR O'GRADY: I don't think it is going to be necessary to refer to any of the figures themselves, so in those circumstances I don't believe the transcript should be a problem.
PN2501
THE SENIOR DEPUTY PRESIDENT: All right. Well, I will adjourn the matter into private conference with the representatives of the parties, namely, Mr O'Grady of counsel and Ms Frenzel on behalf of the LHMU, to hear argument on the question of confidentiality of the material.
PN2502
MR O'GRADY: Yes, thank your Honour.
PN2503
THE SENIOR DEPUTY PRESIDENT: Sorry, did you want to say something, Ms Frenzel? I should have asked you first of all.
PN2504
MS FRENZEL: Sorry, and the relevance too, your Honour.
PN2505
PN2506
THE SENIOR DEPUTY PRESIDENT: The other members of your clients can return and so can the - - -
PN2507
MR O'GRADY: Yes, your Honour. I just didn't want them coming in while Mr Larkin was taking the oath.
PN2508
THE SENIOR DEPUTY PRESIDENT: Sorry, yes. Well, everyone can return, for that matter.
PN2509
MR O'GRADY: Your Honour, before I start asking Mr Larkin questions can I just let my instructor know what has transpired in conference?
PN2510
THE SENIOR DEPUTY PRESIDENT: Ms Frenzel, by the way, apart from telling your people about the confidential nature of the document, there is no reason why you shouldn't tell them about what transpired as well.
PN2511
MS FRENZEL: I have.
PN2512
MR O'GRADY: Mr Larkin, could you tell the Commission your full name, please, sir?---John Larkin.
PN2513
And what is your occupation, Mr Larkin?---General manager of Wilson Parking for Victoria and Tasmania.
PN2514
And what is your business address, sir?---Level 7, the Challenge Tower, 459 Collins Street, Melbourne.
PN2515
And have you been involved in the preparation of two witness statements for these proceedings?---I have.
**** JOHN LARKIN XN MR O'GRADY
PN2516
Do you have a copy of those statements before you, sir?---I do.
PN2517
And is one of those statements dated 26 June of 2002?---Yes, it is.
PN2518
Are you familiar with the contents of that statement?---Yes, I am.
PN2519
And to the best of your knowledge, is that statement true and correct?---It is.
PN2520
I would seek to tender that statement, your Honour.
PN2521
THE SENIOR DEPUTY PRESIDENT: The witness statement of John Larkin dated 26 June 2002 will be exhibit R10.
PN2522
MR O'GRADY: Mr Larkin, was there a subsequent witness statement prepared with your involvement dated 25 October of 2002?---There was.
PN2523
Do you have a copy of that statement before you?---I do.
PN2524
You are familiar with the contents of that statement?---I am.
PN2525
And to the best of your knowledge, is that statement true and correct?---It is.
PN2526
I seek to tender that statement as well, your Honour.
PN2527
THE SENIOR DEPUTY PRESIDENT: The witness statement of John Larkin dated 25 October 2002 will be exhibit R11.
**** JOHN LARKIN XN MR O'GRADY
PN2528
MR O'GRADY: Your Honour, my instructor tells me that according to hit list your Honour's list is incorrect, that the exhibit that you numbered R10 should be R11 and the second witness statement should be R12.
PN2529
THE SENIOR DEPUTY PRESIDENT: Can you tell me what R10 was?
PN2530
MR O'GRADY: There were the two outlines filed by the respondent, your Honour. The first one relating to the union's application was exhibit R9 and the second one was exhibit R10. That was the outline dated 25 October.
PN2531
PN2532
MR O'GRADY: Now, Mr Larkin, according to your witness statement, you have been with Wilson Parking for some nine years?---That is correct.
PN2533
And you commenced with them as state operations manager in 1993?---That is correct.
PN2534
Prior to being engaged by Wilson's, what were you doing?---I spent 13 years in the aviation industry.
PN2535
I see. Did that involve any interaction with car parks other than that of a general commuter?---Only at the airport, for staff parking.
**** JOHN LARKIN XN MR O'GRADY
PN2536
That is probably a good start, I would have thought, yes.
PN2537
THE SENIOR DEPUTY PRESIDENT: Parking cars or planes?
PN2538
MR O'GRADY: Yes. And you moved from the position of state operations manager to the position of business development manager in 1995; is that the case?---That is the case.
PN2539
And since 2000 you have been the general manager for Victoria and Tasmania?---That is the case.
PN2540
Could you describe for the Commission the changes that have occurred in the car parking industry since you commenced as state operations manager in 1993 to the circumstances of the industry at this point time, and perhaps if I break that up a little bit, Mr Larkin. With respect to the duties being undertaken by car park attendants, have there been any changes in the way in which people perform their tasks now when you compare it to what it was like in 1993?---The situation now is a lot easier than the conditions and the scope of work that was required back in 1993.
PN2541
Why do you say that, Mr Larkin? Can you give us some examples - describe for us the way in which the industry used to generally work back in 1993 and how it has become easier?---Back in '93 there was a lot less reliance on any form of real access control equipment.
PN2542
What do you mean by real access control equipment?---Where there would be an automatic dispensing of a ticket and they would have equipment that they currently have that calculates the fees and identifies the amount to be charged to a customer accordingly.
PN2543
We heard some evidence yesterday that machinery that calculated fees and change has been a longstanding part of the industry. Would you agree or disagree with that?---I would agree in part that the equipment has been available but not necessarily taken up at every site in previous years.
**** JOHN LARKIN XN MR O'GRADY
PN2544
THE SENIOR DEPUTY PRESIDENT: Sorry, that is the sites of the company that you work with?---Correct.
PN2545
Do you know about other sites?---In a general term, in general times. If I can elaborate - - -
PN2546
MR O'GRADY: Yes, please, yes?---When I first commenced back in '93 there was a lot more pay on entry type operations and - - -
PN2547
Could you just - sorry. This is very helpful but if you could explain to the Commission what you mean by a pay on entry site?---There were a lot more car parks where there was a flat fee for parking and people would pay on arrival that flat fee and be dispensed, invariably, with a form of ticket, manually issued, and the change would be dispensed from, depending on the site - if it was an open air type site, for example, the change would be dispensed by the attendant at that time using some form of pouch that they were carrying the money in. Certainly there was a lot less car parks in general that had fee calculating computers as part of the register system.
PN2548
And could you tell us a little bit - moving from the situation in 1993 to the current sort of position, these fee calculating computers, how do they operate? What do they tell you? If you are working in a booth and somebody is exiting a car park and they proffer - well, what happens when they come up to the exit booth?---Going back in the early days what would happen would be that they would enter the time of arrival as displayed on the ticket into a register and the register would be recording the time of exit at that time and by way of having to enter a time of arrival a fee calculation was proffered. As the equipment became more sophisticated it moved into bar code technology and optic reads where there was holes punched through a ticket, and it moved to more of an automatic validation system whereby putting a ticket into a validator the whole calculation is calculated at the time of exit.
**** JOHN LARKIN XN MR O'GRADY
PN2549
Okay, and that is the calculation of the fee. What about the issue of money proffered and change; has that changed - has that situation altered at all since the early period, the 1993 period and the current situation with respect to the computerised cash registers?---There are systems available now that actually identify how much change to be given once you have identified how much has been vended to - for example, if are giving a $20 note, it will say, well, you owe $13 change.
PN2550
Okay. So there is a change with respect to the way in which fees are calculated and tickets are dispensed. Have there been any other alterations, from your knowledge of the industry, since when you started as state operations manager to now?---There certainly has been a move away from the open air type car park to more, if you like, the constructions - the fully constructed car parks where it is multi level or below ground. There has certainly been a lot of construction in car parks, especially in Victoria, over the last decade. There is that component of it and - - -
PN2551
THE SENIOR DEPUTY PRESIDENT: That has been going on for more than a decade, though, hasn't it?---Certainly, but in the - when I first started there were a lot more open air type sites than currently exist. There is one change.
PN2552
MR O'GRADY: What about the duties that a car park attendant might be asked to perform during the course of their day; has that altered at all other than the taking of moneys or the issuing of tickets upon entry?---Not as much, not as much. I mean, the task in '93 involved, if you like, more mental calculations at the end of the day for a shift report because they had to actually physically count up the amount of tickets that were issued at various rates. Today, for example, it is pretty well computer generated. The amount of your taking is known to you at the end of the day by enactment of a close of shift report, and you really only have to identify the correct takings and have it banked accordingly.
PN2553
Moving from the tasks that an individual car park attendant might be performing during the day to the industry more generally, has there been a change in the position with respect to the industry and the competitiveness of the industry since when you started in 1993 to today?---The answer is yes.
**** JOHN LARKIN XN MR O'GRADY
PN2554
In what respect, sir?---Probably two-fold. First is there has been a move for more customer service to be provided by staff in the car park by way of identifying vacant bays and/or having a general knowledge of the area that people are visiting, whether it be in the building, identifying where certain tenants habitate or to other features in the general area in terms of tourism. And from a competitive point of view, there is no doubt that, specially from the landlord's perspective, they are reaping far more in terms of rent from the takings of car park than existed a decade ago.
PN2555
What impact does that change in the landlord's perspective have on those companies operating car parking businesses? What impact does that increase in the landlord's take have on companies like Wilson's and others who are trying to make a business out of running a car park?---It is fair to say that 10 or 15 years ago there were far more leased car parks within the industry primarily because the landlords at the time were not as aware of how a car park actually operates. Over the last decade there has - and our portfolio, as indicated by - at least 50 per cent of our portfolio is now managed and along the way, because of the provision of managed reports, the landlord or the property manager representing the landlord has become far more aware of the general operation of the car park both from a revenue and an expense perspective.
PN2556
Has that made it easier or harder for a company like Wilson's to make a quid?---It has certainly made it a lot harder.
PN2557
THE SENIOR DEPUTY PRESIDENT: Sorry, could I just ask the rents then that are paid to property owners for car parks, are they fixed term contracts generally or - - -?---The lease terms?
PN2558
Yes?---Yes, with options in a lot of cases.
PN2559
So they can't increase their value of the rent over the course of the contract or they can?---Yes, they can.
**** JOHN LARKIN XN MR O'GRADY
PN2560
They can?---Usually in two ways or a combination of both. One is usually there is an agreed fixed increase per annum, whether that be CPI or another agreed percentage. The second alternative is to have a proportion of turnover as rental, additional rental. In some cases there is both, where you have fixed increases plus the generation of turnover as a rental payment.
PN2561
But you know then at the beginning of each year what the increase is going to be. Can they adjust it outside of those sorts of arrangements?---No. The only adjustment will be in what is realised in turnover when talking turnover rent. That is the only variation upwards or downwards.
PN2562
Yes, all right. Sorry, Mr O'Grady.
PN2563
MR O'GRADY: Of course, your Honour.
PN2564
Perhaps while we are dealing with this area we might just look at the different ways in which sites are accessed by Wilson's. You have mentioned leased sites. We have also heard evidence of a type of arrangement called a managed site. Could you explain to the Commission what is a managed site and how it differs from a leased site?---Okay. The fundamental difference, I would suggest, between a leased and managed site is that the goodwill that is generated in a car park, whether that be through monthly parkers or regular casual visitation or regular all day parkers in the form of early birds, that goodwill belongs to the property owner and they engage us as a service provider to collect fees and bank on their behalf. And invariably we get reimbursed of our expenses and paid a nominal fee for the provision of those services. It can come in two parts, where there is variable reimbursements on a monthly basis, depending on the fluctuations of the business or, indeed, it can be what is known as a fixed management agreement, whereby we charge one set fee per month regardless of the conditions and take the risk on any cost escalation going forward over a period. In any event, the revenues on a daily basis are reverted to the owner.
**** JOHN LARKIN XN MR O'GRADY
PN2565
With respect to the fixed fee sites, if there was an increase in your operating costs do you have the capacity to pass on that increase to the owner of the site?---Not at all.
[3.20pm]
PN2566
And how does a company like Wilsons obtain access to a site under a managed agreement?---It is usually under tender.
PN2567
Yes?---Where we were competing with three, four, maybe more, parking operators to take on the management of that venue.
PN2568
I see. All right. And what sort of duration are the agreements for managed sites, or what is the range?---On average?
PN2569
On average?---I would say three years.
PN2570
Yes, I see. All right. We have also had some evidence of an arrangement called a fixed price - - -
PN2571
SENIOR DEPUTY PRESIDENT LACY: Sorry, Mr O'Grady, just before you go on with that, in the event that it becomes unprofitable to operate a managed site, can the management walk away from it?---No, not as a rule. The only out clause is usually provided by or can be exercised by the landlord if in turn they sell or redevelop the site. That is usually the only out clause under those terms.
PN2572
Sorry, Mr O'Grady.
PN2573
MR O'GRADY: Yes, your Honour.
**** JOHN LARKIN XN MR O'GRADY
PN2574
We have also heard some evidence of something called a fixed price arrangement. Could you describe for the Commission what that type of arrangement is?---Fixed price when requested under tender requires and usually it is through government instrumentalities that ask for this, such as Melbourne City Council, they request a sum to be nominated for the provision of services - - -
PN2575
Yes?--- - - - which through the tender process they identify the range of costs that have to be absorbed within that fixed price.
PN2576
Yes?---Everything from in general terms the general operational costs of the car park.
PN2577
Yes?---And to include a fee for service within that response.
PN2578
Yes?---And in general terms the lowest price usually wins.
PN2579
Yes. Just so that I understand that type of arrangement, to take an example of a site that was earning say $3000 a month?---Mm.
PN2580
That might be - I just plucked that figure out of the air - $3000 a month, how would you tender for a site like that under a fixed price arrangement?---We would have to calculate in our own mind the cost of services over the period.
PN2581
Yes, okay. And let us say that you calculated the figure of $2000 as being the cost of services over the period?---Mm.
PN2582
Is that the way it would be done, you would come up with a figure - or perhaps give - pick some figures that are perhaps more realistic and explain to us how the calculations would be done?---Well, in general terms what you have to do is to do a budget.
**** JOHN LARKIN XN MR O'GRADY
PN2583
Yes?---For a car park over a 12-month period.
PN2584
Yes?---Take - and depending on what costs you are being asked to cover within that fee, you have to calculate the escalation, whether it be on labour costs, the escalation for example on Workcover levy, superannuation, payroll tax etcetera - - -
PN2585
Yes?---The likely growth in the cost of electricity.
PN2586
Yes?---I mean, there is a range of costs dependent on what we have been asked to absorb, that would be calculated. We would take if you like a commercial risk on the escalation of those prices and we would also take a commercial risk in terms of if we were aware that the other competitors were applying, for example, the award rates to a particular contract, we would see that the application of that award would be vital in terms of how the award is applied over - if it is a seven-day cycle or a five-day cycle in terms of the cost of labour. We would see that in most cases we would be reasonably competitive with each other on that basis.
PN2587
Yes, and you would put in a figure based on those calculations?---Yes.
PN2588
If it turned out that your operating costs were less than the figure that you tendered for, I am assuming that from what you have said it flows that you would make a greater than anticipated profit on the running of that particular site?---That is correct, but it is very rare.
PN2589
Yes. And conversely, I suppose, if your operating costs were greater than the figure you arrived at after those calculations, then your operating profit would be - would obviously be less than what you had hoped to achieve and indeed may be a loss, I suppose?---That is correct.
PN2590
All right. In your witness statement filed on 26 June you - in paragraph 3 you deal with the issue of engagement of casuals, has there been a change in the level of casual engagement in the industry since when you started in 1993 and today, to your knowledge?---There certainly has.
**** JOHN LARKIN XN MR O'GRADY
PN2591
In what respect?---The percentage of casuals versus full-timers has reversed.
PN2592
Yes?---When I first started there was a greater reliance on casual labour and far less reliance on full-time labour.
PN2593
Are you in a position to give an estimate of what you would say would have been the ratio of casual engagement back in 1993?---It would have been about 75 per cent of the labour force at the time.
PN2594
All right. And you indicate in paragraph 4 of your witness statement that currently of the 196 employees, putting to one side the Colonial Stadium employees, I want to ask you about those in a minute - - -?---Mm.
PN2595
- - - you have something approaching 70 per cent or 68.5 per cent of full-time employees?---That is correct.
PN2596
Do you have a - - -
PN2597
SENIOR DEPUTY PRESIDENT LACY: Does that - sorry, does that vary much?---The number of staff, or the percentage?
PN2598
No, the percentages of casuals?---As we have moved forward we have looked to - and the industry has become far more competitive we have looked to get the most cost-effective way of engaging staff, but similarly what we also want is to engage people for the longer term and have less reliance on the ad hoc requirements of casual staff who for their own reasons may choose or not choose to be available for work. The administration of our business is made somewhat easier where we can rely on full-time staff to take a full-time job with us, and that has been something I have pushed over the last nine years, just to have more reliance on full-time staff.
**** JOHN LARKIN XN MR O'GRADY
PN2599
But there would be peaks and troughs, I suspect, in the business at various times in some of the places in any event, wouldn't there?---That is correct.
PN2600
And is there a higher proportion of casual staff employed in those periods of peaks?---No. Where we would probably engage more casuals in terms of peaks would be for event-based activity such as our operation at Colonial Stadium, which has 22, 23 weeks in the year of football.
PN2601
Well, what about the car parks around the city area around the Christmas period as well?---No. From time to time, depending on the car park there may be a higher reliance on additional staff, but really it is a matter of balancing out our leave allowances for staff who are full-time with us, having leave coverage for them and certain cases where there is an amount of jockey parking and/or extended hours due to the retail activity over the Christmas period or pre-Christmas period we would engage a small percentage of extra staff to assist where necessary, but not a great fluctuation in general terms.
PN2602
MR O'GRADY: Mr Larkin, as you are aware, one of the issues in both applications is that the provision - or a provision that would enable people to be engaged on a permanent part-time basis as opposed to a full-time or casual basis?---Mm.
PN2603
How would you - assuming that such a provision was inserted in the award, what impact do you think that would have on the level of engagement of casuals?---I would suggest that the engagement of part-timers would diminish somewhat the reliance on casuals, but certainly the engagement of part-timers in our particular business would primarily be for amount of leave coverage that we need to provide for our full-time staff, so we have a better way of planning our annual leave.
PN2604
Yes?---Because we can rely on at least 20 hours a week or thereabouts from a part-timer, and secondly, by amalgamating certain car parks' roles we may in fact be able to have more certainty about the engagement of three or four hours at a time at a particular car park that is required with casual labour at the moment to maybe get a percentage of that taken up by part-time staff.
**** JOHN LARKIN XN MR O'GRADY
PN2605
You referred earlier in response to a question by his Honour to event-based casuals, and in paragraph 4 you deal with the Colonial Stadium situation. Can you just - I suppose - describe for us the operation at Colonial Stadium and the ratio of casual staff who are engaged with respect to those parks?---Well, firstly, the operation of the car park during the normal course of a week outside of event mode is operated by a manager and a team of three others who are employed on a full-time basis on salary, who perform a number of functions on behalf of Wilson Parking and the stadium itself.
PN2606
Yes?---There is a lot of pre-event ticketing done and there is probably about 1500 early birds a day that park there, plus a lot of permanent parkers, and there is - - -
PN2607
Yes. What is the capacity of the Colonial car park?---Two and a half thousand inside the stadium.
PN2608
Yes?---And in event mode there is a requirement to guide or to segregate in some respects the public from the Medallion Club user and they choose to allocate roughly 1000 bays an event to the public who park inside the stadium; that is outside of those who park outside the stadium as well.
PN2609
Yes?---And we engage staff to both assist outside the gates of the car park to identify which is the most appropriate lane for them to enter, and also within the venue itself to direct them to available bays.
PN2610
The event of course would either be a game of footy or a game of cricket or a concert or something being held at Colonial, I take it?---Correct.
PN2611
How does the usage pattern of the car parks during such an event differ from the usage pattern of Colonial either when it is not in event mode, or indeed, the usage pattern of say your car park at 200 Queen Street?---With event parking you get a high level of arrivals within a short space of time and similarly you get a high level of exits in a short space of time.
**** JOHN LARKIN XN MR O'GRADY
PN2612
And does that have an impact for the number of - the ratio, or the level of car park attendants that you have on at any particular time?---Correct.
PN2613
SENIOR DEPUTY PRESIDENT LACY: How do you maintain your pool of casuals?---They probably come in two pools; one is our day to day requirements on average which those people who have made themselves available on a seven-day basis, but more often than not on a Monday to Friday basis, as against those who elect to work during events. Those who work for us for events, for example, are usually people who are doing university course or something similar, so that they get the - they have the ability to be available for work in an evening as compared to the amount of casual staff that we have working during our normal course of business who rely on us for anything up to 20, 30 hours a week to add to their financial income.
PN2614
So if you don't have an event for four, five, six weeks, two months, how do you keep those casuals, or event-based casuals, on your books, or interested?---We have a database, but invariably they advise us of their availability. For example, if this their last week of a course, this particular year, and they are working in September they advise that they won't be available in the coming year. Similarly, we ask people to advise us about a month in advance of the events, the traditional football period for example at Colonial, of their availability. If we are unable to create a pool that is large enough we will advertise and recruit accordingly. But it is a very transient group in general.
PN2615
MR O'GRADY: And is that in contrast to the casuals that you might use in the CBD, or - - -?---They are less transient, but they are transient.
PN2616
Yes. All right. Could you look at paragraph 6 of your first statement for me, please, Mr Larkin, and in that paragraph you refer to what Mr Oates said in his statement, and you take issue with the assertion by Mr Oates that car park attendants typically undertake cleaning duties because a company like Wilson Parking employs cleaning contractors to clean the car park. Is that something that has always been the case, or is that something that has changed over the years?---The requirement for cleaning and the expectation of the public has heightened over the last decade, there is no doubt about that.
**** JOHN LARKIN XN MR O'GRADY
PN2617
And so when you started in 1993 in the position of State Operations Manager, did you engage, or did Wilsons engage cleaning contractors to clean car parks, or who did the cleaning of the car parks?---Certain car parks were cleaned, a lot weren't, but since then invariably every car park that we operate is now being cleaned by a cleaning contractor. We spend in excess of $600,000 a year for cleaning.
PN2618
And do you accept that on occasion a car parking attendant might pick up a bit of litter or clean up around the car park?---Certainly there is an expectation that they will keep their work place tidy, which is their booth.
PN2619
Yes?---If you are asking whether we expect them to pick up paper?
PN2620
Yes?---We would be encouraged if that was the case, but it is not certainly a direction.
PN2621
I see?---May I make a point?
PN2622
Yes?---It is just of more recent times we are very concerned about the needle-stick injuries that can occur and we actively discourage people from engaging in the collection of litter for that very purpose. We have had a number of - a few instances where our staff or managers indeed have had to undergo blood tests as a result of invariably picking up something that had a needle inside it.
PN2623
All right. Now, you also take issue with computer skills. Mr Oates in his statement stated - just bear with me:
PN2624
Car park attendant duties involve cash handling, security and surveillance, computer skills -
**** JOHN LARKIN XN MR O'GRADY
PN2625
and you indicate in your statement that the only computer skills required by car parking attendants are for the purpose of fee validation where the register actually indicates the applicable fee. Can you think of any other types of computer skills that car parking attendants would be required to exercise in the course of their duties?---Outside of the basic cashiering, no.
PN2626
Yes. To your knowledge have car parking attendants working for Wilsons Car Parking ever been asked to undertake data entry during the course of - into computers during the course of their shifts?---No.
PN2627
Mr Oates also refers to the obligation of car parking attendants to undertake driving?---Mm.
PN2628
You say in your statement:
PN2629
In most car parks, car parking attendants are not required to drive vehicles -
PN2630
and:
PN2631
..this is only likely to arise at car parks where a practice of jockey parking is utilised.
PN2632
And that that is only 23 of the 92 car parks operated by Wilson Car Parking. In those 23 car parks, are all of the car parking attendants likely to be undertaking jockey parking during the course of their shift?---Not all staff.
PN2633
No?---Only those directly engaged to do that function.
**** JOHN LARKIN XN MR O'GRADY
PN2634
And with respect to the jockey parking that is undertaken, is it something that is operating at a consistent level throughout the course of the day or is it something that has peaks and troughs?---Very much car park dependent. There are peaks and troughs at a number of car parks. Certainly in a lot of cases the inbound traffic in the morning provides the highest requirement to park initially, and then to if you like unstack the vehicles at the end of the day.
PN2635
Yes, yes. And between those two peaks there would be one assumes a drop?---Correct.
PN2636
On the question of car park usage, if I could ask you to have a look at a bundle of ..... for me, please. Could the witness please be shown MFIR1 please, your Honour.
PN2637
SENIOR DEPUTY PRESIDENT LACY: Are they - are all the copies of those held by the Commission, are they?
PN2638
MR O'GRADY: It may well be that some of the union witnesses have followed Mr Oates's lead and - I think Mr Oates tried to appropriate them earlier and it may well be that - - -
PN2639
SENIOR DEPUTY PRESIDENT LACY: It is not uncommon for witnesses to carry away the exhibits from the witness box when they have given their evidence.
PN2640
MR O'GRADY: Perhaps if Mr Jackson could be searched, your Honour, to see whether he - - -
PN2641
SENIOR DEPUTY PRESIDENT LACY: I have provided my copies to the witness. It is all right, I can operate without one.
**** JOHN LARKIN XN MR O'GRADY
PN2642
MR O'GRADY: Your Honour, I will just simply get them identified and we will go from there.
PN2643
SENIOR DEPUTY PRESIDENT LACY: Yes.
PN2644
MR O'GRADY: Mr Larkin, are you aware that tables relating to the usage of the 200 Queen Street car park have been generated by your administrative staff?---I am aware.
PN2645
Yes. And the document you have before you is a copy of the tables that were generated for that car park for the week commencing Monday 28 October?---For 200 Queen Street, yes.
PN2646
And to the best of your knowledge do those tables accurately reflect the usage pattern of that car park during the course of that week?---They do.
PN2647
Yes. I would seek to tender those absolutely, your Honour.
PN2648
SENIOR DEPUTY PRESIDENT LACY: Yes. They will be entered in evidence as the exhibit numbers less the MFI.
PN2649
MR O'GRADY: Yes. Thank you, your Honour. Perhaps if the witness could be shown my copy of the tables just for some brief questions.
PN2650
Now, Mr Larkin, the green bar of course are the people entering for early bird parking at that site, and as you appreciate, they are not all entering at 6.30, but they are entering as early bird parkers during the times of the opening of that site to the end of the early bird period, and the red-ish bars relate to exit rate. Is that pattern of usage with a significant influx in the morning coupled by a relatively low rate of egress during the afternoon until we build up to a peak at around 5 o'clock in the afternoon, is that consistent with your knowledge of the pattern of usage of a CBD car park?---It is for a standard car park outside of retail.
**** JOHN LARKIN XN MR O'GRADY
PN2651
And what would be the impact of a car park that was closer to retail? How would that impact upon the ingress and egress rates?---A car park such as Melbourne Central would probably have less arrivals first thing in the morning and have a steady build-up peaking around the lunchtime periods and then have a steady decline towards the afternoon, the end of the afternoon.
PN2652
And what sort of steps are taken by - dealing with perhaps those that are non-retail car parks, what sort of steps are taken by companies like Wilsons to help cope with the increased exit rates that occur around the 5 o'clock mark, you know, from 4.30 onwards?---Well, in this particular car park we have additional staff engaged for a period of three or four hours to help unstack vehicles to get a timely and service-oriented approach to people returning to their vehicles between the hours of say 4.30 in the afternoon and 7 o'clock at night.
PN2653
Do some of your car parks have more than one exit lane?---Yes.
PN2654
Are any steps taken with respect to the opening up of those lanes to enable people to leave during the peak periods?---Yes.
PN2655
Could you describe those for us, please?---Where we have what is known as a tidal lane, which is a central lane, used as an entry in the morning and an exit in the afternoon, that is usually taken up. Obviously it is applied depending on the volume of the traffic that it experiences both in the morning and in the evening.
PN2656
And with respect to the jockey parking work that you were giving evidence about earlier, from what I understand from your last answer, jockey parking unstacking would start at about four-ish in the afternoon. Is that the case?---It usually revolves round the conditions of the early bird parking and when you have to leave after 3.30, 4 o'clock, thereabouts, as a rule.
PN2657
And at the beginning of the day is it fair to say that it would be early in the morning that there would be significant jockey parking?---Correct, because the use of the early bird conditions where jockey parking is involved would finish about 9.30 or 10 o'clock in the morning.
**** JOHN LARKIN XN MR O'GRADY
PN2658
Yes, thank you. Could I be handed those back please, sir.
[3.43pm]
PN2659
And - sorry, I won't go any further, your Honour. In paragraph 7 of your statement you deal with the issue of accountancy or marketing functions, and you indicate that a car parking attendant is not required to be involved in accountancy or marketing functions. Now, what are the duties of an attendant who is working as a cashier at the end of their shift vis-a-vis the amounts of money that they have received; what do they have to do?---Complete a shift report.
PN2660
Yes?---And to verify the takings as against that shift report, and to ensure that the float as - the float amount as was at the start of their shift is - remains at the end of the shift.
PN2661
Why do you say in paragraph 7 of your statement that there are no accountancy functions?---Because the majority of this work is produced through automation.
PN2662
I see. And as to marketing functions, we have heard evidence from Mr Oates that car parking attendants are supposed to distribute, or facilitate the distribution of pamphlets to customers regarding permanency and those sorts of things. Is that - do you understand that as being part of their duties?---We engage our own sales and marketing people to do that function.
PN2663
Yes, all right. In paragraph 9 of your statement - - -
PN2664
THE SENIOR DEPUTY PRESIDENT: Sorry, just before you go on, Mr O'Grady.
PN2665
MR O'GRADY: Sorry, your Honour.
**** JOHN LARKIN XN MR O'GRADY
PN2666
THE SENIOR DEPUTY PRESIDENT: I am sorry. Just going back to that issue about accountancy. If there is a discrepancy in the - between the account, if you like, the computerised automated account and the actual cash, what is the operator required to do then, or the attendant required to do then?---If there is an error, it would be found by our statistic staff the next day and/or our internal audit team who would then investigate it and, if required, would approach the staff member for an explanation for any shortfall that may be found.
PN2667
So if the staff member discovers there is a discrepancy in the cash that he holds or she holds - - -?---There is a provision in the shift report to make such comment.
PN2668
I see. They don't have to go chasing it or trying to work out what the problem is give an explanation of what they think the problem is?---Usually the discrepancy relates to a couple of dollars and it is not worth our time to - nor theirs, to be engaged for longer periods than necessary to identify what could be a two, $5 shortfall.
PN2669
All right?---In the event that there is anything major, they are to call their area manager who would attend the car park at that time to assist.
PN2670
MR O'GRADY: Mr Oates in paragraph 3 also refers to there being a security and surveillance aspect to a car parking attendant's duties. Do you have any comments that you could make about that?---Can I just clarify which paragraph?
PN2671
Mr Oates in paragraph 3: sorry, you don't have Mr Oates' statement there?---I beg your - - -
PN2672
But in paragraph 3, among the list of duties he says that there is a security and surveillance role that car parking attendants undertake. Do you have any comments with respect to that paragraph, or that assertion?---We use CCTVs in a number of car parks for that purpose and - - -
**** JOHN LARKIN XN MR O'GRADY
PN2673
Sorry, you will have to bear with us, Mr Larkin. What is a CCTV?---Closed circuit television.
PN2674
Thank you, sir?---And we also engage professional security guards where required to be in presence at our car parks.
PN2675
THE SENIOR DEPUTY PRESIDENT: Who monitors the CCTVs?---It goes straight to tape as a rule, and when and if there is an event, there is a reference to either the digital recording or the VHS recording. It is usually - it is used as a reference point.
PN2676
So you have no expectation of your staff or your car park attendants to be vigilant or conduct surveillance or anything like that in the course of their employment?---If - where there are screens provided in car parks for the observation of what the cameras are recording, if they are to see anything untoward they would ring either their area manager and/or the police directly to attend to the matter.
PN2677
MR O'GRADY: Would you expect a car parking attendant who had observed something on a screen or, indeed, whilst they were walking throughout the car park, an incident - somebody was breaking into a car or something else improper was occurring - what course of conduct would you understand would be the appropriate course for the car parking attendant to take?---The appropriate course is to ensure their safety first, and to revert to communicating to an authorised and trained body to attend the situation.
PN2678
To facilitate that, does Wilson have alarms fitted at some of its car parks?---Invariably every car park has a duress alarm of some form or fashion.
PN2679
Yes, yes. And I think you have also mentioned telephone communication?---Just about in every case there is a telephone, yes.
**** JOHN LARKIN XN MR O'GRADY
PN2680
All right. Mr Oates in his statement, and I think this was primarily Mr Oates' evidence, spoke about car parking attendants through their presence, if you like, deterring people from engaging in improper activities, you know, because they are there in their uniform and they are walking through the place. They both comfort customers and they also discourage somebody who might want to commit an offence. Would you take issue with that or do you agree that that is one of aspects of what takes place?---I think that is more a human nature issue where someone is less likely to conduct themselves in a criminal or otherwise fashion, given that there is someone within eyesight of any potential activity.
PN2681
Yes, all right. In paragraph 9 of your statement you detail the three basic roles, and I think we have spoken about on line cashiering?---Mm.
PN2682
I am sorry, before I get on to that, this is a statement - or a bundle of material that Ms Frenzel has provided to me, and I want to take you to thee last page and I don't know whether you intend to - do you want to - well, it is a matter for Ms Frenzel. I assume she has a copy that she ultimately intends to hand up to your Honour and I would like to just take the witness to one aspect of it now. I don't know whether Ms Frenzel - - -
PN2683
THE SENIOR DEPUTY PRESIDENT: I don't have it. This is not exhibited yet?
PN2684
MR O'GRADY: No, it is not exhibited.
PN2685
THE SENIOR DEPUTY PRESIDENT: No, all right. Yes, that is fine.
PN2686
MR O'GRADY: This was something that I was provided this morning by Ms Frenzel. But it might be easier if I do it now rather than in re-examination, your Honour - - -
**** JOHN LARKIN XN MR O'GRADY
PN2687
THE SENIOR DEPUTY PRESIDENT: Yes, yes.
PN2688
MR O'GRADY: - - - while I am on the topic. Can you see that; it is a sign, or it purports to be, as I understand it, a photocopy of a sign that says:
PN2689
Attendant on security patrol. Back in five minutes. We apologise for any inconvenience.
PN2690
Now, you have just given some evidence about the security functions of car parking attendants. How do you reconcile what you have just told us with what is in that document?---In simple terms, the attendant has either gone to the toilet - - -
PN2691
Yes?--- - - - and we probably wouldn't leave a note on the window saying "I am in the toilet."
PN2692
Yes?---Or they are doing their 11, 1 and 3 vacancy count.
PN2693
All right?---I agree that the use of the term is somewhat misleading but the use of these signs is when they have to do one of those two functions which is either a vacancy count or they need to relieve themselves.
PN2694
Yes, all right. With respect to vacancy counts, Mr Oates gave evidence that there was only one car parking station in Melbourne, as I understood it, where there was no need to do a vacancy count, where the machinery was capable of informing the car parking attendant staff as to the level of vacancy in the car park. Can you comment on that as a proposition?---We have one car park which is virtually not manned at all, and we rely on the sophisticated reports that are generated from that car park for our vacancy counts.
**** JOHN LARKIN XN MR O'GRADY
PN2695
Yes?---Although in that particular car park a number of managers are rostered to visit the car park at the appropriate times to estimate. So we have the most up to date information about vacancies at 11, 1 and 3.
PN2696
Yes?---In every other case there is a requirement for that to occur for our statistics.
PN2697
All right, okay. With respect to the sign that I took you to a moment ago, is that a sign that is issued by the head office of Wilson Parking in Australia?---It is not a sign that comes out of a central signage manual, and it is not a sign that is created by someone responsible solely for signage. It is usually - the wording invariably in the past has been at the discretion of the appropriate manager for a particular car park.
PN2698
I see.
PN2699
THE SENIOR DEPUTY PRESIDENT: So the capacity to produce that material at the car park is there. Is it at the car park itself?---Not at the car park, no.
PN2700
No?---It would be provided by a manager for a specific purpose.
PN2701
I see?---I think it is just - I take the point that it is potentially misleading but I think at the time the people who have written it are trying to state something to the general public to deflect from their real activity.
PN2702
Yes, yes?---Probably more on the personal nature than the vacancy count issue.
PN2703
Yes, all right. Now, with respect to paragraph 9(b) of your statement, you refer to working in a partly automated/fully automated car park?---Mm.
**** JOHN LARKIN XN MR O'GRADY
PN2704
And I think you have told us that you have one car park that is fully automated and doesn't have any attendants. Can you describe for the Commission what you mean by a fully automated car park?---Okay. Fully automated car park allows a person to enter the car park, to park their vehicle, to pay their parking fee if it is on a casual, hourly or a daily basis, and exit without actually having to engage with an employee to conduct the transaction.
PN2705
All right, okay. Well, what happens if the machinery jams, for example, in a car park like that?---All the machinery has SMS messaging attached to it where our roving area managers get a message on their mobile phone to - which specifically says: I have a ticket jam in hopper 3 at this car park and they can attend to it immediately.
PN2706
I see. Do you have - - -
PN2707
THE SENIOR DEPUTY PRESIDENT: Sorry, just on that, when you say immediately, what is the response time?---Invariably it is about 10 or 15 minutes, depending on the traffic. For example, if our area manager is on the north side of the river, so around the Flinders Street area, and needs to get to, say, to the Southgate area at 5.30 at night it is going to take about 10 or 15 minutes to get through that traffic. Most other times the response is well under that time because we have - - -
PN2708
Is it possible you have got cars queuing up at the machine or - - -?---Yes, but in those circumstances there are usually a second lane that they can exit by. The problems we - - -
PN2709
Without having to pay, without having to pay if that happens?---No, because they pay before they go back to their vehicle.
PN2710
I see.
**** JOHN LARKIN XN MR O'GRADY
PN2711
MR O'GRADY: Perhaps if I can just clarify that for you because I think it is quite important.
PN2712
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2713
MR O'GRADY: There are - can I put this to you, and if I have misunderstood it then correct me, but it might be quickest to do it this way. There are, in effect, three machines that a customer would have to interact with if they were using a fully automated car parking facility: the machine that they get their ticket from when they enter the car park, the machine that they attend on to pay for their car parking prior to returning their vehicle, and the machine that they insert their validated ticket in as they are exiting the car park?---Correct.
PN2714
Is that correct?---That is one of the options.
PN2715
Okay. Well, that is one of the options. What are the other options?---You can enter and exit by inserting your credit card at the entry and exit column and don't have to go to a machine at all.
PN2716
All right, okay. So you have facilities where that is done in Melbourne?---About 45 sites.
PN2717
Forty-five sites, all right. Are there any other options?---You have what is known as a debit card where you enter and exit, and every time you exit it draws down an agreed amount.
PN2718
Yes?---And tells you at the point of exit how much is left on your debit card. It is like an electronic purse.
PN2719
Yes, okay. Are there any other options?---You have a monthly pass card where - in the form of a proximity card.
**** JOHN LARKIN XN MR O'GRADY
PN2720
Yes?---You can waive the card at the reader to let you in and also to let you out.
PN2721
Okay. Now, with respect to those last two options, are they used solely - are there any sites where those are the only options for paying at a site: the debit card and the credit card option?---Depending on the equipments provided at a car park, if it is just product that we are talking about - - -
PN2722
Yes?---All those options are available at any time.
PN2723
All right, okay. I was I suppose - coming back to my example of the three machines and the automatic payment machine, APM?---Yes.
PN2724
That is located away from the exit boom gates, as I understand it?---Usually located at a point where most people would return to a car park, and invariably it is around a lift lobby if it is a multi-storey car park or below ground car park.
PN2725
Yes, and is it usual just to have one of those machines per car park, or a number of machines per car park?---It depends on the volume of traffic at a particular peak.
PN2726
Yes?---For example, our car park at Southgate at the Eureka complex has three on a certain level and one on another level.
PN2727
All right, okay. And with respect to those machines, in order to arrange for payment of your car parking fee you would insert the ticket that you had received as you entered the car park?---Correct. That is one of the options.
PN2728
Yes. It would tell you how much money you have to owe, and then you would pay for it either by way of credit card or cash?---Correct.
**** JOHN LARKIN XN MR O'GRADY
PN2729
Yes, and it would then eject a validated ticket?---Correct, and dispense change or - - -
PN2730
All right. And is it those machines you were talking about that would send the SMS message to the manager who could then come and fix it if it wasn't working properly?---Any component of that equipment has the ability to send a message, whether it be the barrier for entry, the ticket spitter, the APM, the exit reader.
PN2731
All right, fine. Thank you. And if a car parking attendant was manning a site where there was a problem with any of those machines, what would they be expected to do?---If it is a simple solution and the staff member has been shown how to fix a simple situation, then we would expect them to attend to that matter.
PN2732
Yes?---If they can't fix it, they call their area manager and/or our equipment maintenance provider who will attend to it as quick as they can.
PN2733
Right, thank you?---Can I make a point?
PN2734
Mm?---Most of the equipment is circuit board these days and invariably when something goes wrong outside of a genuine ticket jam, it does require sophisticated replacement equipment and/or a technician to attend to it. It is not something that even I would have an understanding of how to rectify.
PN2735
All right. Thank you, sir.
PN2736
THE SENIOR DEPUTY PRESIDENT: A good kick sometimes helps.
PN2737
MR O'GRADY: That is computers, your Honour.
**** JOHN LARKIN XN MR O'GRADY
PN2738
THE SENIOR DEPUTY PRESIDENT: Oh, I am sorry?---The machines don't argue back with you when you are expected to pay something. A good kick: I don't know.
PN2739
MR O'GRADY: All right, okay. Just bear with me, Mr Larkin. You describe in both of your witness statements, Mr Larkin, the nature of a car parking attendant's work. Are you - do you have any experience in the cleaning industry; have you ever worked as a cleaner?---Never.
PN2740
All right. Have you ever worked as a security guard?---Never.
PN2741
Why do you say in paragraph 5 of your statement, your second statement, that in your view the work performed by car parking attendants is actually easier than that of cleaners and security guards?---In both cases there is - from a cleaner and/or security guard there is far more reliance on the physical labour to conduct their work. In most cases, the people that we engage are in a sedentary position for most of their working day operating equipment that basically these days does the work for them.
PN2742
Yes?---The purpose of a cashier invariably at the end of the day, apart from the customer service that can be provided on a pay on exit system is to provide, where it can't be done automatically, a receipt and to issue change.
PN2743
In paragraph 9 of your statement you refer to the need to overhaul the award, and you say that the ordinary hours of work should reflect the changing nature of the business. Now, what do you mean by that, Mr Larkin?---The award in its beginnings was based on - primarily around a retail activity where shops didn't trade beyond 5 o'clock at night or 5.30, and when they opened on Saturday would close at one or 1.30 in the afternoon. I think everyone would understand that we operate now in very much a seven day mode and in a lot of cases in a seven day, 24 hour mode, and that the award as it stands doesn't reflect the trading patterns that exist in primarily the City of Melbourne today and for the future.
**** JOHN LARKIN XN MR O'GRADY
PN2744
All right.
PN2745
THE SENIOR DEPUTY PRESIDENT: When you say 24 hour pattern, you mean with operators available throughout the night or are they automated ones?---There is both occasions for that to occur but 10 or 15 years there would be very very very few car parks that would open 24 hours.
PN2746
I appreciate that?---There would be absolutely no car parks that operated on a Sunday, for example.
PN2747
Yes.
PN2748
MR O'GRADY: All right.
PN2749
THE SENIOR DEPUTY PRESIDENT: Does Wilson's car park, or Wilson's operate the car park, I should say, at Tullamarine?---We used to operate it.
PN2750
You don't now?---No, but that - when we operated it it was full pay on exit cashiering system, and it is not the case now.
PN2751
It has got an automatic - - -?---Fully automatic, yes.
PN2752
MR O'GRADY: I won't pursue that. In paragraph 10 of your statement you deal with the issue of changes to the classification structure in the award. Why, in your view, is there a need to address or alter the classification structure in the award?---I think it is fair to say that for the few variances that exist in our business, that there should be some recognition for a skill, for example, that comes with safe and effective jockey parking as against operating a register, and certainly some form of recognition for level of supervision within a car park where there is multiple staff involved.
**** JOHN LARKIN XN MR O'GRADY
PN2753
And in your view, does the current classification structure reflect those special skills or supervisory responsibilities?---I am not satisfied that it does.
PN2754
THE SENIOR DEPUTY PRESIDENT: Do you have occasions where employees or car park attendants are, in fact, appointed on a long term basis as a supervisor in an area?---Yes, that is the case.
PN2755
In the one area; they stay in the one area?---It depends. We have a number of our staff who are designated as supervisors and/or managers of a car park who may, in fact, oversee one or two car parks in the nearby area.
PN2756
So an allowance system wouldn't accommodate the way in which you operate with people acting in supervisory capacities?---We currently pay those people a form of a salary to perform that function which is over an award, to recognise what they do.
PN2757
But they stay in that sort of position on a permanent basis. They don't sort of one night come in and say you supervise this area tonight and - - -?---No. They are designated and nominated.
PN2758
MR O'GRADY: In paragraph 11 of your statement you deal with the issue of rostering and you indicate that Wilson Parking has sought to institute a three-week roster of 120 hours to be worked by employees. Does that roster apply to all of Wilson Parking employees?---No.
PN2759
Do you have - can you give evidence about what percentage, approximately, of your employees who are working as car parking attendants would be working that three-week roster?---It invariably applies to those people working in a car park that operates over seven days and that would represent about 15 per cent of our portfolio.
**** JOHN LARKIN XN MR O'GRADY
PN2760
Do those people who are working that roster do they receive overtime for those weeks where they work in excess of 40 hours per week?---They receive overtime - they would be receiving overtime payments if they worked beyond the average of 40 hours a week over the three-week period.
PN2761
I see, and so some weeks they would be working more than 40 hours and some weeks less than 40 hours?---Would you like me to - - -
PN2762
But as long as they didn't get over the total of the 120 hours over the three-week period they wouldn't get overtime; is that the situation?---Or if they were asked to work more than eight hours in a day on a single engagement basis throughout that roster.
PN2763
In your statement you say that that arrangement holds significant advantages for employees. Why do you say that?---Because it allows them to share in the benefit of a time and a half shift penalty each and every weekend day they work and the way we have rostered our staff is to allow them to have a four - well, they have the equivalent of six days off every three weeks and we roster in a fashion to give them a four-day break every weekend - sorry, a four-day break once every three weeks and to take the other two days off so that there is a far more manageable and palatable roster to be implemented. And they work either a morning shift one week or an afternoon shift the following week to do that.
PN2764
When he was giving his evidence Mr Oates referred to the desirability of having a rostered day off so that people could attend to bills and things during the course of the week as opposed to having to deal with them on a weekend. Would the operation of the three-week roster, as you understand it, provide that opportunity for employees on those weeks where they have got, if you like, a break of three or four days in a row?---They get a break of two or four days and in just about every case the staff members are very satisfied with the ability to take a four-day break, which does include a weekend as well.
[4.10pm]
**** JOHN LARKIN XN MR O'GRADY
PN2765
Sorry, your Honour. And when people are performing those three week shifts, do they rotate through the shifts or do they rotate through different car parks or both?---In the greater majority, if not all the cases, three week shift applies at one venue.
PN2766
Yes?---Because it is - that venue is open and - or hours of operation that require that roster to apply.
PN2767
Yes?---There are times, if I may, where there is a spare day.
PN2768
Yes?---And because of the way the roster patterns work, that spare day can either be worked at that car park or at another car park.
PN2769
What impact would it have on Wilson Car Parking if the Union were to succeed in its application and have a variation of the order that would prevent you from engaging in those sorts of rosters?---Well, then we would go back to engaging people on a Monday to Friday basis for full-time work. And they would be disadvantaged by not getting the shift penalties that apply on a weekend. And we would be forced to engage under the current award, casuals to work the weekend work.
PN2770
Yes?---The alternative to that is to ask someone to work a weekend every weekend as part of their shift, which I just think is not viable and it is unfair.
PN2771
Yes?---For example, Tuesday to - Wednesday to Sunday or Tuesday to Saturday. To work every Saturday, I think, is a big ask, to expect people to do that.
PN2772
In paragraph 13 of your statement, you expressed the view that casuals are not entitled to overtime payments or shift allowances under the existing award provisions. And you seek to clarify that issue. Now, Wilson - we have heard evidence of a claim brought by the Union with respect to overtime allowance fro casuals?---Mm.
**** JOHN LARKIN XN MR O'GRADY
PN2773
And Wilsons were the respondent to that claim, as I understand it?---Correct.
PN2774
All right. And as a result of that claim did Wilsons agree to pay casual employees for any outstanding entitlement to overtime?---Over a period of time we did agree.
PN2775
Yes?---Based on the fact that we couldn't see the clear statement in the award that precluded us from doing so, and/or stopped us from paying it. It is really a matter of interpretation that wasn't clear in the award.
PN2776
All right?---We saw clarity and we chose to settle.
PN2777
Yes. And has Wilson given - has Wilson operated since time in the basis that casual employees who work overtime will receive a loading with respect to that overtime?---Even when a casual works beyond eight hours they will.
PN2778
THE SENIOR DEPUTY PRESIDENT: That is on any day of the week, is it? I mean, if you have a casual come in six days of the work and he works beyond eight hours on one day, he gets paid for the overtime on that one day; is that right?---If we allow him to work more than eight hours in that period, yes. In that one engagement, yes.
PN2779
MR O'GRADY: In paragraph 14 of your statement, could you have a look at paragraph 14 of your second statement, please? Where you deal with rest periods and meal breaks, what is your current position with respect to the provision that should be in place concerning rest period and meal breaks?---Meal breaks are provided for those who are working day shift.
PN2780
Yes?---But in most cases, for rest periods there is ample time throughout a normal course of business for a rest period to be taken, and in a lot of cases we provide the facilities for that rest to be taken, such as coffee and tea making facilities.
**** JOHN LARKIN XN MR O'GRADY
PN2781
Yes?---And other such items.
PN2782
All right. Why do you say there is ample time during the day for those rest periods to be taken?---I think it is fair, and you have probably seen evidence already of how the peaks and troughs of trade of various car parks occurs, and in a lot of cases the activity in the morning doesn't require cashiering.
PN2783
Yes?---It only requires it in the evening.
PN2784
Yes?---It is not always the case, of course.
PN2785
Yes?---But over an eight hour day there is plenty of time, we feel, for people to take a rest period.
PN2786
Yes?---And they do.
PN2787
I have no further questions, your Honour.
PN2788
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr O'Grady. Ms Frenzel, any cross-examination?
PN2789
PN2790
MS FRENZEL: Mr Larkin, if I can first deal with your statement and evidence with respect to your June statement. You have given evidence about the changes in the industry from 1993. And then particularly you say that we have moved away from open air car parks to the construction of dedicated car parks. In terms of the number of spaces available in a specific geographic location now, is it fair to put to you that the number of spaces would have increased with the advent of multi-storey car parks as opposed to ground level car parks?---Yes.
**** JOHN LARKIN XXN MS FRENZEL
PN2791
And is it also fair to put to you that the number of staff per car park would not have necessarily increased by the same percentage?---I think there is two ways to answer that question: what is a volume issue, so there has been more car parks provided, which does actually increase employment, and then on an individual car park basis it invariably doesn't make much difference how many bays are in a car park to a point where there may be a requirement for multiple lane exit or entry to satisfy peak exit or entries for a particular venue. So the two don't necessarily match, if you see where I am coming from.
PN2792
Can I put it to you it is a far more efficient way, though, for car parking operators to make more money out of the same geographic space?
PN2793
MR O'GRADY: Your Honour, I simply ask that the notion of geographic space be clarified. Geographic space is a three dimensional concept as opposed to a two dimensional one and, of course, there are significant costs involved in erecting a multi-storey car park. It would be, in my submission, incorrect to put the proposition on the basis that you could make X dollars out of a 50 by 50 metres block of land 10 years ago as opposed to what you could make out of it now without acknowledging the costs of putting a five storey car park on that block of land.
PN2794
THE SENIOR DEPUTY PRESIDENT: Well, what do you mean by a geographical space?
PN2795
MS FRENZEL: If you have an empty block in the CBD which is an open air car park - there are some down near Owen Dixon Chambers and the like - I am not saying that Wilson's operate them - can I put it to you that if - and I am not saying that Wilson's construct the car park either, but I am saying a multi-storey car park is constructed on a vacant block previously used for open air parking. Is it a reasonable assumption, therefore, that there would be more income generated for that multi-storey car park than an open air car park?---More income generated?
PN2796
Yes?---Yes.
**** JOHN LARKIN XXN MS FRENZEL
PN2797
You gave evidence about the different types of - for want of a better expression - contracts and arrangements, business arrangements, and can I ask you this: exactly how many fixed fee sites would Wilson's operate in Victoria?---I can't give an exact number but it is about a dozen.
PN2798
And how many managed sites?---Half our portfolio, so it is about 40.
PN2799
And how many sites where you tender to provide the service?---Just about every case, apart from one that we own.
PN2800
And that is the Eureka Car Park. And your competitors are other car parking providers, are they not?---Other parking operators?
PN2801
Yes?---Yes.
PN2802
And to the best of your knowledge, are all those parking operators respondent to the Car Parking Award?---Most but not all.
PN2803
Tell me, what is the effect of a non-respondent tendering against you?---Our largest competitor is non-respondent. We have to take issue with that when we tender.
PN2804
And who might that be?---You want me to name the company?
PN2805
Yes, please?---Care Parking.
PN2806
Can I put it to you that Care Parking are, in fact, a respondent to the award?---Well, then that is news to me.
**** JOHN LARKIN XXN MS FRENZEL
PN2807
Going back to my question about award respondents and non respondents, taking Care out of the equation, what is the impact on your tendering processes and your tendering on the award against somebody who is not bound by the award?---Those who invariably ask to tender would be respondent to the award in just about every case.
PN2808
Now, in your experience, how many of - you may not be able to answer this and please say so if you can't. How many of your competitors tender on the basis of the award? You would be aware - - -?---How many other companies? There is only - - -
PN2809
MR O'GRADY: Your Honour, I must say I don't understand the question and that might mean that the witness doesn't either. I don't understand what tendering on the basis of the award means in the context of the question.
PN2810
MS FRENZEL: When you factor in your labour costs and your tenders - - -?---Yes.
PN2811
- - - on what basis do you calculate those labour costs?---We calculate through a model that applies the conditions of the award, dependent on the circumstances for that car park's operations.
PN2812
And to the best of your knowledge, is that the same way your competitors also tender?---I can't answer that.
PN2813
THE SENIOR DEPUTY PRESIDENT: If they are bound by the award, obviously that is a cost they would have to take into account. Well, they have to take their labour cost into account anyway, don't they?---Whether you are bound - if you are bound by the award is one thing. Whether you actually apply the award in your payment to people is another thing. That is what we won't assume.
**** JOHN LARKIN XXN MS FRENZEL
PN2814
Of course it is contrary to public interest to assume people won't observe the law?---It is a very competitive business. We certainly apply the award.
PN2815
I am pleased to hear that.
PN2816
MS FRENZEL: You do have different interpretations from the union about the award on occasions, though, don't you?---Only when it is ambiguous and neither party can agree on the wording, which we hope to clarify with simplification.
PN2817
Now, you have put in your statement various historical observations which include - just bear with me, I will take you to a couple. For example, paragraph 12?---This is the June - - -
PN2818
Sorry, the October statement. The last sentence on - paragraph 12, last sentence, and you are referring to the current award provision, which refers to ordinary hours ceasing at 1 pm on a Saturday. You say:
PN2819
The provision may have been relevant at a time when Saturday shopping hours only extended to 1 pm but now it is antiquated.
PN2820
There is that one. You are also saying that the award should be updated. In particular, I draw your attention to paragraph 9 where you say it is appropriate there be a full overhaul of the award. Mr Larkin, are you aware of when, for example, the provision with respect to ordinary hours only extending to 1 pm was inserted into the former Motor Drivers Award?---Am I aware when it was put in? Not specifically, no.
PN2821
And how long have you been employed in the industry again?---Nine years.
PN2822
Can I put it to you that it was inserted in 1962?---I wouldn't be surprised by that.
**** JOHN LARKIN XXN MS FRENZEL
PN2823
Can I also put it to you, Mr Larkin, that the casual rates with respect to the casual loading and the shift penalties found in the current award were also inserted in 1962. Are you aware of that?---No.
PN2824
Are you aware also that the 40-hour week was inserted in 1962?---It seems a lot was done in 1962 that I wasn't aware of, when I was three years old.
PN2825
Well, in that case you were a year older than me, without showing my age. I also put it to you that the rates applicable for Saturday and Sunday work for both shift workers and day workers were inserted in 1962.
PN2826
MR O'GRADY: Your Honour - - -
PN2827
THE SENIOR DEPUTY PRESIDENT: Well, sorry, I am not following the purport of whether the witness is aware of these matters being there in 1962. I just don't understand where it is heading.
PN2828
MS FRENZEL: Well, I was - the witness in his statement has said that the award requires more flexibility.
PN2829
THE SENIOR DEPUTY PRESIDENT: Yes, and that is being done with part of the award simplification process as I understand it.
PN2830
MS FRENZEL: Not entirely, your Honour. Can I put respectfully that their section 113 application also seeks to introduce a range of flexibilities.
PN2831
THE SENIOR DEPUTY PRESIDENT: The employers' - yes, I appreciate that.
PN2832
MS FRENZEL: Yes, and what I was going to put to the witness was, in fact, that the employers are operating under conditions which are a direct lift from 1962.
**** JOHN LARKIN XXN MS FRENZEL
PN2833
THE SENIOR DEPUTY PRESIDENT: I see. Well, why don't you put that to him. The witness obviously isn't aware of these changes that - or this award having been established in 1962.
PN2834
MS FRENZEL: Well, now I will ask the question again. Can I put it to you that the very conditions which you say now are inflexible have been unchanged for some 40 years?---That would be correct.
PN2835
THE SENIOR DEPUTY PRESIDENT: Am I right in understanding that the award simplification that modernised some of those provisions? And I am not sure that Mr Larkin is aware of the award simplification process or what the outcome of that is.
PN2836
MS FRENZEL: In answer to your question, your Honour, I think that the main issues of contest between the parties with respect to shift penalties, weekend penalties and the like, casual loadings, monetary things, remain unchanged.
PN2837
THE SENIOR DEPUTY PRESIDENT: Yes, but what I am getting at is I don't know if in his witness statement Mr Larkin is referring to the provisions in the award as proposed to be simplified or the provisions in the award as they were there in 1962.
PN2838
MS FRENZEL: I am sorry?
PN2839
THE SENIOR DEPUTY PRESIDENT: When Mr Larkin refers in these paragraphs to which you have taken him to about the award requiring modernisation - sorry, that is not the words that are used - flexibility, I am not sure whether Mr Larkin is there referring to the award as it existed before it underwent the simplification process or - - -
PN2840
MS FRENZEL: I think he is.
**** JOHN LARKIN XXN MS FRENZEL
PN2841
THE SENIOR DEPUTY PRESIDENT: Well, I don't know. That isn't the evidence.
PN2842
MR O'GRADY: Your Honour, the timing seems to make it pretty clear that the draft of the simplified award was only provided to us on Monday.
PN2843
THE SENIOR DEPUTY PRESIDENT: I appreciate that.
PN2844
MR O'GRADY: Mr Larkin would not have had access to it when - - -
PN2845
THE SENIOR DEPUTY PRESIDENT: Well, I appreciate that but I haven't heard Mr Larkin say that. I don't know whether Mr Larkin did have access to some of the drafts or not or the proposal put forward by the draft or not.
PN2846
MR O'GRADY: Yes, your Honour.
PN2847
MS FRENZEL: Mr Larkin, have you seen any of the drafts of the proposed simplified award?---No, I haven't.
PN2848
THE SENIOR DEPUTY PRESIDENT: Thank you. That clarifies the position?---There is a reason for that. I am on annual leave.
PN2849
There is no need to tell me the reason.
PN2850
MS FRENZEL: Now, Mr Larkin, you say with respect to the cleaning requirements that you don't require your parking attendants to clean car parks and that, in fact, you spend, I think you said, $600,000 a year on cleaning contractors?---Thereabouts, yes.
**** JOHN LARKIN XXN MS FRENZEL
PN2851
Which cleaning contractors do you use, Mr Larkin?---Berkeley Challenge.
PN2852
Which car parks do they clean?---Just about every car park, and the only variance to that would be where a property manager or owner has determined that they will use an alternative cleaner and that is such the case, I think, at Colonial Stadium, for example, they use someone else, and Melbourne Exhibition Centre, where they use another company. It doesn't form part of our specifications for management.
PN2853
You have a fairly comprehensive set of operating guidelines, don't you, for your car parks?---Technically or - - -
PN2854
Sorry?---Are you speaking technically or - - -
PN2855
With respect to your car park attendants and those sorts of people. You have operating guidelines, don't you?---We do.
PN2856
Can I ask you to have a look at this document - this folder, which I provided to my friend this morning, I think. Have you seen this folder?---No, not the folder, no.
PN2857
Have you seen the contents of the folder?---I put the contents together nine years ago.
PN2858
And can you identify it as being an accurate - sorry, a true copy of the operations and customer service manual you put together nine years ago?---As it was meant for the year 1993, yes. It is not used now.
PN2859
So, Mr Larkin, when was it superseded?---It referred to the year 1993.
**** JOHN LARKIN XXN MS FRENZEL
PN2860
I understand that but when was this document superseded?---It hasn't been in distribution for a number of years. I can't exactly tell you how long, probably five or six years.
PN2861
Can I put it to you that this document was in one of your car parks as late as two days ago?---Wouldn't surprise me.
PN2862
Would you agree also that employees who saw this in one of your car parks would regard this as being an operations manual for them?---No.
PN2863
Why not?---Because when they are inducted they are given a separate manual.
PN2864
SENIOR DEPUTY PRESIDENT LACY: Do you wish to tender that?
PN2865
MS FRENZEL: Yes, I will tender it.
PN2866
MR O'GRADY: Your Honour, I would simply ask on what basis it is said to be relevant to these proceedings. It is a document that is not in use. According to Mr Larkin it hasn't been used for a number of years.
PN2867
SENIOR DEPUTY PRESIDENT LACY: Except that Mr Larkin said that he wouldn't be surprised that it was sitting in the car park two days ago.
PN2868
MR O'GRADY: He didn't. It could have been in the rubbish pile, your Honour. The cleaners haven't been doing a good job. It doesn't means that it is being used.
PN2869
SENIOR DEPUTY PRESIDENT LACY: Well, if the cleaners aren't doing a good job there is something wrong somewhere.
**** JOHN LARKIN XXN MS FRENZEL
PN2870
MR O'GRADY: Yes.
PN2871
SENIOR DEPUTY PRESIDENT LACY: I will admit it, Mr O'Grady, on the basis that you can deal with it in re-examination and submissions - - -
PN2872
MR O'GRADY: As your Honour pleases.
PN2873
PN2874
MS FRENZEL: Mr Larkin, it might be worthwhile going through this manual in any event and you can tell us where things have changed.
PN2875
SENIOR DEPUTY PRESIDENT LACY: Sorry, I should just identify it in full. That is the Operations and Customer Service Manual, Victoria Branch, November 1993. Is that the right one, the one that I have just marked?
PN2876
MS FRENZEL: That is right.
PN2877
SENIOR DEPUTY PRESIDENT LACY: The one that I have just marked. All right.
PN2878
MS FRENZEL: And there are a number of memoranda also at the back of the folder which I would ask Mr Larkin to - - -?---Where would you like me to look?
**** JOHN LARKIN XXN MS FRENZEL
PN2879
- - - identify. The first memorandum is dated 21 February 2002?---Mm.
PN2880
And it is from yourself to all your staff?---Are you talking about the memo?
PN2881
Yes?---Yes.
PN2882
The second memorandum is also 21 February 2002 regarding breaks with respect to lunches and other for Mr Matthew Thoms. Have you seen that before?---Yes, I am aware of this, yes.
[4.36pm]
PN2883
There is also a memo about the award amendments as - did you express it from 18 July 2001?---Mm.
PN2884
Then there is the now famous security patrol notice?---Yes.
PN2885
Now, Mr Larkin, if I can firstly take you to - - -?---May I ask a question?
PN2886
SENIOR DEPUTY PRESIDENT LACY: No, Mr Larkin. In due course your counsel will have an opportunity to ask you questions and you will be able to answer any matters that he has to ask you.
PN2887
Ms Frenzel, do you have another set of those documents?
PN2888
MS FRENZEL: I do.
PN2889
SENIOR DEPUTY PRESIDENT LACY: If you are going to ask questions about them or if you are going to have them identified - - -
**** JOHN LARKIN XXN MS FRENZEL
PN2890
MS FRENZEL: Now, can I take you through firstly section 1?---Of the manual?
PN2891
Yes, please?---Mm.
PN2892
SENIOR DEPUTY PRESIDENT LACY: Well, sorry, do you want to tender these other documents, or are you seeking to tender them? They have all been identified, as I understand it. Is that right?
PN2893
MS FRENZEL: Yes, they have been, your Honour.
PN2894
SENIOR DEPUTY PRESIDENT LACY: Yes. Well, I note that three of them have Mr Larkin's name on them and he has previously identified the other document, although - and explained how it could have been - how it could have come about. So, what I will do, if you - do you want them marked separately or will I just mark them as part of LHMU15?
PN2895
MS FRENZEL: I think we will just make it part of LHMU15.
PN2896
SENIOR DEPUTY PRESIDENT LACY: All right. I will make the three memoranda from Mr Larkin and the tender non-security patrol notice as part of that exhibit, LHMU15.
PN2897
MR O'GRADY: Your Honour, once again my instructor wishes to take issue with your tabulation, your Honour.
PN2898
SENIOR DEPUTY PRESIDENT LACY: LHMU15?
PN2899
MR O'GRADY: According to my instructor's list it is LHMU13.
**** JOHN LARKIN XXN MS FRENZEL
PN2900
SENIOR DEPUTY PRESIDENT LACY: The outline from the LHMU was LHMU13, and the response from the LHMU, their submissions were LHMU14.
PN2901
MR O'GRADY: That is the proper - thank you, your Honour.
PN2902
SENIOR DEPUTY PRESIDENT LACY: I wouldn't like to be wrong twice in the one day. Yes.
PN2903
MS FRENZEL: Can I start at section 1, Mr Larkin. I collect that you are fully acquainted with this, given that you indicated that you had a hand in writing it or something?
PN2904
MR O'GRADY: Your Honour, before my friend embarks upon this task, this is a document that was generated on face nine years ago. It is a document that as far as Mr Larkin was concerned hasn't been in use for a number of years. I understand what my friend is now going to do is take him through it bit by bit and ask him what bits have changed. Can I perhaps suggest an alternate course; my understanding, sir, and Mr Larkin may wish to confirm this - is that there have been subsequent versions of this document or subsequent - I think his evidence was that there is now an induction book that is handed to people upon being engaged.
PN2905
Perhaps rather than Mr Larkin being taken through this and asked what bits have changed, we simply arrange for copies of the current induction booklet to be tendered and then Ms Frenzel if she wishes to can cross-examine Mr Larkin about those changes by reference to the two documents. I am concerned for two reasons; one is the issue of time, but secondly, I am concerned as to fairness of the line of cross-examination that might be pursued. It is a big ask, your Honour, to recall a document you had a role in nine years ago and that as far as you are aware of hasn't been in use for a number of years and query the relevance in any event, your Honour, when there is a current version in use.
**** JOHN LARKIN XXN MS FRENZEL
PN2906
SENIOR DEPUTY PRESIDENT LACY: Yes. Ms Frenzel, what is the purpose or what is the relevance of dealing with this document if it is so long ago applicable. I know you say it has been - it was sitting in a car park run by Wilsons two days ago and perhaps you can make something of that in submissions, but if Mr Larkin says well, it doesn't apply any more, what is the point in asking him about the content of it?
PN2907
MS FRENZEL: Well, it might be a different of way of answering, but we are quite happy to take up my friend's suggestion they provide us with the up to date manual.
PN2908
SENIOR DEPUTY PRESIDENT LACY: Yes. I think that is a more practical way of dealing with it.
PN2909
MS FRENZEL: I believe it is, too, and then I reserve my rights to cross-examine Mr Larkin about that document.
PN2910
SENIOR DEPUTY PRESIDENT LACY: Yes, certainly. It is probably getting close to time, in any event, and unless you wanted to proceed with something else for another five minutes, we would adjourn now and perhaps that document could be made available in the morning. Would that be appropriate, Mr O'Grady?
PN2911
MR O'GRADY: That won't be a difficulty, your Honour.
PN2912
SENIOR DEPUTY PRESIDENT LACY: All right. Well, we will adjourn until 10 am tomorrow morning.
ADJOURNED UNTIL THURSDAY, 21 NOVEMBER 2002 [4.40pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
ANTHONY MICHAEL DURAS, SWORN PN1896
EXAMINATION-IN-CHIEF BY MS FRENZEL PN1896
EXHIBIT #LHMU11 WITNESS STATEMENT OF ANTHONY DURAS PN1906
EXHIBIT #LHMU12 LETTER TO MR A.M. DURAS FROM MR J. STEINFORT, DATED 26/03/2002 PN1977
CROSS-EXAMINATION BY MR O'GRADY PN2044
RE-EXAMINATION BY MS FRENZEL PN2190
WITNESS WITHDREW PN2222
EXHIBIT #LHMU13 UNION OUTLINE PN2282
EXHIBIT #LHMU14 RESPONSE PN2282
EXHIBIT #R9 OUTLINE OF SUBMISSIONS FILED 26/06/2002 PN2286
EXHIBIT #R10 OUTLINE OF SUBMISSIONS FILED 25/10/2002 PN2286
JOHN LARKIN, SWORN PN2506
EXAMINATION-IN-CHIEF BY MR O'GRADY PN2506
EXHIBIT #R11 WITNESS STATEMENT OF JOHN LARKIN DATED 26/06/2002 PN2532
EXHIBIT #R12 WITNESS STATEMENT OF JOHN LARKIN DATED 25/10/2002 PN2532
CROSS-EXAMINATION BY MS FRENZEL PN2790
EXHIBIT #LHMU15 MANUAL PN2874
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