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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 10, MLC Court 15 Adelaide St BRISBANE Qld 4000
(PO Box 38 Roma St Brisbane Qld 4003) Tel:(07)3229-5957 Fax:(07)3229-5996
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER LARKIN
C2002/4166
C2002/3727
TRANSPORT WORKERS' UNION OF AUSTRALIA
and
MAYNE NICKLESS LIMITED AND OTHERS
Notification pursuant to Section 99 of the Act
of a dispute re payment of wages to employees
BRISBANE
10.00 AM, TUESDAY, 26 NOVEMBER 2002
Continued from 11.10.02
PN12
THE COMMISSIONER: Now, could I take appearances, please.
PN13
MR L. DUFFIN: If the Commission pleases, I appear on behalf of the Transport Workers Union. My name is Duffin, initial L. I anticipate that Mr D. PRYOR will also be joining me at some stage this morning. He's presently before the Queensland Industrial Relations Commission.
PN14
THE COMMISSIONER: Yes. Thank you, Mr Duffin.
PN15
MR DUFFIN: Thank you, Commissioner.
PN16
MR O. HEATHER: If the Commission pleases, my name is Heather, initial O., of the Queensland Chamber of Commerce and Industry Limited, industrial organisation of the employers appearing on behalf of the respondent. With me is MR ALVIN FREEMAN, MR ROSS HAZLEHURST and MR TURNER, all of the respondent.
PN17
THE COMMISSIONER: And Mr Turner.
PN18
MR HEATHER: Sorry, MR CHESTER. My mistake. May it please the Commission.
PN19
THE COMMISSIONER: Thank you. Mr Heather, this morning on the desk when I arrived there's a witness statement of Mr Hazlehurst. It appears to be the same statement that I received - - -
PN20
MR HEATHER: It is, Commissioner, but it's signed off by the Commissioner of Declarations or JP. That's just the affirmed copy.
PN21
THE COMMISSIONER: I see. All right then. Yes, thank you. All right, gentlemen, submissions have been filed and witness statements. Have you discussed the running of the case this morning at all, Mr Duffin?
PN22
MR DUFFIN: We have, Commissioner. The points that I think we've agreed upon is that there be brief openings. In some respects, it would be just more of a history detail, how the matter has developed and where it is up to. It would then be the case that we would call our three witnesses. I should indicate to the Commission that Mr Paul Srama, who provided a statement in relation to this matter, worked last evening. He has a second job with the Queensland Department of Corrections on a night shift and finished at 6 am this morning and, unfortunately, can't be here. However, the essence of his witness statement would be along the same lines as those of Mr Turner and Mr Meakin in that respect. I should also, perhaps for completeness sake, also indicate MR WILLIAMS is here with me, the Queensland Branch Secretary of the TWU.
PN23
THE COMMISSIONER: Mr Williams is?
PN24
MR DUFFIN: The Queensland Branch Secretary of the TWU. I neglected to mention that when I was giving appearances, Commissioner. And then my friend would call his witnesses and there would be a closing. I have discussed the running with my friend and I suspect that we should be finished prior to lunch, based on the witness evidence and the submissions have been provided. As one further and slightly additional matter, the QCCIs outline of submissions and witness statements were forwarded to the Queensland branch, I believe, on or about 18 November as a result of a sort of miscommunication between myself and the Queensland branch, and possibly also between QCCI. I was unable to obtain those until last evening and so, consequently, hadn't provided any submissions in reply. I'll do those orally by way of my closing submissions, Commissioner.
PN25
THE COMMISSIONER: And I think it's outlined in your submissions, Mr Duffin, that what is seeking is a recommendation by consent under 111AA.
PN26
MR DUFFIN: That's correct.
PN27
THE COMMISSIONER: And I think that's point 2 of your submissions, and I'll speak to Mr Heather about his in a moment, but, yes.
PN28
MR DUFFIN: In our submissions, Commissioner, you can - at point 2, as you've indicated, we are seeking that there be a recommendation pursuant to section 111AA. The nature of the recommendation we're seeking is indicated at point 3 of our submissions, which is that the particular employees receive - continue to receive - well, receive payment in cash until either a vote is held of the combined yards at Darra - that's pursuant to clause 15B of the award which supports a decision to go to EFT - or the employees concerned voluntarily choose to provide their EFT details.
PN29
THE COMMISSIONER: And by the combined yards, what do you mean by that?
PN30
MR DUFFIN: Yes. I think that needs to be clarified. There are two separate yards that we are dealing with here. Mr Howarth is employed at the Virginia yard.
PN31
THE COMMISSIONER: Yes.
PN32
MR DUFFIN: The other three employees are employed at the Darra yard.
PN33
THE COMMISSIONER: Yes. They previously were employed at West End.
PN34
MR DUFFIN: At West End. That's correct. The - - -
PN35
THE COMMISSIONER: So when you say combined yards - - -
PN36
MR DUFFIN: It's the combined West End and Darra yard at Darra, and a separate vote for the Virginia yard.
PN37
THE COMMISSIONER: So the combined yards are what? The Darra yards - - -
PN38
MR DUFFIN: I didn't make this - write this with the greatest of clarity. The vote that we are seeking is a vote at the Darra yard as one separate vote, and a second vote at the Virginia yard. The Virginia vote would have the impact upon - or have an impact of binding Mr Howarth. A separate at Darra, which would be the combined yards of Darra and West End, effectively, as a result of the amalgamation of those two yards last year.
PN39
THE COMMISSIONER: Well, it wouldn't be. It's not combined.
PN40
MR DUFFIN: No.
PN41
THE COMMISSIONER: West End doesn't exist any longer.
PN42
MR DUFFIN: I accept that, but it's the effect - - -
PN43
THE COMMISSIONER: I think what you - - -
PN44
MR DUFFIN: The effect would be - perhaps if I was to redraft that and say:
PN45
A vote is held at the respective yards.
PN46
THE COMMISSIONER: Respective yards.
PN47
MR DUFFIN: Yes, Commissioner.
PN48
THE COMMISSIONER: Because combined means - - -
PN49
MR DUFFIN: Yes. No, I readily appreciate that. Just as a last issue, perhaps, Commissioner, it might be appropriate for the witnesses to be outside while other witnesses are giving evidence. I don't think they'll be any difficulty with them during opening submissions.
PN50
THE COMMISSIONER: Well, we're not going - do I take their statements as being their evidence-in-chief?
PN51
MR DUFFIN: There will be a very minor going beyond that in my case. I don't know exactly my friend's position in relation to that.
PN52
THE COMMISSIONER: Is that only because of reply?
PN53
MR DUFFIN: It's party of reply, and partly also - well, in fact, it's largely reply, yes.
PN54
THE COMMISSIONER: All right. Anything else, Mr Duffin, in regard to housekeeping?
PN55
MR DUFFIN: Not at this stage, Commissioner.
PN56
THE COMMISSIONER: Thank you. Mr Heather, can I ask you a couple of questions, please, about your - the written submissions.
PN57
MR HEATHER: Commissioner, the respondent opposes the TWUs application for the recommendation, although in its place we would seek a recommendation that, as per point 2 of the written submissions that we've provided, that the four employees subject to this dispute would be required to provide their bank account or other financial details in order to be paid their wages by electronic funds transfer.
PN58
THE COMMISSIONER: Is that a point on your statement?
PN59
MR HEATHER: It's in the outline of submissions that we've provided.
PN60
THE COMMISSIONER: I'm sorry. I meant outline of submissions.
PN61
MR HEATHER: It's at point 2, Commissioner. As for witnesses, I'd like Mr Hazlehurst to briefly touch on a single issue which wasn't covered in his affidavit, but is pointed to in the affidavit of one of the TWU witnesses, and also, if I could, I'd like to cross-examine Mr Meakin and Mr Howarth.
PN62
THE COMMISSIONER: And the other two Mr Duffin was just tendering? You don't seek to cross - - -
PN63
MR HEATHER: Oh, no, Commissioner. Those two witness statements rely heavily on one of the other witness statements of those who I would like to examine - cross-examine.
PN64
THE COMMISSIONER: All right, then. Now, just a point, your client seeks a recommendation under 111AA? Point 3 of your written subs - I don't know that that even enters into it.
PN65
MR HEATHER: I'd be surprised if you'd seriously entertain that, but, if you did - - -
PN66
THE COMMISSIONER: Well, what's it doing there?
PN67
MR HEATHER: Just to seek to dismiss the matter if you were so inclined.
PN68
THE COMMISSIONER: Well, I don't know that I can dismiss it. Well, I can't - I don't know that I can dismiss the matter.
PN69
MR HEATHER: Oh, yes - - -
PN70
THE COMMISSIONER: I mean, I may or may not agree with what Mr Duffin has put to me or will put to me, but I don't know that I have the power to dismiss the matter. I think the legislation is saying that the Commission must conduct a hearing and make recommendations about those aspects of the matter, depending on what those recommendations may be. So can I take point 3 of your - withdraw point 3 of your - - -
PN71
MR HEATHER: Yes, Commissioner, on that basis.
PN72
THE COMMISSIONER: Okay. All right. Gentlemen, I will have you mark your submissions, too, whenever it is convenient, either at the beginning or at then end, however you wish to handle it.
PN73
MR DUFFIN: Perhaps, Commissioner, if it might be marked at the beginning. I've also got some other documents that I think it would be appropriate to hand up such as the relevant certified agreement and a copy of the relevant award. So just as a means of making sure you have all the materials in front of you at the commencement.
PN74
THE COMMISSIONER: I have got a copy of both but it might be - I will take a - I am not so much worried about the award. The particular clause is clause 15 of the award, and I think it would be - there is only 15A - oh, no, there is 15B.
PN75
MR DUFFIN: Well, it is 15A and 15B that are probably relevant.
PN76
THE COMMISSIONER: Yes. Yes. 15A and 15B.
PN77
MR DUFFIN: And I think it short recognised in both the submissions of the TWU and also QCCI that the agreement doesn't seem to cover the issue either. But, nevertheless, I mean it is a matter of completeness that the Commission has all these documents, I think.
PN78
THE COMMISSIONER: All right. However, Mr Duffin.
PN79
MR DUFFIN: There is one other document that I would seek to tender, Commissioner, just prior to - well, perhaps if I could tender the outline of submissions first.
PN80
THE COMMISSIONER: Yes, we will mark that TWU1, thank you.
PN81
MR DUFFIN: The other document is a two-page brochure which is entitled Weekly Payroll Processing.
PN82
THE COMMISSIONER: We will mark that TWU2, thank you.
EXHIBIT #TWU2 TWO-PAGE BROCHURE ENTITLED WEEKLY PAYROLL PROCESSING
PN83
MR DUFFIN: Commissioner, as you are clearly aware because you have already read our submission, the matter before you involves the non-payment of wages in cash to four employees since July 2002. The dispute, as such, concerns the decision of the four employees to seek to continue to receive their wages, that it is the payment for the work that they have performed, in cash and the refusal of the company to agree to that. The status quo in this matter was that the employees were in receipt of wages by way of cash payment rather than EFT and that was the way, certainly with one of them, it had been for some considerable time and, for the other three, for periods of two years or greater.
PN84
Now, the company in its submissions appears to say that it has the right under the award to say whether payment is to be by cash or by EFT and that the employee has no right per se to seek payment in the form that they have always received it in. The basis of our submission, fundamentally, is that - the basis of our case is that, as a contractual right, employees make an agreement with their employer to receive their wages in a particular way. The only way that that right or that contract may be overturned in some respects is either through award or agreement provisions. In this case, the agreement provisions it is acknowledged by both parties are silent in relation to the issue, and the question is how clause 15 in some respects should be interpreted.
PN85
The gist of the history of the matter is that, in approximately 1999, the award clause which is before you, clause 15B, excluded Armaguard from the operation of clause 15B. Following the variation to the award which proceeded, as I understand, by consent, the clause which is now before you was inserted into the award. There were approximately five additional words at the end of clause 15B which said "with the exception of Armaguard". Now, in approximately - - -
PN86
THE COMMISSIONER: That was the variation in January 2001, was it?
PN87
MR DUFFIN: I think it is V107 on that award in front of you. The actual variation occurred - - -
PN88
THE COMMISSIONER: 23 December 1999.
PN89
MR DUFFIN: 23 December 1999.
PN90
THE COMMISSIONER: Yes.
PN91
MR DUFFIN: Now, following that, it is uncontested between the parties that a series of votes took place across the five depots in Brisbane with different results from those votes. At Darra, there was a vote which approved the use of EFT; at West End, there was a vote which rejected it; and, at Virginia, there was also a vote which rejected it.
PN92
THE COMMISSIONER: When were the votes taken, Mr Duffy?
PN93
MR DUFFIN: Commissioner, I believe that they were taken in May 2000.
PN94
THE COMMISSIONER: You have mid-2000.
PN95
MR DUFFIN: I've got mid-2000. I believe it is actually May. If I may come back to that a little later. I actually have the material in front of me and I think, also, the material provided by the respondent in this matter - I think Mr Chester's statement encloses - perhaps it is Mr Hazlehurst's statement encloses a reference at attachment B of his statement which is in relation to the Darra vote which occurs on 29 May 2000.
PN96
Now, it appears from Mr Hazlehurst's statement that that vote wasn't acted upon, certainly, prior to late-2001, November 2001, according to his statement where, at paragraph 3, it says:
PN97
The respondent exclusively paid the wages of employees in cash until November 2001.
PN98
At that time, or about that time, employees received TWU2, which is the weekly payroll processing document. Now, it's a little bit hard to read because these are - if you can imagine - I mean, I'm sure you will understand, Commissioner, it's actually a brochure so it folds in slightly different ways to the pages that you have before you, but - - -
PN99
THE COMMISSIONER: When was TWU2 received by - well, we're talking about the employees in question, aren't we?
PN100
MR DUFFIN: Yes, that's right.
PN101
THE COMMISSIONER: Okay. When was that received?
PN102
MR DUFFIN: That was received in about November 2001. And at that time, if you look at the second page there under "What Do You Need to Know," the question that's sort of about a third of the way down the first column:
PN103
It was indicated to employees at that time that you now have the option of being paid by EFT, which is the company's preferred method of payment, or continue to be paid in cash.
PN104
It appears the company adopted a new technological system for payroll at that time - - -
PN105
THE COMMISSIONER: So hence the reason of not doing EFT earlier when votes were taken.
PN106
MR DUFFIN: Well, I don't know that for certain but my friends - - -
PN107
THE COMMISSIONER: Yes. That was on question that I would ask, because in reading the material I couldn't quite get the gist of why it wasn't implemented. But, yes, I think maybe one of the witness statements mentioned something to do with the system. Yes.
PN108
MR DUFFIN: Now, as was indicated in that brochure, the option was given to the employees as to which method that they would choose to adopt. Subsequently in March 2002 a memorandum was sent to employees. This is attachment A to Mr Hazelhurst's statement, and perhaps if I - I would also - perhaps it might be easier if I hand up a copy separate to Mr Hazelhurst's statement.
PN109
THE COMMISSIONER: Yes, that might be better. I'll mark the memorandum TWU3, please.
PN110
MR DUFFIN: Now, at that point on 17 March 2002 this memorandum was sent to all Armaguard employees. There are a couple of comments. If one looks at the second from bottom paragraph that's in the bold italics, employees were to complete the attached banking details and forward it on to the main group for finance payroll services and that no cash payments for wages will be made after 30 June 2002. The company - - -
PN111
THE COMMISSIONER: And this went to all depots and all employees?
PN112
MR DUFFIN: I don't think there's any contest that it was sent to all Armaguard employees. That's who it's addressed to, Commissioner. Further, in relation to that if one looks at the paragraph commencing "According," it reads:
PN113
According to Mayne Armaguard awards and certified agreements the company can pay wages via EFT. Hence the company now serves three months' notice that it will pay wages via EFT.
PN114
Now, from that point the employees concerned were - we will provide evidence to this effect; that the employees concerned were repeatedly asked by Mayne management whether they were going to provide EFT details, and they repeatedly advised that they would not do so. And this all occurred well prior to 30 June. Following 30 June, Mayne wrote to the employees and advised the employees that as no cash payments would be made, the employees effectively would not be paid unless they provided their EFT details.
PN115
The TWU in July lodged a dispute in the Commissioner, or lodged a notification of an alleged industrial dispute pursuant to Section 99, more accurately, and after various toing and froing, we're now before the Commission. Now, that's the potted history of the matter. The nature of the matter is clearly one of great principle to the four employees, otherwise they wouldn't have - certainly for two of them, haven't been paid since July. One of them provided his EFT details essentially because he had not - he had run out of money and continues on this matter. And the fourth is also - it's a matter of great principle to.
PN116
THE COMMISSIONER: Wasn't there a recommendation made by Commissioner Hoffman?
PN117
MR DUFFIN: Was there? I don't believe so. I'm sorry, my apologies. Yes, there was a recommendation that they be paid for a brief period of time, but that - - -
PN118
THE COMMISSIONER: But it's not necessarily relevant to us at the moment.
PN119
MR DUFFIN: No. So that's the nature of the matter, Commissioner.
PN120
THE COMMISSIONER: So the votes were taken at all the depots in about May 2000.
PN121
MR DUFFIN: That's right, and - - -
PN122
THE COMMISSIONER: And the movement to EFT was not actual effected until March 2002.
PN123
MR DUFFIN: That's correct.
PN124
THE COMMISSIONER: And then implemented in July 2002.
PN125
MR DUFFIN: That's right. I should say for completeness that there was a further vote held. My friends will raise some issues as to the - - -
PN126
THE COMMISSIONER: Yes, at Darra.
PN127
MR DUFFIN: That's right.
PN128
THE COMMISSIONER: After the amalgamation. But that wasn't a company vote or it wasn't a joint vote.
PN129
MR DUFFIN: No, and - - -
PN130
THE COMMISSIONER: Whose vote was it? Just the - - -
PN131
MR DUFFIN: Well, as I - well, perhaps I'll get one of the witnesses to explain.
PN132
THE COMMISSIONER: Yes, that's fine. That's fine. We can canvass that.
PN133
MR DUFFIN: So that's the - I mean, that's our history and how we're before you, Commissioner, and you can understand exactly why it is that we're seeking your recommendation. I have nothing further to say by way of opening.
PN134
THE COMMISSIONER: Yes, thank you. Did you want to open, Mr Heather, and mark your material?
PN135
MR HEATHER: Commissioner, I concur with most of the facts provided in the TWU submissions this morning, but by and large the company is in fact relying partly on the one-in all-in provision of Clause 15(b) of the award, or that's apparently how it can be read and that's how we interpret it. That is - - -
PN136
THE COMMISSIONER: So how do you say 15(b) is to be interpreted?
PN137
MR HEATHER: Well, at Clause 15 it states:
PN138
Provided that agreement between the employer and the majority of employees - - -
PN139
THE COMMISSIONER: Well, no. 15(b) first off says:
PN140
All earnings including overtime.
PN141
MR HEATHER: Yes. Yes. To be paid within two days.
PN142
THE COMMISSIONER: Yes, all right. And then 15(b) goes on.
PN143
MR HEATHER: Yes, that's right, Commissioner, into that second paragraph where it says:
PN144
Provided that agreement between the employer and the majority of employees at each yard, depot or garage -
PN145
and so on. And it's our view that where the agreement between the employer and the majority of employees exists, then it can be a one-in all-in provision.
PN146
THE COMMISSIONER: But you don't have agreement at Virginia.
PN147
MR HEATHER: We'd argue that we have agreement on the basis of the actions. That is, they have provided their EFT details. If you like, they have voted with their feet.
PN148
THE COMMISSIONER: I see. All right. So what you're saying - yes, this is what I couldn't quite get the gist of. So what you're saying is that - and correct me if I'm wrong - that while - leave West End out at the moment, but while Virginia voted in May 2000 not to go to EFT, what the company is saying is because employees progressively or what have you have provided their details to the respondent, then you say that is a quasi-agreement.
PN149
MR HEATHER: Yes, Commissioner. Also I point out that in the year 2000 in and around May where the TWU submission provides for a number of votes being taken at the depots, the respondent only has a record of the ballot at the one depot, Darra depot. That's the only record that we've got of a vote.
PN150
THE COMMISSIONER: And do you dispute those?
PN151
MR HEATHER: We dispute that, Commissioner. We only have a record of the Darra vote.
PN152
THE COMMISSIONER: Well, how do you know whether everybody agreed to EFT?
PN153
MR HEATHER: On the basis of providing their EFT details to the company between - - -
PN154
THE COMMISSIONER: But the company was never advised of particular depots that accepted or refused EFT.
PN155
MR HEATHER: On the basis of the ballot, to our knowledge only the Darra depot has provided that ballot agreement.
PN156
THE COMMISSIONER: Well, maybe that can be addressed. I mean, I find that most peculiar but - - -
PN157
MR HEATHER: It's just our view, Commissioner, that because everyone has provided their details bar these four fellows that, in fact, we still have majority agreement.
PN158
THE COMMISSIONER: So you don't acknowledge any votes then?
PN159
MR HEATHER: Well, the only one that we're aware of is the one in May 2000 where - - -
PN160
THE COMMISSIONER: At Darra?
PN161
MR HEATHER: - - - the depot accepted it.
PN162
THE COMMISSIONER: And how do you know that? Somebody told you, did they?
PN163
MR HEATHER: We have a record of the ballot report or the returning officer's report.
PN164
THE COMMISSIONER: The TWU conducted the ballot, I suppose?
PN165
MR HEATHER: I don't know who ran the ballot but I think there is an attachment to - it might be Mr Chester's - sorry, to Mr Hazlehurst's affidavit. There was a piece of correspondence which outlined the details of the vote as in the number of people who accepted it at the time. That's a memo dated 29 May 2000 from Mr Chester to Mr McNamara detailing the yard vote on EFT.
PN166
THE COMMISSIONER: Yes, all right.
PN167
MR HEATHER: Also, Commissioner, we'd be relying on the - - -
PN168
MR DUFFIN: Perhaps, Commissioner, I could be of assistance. I've just shown my friend a copy of a memo on Armaguard's letterhead.
PN169
THE COMMISSIONER: But, Mr Heather, when did employees - there must have been a progressive period of time for employees to complete their banking details, or was it done in one hit?
PN170
MR HEATHER: They had a lot of time. Had they volunteered for EFT payment they had from November 2001 onwards and then - - -
PN171
THE COMMISSIONER: You didn't receive anything prior to that?
PN172
MR HEATHER: I don't think it was possible to pay by EFT prior to that, Commissioner.
PN173
THE COMMISSIONER: So you didn't ask them for their - - -
PN174
MR HEATHER: No. That was because until they got the SAP system in place, they couldn't guarantee the timeliness of wages in to the employees' bank accounts, or that is my understanding from discussions with Mr Hazlehurst. Otherwise - - -
PN175
THE COMMISSIONER: So when did you start getting your authorities from employees?
PN176
MR HEATHER: From November 2001 onwards, Commissioner. Commissioner, the correspondence which my colleague here showed us, that's a piece of correspondence that we weren't aware of before today so we're grateful to him for providing that; but prior to this morning we weren't aware of any records that showed the vote at the other yards or depots in the year 2000.
PN177
THE COMMISSIONER: Well, I suppose somebody will tender that to me, won't they?
PN178
MR DUFFIN: Commissioner, I will do so. Unfortunately, I don't have copies of it. I didn't realise it was a matter that was in dispute.
PN179
THE COMMISSIONER: Well, why don't you do that later on?
PN180
MR DUFFIN: Certainly, Commissioner.
PN181
MR HEATHER: Sorry, Commissioner, also that the reason for going across to electronic funds transfer was to run the business effectively and safely, and the transition or implementation of the EFT payment of wages was done in a reasonable manner providing tons of notice to the staff. They had three and a half months notice from the memo tendered by the TWU this morning to provide their details and to be paid by electronic funds transfer, so they had three and a half months to sort their affairs out, Commissioner. It wasn't like they were ambushed and forced to provide their details at a moment's notice. Plus the union was provided with a copy of that correspondence on 17th - - -
PN182
THE COMMISSIONER: You say that Mayne's position is that they have agreement of the majority because employees gave their details?
PN183
MR HEATHER: Yes, Commissioner.
PN184
THE COMMISSIONER: Okay. How many employees are there? Well, I've got the employees at each depot. What I would be interested in is the numbers of the employees in each depot and the dates that you say a majority agreed to EFT.
PN185
MR HEATHER: Okay. In point 11 of Mr Hazlehurst's statement he points to the number of staff at the Darra depot as being 56 road crew and 45 cash handlers. Now, I understand the cash handlers were already being - and of the 56 road crew certainly there was majority as of 30 June. I understand there was only - - -
PN186
THE COMMISSIONER: Yes, but you say there is a majority at 30 June.
PN187
MR HEATHER: Yes, Commissioner.
PN188
THE COMMISSIONER: So you say in point 11 that the Darra depot - definitely by 30 June you had a majority of people - a majority of people have given you their banking details.
PN189
MR HEATHER: Yes, Commissioner. No more than eight in all of Queensland - - -
PN190
THE COMMISSIONER: But TWU3 is dated 17 March.
PN191
MR HEATHER: Yes, Commissioner.
PN192
THE COMMISSIONER: And that's not saying that we need a majority. It just says as of now - as of x date this is what will happen.
PN193
MR HEATHER: Yes, Commissioner.
PN194
THE COMMISSIONER: Well, at 17 March you didn't have a majority anyway - - -
PN195
MR HEATHER: I couldn't establish that we had.
PN196
THE COMMISSIONER: - - - on your argument.
PN197
MR HEATHER: That's true, Commissioner.
PN198
THE COMMISSIONER: On your argument, right. There is another side to this but leave that out for the moment. But on your argument you say a majority had agreed as of - - -
PN199
MR HEATHER: 30 June.
PN200
THE COMMISSIONER: - - - 30 June, but your E-mail, TWU3, is dated 17 March and that doesn't say we need a majority.
PN201
MR HEATHER: The memo to staff on 17 March?
PN202
THE COMMISSIONER: Yes.
PN203
MR HEATHER: Yes, that's true, Commissioner.
PN204
THE COMMISSIONER: You might address that in your submissions because don't you think that pokes a little hole in the argument?
PN205
MR HEATHER: It does on the arguments put forth so far this morning; yes, Commissioner.
PN206
THE COMMISSIONER: I mean, there is another argument to this but, on that argument, majority vote comes because people fill out a form and give it to you so, therefore, we're getting majority agreement, that's what we say, and we say in regards to Darra we had it by 30 June. But 17 March staff were told, "Well, it's now EFT. We've got our right to do it and that's all there is to it." So you might revisit that argument or have a think about what I've just put. Do you want to mark your submissions, Mr Heather? Do you want to mark your submissions so I can keep a track of them?
PN207
MR HEATHER: Yes, please, if I could.
PN208
THE COMMISSIONER: And, of course, you've deleted point 3 of your submissions.
PN209
MR HEATHER: I've just crossed it out on the copy that I've got here this morning, Commissioner.
PN210
THE COMMISSIONER: Yes, all right. We'll mark Mayne Nickless submissions as MN1. Thank you.
PN211
THE COMMISSIONER: Whenever you're ready, do you wish to put more to me?
PN212
MR HEATHER: I guess with regards to the correspondence or the flaw that you pointed out this morning with regards to the letter of 17 March, we don't accept that there was a problem with the gaining of majority support of the employees, if you like, effectively with the use of that letter. Because we'd provided notice to the unions and all the staff beforehand, and that it was a reasonable change to go from cash to EFT payment of wages, we feel that the choices open to the employees were fairly broad insofar as to consult or raise objections with the respondent, to contact their union, or even to raise significant reasons as to why the payment of EFT wages is a serious problem for any particular or for a large proportion of employees in the employ of the respondent, Commissioner.
PN213
THE COMMISSIONER: Yes, but it was your submission that said - that's not addressing the submission that was made. I mean, I hear that submission but your original submission to me was, "Look, we got agreement."
PN214
MR HEATHER: On 30 June.
PN215
THE COMMISSIONER: "We got agreement of the majority of the employees." That's what you're mainly saying, "We got agreement. We got agreement by showing that employees gave us banking details."
PN216
MR HEATHER: That's true.
PN217
THE COMMISSIONER: So this is what your argument was to me, "That we have majority agreement." What's the kerfuffle? What's the problem here? And my question was: well, when did you get majority agreement? So when did you get all these authorities in that you say constitutes majority agreement? You take me to point 11 and Mr Hazlehurst says, "Well, in Darra we had it by 30 June." So then I just automatically said, "Well, what about the e-mail of 17 March?"
PN218
MR HEATHER: Yes, as to whether or not there was - - -
PN219
THE COMMISSIONER: The dates don't jell, you see. 30 June is after 17 March.
PN220
MR HEATHER: But the implementation wasn't until 1 July, Commissioner.
PN221
THE COMMISSIONER: No, but it's not to do with implementation. It was your submissions, Mr Heather. I didn't raise it. It was your submission. Do you see what I'm saying to you. You're saying, "Well, we had majority agreement." It's nothing to do with implementation, agreement. How do you reach agreement with someone - you both agree.
PN222
MR HEATHER: That's right.
PN223
THE COMMISSIONER: How do you agree? Do you shake hands and say - do you draw up a contract and you sign it and have it witnesses? Do you write up an agreement? Do you agree to give something to someone? I mean, how do you get an agreement? You said to me, "We got majority agreement because everybody gave us their banking details."
PN224
MR HEATHER: Yes, Commissioner.
PN225
THE COMMISSIONER: So you say that constitutes agreement and I said, "Well, did you get them all in one hit? Did you get them progressively over a period of time? When did you get them?" You said, "We started to get them about November 2001," you started to.
PN226
MR HEATHER: Yes.
PN227
THE COMMISSIONER: Okay. So that's when you started to get them but when did you get a majority - in each of the depots when did you get a majority? You said, point 11, "Mr Hazlehurst says we got a majority at Darra on 30 June."
PN228
MR HEATHER: That's true. I can't necessarily establish that we had majority agreement at any particular depot before 17 March or at what stage prior to 30 June.
PN229
THE COMMISSIONER: Well, that's your argument to me. Your argument to me is, "We've got a majority agreement."
PN230
MR HEATHER: Well, we do as of 1 - - -
PN231
THE COMMISSIONER: But there must be a point in time when you know you've got a majority. There must be a point in time when you know you've got a majority and evidently in Darra it was after 17 March.
PN232
MR HEATHER: As with Virginia it was - I believe so.
PN233
THE COMMISSIONER: Anyhow, look, I won't press this any longer.
PN234
MR HEATHER: Okay, Commissioner.
PN235
THE COMMISSIONER: I think my point is clear, I think.
PN236
MR HEATHER: Yes, Commissioner, I think it was.
PN237
THE COMMISSIONER: Okay. Anything else, Mr Heather, at all that you want to put to me?
PN238
MR HEATHER: Nothing more, thanks, Commissioner.
PN239
THE COMMISSIONER: All right, then. I just thought then I'll have to change my clock or you'll all be going for an early lunch.
PN240
MR DUFFIN: I wouldn't have any great difficulty with that.
PN241
THE COMMISSIONER: You wouldn't.
PN242
MR DUFFIN: I'm still on the same clock as you are, Commissioner.
PN243
THE COMMISSIONER: You are, too. You and I can leave, Mr Duffin and everybody will look at us and we'd be set aside as weird people.
PN244
MR DUFFIN: Commissioner, I presume from that - there was just one thing that I wanted to raise in relation to something that my friend just brought up and then I'll call my first witness, which is just in relation to the cash handlers. The cash handlers are not subject to the agreement or award. They're ASU employees. So where in Mr Hazlehurst's submission, witness statement, the 50-odd employees are road crew and 40-odd employees are cash handlers. The cash handlers are not subject to - - -
PN245
THE COMMISSIONER: You can put that to Mr Hazlehurst anyway, can't you?
PN246
MR DUFFIN: I'm sure I will do so. I mean, I - - -
PN247
THE COMMISSIONER: Yes. You're just raising with me that you're going to query point 11.
PN248
MR DUFFIN: That's right. Perhaps if I could start with Mr Howarth, please. As I indicated earlier, Commissioner, the other witnesses could depart.
PN249
THE COMMISSIONER: Please take a seat.
PN250
MR DUFFIN: Mr Howarth, do you have a copy of your witness statement with you?---I haven't got it with me, no, but I have got one - - -
PN251
Perhaps if I could hand up a copy to Mr Howarth?---Thank you.
PN252
Do you mind just taking a moment to just quickly read through that?---Okay.
PN253
Commissioner, just while we're waiting, I've got a spare copy of TWU2 and TWU3 for your associate in case any of the witnesses need to see them.
PN254
THE COMMISSIONER: Yes, thank you, Mr Duffin.
PN255
MR DUFFIN: Okay. Now, are there any areas in that statement - - -?---Yes, there is in the fact that I've been there 40 years. I started on 5 October 1970, so that's 32 years.
PN256
Okay. So in that second paragraph it should read 1970, not 1962?---Yes, that's correct.
PN257
Is there anything else?---Not that I can see.
PN258
All right. So is that statement true and correct in every particular?---As far as I'm concerned, yes.
PN259
I'd seek to tender that statement, Commissioner.
**** RICHARD JOHN HOWARTH XN MR DUFFIN
PN260
THE COMMISSIONER: Yes, mark Mr Howarth's statement as TW4, please.
PN261
MR DUFFIN: Now, I've just got a couple of quick additional questions for you. The company in its submissions has said that it is archaic for people to be paid in cash and in paragraph 6 you say it's an issue of principle. Why do you say that?---Well, as stated, like, I've been there 32 years and that's basically how we made our living by paying people in cash. They used to have cash circulating and all that sort of stuff and apart from the fact that I believe that there was an option given to us and they took that option away from us so that was the way I went, yes.
PN262
When you say there was an option, do you mind just having a look at TW2. Is that the document that you - sorry, I withdraw that. When you say there is an option, is that document the reason that you say that?---I'd have to read this right through.
PN263
Why do you say that there was an option given to you?---Well, because that's how it started out. It always started out that the company would give people assistance who were on EFT and it was an option and it always - it started off as an option and then when down the track it become no option so the option was just taken away from us, you know, and unless we supplied out details we weren't going to get paid and I've gone 16 weeks without being paid and I think a lot of people could have supported it but they were frightened of taking that road and not being paid. And some would have even gone as far as to say, "Well, I probably won't get put on the roster because of it," you know. So there was a lot of people running scared not to accept it. It was a demand from the company to say that we had to go along with it and give the details.
PN264
You say that in your belief that there's been no majority of employees at the Virginia depot which voted in favour of an EFT payment?---There hasn't been, no.
**** RICHARD JOHN HOWARTH XN MR DUFFIN
PN265
How many votes have there been held, do you know?---We've had several votes over a period of time and not one has got through.
PN266
Has there been any votes since November 2001?---Yes, yes.
PN267
And what was did that vote go?---It went unanimously - the vote was given to the yard and the people that were there was roughly about 20-odd, and I think it was unanimous that they - they wanted to have the right to either have EFT or cash payment. Either or, sort of thing, you know. So - and it was sort of phrased like that, and that's how - an everybody voted to have that option.
PN268
Okay?---Mm.
PN269
The company has said - Mr Hazlehurst's statement says that prior to November 2001 no one was paid according to EFT. Is that your understanding?---Yes, I'd say so.
PN270
Okay. Can the witness be shown TW3? Do you recall receiving a copy of that?---I think I did, yes.
PN271
The company has said in its witness statements that no employees approached management in relation to this issue. Did you discuss your refusal to give EFT details with representatives of the employer prior to 30 June 2002?---Yes, well, that's always been my stance and it still is: that, you know, that I, you know, wasn't - I discussed that I wanted cash because it was - it's - I just enjoy getting cash payment, yes.
PN272
Who did you discuss it with?---Managers at the depot and that, yes.
PN273
Who are they?---The manager at - presently now is Jakob and - I think it's Jake Kerschner - and we - and then before Jakob there was another manager there by the name of Warwick MacFarlane.
**** RICHARD JOHN HOWARTH XN MR DUFFIN
PN274
Okay. I have no further questions, Commissioner.
PN275
PN276
MR HEATHER: Mr Howarth, would it be true to suggest then that the principle at stake for you is that you object to the option being removed - that is, the option of a choice; that you can no longer choose between cash - - - ?---Yes, that's right. The basis is that we - the option was taken away from us. If the option had been there, which it wasn't - that's the basis of my objection, yes.
PN277
There's no objection beyond that?---No, I - no, not really, no, because I - but I still would like cash, you know, so - yes.
PN278
Can you detail in some - not in great detail because there's obviously some time that has passed between now and then - but can you provide us with some substance to your recollection of the conversations between you and the managers with regards to the transition or the implementation of EFT payment of wages? Do you recall those discussions with those managers?---Oh, well, basically as - it would have been just - I would have said to them, "I'm not going to supply my details", because I thought it was an option, and then I approached Hughie to see what could be done about it, and Hughie said, "Well, I think we can do something about it", yes. And - but I've always, you know, enjoyed cash and that's what I was after, yes - or to maintain; not - so, yes, and I come up here - what, the first time I come to the Commission I just still - after we left the Commission, I come away and you - Armaguard still had to pay me cash for a fortnight, but then after that it - we went for the Commission again, and then it ceased. So that's - yes.
PN279
Okay. Do you recall when those discussions took place between you and depot managers?---I wouldn't be able to give you dates, no.
**** RICHARD JOHN HOWARTH XXN MR HEATHER
PN280
Pre or post June, July, August?---It's been ongoing for, you know, for that period of time, and I've - even when I came back from the Commission the - the first time, and they had cash payment there, the manager at the time, which was Jakob, said that you can get paid if you give us the details. And I said, "Well, I'm not giving you the details", so that's - so there's always been an ongoing insistence to give the details for EFT.
PN281
The understanding I'm left with is that the discussions that have taken place between you and Mr Kerschner regarding the refusal to provide the details - it's all occurred since - well, say, from July onwards. Would that be true?---Yes, well, I think Jakob has only been there probably - I don't know - he's probably only been there since July, yes, so - I would have been talking with Warwick MacFarlane before that.
PN282
Okay. So would you have been speaking with Warwick MacFarlane then, before 30 June?---Probably, yes.
PN283
But you're not clear on that?---Well, I'm clear that - clear and I know that I told them that I didn't - didn't want to go EFT.
PN284
Yes; but not when?---I couldn't give you the exact dates, no.
PN285
I also note that at point 5 of your statement you appear to have an aversion for using the ATM machines and - - - ?---Can you clarify what you mean by having the aversion to using them?
PN286
Well, I quote:
PN287
I do not like using ATM machines.
**** RICHARD JOHN HOWARTH XXN MR HEATHER
PN288
You appear to dislike using them on the basis of that?---No, well, it's on the basis of - of my using the ATM machines that there's - people have been robbed when they're using the ATM machines and, you know, they're sort of - they system that I've got in place is that I just enjoy paying most of my bills by cash, yes. It's not a problem using the ATM machines but I just don't like using them.
PN289
During the course of your employment from time to time, would it be fair to suggest that you would have an opportunity just to take a moment to take cash from an ATM in the presence of your colleagues to reduce the risk?---You'd be right there.
PN290
That would be true?---Mm.
PN291
Okay. For you, certainly, you could mitigate that risk or concern?---Oh, yes, but it's - you know - it's - yes - I - the reason I don't like ATM machines is because if I get paid cash, I get paid cash and there's no charges. But once you start using ATM machines and other banks if you have to, you're up for charges because that's just the ways the banks are going. So for me to go from cash, where I don't get any charges, then to give the bank details, and then I start getting charged charges from the bank because of the privilege of having it put in my bank account.
PN292
It's my understanding that certainly some banks do charge for using ATMs, but that often there are a number of free ATM transactions and that some banks provide for larger numbers of free withdrawals than others. Have you investigated those options?---I have investigated and that - you know, the thing is that the banks, as recently as this morning - if you want a statement from a bank you've got to pay x amount of dollars for a statement just to see what you've got, you know. So that the charges are piling up more and more as a result of people using banks and to me, if I get paid cash, that solves all those problems that I outline there.
**** RICHARD JOHN HOWARTH XXN MR HEATHER
PN293
What I was getting at was rather than your current banking provider or your current financial provider, that perhaps there are other people or other institutions which could provide you with a better service, and you could then go elsewhere, so to speak, to get that cheaper service or the greater - or rather lower costs that you would then incur?---Well, I am just happy with the system that my wife and I have in place and I don't want to be going elsewhere or doing this or doing that. I just want cash payment. That solves my problem.
PN294
So you haven't considered, for example, phone banking or the use of credit cards?---No.
PN295
So, as they say, it is merely that you do not want to change the way you pay?---Exactly.
PN296
Do you have a bank account at all, Mr Howarth?---Yes, I do.
PN297
You do. Okay. So it isn't that you don't have a bank account that you can't provide the details for; it is just that you really don't want to avoid using cash - you want to stick to cash?---That's it.
PN298
I just can't get to a substantial reason, or a reason of substance, for not wanting to provide your bank details so that you can be paid by electronic funds transfer? It is all based on a preference or a wish not to change the way you do things? There doesn't appear to be an issue of substance behind all of this other than perhaps, if you like, an ideological resistance to electronic funds transfer payment of wages?---Yes, well, as I said, that suits me fine.
PN299
That will be find, thank you very much, Mr Howarth?---Right.
PN300
**** RICHARD JOHN HOWARTH RXN MR DUFFIN
PN301
MR DUFFIN: I have only got one quick question. My friend asked you a series of questions about when you spoke to Mr Kershaw and Mr MacFarlane. Just so I can get it absolutely clear: is it your recollection that you spoke to Mr MacFarlane or Mr Kershaw prior to 30 June about this matter?---It would have, yes.
PN302
Nothing further, Commissioner.
PN303
THE COMMISSIONER: Thank you, Mr Howarth. You may step down. You may stay in the hearing room or you are free to leave if you choose?---I'll stay, I think.
PN304
PN305
MR DUFFIN: I seek to call Mr Meakin.
PN306
THE COMMISSIONER: We must remember, Mr Duffin, after we finish with the witnesses, you might tender and mark the other statements as well.
PN307
MR DUFFIN: I am sorry, yes, yes, of course.
PN308
THE COMMISSION: Please state your full name and address?
PN309
MR D.R. MEAKIN: Denis Robert Meakin. I live at 824 Boston Road, Chandler in Brisbane.
PN310
MR DUFFIN: Mr Meakin, I don't suppose you have a copy of your witness statement there with you?---No, I didn't.
PN311
Perhaps if I could hand you a copy. Would you mind just taking a moment to read that. Is that statement true and correct in every particular?---Yes, it is.
PN312
I would seek to tender that statement, Commissioner.
PN313
THE COMMISSIONER: Mark Mr Meakin's statement TWU5, please.
PN314
MR DUFFIN: Mr Meakin, in paragraph 6 of your statement there, you say that the issue of - that this issue is an issue of principle. Why do you say that?---Initially, the brochure refers back to the initial brochure - - -
PN315
Just stop for one moment. Would you just have a look at TWU2 for me?---Weekly payroll - yes, the correct document.
PN316
Is that the brochure that you are referring to?---That's the brochure I'm referring to.
PN317
Go on? You were saying?---The brochure came out and we were given the option, as stated in that paragraph, of the option of EFT or cash.
PN318
Sorry, which paragraph are you referring to?---Paragraph - under What you need to know, item 2 - which is not marked item 2 - the first one:
**** DENIS ROBERT MEAKIN XN MR DUFFIN
PN319
You now have the option of being paid by EFT which is the company's preferred method of payment or continue to be paid in cash.
PN320
The "or continue to be paid in cash" was the option I chose. I made reference to them about that particular thing and the brochure and I said I would prefer to stay with cash.
PN321
When did you make reference to them?---When the document came out because there was a - - -
PN322
Could you just stop again? Which document are you referring to?---The weekly payroll processing.
PN323
So when this document came to you - - - ?---When that was circulated, there was - - -
PN324
You said that you wished to have the option of paying cash; is that right?---Correct.
PN325
Okay. I just needed to follow that. Now, can the witness be shown TWU3?---Yes, I am aware of that document.
PN326
Can you recall receiving a copy of that document?---Yes. There was one pinned on the notice board and one was attached to our pay cards when they came out.
PN327
Now, after you received that document, did you have any conversations with any management?---Yes, Mr Darren Chester on various occasions would ask us for our pay details.
**** DENIS ROBERT MEAKIN XN MR DUFFIN
PN328
Do you recall having those conversations prior to 30 June 2002?---Yes, many times.
PN329
And what would Mr Chester say to you?---Leading up to 30 June, we would be requested - the little pay slip that they requested the banking details would be attached to our pay cards which we chose to ignore because we had already made reference that we preferred to be paid in cash. He would then call us into the office. There would be either the three of us off the one truck which would be Messrs Srama, Turner and myself, or Ian and myself, and he would say, "Can you provide your pay details?" and we would say, "No. Referring back to your weekly processing document, we prefer to be paid in cash." That happened on many occasions up to 30 June. The last month, on 30 June, it was a regular daily thing. It became a bit of a joke actually that we would be called into the office every afternoon after we finished our run to have our pay details requested and be advised that we would not be paid cash after 30 June.
PN330
You were employed at the West End depot prior to September 2001. Since September 2001, at the Darra depot, have there been any votes that you are aware of in relation to the payment of EFT or cash?---Only the one we conducted ourselves about a month or so ago to get a general consensus concerning this particular case.
PN331
Can you explain to the Commission how the one that was conducted about a month or so ago took place?---We decided to conduct a vote to get - - -
PN332
Sorry, do you mind just stopping for a second? Who is we?---We being everybody - the union delegate, Ian, myself, Hughie. We contacted the union. Graham Garret from the union came up and helped organise it.
PN333
THE COMMISSIONER: Who is Mr Garret?
PN334
MR DUFFIN: Mr Garret is an organiser with the Queensland Branch.
**** DENIS ROBERT MEAKIN XN MR DUFFIN
PN335
THE COMMISSIONER: A TWU organiser?
PN336
MR DUFFIN: That's correct, Commissioner.
PN337
THE WITNESS: So, yes, it was organised through the TWU, not by us ourselves. Mr Garret brought up the official union voting box with a lock. The tin was to be left inside with a key. Mr Chester decided that he didn't want it inside because it may have bearing on them altering the vote or whatever it was so we had it out in the lunch room. We had appropriate - - -
PN338
THE COMMISSIONER: I'm sorry, Mr Chester was there?---Not at - not at the vote but he was involved in the discussions with the tin - - -
PN339
For the vote?---Correct - well, where we could leave the tin and how we could do it. They weren't in favour of the vote but they let us go ahead with the vote and - but he didn't particularly want the vote tin with a lock on it inside the company premises so we had it out in the lunch room.
PN340
Yes, thank you.
PN341
MR DUFFIN: Now, you've had that vote. There's one other point I just wanted to ask you which is: in relation to your statement at paragraph 16, you were told that no pay would be made to you until you provided your banking details and you were told that this was a directive from Danny Butt and Ross Hazlehurst. Who is Danny Butt?---I believe - I have not met him, but I believe he's the National Operations Manager from Melbourne.
PN342
If there was to be a further vote held in relation to this matter, would you be willing to abide by the outcome of it?---Yes, no problem.
**** DENIS ROBERT MEAKIN XN MR DUFFIN
PN343
Nothing further, Commissioner.
PN344
PN345
MR HEATHER: Can you just explain - at point 4, you say, "I prefer using cash." Can you explain - beyond point 4 that you've got here, can you explain why?"?---Many reasons. If you - I don't like using - I like using cash. I don't like using banks. If you want a statement from a bank it will cost you $2.50. If you're lucky you might get it in a few days. To go to an ATM machine - if I decide to draw out X amount of dollars more than I actually require or the limit of the machine, the machine won't allow you to do that so it will be a second day. So if I need to pay something of a certain value on that particular day I can't do it because banks won't give it to me. If I go to a bank counter, they want to charge about five or $6 for an over-the-counter fee. Everything is just fee, fee, fee and I have no time for banks whatsoever. I have enough trouble getting through with cash as it is, without banks taking $10 to $15 a week or a month off me.
PN346
Have you considered reducing the - or the option of reducing the number of cash withdrawals by using credit cards, cheques and the like?---Cheques cost you stamp duty; they cost you for everything else as well. Everything has a cost. I have no inclination to want to use any of that, anyway.
PN347
So in your view, it's - you see that you would incur or suffer greater costs by moving across to EFT - - -?---That's correct.
**** DENIS ROBERT MEAKIN XXN MR HEATHER
PN348
- - - wage payment? Okay. Are you aware that some other financial institutions like credit unions and building societies often have more attractive provision of ATMs as in more free transactions and what-have-you that you may well be able to suffer no increase in cost by changing either of your financial service?---That's a possibility but I don't see the reason why I should have to go out and chase all that up for something that I don't need to get involved in in the first place. I can't see why I should have to go and run around all these credit unions because the company want to pay us EFT and my money is in the bank under bank control to try and work out where I can save a couple of dollars, whereas if we were being paid as per the company's choice, as per the weekly processing, I wouldn't have to worry about any of that, anyway.
PN349
So you simply refuse to even consider an alternative that would provide for no increase in cost?---If there is the - are you sort of indicating - was the company prepared to pay us $10 or $15 a week to cover costs?
PN350
No, I'm suggesting that if you were potentially with another provider, you may suffer no increase in costs and you're refusing to consider that as an option for yourself?---Well, it's not a refusal. It's my choice.
PN351
As you wish. Thank you very much, Mr Meakin. Perhaps my colleague here might have some further questions.
PN352
MR DUFFIN: Nothing further, Commissioner.
PN353
THE COMMISSIONER: I might have some, myself.
PN354
Mr Meakin, you transferred from West End into Darra. Approximately six employees took redundancy, so about 13 or 14 employees went into Darra yard?---That's correct, yes.
**** DENIS ROBERT MEAKIN XXN MR HEATHER
PN355
How many employees were at Darra yard at that time?---They would have been almost equal to West End, the number of employees. Exact numbers I couldn't tell you but they would have had to have been between 30 to 35 on the road crew.
PN356
Well, we're only interested in the road crew, aren't we?---Yes.
PN357
That's all we're talking about. So that was in - - -?---Be almost 12 months.
PN358
That's about September 2001? September 2001, you transferred? It's September 2001 West End closed - - -?---Yes, and we moved to - - -
PN359
- - - and that's when you went to Darra?---We moved to Darra from that point.
PN360
So about 30 or 40 employees at Darra? Has there been many changes to the workforce? Let's say those 30 or 40 at Darra: are they pretty much the same people now as they were in September?---Quite a few people left. They've introduced two-man trucks which have taken the people out of employment. The workload is changed because some contracts have gone to Chubb so there's - as far as work and number of employees are concerned, there have been some changes. The - a lot of the employees' hours have since dropped. A lot of the guys were getting four, sometimes five - - -
PN361
No. What I mean, I'm sorry - are they the same people, except for the fact some have left?---Yes.
PN362
So the workforce at Darra mightn't be 30 or 40 now - well, it might be 13, 14 if you went in, so but have those people in Darra substantially changed? Are they the same - - -?---No, they would be almost the same people, including the West End people that came up.
**** DENIS ROBERT MEAKIN XXN MR HEATHER
PN363
The 13 or 14 that went over?---Yes.
PN364
So - - -?---The only - - -
PN365
You are all pretty much the same people that were there in 2000 and 2001?---Correct, except for the ..... section, there are a couple who have taken more permanent works in there.
PN366
Yes?---But yes, 98 per cent would be the same people.
PN367
All right. So not a big turnover?---No.
PN368
Yes. Yes, I should have asked about the Virginia yard as well; you wouldn't know whether there is a turnover there?---Don't know a lot about Virginia, they are - - -
PN369
I might ask one of the managers, yes?---Yes.
PN370
All right. Mr Duffin, anything at all?
PN371
MR DUFFIN: No, I don't think so, Commissioner.
PN372
THE COMMISSIONER: All right, then.
PN373
Mr Meakin, thank you for taking time to give your evidence. You are welcome to stay in the hearing room, but you are free to leave if you so choose?---Thank you.
**** DENIS ROBERT MEAKIN XXN MR HEATHER
PN374
PN375
MR DUFFIN: Commissioner, those are all the witnesses we would call by way of viva voce evidence. We would seek to tender the statements of Mr Srama and Mr Turner.
PN376
PN377
PN378
THE COMMISSIONER: These are the other gentlemen who are involved in this issue and are now at Darra?
PN379
MR DUFFIN: That's correct, Commissioner. Mr Turner is actually outside so when my friend calls his first witness if he could also be grabbed.
PN380
THE COMMISSIONER: Sorry?
PN381
MR DUFFIN: I will actually get one of my people with me to grab Mr Turner from outside.
PN382
THE COMMISSIONER: He is not going to - is he to take the stand?
PN383
MR DUFFIN: It is not necessary, I don't think. I think my friend has indicated he doesn't intend to cross-examine him.
PN384
THE COMMISSIONER: Both Mr Srama and Mr Turner came over from West End to Darra?
PN385
MR DUFFIN: That's correct, Commissioner.
PN386
THE COMMISSIONER: So that is all your evidence, Mr Duffin?
PN387
MR DUFFIN: That is all we need to rely upon, Commissioner.
PN388
THE COMMISSIONER: Okay, thank you.
PN389
MR DUFFIN: Sorry, Commissioner, actually, just before I sit down, there is that Armaguard letter which, as I have indicated, I don't have copies. Perhaps if I was to tender it now, given that, strictly speaking, that is all my evidence - - -
PN390
THE COMMISSIONER: Well - sorry?
PN391
MR DUFFIN: If that is going to be the end of me providing evidence, perhaps I should do it now rather than later.
PN392
THE COMMISSIONER: But you haven't got any copies of it at this point.
PN393
MR DUFFIN: Regrettably, no.
PN394
THE COMMISSIONER: Well, do we object to a 15 minute adjournment, gentlemen?
PN395
MR DUFFIN: I've got no difficulties with that.
PN396
THE COMMISSIONER: In that time, you can get your copies and then Mr Heather can be ready when we return to start his evidence.
PN397
MR HEATHER: Certainly, Commissioner. I will speak to Mr Hazlehurst, to bring him in in about 15 minutes time.
PN398
THE COMMISSIONER: Sorry?
PN399
MR HEATHER: I can arrange for Mr Hazlehurst to come in in approximately 15 minutes time.
PN400
THE COMMISSIONER: Isn't he here?
PN401
MR HEATHER: He is just outside, Commissioner.
PN402
THE COMMISSIONER: Right. Yes. Thank you, Commission is adjourned.
SHORT ADJOURNMENT [11.22am]
RESUMED [11.34am]
PN403
THE COMMISSIONER: You seek to tender your last piece of evidence in the matter?
PN404
MR DUFFIN: I do, Commissioner.
PN405
PN406
MR DUFFIN: As indicated, Commissioner, that is a letter from Armaguard to Mr Hughie Williams, the State Secretary of the TWU. That deals with the ballots at all the locations, signed by Tony McNamara, State Manager Queensland. At West End, the vote was voted down 13 to 19, Darra it was voted up 17 to 11, and at Virginia, it was voted down 2 to 19, and that is consistent with the material that is in the TWUs written outline of submissions - I think it is at paragraph 14, Commissioner.
PN407
So, in that regard, we would say, Commissioner, that - sorry, paragraph 8 rather than paragraph 14 - that that is really to assist the Commission and also my friend, given that they are uncertain as to the outcomes of any votes in the past.
PN408
THE COMMISSIONER: Thank you, Mr Duffin. Mr Heather?
PN409
MR HEATHER: I call Mr Hazlehurst.
PN410
THE COMMISSION: Please state your full name and address?
PN411
MR R.J. HAZLEHURST: Ross James Hazlehurst, 21 Holly Road, Victoria Point, Queensland, 4165
PN412
MR HEATHER: If I could hand up a copy of Mr Hazlehurst's affidavit with the attachments which we sent through about a week or so ago. If I could just and that up to the Commission as evidence.
PN413
THE COMMISSIONER: Yes.
PN414
MR HEATHER: Can Mr Hazlehurst read that? You have read that affidavit, Mr Hazlehurst, and that is all true and correct?---Yes.
PN415
You have got no changes to make?---No.
PN416
Okay. I've got no questions for Mr Hazlehurst, Commissioner.
PN417
THE COMMISSIONER: Yes. Mark Mr Hazlehurst's statement MN2, please?
PN418
PN419
MR DUFFIN: Thank you, Commissioner.
PN420
Perhaps if I could begin by asking you, in relation to your statement, in paragraph 3, it was the case, as I understand it, that all employees were paid cash until November 2001?---That's correct.
**** ROSS JAMES HAZLEHURST XXN MR DUFFIN
PN421
Following - or in November 2001, TWU2 was provided to employees; is that correct?---That's correct.
PN422
Have you got a copy - - - ?---Yes, I've seen it.
PN423
Now, in that document, employees were given the option of cash or EFT; that is correct, isn't it?---Yes.
PN424
Now, subsequent to that, TWU3 - if he could be shown TWU3 - that was sent to employees or pinned up on noticeboards on or about 17 March; that's right?---Yes.
PN425
And in that document it's the case that no cash payment - employees were advised that no cash payments would be made after 30 June 2002?---That's correct.
PN426
So there was no longer any option for employees whatsoever according to that document after 30 June 2002?---That's my understanding of it.
PN427
Now do you mind just going to the paragraph commencing, "According"? That sentence there reads:
PN428
According to Mayne Armaguard awards and certified agreements, the company can pay wages via EFT. Hence the company now serves three months notice that it will pay wages via EFT.
PN429
The award clause in this matter reads:
PN430
Provided that agreement between the employer and the majority of employees at each yard, depot or garage, wages may be paid by direct electronic funds transfer in to an employee's bank or other recognised financial institution account.
**** ROSS JAMES HAZLEHURST XXN MR DUFFIN
PN431
Now there is nothing in that clause that provides you with the discretion to do it on three months notice, is there? Do you need me to read that to you again?---Yes, please.
PN432
THE COMMISSIONER: I'm sorry. Does the witness have the award in front of him?
PN433
MR DUFFIN: He does not, Commissioner.
PN434
THE COMMISSIONER: All right. I'll give him my copy of the award.
PN435
MR DUFFIN: If you read clause 15(b) there, it begins with:
PN436
All earnings including overtime shall be paid within two days of the expiration of the week in which they accrue provided that agreement -
PN437
now there is nothing there that gives Armaguard the discretion to give three months notice that it will pay wages by EFT, is there?---It says nothing about three months notice; no.
PN438
Well, let's deal with that. There is nothing there that says Armaguard has an unfettered discretion. Is that your understanding of that clause?---I don't understand what you mean, sorry.
PN439
The clause allows payment by EFT in certain circumstances. Is that your understanding?---That's correct.
PN440
And the certain circumstances are provided that, "Agreement between the employer and the majority of employees at each yard, depot or garage". That's correct, isn't it?---Yes.
**** ROSS JAMES HAZLEHURST XXN MR DUFFIN
PN441
So the only basis upon which EFT payments can be made is if there is that agreement; that's right, isn't it? That's your understanding?---Yes.
PN442
In relation to the cash handlers, they're covered by the ASU; is that your understanding?---That's correct, yes.
PN443
And the cash handlers are subject to their own awards and/or enterprise agreements?---Yes.
PN444
So they don't come in to this matter?---I believe not, no.
PN445
You say in your statement that a vote to accept the payment of wages by EFT took place at Darra, 17 votes to 11. That's your understanding, is that right?---Yes.
PN446
You'd understand also that both West End and Virginia voted that down?---I wasn't aware of that, no, until you showed me the document.
PN447
You now understand that?---Yes.
PN448
You didn't act upon that vote of May 2000, did you?---No.
PN449
And, in fact, you didn't act upon it arguably until March 2002; that's correct, isn't it?---No, that's not correct. We acted upon it in November when we gave the employees an opportunity - - -
PN450
You gave employees an option at that time?---Well, prior to that we were unable to give that option because we didn't have the payroll system to support it.
**** ROSS JAMES HAZLEHURST XXN MR DUFFIN
PN451
So you didn't act upon it because you didn't have a payroll system prior to at least, on your basis, November 2001?---Yes.
PN452
And, in fact, if that vote is said to have any status at all, there is no need to provide a discretion whatsoever in November 2001, is there? You've given people an option in 2001 but didn't need to if that vote means anything?---Given people an option if they wanted to go EFT or cash in different yards and different parts of the operation. That letter was addressed to all employees, not just to TWU employees.
PN453
I'm not fussed about all employees, I'm only here for the TWU. Let me go to that other question. As of November 2001 you certainly didn't have a majority of people signed up to the EFT system because, frankly, it wasn't there. That's right, isn't it?---That's correct, yes.
PN454
And, in fact, you didn't have a majority of people prior to sending this memo?---Well, I didn't send the memo.
PN455
Well, irrespective of whether you sent the memo, that memo was sent on or about 17 March 2002 and a majority of people at the relevant yards, which are Darra and Virginia in this instance, had not agreed to the EFT at that time?---I don't have that information available to me.
PN456
You just don't know? There is no evidence whatsoever on that issue?---Well, I believe it could be obtained.
PN457
But you don't have it with you?---No.
PN458
The award clause which says that it has to occur provided with the agreement of the majority of employees, prior to March 2002 you didn't seek to vary the award to give you that discretion to do it whatever way you wanted?---I did not know but I believe there is variations submitted through the Federal Court that may have been part of that. I don't know. I haven't, no.
**** ROSS JAMES HAZLEHURST XXN MR DUFFIN
PN459
If that's all you can answer, that's all you can answer. There is nothing in the EBAs in this instance which provides you with a discretion to pay by EFT, are there?---In reference to Darra and Virginia branches?
PN460
That's correct?---No. Unless you took in to consideration clauses in the EBA with the implementation of new technology.
PN461
I don't think - well, perhaps we can discuss that, but you didn't go through the EBA as a way of varying or seeking to introduce this change, did you?---No.
PN462
Thank you. Now the reason why you're seeking to introduce EFT is for business efficiency. That's right, isn't it?---Yes.
PN463
It's to save yourself money. That's right, isn't it?---Mm.
PN464
In your view, it's a matter which will benefit the business quite substantially?---I believe so, yes.
PN465
So that's your reasoning for doing this is to save yourself money - to save Mayne Nickless money?---When you say my reasoning, Mayne's reasoning would be - - -
PN466
Well, regrettably, you're the only person that's here from Mayne Nickless?---Mayne's reasoning would be to run as efficiently as they possibly could. If that includes saving some money by this, well, that's probably part of it; yes.
PN467
You'd understand that these employees are of the view that they save themselves money by the payment of cash. You understand that, don't you?---That might be their understanding but that's not necessarily mine.
**** ROSS JAMES HAZLEHURST XXN MR DUFFIN
PN468
Well, oddly enough they don't actually raise the issue of what your understanding of EFT is either, do they?---I'm not sure what you're trying to get at.
PN469
Well, perhaps I'll make it perfectly blunt. Mayne's approach to this is this is a means of saving Mayne's money. This is a means of making the business more efficient?---There's several reasons for that. That, yes, is one of them but there's other reasons: occupational health and safety, all those different sorts of issues that can be taken in to consideration if you really want to drill down to it.
PN470
Occupational health and safety?---Yes.
PN471
Fire away?---Well, the employee doesn't have to come in and pick up his cash and walk out of the yard with the cash; when you've got a uniform on or whatever; availability of funds for the employee.
PN472
Is three-man crewing safer than two-man crewing?---It's as safe as doing - yes.
PN473
At least as safe as two-man crewing?---I believe so, yes.
PN474
It would be improbable, wouldn't it, for two-man crewing to be safer than three-man crewing?---With the introduction of technology I believe that overrides what you're trying to get at, and what - excuse me, what has that got to do with EFT payment?
PN475
Very simply, what it's got to do with is you say the reason for your change is possibly occupational health and safety. The move from three-man crewing to two-man crewing has been something that we say, and have said for a long time, is quite consistent with a demise in occupational health and safety?---Well - - -
**** ROSS JAMES HAZLEHURST XXN MR DUFFIN
PN476
You do it for efficiency reasons?---You say, we don't say, and the occupational health and safety side of it has been addressed through the two-man crewing issue and investigated by the Government departments and all the rest of it, so I'm still not sure what your line of questioning is trying to establish.
PN477
I will move on. Would you be prepared to conduct a secret ballot pursuant to this Act in relation to this issue at both Darra and Virginia?---How would it be framed?
PN478
Well, we can deal with how it could be framed. Let's just start at the basic level; would you be prepared to accept the outcome of a secret ballot on this issue?---No.
PN479
No. Okay. I have nothing further, Commissioner.
PN480
THE COMMISSIONER: Yes, thank you, Mr Duffin. Mr Heather, is this is the only witness that Mayne will be calling?
PN481
MR HEATHER: There is another witness, Commissioner, that is Darren Chester, the manager of the Darra depot.
PN482
THE COMMISSIONER: All right. But not the manager from Virginia?
PN483
MR HEATHER: He is on leave at the moment, and he is unavailable.
PN484
THE COMMISSIONER: All right. So you will tender his statement, I presume, without opposition then.
PN485
MR DUFFIN: There wouldn't be any objection, Commissioner.
**** ROSS JAMES HAZLEHURST XXN MR DUFFIN
PN486
THE COMMISSIONER: Yes, all right, then.
PN487
You may not know this, Mr Hazlehurst, but has there been much turnover in the employees at Virginia?---There was certainly - in the last, what, 12/18 months or - - -
PN488
No, say, since May 2000?---Since May 2000, yes, there would be reasonably substantial turnover of those employees, because we had a period where we went through redundancies and employees were made redundant and things like that, so yes.
PN489
Well, that is a reduction in the numbers; I was thinking more of the turnover of staff, people resigning, new people coming in?---The majority of our - - -
PN490
Are they the same people or are they - are they predominantly the same people that were there in May 2000, or are the vast majority of them new employees since May 2000?---I would think it would be majority - look, I really don't know is the answer.
PN491
Can you get that information for me?---Yes.
PN492
Mr Heather, I would like that information, please. So we might recall Mr Hazlehurst after you have had Mr Chester and then he can give his evidence in regards to the numbers and the employees at Virginia.
PN493
MR DUFFIN: Commissioner, just arising out of that, I might have one further question in relation to Darra, which is just in relation to the change in the numbers at that site as well.
PN494
THE COMMISSIONER: Yes, that is fine, Mr Duffin.
**** ROSS JAMES HAZLEHURST XXN MR DUFFIN
PN495
Do you understand what I mean; if you had 10 people at Virginia in May 2000, are they - and now you have got eight people, are those eight still part of the 10, or have you got four new people and four from the original?---Yes, I honestly don't know what - - -
PN496
No, no, I am just saying you are going to find out for me, though?---Yes, I will get on the phone.
PN497
And then I will have you recalled, and then you can let me know what sort of turnover, because the last witness, I think, in regards to - TWU witness, Mr Meakin, said to me that the - I think that Darra yard were predominantly the same people that have been there; less numbers, but predominantly the same?---And that is probably the case at Virginia, but I will check.
PN498
But you will check and then give me your evidence on that point?---Yes.
PN499
Mr Duffin?
PN500
MR DUFFIN: That was actually the question I was going to ask the witness.
PN501
THE COMMISSIONER: Sorry, I - - -
PN502
MR DUFFIN: No, no, that is quite okay. I think you were sort of one step ahead of me on it, so that Mr Meakin, in his evidence, raised the issue of the variation in workforce.
PN503
As I understand it, about 13/14 people came across from West End to Darra; was that right?---Yes.
**** ROSS JAMES HAZLEHURST XXN MR DUFFIN
PN504
Roughly speaking?---Yes, roughly speaking, yes.
PN505
We may - the Commissioner is probably the most - your suggestion on this is probably the most appropriate way that - I shouldn't ask these questions until we actually have the material in front of us.
PN506
THE COMMISSIONER: Yes, we will recall Mr Hazlehurst after Mr Chester. But is that it, Mr Duffin, for the moment?
PN507
MR DUFFIN: Yes, I mean, just with a reservation in relation to that issue.
PN508
THE COMMISSIONER: Yes. All right, well, we will see how we go. Mr Heather, any questions in re-examination?
PN509
MR HEATHER: I have no further questions for Mr Hazlehurst.
PN510
THE COMMISSIONER: All right. We will excuse you for a moment, Mr Hazlehurst. If you would go and check that information and then we will go on with Mayne's next witness?---Yes.
PN511
MR HEATHER: If I could call Mr Chester.
PN512
PN513
MR HEATHER: Commissioner, if I could hand up a copy of Mr Chester's affidavit, and also, two attachments which refer to correspondence between Mr Chester and Mr Hazlehurst that refers to conversations between Mr Chester, Mr Meakin, Mr Turner and Mr Srama, and also a copy of the internal correspondence, it is the same attachment that is on the back of Mr Hazlehurst's statement which - - -
PN514
THE COMMISSIONER: It's the same - it's the material that you filed into the Commission.
PN515
MR HEATHER: Have already filed - yes. Yes, Commissioner. And a copy for Mr Chester.
PN516
Mr Chester, is the statement before you true and correct?---Yes.
PN517
There's no changes that you'd like to make to that?---No.
PN518
PN519
MR HEATHER: I have no questions for him, Commissioner.
PN520
**** DARREN JOHN CHESTER XXN MR DUFFIN
PN521
MR DUFFIN: Mr Chester, I might just begin by what happened prior to this interview on 17 July 2002, and I'm going to go back till about March 2002. Was it the case that, when employees were receiving their pay slips that they were also receiving forms for a period of time requiring them to complete for their EFT details?---Yes. That's the way we handed out the forms, yes.
PN522
And were you checking those forms to see which ones had come back in?---Yes. Actually, they were sent through to payroll, and payroll was - I wasn't checking them.
PN523
So payroll was coming back to you and saying, "These 10 people have signed off, and these 10 people haven't signed off yet"?---No. Payroll would come back and say, "These 10 people haven't." They didn't say who had.
PN524
They didn't say who?---No. They didn't say who had. I wasn't getting reported who had and who hadn't. It was X amount of employees are missing.
PN525
Okay. And did you do anything about that prior to 30 June, and the X number of people that were missing, did you raise issues with them?---Yes.
PN526
So prior to 30 June, you would - the probability is that you would have had conversations with anyone who was missing to ask them to supply their EFT details?---Yes.
PN527
And the probability is - well, you would have had conversations with Dennis Meakin, Ian Turner and Paul Srama prior to 30 June about this?---Yes.
PN528
Okay, thank you. And they told you at that time, didn't they, their reasons for wishing to maintain their payment in cash?---Yes.
**** DARREN JOHN CHESTER XXN MR DUFFIN
PN529
Now, all three of those employees - Dennis Meakin, Ian Turner and Paul Srama, they were previously employees at the West End depot?---That's right.
PN530
I'm sure the Commissioner will end up asking you if I don't, so if you go to your attachment which has - it's the second attachment to your statement, I think?---I haven't got it.
PN531
If the witness could be shown that. Now, that's the list of employees who voted at that meeting on the 29th of the 5th 2000. Is that right?---Yes.
PN532
I know that - could you just quickly cross off in your head the number of people who are still at the Darra depot employed by - employed by Linfox for now, but - - -?---15.
PN533
15 of those 28 are still employed, right. And since that time you obtained an extra approximately 13 to 14 employees from West End?---Yes.
PN534
And there's about, as I understand it, about 50 road crew in total at Darra. Is that right?---Approximately 50-odd.
PN535
So you've got roughly about 30 employees who were employed at either Darra or West End and about 20 either new or from other sites?---Approximately.
PN536
Okay, thank you?---No, that wouldn't be true. We haven't employed anybody.
PN537
At all?---No.
PN538
So they're likely to have been - well - - -?---There must have been some people missing from this meeting.
**** DARREN JOHN CHESTER XXN MR DUFFIN
PN539
Okay. So of that group who voted, 15 are still there. There's probably presumably another 10 - - -?---10 that weren't.
PN540
Yes, something like that, okay. Now, since - well, prior to 30 June 2002 was it made clear to the employees that you've spoken to that if they did not provide their EFT details there would be no cash payments after 30 June?---I believe it was mentioned, yes.
PN541
And it was made quite clear to them that this was something that Maynes was doing and that they - in order for them to obtain wages they would have to supply their EFT details?---Yes.
PN542
Now, just in relation to this ballot which occurred on or about 13 September 2002, I understand that you didn't have any notice of it according to this, your statement. Were you aware that there was actually a ballot box at the site?---Yes.
PN543
Were you aware that the employees were intending to hold a vote on this issue?---I'm aware there was a ballot box at the site after the meeting on that morning.
PN544
Sorry. Let me get this right. Prior to you being present to watch - you were present when the votes were counted. That's correct, isn't it?---After the ballot box had been opened I was in the yard, yes.
PN545
After the ballot box has been opened you witnessed the votes being counted?---Well - - -
PN546
Right. Were you aware that the ballot box was in the kitchen area?---Yes.
PN547
So you were aware that the ballot box was there prior to the ballot being conducted but you weren't - what you're saying, if I've got this right, is that you're not in a position to say whether the ballot was tampered with or not?---No.
**** DARREN JOHN CHESTER XXN MR DUFFIN
PN548
Right. So if a ballot was conducted in a way - no, I withdraw that question. I think the previous witness answered it. Thank you, Commissioner.
PN549
THE COMMISSIONER: Thank you. Mr Heather.
PN550
MR HEATHER: We have no questions, Commissioner.
PN551
THE COMMISSIONER: Yes, thank you, Mr Chester. You're free to leave or you may sit in the hearing room if you choose.
PN552
THE COMMISSIONER: Whenever you're ready.
PN553
MR HEATHER: To bring Mr Hazlehurst back?
PN554
THE COMMISSIONER: Yes.
PN555
MR HEATHER: Yes, if we could call him back for the questions that you're after, or the answers. Commissioner, he's still on the phone, as I understand it. It may be a difficult matter ascertaining the details that you require. Would it be possible to continue with, I take it, submissions, and then come back later today to address the questions to Mr Hazlehurst if he gets that information?
PN556
THE COMMISSIONER: Well, I thought we might - how long will you be in submissions?
PN557
MR HEATHER: I don't see it being very long. My submissions are only nine pages and 14 points so mine won't take long and I don't know how long my colleague is going to take.
PN558
THE COMMISSIONER: Well, I don't know what that means. Is that one hour, two hours?
PN559
MR HEATHER: Well, I don't imagine mine would take half an hour.
PN560
THE COMMISSIONER: Mr Duffin, how long do you think?
PN561
MR DUFFIN: Approximately the same length of time. I'd be surprised if it was that long, to be honest. I mean, I have no difficulty if the Commission would prefer to have lunch on South of the Tweed time and reconvene at about 1.00.
PN562
THE COMMISSIONER: I actually said this morning I thought we might have finished this morning and maybe go a little bit longer and then have a later luncheon which would have been fine with me. Well, it might be an idea then if we adjourn for an hour for luncheon and then when we come back Mr Hazlehurst will just - I only want an estimate and then I'll just hear your submissions and we'll conclude. Mr Heather, do you want to tender Mr Kerschner's statement?
PN563
MR HEATHER: If I could, yes, please, Commissioner.
PN564
PN565
THE COMMISSIONER: And does that conclude your evidence apart from us recalling Mr Hazlehurst just to clarify some points for me?
PN566
MR HEATHER: Yes, Commissioner.
PN567
THE COMMISSIONER: All right. Gentlemen, we adjourn until 10 past 1.
PN568
MR HEATHER: Thanks, Commissioner.
LUNCHEON ADJOURNMENT [12.10pm]
RESUMED [1.10pm]
PN569
THE COMMISSIONER: Yes, Mr Heather.
PN570
MR HEATHER: Commissioner, perhaps if we could recall Mr Hazlehurst to the stand to answer some of the questions which you asked of him prior to the lunch adjournment?
PN571
THE COMMISSIONER: Yes, please.
PN572
THE COMMISSION: Please state your full name and address?---Ross James Hazlehurst, 21 Holly Road, Victoria Point, Queensland, 4165.
PN573
THE COMMISSIONER: What did you find out, Mr Hazlehurst?---At Virginia branch, Commissioner, 30 employees are still employed that were employed as at May 2000; and at Darra branch 36 employees are still employed that were employed at May 2000. Of that, 19 were existing Darra employees and 17 came across from West End branch.
PN574
No, I was interested in who were the Darra people?---Okay, 19.
PN575
Well, Mr Chester, I think, in his evidence went through a list and he said 15 but then he may not have looked at it so I'd say between - I'm right in that, aren't I?
PN576
MR HEATHER: Commissioner, that was 15 who were there for the vote, whose names were on the form that recorded who actually voted on that occasion.
PN577
THE COMMISSIONER: Oh, I see. So there weren't 28 employees - there were more than 28 employees - - -
PN578
MR HEATHER: I believe so.
PN579
THE COMMISSIONER: - - - at Darra at the time. All right. I must say I took it to be 28 employed because they were the 28 that voted. So - I see - so 15 on the list are still employed. But there's 19 still employed since May 2000, I think it was, wasn't it?---Yes.
PN580
I'm glad you clarified that for me. I would have been off on my own little tangent. So in regards to Virginia, there's 30 employees now that were employed at Virginia in May?---Yes.
PN581
And there's 49 in total, is there, in the other - came over from West End, did you say?---No, at Virginia - - -
PN582
Just run that past me again?---At Virginia there's a total of 55 employees. 30 were there as at May 2000 and are still there, and there's been 25 employed since May 2000.
PN583
And of those 25, 13 or 14 of them - well, they may not be all West End. Some of the West End people may have left?---No, no one went from West End to Virginia.
PN584
Oh, that's right, I'm sorry, yes, that's right. That's into Darra, yes, Darra yard, that's right. Okay; Mr Heather?
PN585
MR HEATHER: I've got no more questions, Commissioner.
PN586
THE COMMISSIONER: Thank you. Mr Duffin?
PN587
MR DUFFIN: No questions for the witness.
PN588
THE COMMISSIONER: Thank you, Mr Hazlehurst. Apologies for making you wait so long, but thank you for giving your evidence.
PN589
THE COMMISSIONER: Submissions, gentlemen.
PN590
MR DUFFIN: Perhaps I might begin by just trying to sort of go through as - set facts, as it were, Commissioner, that have come out of today in addition to the things that we already knew. Firstly, it seems that in May 2000 - or perhaps let's go back a step. The award variation occurred in 1999 to allow Armaguard to have the benefit of that clause that was inserted by V051, which was the second part of clause 15(b) of the award. And V107 was the one that varied it to allow Armaguard to obtain the benefit of that clause.
PN591
The employees were all paid cash prior to - all of these employees were paid cash prior to 30 June 2001. Employees at the various yards were all paid cash certainly prior to November 2001. Darra voted 17/11 in favour of allowing EFT in May 2000. Both West End and Virginia voted that proposal down at that time. Nothing was in the EBA on this, but in any case it appears that this decision to implement the EFT was not done pursuant to the EBA, according to Mr Hazlehurst. Of the 28 persons who voted in 2000 at Darra, 15 are still employed there.
PN592
A total of 19 employees who were employed at Darra at May 2000 are still employed there, out of that 56. So a little bit over a third. Of the 56 employees currently at Darra, 17 came across from West End.
PN593
THE COMMISSIONER: I thought it was 13 or 14. Was it 17?
PN594
MR DUFFIN: Mr Hazlehurst in evidence just then - - -
PN595
THE COMMISSIONER: Just said - yes.
PN596
MR DUFFIN: - - - indicated it was 17, and given that that's - that would be the most correct estimate, I would imagine. That 13 or 14 was what Mr Meakin had - - -
****
PN597
THE COMMISSIONER: Yes.
PN598
MR DUFFIN: - - - guessed at. So approximately 36 of the 56 employees - in fact it was said by Mr Hazlehurst that 36 of the 56 were employed as at May 2000. Now, the vote at Darra was not acted upon prior to November 2001, at best. At that point the brochure was sent out to the employees which allowed them to have the option of cash or EFT. So certainly at the time that the brochure was sent out allowing employees to use EFT, the Darra and West End yards had been combined. No votes appear to have ever been taken at Virginia to approve EFT whatsoever.
PN599
No application has been made to vary the Award that the witness knew of, and certainly the Award has not been varied in a manner which would say, for example, "Delete that first sentence", or the first set of words that say:
PN600
Provided that agreement between the employer and the majority of employees at each yard, depot or garage.
PN601
No application has been made and certainly no variation has occurred to say that wages may be paid by direct electronic funds transfer, ie to remove the employees' rights to give agreement in relation to that, and it is a majority clause, not an individual clause, Commissioner.
PN602
THE COMMISSIONER: But, Mr Duffin, if the payroll system was in existence in May 2000, the people of Darra would be on EFT.
PN603
MR DUFFIN: That may be true, although we clearly don't know that, but that seems likely.
PN604
THE COMMISSIONER: Well, we can surmise.
****
PN605
MR DUFFIN: That's right, yes. I mean, that seems likely.
PN606
THE COMMISSIONER: I think it's but for the implementation difficulties that it went so long. I mean, that's what I've picked up. I don't know that there was any other reason for waiting that long.
PN607
MR DUFFIN: That's true, although - well, I'll address that issue, but I would say to you at this stage, Commissioner, that there seems to have been a pretty substantial change to the composition of the work-force as between the time when the vote was originally taken in May 2000 and the time where implementation seeks to occur, which is November 2001. Less than - well, as I said, approximately one third of the employees at best are the existing employees as at May 2000 and less than one third of the employees who participated in the vote in May 2000. So I will address you on that, but I think that's an important issue. There has been a substantial change to the composition of the work-force at Darra between the time of that vote in May 2000 and the time of any implementation and that was clearly within the compass of the company, given that it's closed one site that it knew had voted no to, and 17 of those employees are at the other site.
PN608
Now, the employees were informed in March 2002 after the brochure in November 2001 was sent to them, that the company would be switching on 1 July 2002, that no further cash payments were to occur and that according to the Mayne Armaguard awards and certified agreements the company can pay wages via EFT and that the company serves three months notice that it will pay wages via EFT. The employees who did not provide EFT details were seen individually or in groups and Mr Chester confirmed this in cross-examination. Prior to 1 July 2002 it was made quite clear to the employees that if they did not provide their EFT details prior to that time there would be no cash payments left. And since the decision to move over the employees have not received wages pursuant to cash and in fact have not received wages at all.
PN609
THE COMMISSIONER: I gather that at the end of this process, Mr Duffin, employees will be paid, be it cash, be it EFT. Is that your understanding?
****
PN610
MR DUFFIN: Yes, Commissioner. That's my understanding. And finally in September 2000 there was a vote held at the Darra depot which the respondent has clearly indicated that it has difficulties with, but has said that it would not agree to holding a further vote, even under the auspices of the Commission. Now, that's the essential facts, Commissioner. I don't think there's much in dispute in relation to them. The issue in some respects, perhaps, is in some ways it's almost easier for me to address my friend's submissions, because in some ways they - by so doing it is possible to see the basis upon which we put our case. I mean, it is almost clearer by way of his approach to things.
PN611
It's put in MN1 at paragraph 7 that the approach to the interpretation of the clause in this matter which reads - as you're well aware, Commissioner, which reads:
PN612
Provided that agreement -
PN613
Sorry, going back to the beginning:
PN614
All earnings including overtime shall be paid within two days of the expiration of the week in which they accrue provided that agreement between the employer and the majority of employees at each yard, depot or garage wages may be paid by direct electronics funds transfer into an employee's bank (or other recognised financial institution) account.
PN615
Now, it's put in paragraph 7 that the Commission should approach this in a similar manner to the way Commissioner Lewin approach the award simplification of the Miscellaneous Workers Post-Secondary Education TAFE Award 1993. A fundamental weakness with the position of the respondent in this is seen at the very beginning of that clause, which is - paragraph (d) reads:
PN616
Payment of wages shall be by way of cash, cheque or electronics funds transfer.
****
PN617
THE COMMISSIONER: Well, it's a different Act and different section. It's an item 51 review - - -
PN618
MR DUFFIN: Yes.
PN619
THE COMMISSIONER: - - - the Commissioner had before him, but go ahead and - yes, the paragraphs are different.
PN620
MR DUFFIN: I mean, that's essentially the submission, is that it's under very different circumstances. I mean, what we're doing here is quite different to the way item 51 operates clearly, and in any case the two clauses are so different as to make it - far be it from being a situation where it's difficult to distinguish. It's actually harder I think - and it would be our submission. It's harder to actually see any relevance to it.
PN621
THE COMMISSIONER: Well, 15(b) says, "shall be paid - - - "
PN622
MR DUFFIN: That's right.
PN623
THE COMMISSIONER: "- - - within two days." How?
PN624
MR DUFFIN: The part of 15(b) - that's crucial and the only proviso to that is set out in the following part. Given historically as well that, you know, this is a cash - well, the company has been run along a cash basis and indeed 15(a) talks about that all wages shall be paid enclosed in an envelope, it seems to us that this is a situation where if you read the clause in context it's quite clear what it was intended. So our submission would be that Commissioner's Lewin's approach is just not relevant to this matter.
PN625
The second set of submissions that are found in MN1 commence at about Clause 11, or paragraph 11, and they continue to about paragraph 14, and they say:
****
PN626
An alternative understanding of Clause 15(b) would revolved around a plain English understanding of the words of the clause. The words "wages may be paid by electronics funds transfer" means an employer may exercise its discretion and pay wages solely by this method.
PN627
Now, the problem with that is that it misses the very basis of which Clause 15(b) operates, which is provided that agreement between the employer and a majority of employees at each yard, depot or garage. Now, it's not, in our submission, a situation where there is an unfettered discretion upon the employer. It's quite clear that the discretion is highly limited and it is only to be exercised in certain circumstances, namely, where the agreement exists.
PN628
So it's not a situation where, we say, that it is in any way possible to act in accordance with the employer's submissions in this matter. Now it said at paragraph 15 of the employer's submissions, that because more than half of the employees at the Darra Virginia depots are currently and were before 30 June 2002 being paid their wages by EFT, there is agreement.
PN629
Now, this is, we submit, a spurious approach for two reasons - in fact, for three reasons. The first is that when TWU3 is sent to employees, it is made quite clear to them that there is no choice for them. There is no agreement. It is not possible for them to agree. This is going to occur. And it is made clear in individual conversations between Mr Chester, for example, and other employees at that time. He raises the issue with them. He says, "Have you supplied the EFT details?" "No." "You realise, don't you, that prior to - or on or about 1 July 2002, there shall be no more wages paid by way of cash." Now it is not possible, in that sort of context, for an agreement to exist. That is the imposition of one person's will at the expense of another's.
PN630
Now a genuine agreement would have actually given them the choice of exercising one way or the other. These four employees have attempted to exercise it, and the result has been they have not been paid for a period of five months now, and it seems, in light of that, that it is demonstrably the case that there was no genuine choice, and, in that circumstance, there was no way of genuinely reaching an agreement on the matter.
****
PN631
Now it is further said on the following page that if one is concerned about this, one can look at the decision of McHugh J, and/or the decision of Lord Scarman. And the issue there is, well, is this a question of duress, or is this a question of illegitimate conduct. Now we would submit, Commissioner, that, in actual fact, it is unconscionable conduct. What has been said, by way of TWU3, is that the company has said to employees, "According to the Mayne Armaguard Award and certified agreements, the company can pay wages by EFT; we now serve you notice of this." The limits of unconscionable conduct are very broad, and I don't need to go into them, other than to say that in a situation where you are seeking agreement from people, you should be providing them with the full and frank disclosure of the information, and this is not so. What has been provided to them is a slanted one-sided version, and subsequently, a repeated reference to the fact that "you will not be paid in any case." One wonders how you can really genuinely say that an agreement exists in this situation, where the employees have frankly been given no option other than to sign the material.
PN632
Now it is said in paragraph 21 against us that no resistance or protest was made before the deadline of introducing EFT payment of wages by any of the respondent's employees. Well, again, that has been denied in the witness-box, and it has also been confirmed by way of Mr Chester's responses to the cross-examination, which was, well, he was raising it, and they were saying they weren't going to do it. Now whatever might be said - I mean, it is quite clear - and whatever might be said about their reasons for doing it, it is quite clear that they made it clear that they were not going to provide that information.
PN633
If you look at the following page, the respondent provides at paragraphs 24, again a reference to the extensive notice of the change, which again, we say, is irrelevant; it is not a question of notice, it is a question of agreement. And, in any case, we say, well, the notice itself is misleading, and frankly does not provide the employees with what their actual industrial rights were pursuant to the award. Now paragraph 26, the respondent says:
PN634
The reasons provided by the employees were spurious and not sufficient to prevent the employer for acting on 17 March letter that indicated no cash wages would be paid after the end of June.
****
PN635
Now they go on to say in paragraph 27 that:
PN636
It appears that the company is being capriciously sabotaged by a small number of employees who appear to be hell-bent on waging industrial terrorism by refusing to comply with the reasonable request of the respondent.
PN637
Well, the very reason for the respondent dealing with this matter is that it says this is a matter for business efficiency. It is a matter of making savings. That is the very reason that the employees say that they don't want to do it. Now they may be reasons that neither you nor I, or clearly my friends, seem to say are justifiable, but they are legitimate reasons, and they are reasons that should not be described as spurious, nor should they be described as a matter of industrial terrorism. These are employees who are pursuing their rights legitimately, and have, instead, had a situation where their wages have been effectively unpaid for that period of time.
PN638
Now if it is seen that this is a matter of such pressing concern to the company, that it needed or required, for a matter of business efficiency, to require employees to pay, by way of EFT, it could have done so by way of seeking that to be inserted either in a certified agreement or an award, and it chose not to do either. Instead, what it chose to do, was this roundabout method of sending this memo to employees telling them that that was what was going to happen, and when it was going to happen, and in exactly what terms they suggested.
PN639
THE COMMISSIONER: The agreement was made in - - -
PN640
MR DUFFIN: April 2002, Commissioner.
PN641
THE COMMISSIONER: Expiry date 2004.
PN642
MR DUFFIN: Yes. At 30 March, I believe. And, indeed, at paragraph 33 of the respondent's submissions, this very matter is referred to by way of the fact that Commissioner Palmer found in an award variation matter, that the savings would apply, but that wasn't what was done here. Now - - -
****
PN643
THE COMMISSIONER: Commissioner Palmer had before him an agreement. It was an agreement - - -
PN644
MR DUFFIN: Yes.
PN645
THE COMMISSIONER: - - - under - I don't know whether it was a certified agreement, or an agreement to vary the award.
PN646
MR DUFFIN: Yes, I think it was a consent - pursuant to the restructuring efficiency principle - - -
PN647
THE COMMISSIONER: Yes, the parties reached agreement on a number of issues to warrant the 2.25.
PN648
MR DUFFIN: And, indeed, Commissioner, the very clause that is inserted, that second half of 15B was inserted - I rang up my office this morning, and it was asserted as part of the restructuring efficiency principle into this award, as I understand it, in about 1990 as well. So prior to that, there was no mechanism for EFT within the award. Now paragraphs 36 through to 38, deal with the issue that you and I examined just before, Commissioner, in relation to the May 2000 vote. Now as is said, we don't quibble with the fact that, at that meeting in May 2002, 17 voted in favour, and 11 against the payment of wages by EFT. Clearly, we say, that there was another vote held in September, which demonstrated one thing. My friends have problems with that vote.
PN649
THE COMMISSIONER: Well, it wasn't - Mr Duffin, to be fair, it wasn't a vote instigated by the employer.
PN650
MR DUFFIN: I've got no difficulty with that, but the problem is they aren't prepared to have such a vote take place now, so it would seem.
****
PN651
THE COMMISSIONER: Yes.
PN652
MR DUFFIN: So, I mean, in that respect, it is the best we've got. It is not much good, and the Commission can take account of it to the extent it sees necessary, but I think the fact that the employer demonstrably does not wish to have such a vote take place, should be counted for something as well.
PN653
Now, as we say, Commissioner, the issue in relation to Darra is that it's not terribly dissimilar to the situation in relation to a certified agreement which is lodged outside of the 21 day period. What has happened here is there has been a substantial change to the composition of the workforce as between May 2000 and November 2001 when the option of EFT was provided. In particular, West End entered the fray as being employees now at Darra, and it's clear from the evidence of Mr Hazlehurst that it was almost 50-50 as between the Darra and West End employees who are there at the present time. One can presume as at November 2001 that was probably the same numbers as well.
PN654
So it seems in the light of that that to rely upon the vote which occurred in May 2000, which seems to be the last, almost, roll of the dice on behalf of the respondent in this matter, is - we would submit - just fundamentally flawed, given the nature of what has gone on since that time. In particular, the fact that in November 2001, the employees were offered a choice as to whether they obtained wages by way of cash or wages by way of EFT; and then that choice was unilaterally withdrawn by way of TWU3 in March 2002.
PN655
Now, that's the basic position of the respondent in this matter - that they say there's an agreement here that we can rely upon which is the fact that everyone has signed EFT forms. In the absence of that agreement existing, we say that the Darra vote applies. And that's it. The only other argument that seems to have been produced is essentially that you can ignore the words:
PN656
Provided that agreement between the employer and the majority of employees at each yard, depot or garage -
****
PN657
just ignore them. Get your eraser out and you're left with:
PN658
...wages may be paid at the discretion of the employer.
PN659
So if the first issue is can you do that, well, we say clearly no. That clause is there for a reason and it's to be read in context and in its entirety. And the entirety says, well, you just can't erase those words. The second issue is, well, can an agreement be reached with a majority of employees at each yard, depot or garage based upon a situation where the employer has provided to the employees the option; withdrawn an option; told them that this is the only way that they're going to get paid; seen them repeatedly individually or in small groups when they haven't provided that material; and have done so based on a misleading document as to what Mayne's industrial rights, and what the employee's industrial rights are.
PN660
So we say that clearly that approach is just not capable of succeeding. If that be right, then there's no question in relation to Virginia. Virginia must - Mr Howarth must continue to have the right to be paid in wages by way of cash, because neither of the other two arguments exist there. The issue of Darra then comes down to how do you deal with the vote of May 2000, and our submissions are that had that have been applied in May 2000, well and good. I accept the Commission's views on that. But it wasn't. And when it went to be applied there was such a substantial change to the workforce - such a substantial change to the workforce - that it could no longer have been said to have been the vote which demonstrated the majority agreement of the employees.
PN661
And to make that, you know, perfectly clear, it's a matter of pure conjecture as to what may have occurred by way of a vote, either in November 20001 or by way of March 2002. However, had either vote occurred, you would have been here in a legitimate position - the company would have been here in a legitimate position - and our witnesses have indicated that they would have abided by such a vote. But it hasn't occurred. They did vote. They voted at West End and voted it down.
****
PN662
And that was known to the employer. TWU8, I think it was, demonstrates that it was known to the employer as at May 2000, that that was the position of the West End employees and the position of the Virginia employees. So, in short, that's the position we've reached. In those circumstances we do say that the employees should be entitled to continue to receive wages by way of cash until such a time as either they voluntarily provide their EFT details, as was indicated in TWU2, that they had the option of so doing as at November 2001; or until such a time as a majority of employees by way a properly conducted ballot of the Darra yard and/or the Virginia yard agree to such a situation as in accordance with clause 15(b) of the Award.
PN663
I mean, the second issue there demonstrates how this could have occurred easily, legitimately, and without what can only be described as unconscionable conduct by way of pressure to require the employees to provide EFT details. Those are our submissions, Commissioner.
PN664
THE COMMISSIONER: Yes, thank you, Mr Duffin. Mr Heather, whenever you're ready.
PN665
MR HEATHER: Commissioner, I obviously have a different slant to the TWU submissions.
PN666
THE COMMISSIONER: Well, that surprises me, Mr Heather.
PN667
MR HEATHER: I am to shock and please. I'd just like to draw your attention first off to the original outline of submissions by the TWU. The recommendation they appear to be seeking does only apply, or would only apply, to the four employees of Armaguard who refuse to provide their banking details to the company. That, I take it, is - - -
PN668
MR DUFFIN: That's correct, Commissioner.
****
PN669
MR HEATHER: Okay; and that it wouldn't apply to all employees - just those four; okay.
PN670
THE COMMISSIONER: Well, I think what - I think there's an option. It's either in a vote at the respective yards, which we're talking about Darra or Virginia; or until the employees decide.
PN671
MR HEATHER: But that effectively any choice, if you like, would only be available in the position where you were to provide a recommendation to that effect, and it would only apply to these four employees.
PN672
THE COMMISSIONER: Well, the vote wouldn't.
PN673
MR HEATHER: No. I realise that, Commissioner, but the choice of EFT - - -
PN674
THE COMMISSIONER: Yes. Yes. I took that as read, because other people - well, there are no other people. You say other people have, for whatever reason, put in their banking details so - but I don't know - yes. That's fine. Continue, Mr Heather.
PN675
MR HEATHER: Thanks, Commissioner. First of all I'd like to go to clause 15(b). We've gone over this and sort of torn it apart from pillar to post, so I won't re-read it, but I would suggest that clause 15(b), in effect, is terribly similar to the clause that I refer to in the Miscellaneous Workers Post Secondary Education TAFE Award 1993, in that, in both clauses, there is the provision for the payment of wages by cheque, cash or electronic funds - - -
PN676
THE COMMISSIONER: No, not in - well, not in 15(b) of the award before me.
****
PN677
MR HEATHER: Sorry, clause 15 - - -
PN678
THE COMMISSIONER: 15(b). Did you just - - -
PN679
MR HEATHER: Yes. Clause 15 talks about:
PN680
All earnings, including overtime, shall be paid within two days.
PN681
And it talks about "provided that", and it goes into the circumstances in which EFT payment of wages is feasible.
PN682
THE COMMISSIONER: Yes, but it doesn't talk about cash or cheque, does it?
PN683
MR HEATHER: No, but what I'm suggesting is - - -
PN684
THE COMMISSIONER: So it's not all like clause before Commissioner, and Commissioner, what he was saying was that there's a certain amount of uncertainty, so to speak, because there was three different ways of doing it. I haven't got the exact section of Commissioner's decision, but from my memory, he appeared to say, "Well look, the employer can pay by cash or cheque or electronic transfer." He said that the award, the TAFE award, provided for three modes of payments and as long as one of the modes of payment was used to pay the wages, then the award was complied with.
PN685
And that's a very different issue the Commissioner had. Plus Commissioner had an item 51, review of an award to remove allowable award matters, and I only presume, as well, he was considering item 51(6). Probably not A. Probably B and C in regards to productivity and efficiency. So I presume, and I can only presume, that would be the argument before Commissioner.
****
PN686
MR HEATHER: I have that decision here today, if you like, Commissioner.
PN687
THE COMMISSIONER: I've read it.
PN688
MR HEATHER: Okay.
PN689
THE COMMISSIONER: You gave it to me. Commissioner Lewin's decision?
PN690
MR HEATHER: Yes.
PN691
THE COMMISSIONER: Yes. Yes. I have that. You sent it as an authority.
PN692
MR HEATHER: Okay.
PN693
THE COMMISSIONER: Well, I presume you sent it, or did we just - print 8314. 19 August.
PN694
MR HEATHER: I have referred to it, but I have - if you hadn't seen it.
PN695
THE COMMISSIONER: I see. It's all right. My associate is one step ahead of the whole lot of us, Mr Heather. You quoted, and he finds it.
PN696
MR HEATHER: A high prized associate.
PN697
THE COMMISSIONER: He finds it, and I read it. I do exactly as I'm told, Mr Heather. The clause that's subject to the matter before me does not provide for three modes of payment. So it's a different - in my - and I'll hear your submissions on it, but in my view, it's a different matter.
****
PN698
MR HEATHER: Okay.
PN699
THE COMMISSIONER: It just says "shall be paid within two days." "All earnings shall be paid, including overtime" and that's all it says.
PN700
MR HEATHER: When I go back to clause 15(a), in the third sentence it says:
PN701
All wages shall be paid enclosed in an envelope.
PN702
So I presume, then, that would refer to cash or a cheque.
PN703
THE COMMISSIONER: Well, no, the particulars mentioned, isn't it?
PN704
MR HEATHER: Sorry - - -
PN705
THE COMMISSIONER: Well, nobody has drawn my attention to (a) during the course of this, so I've not paid too much attention to it.
PN706
All wages shall be paid enclosed in an envelope, which shall be clearly endorsed on the outside with the particulars enunciated hereunder.
PN707
Yes. I would presume that would be the original clause, and I presume it would have been cash.
PN708
MR HEATHER: Or cheque, I would imagine, Commissioner. Or it could be cheque.
****
PN709
THE COMMISSIONER: All right then. I hear what you're saying.
PN710
MR HEATHER: So I'm suggesting that, as a whole, that clause does provide for those three modes of payment, but that in both of these clauses there appears to be a link between the majority employment - sorry, majority agreement to the provision of wages by electronic funds transfer, and hence the relevance of the Miscellaneous Workers Award. For example, in the Miscellaneous Workers Award, it refers to:
PN711
Payment of wages shall be by cash, cheque or electronic funds transfer.
PN712
I'm suggesting those three possibilities are provided for in this award, but that the Miscellaneous Workers Award does say:
PN713
Notwithstanding this provision, if the employer and the majority of employees in an establishment agree, all employees may be paid their wages by electronic funds transfer into an employee's bank account.
PN714
So that - - -
PN715
THE COMMISSIONER: So what do you say?
PN716
MR HEATHER: Well, I'm suggesting, Commissioner, that, in fact, these two clauses are very similar.
PN717
THE COMMISSIONER: No, but what do you say? What's relevant? What do you say then about the - - -
PN718
MR HEATHER: Well, when the - - -
****
PN719
THE COMMISSIONER: Where's the argument lead you to?
PN720
MR HEATHER: Okay. Well, the argument is that Commissioner Lewin did say that, as long as you pay according to one of those three methods included or provided for in the award then, in fact, you are, in fact, complying with that award and that there should be no issue with that.
PN721
THE COMMISSIONER: No. I disagree with you. I don't think electronic funds transfer - see, I think what your argument to me is, we can pay it by any way we so choose. I think that's the argument. We can pay cash, we can cheque and we can pay by electronic funds transfer.
PN722
MR HEATHER: Well, yes, I'm - - -
PN723
THE COMMISSIONER: You see, your cash and cheque component sits up in (a).
PN724
MR HEATHER: Yes. It does.
PN725
THE COMMISSIONER: Right. And then (b) talks about electronic funds transfer, and it says:
PN726
Provided that agreement between the employer and the majority of employees at each yard, depot or garage, wages may be paid by direct electronic funds transfer.
PN727
Unless I hear something different, I take it that that mode of payment cannot be executed without agreement.
PN728
MR HEATHER: I would have agreed but - - -
****
PN729
THE COMMISSIONER: I mean, I'll still consider your submissions that you're putting to me, but I might as well tell you now where I'm sitting so that if there is anything there, you can advise me of what your view is. But I still find it's distinguishable to the Lewin's case.
PN730
MR HEATHER: Okay.
PN731
THE COMMISSIONER: But don't let me stop you. You still give me your submissions. And I'll have a look over that, but I still think the clauses are distinguishable.
PN732
MR HEATHER: Okay. I hear you, Commissioner. My only concern, though, is that in that Miscellaneous Workers Award it does say that, with regard to electronic funds transfer:
PN733
That notwithstanding this provision, if the employer and the majority of employees in any establishment agree.
PN734
And I would have thought that on plain reading of that, that does appear to mean something very similar, if not the same, as the second paragraph of 15(b), that it appears on reading it that payment of electronic funds transfer would be conditional on the agreement of the majority of employees.
PN735
THE COMMISSIONER: But you need the agreement of the majority of employees.
PN736
MR HEATHER: Well, so you would think, but Commissioner Lewin then went on to say that:
PN737
Provided the payment is made by one of the allowable methods, the award is then complied with.
****
PN738
THE COMMISSIONER: Yes, because the three methods were sitting up together. If memory serves me correct, in Commissioner's decision the paragraph said, cash, cheque, EFT. And then it went on blah, blah, blah, blah, blah.
PN739
MR HEATHER: Yes.
PN740
THE COMMISSIONER: And Commissioner said, "Well, providing one of the three up there are done, it appears to be that no-one's - people have complied with the award." Well, the difference here is, the three don't sit up there together. There's no mention of EFT until you get down to 5(b). I mean, I'll re-read 15 all over again and have regard to your submissions on the point, but that's - I can't see that it's the same, because EFT is not mentioned in the same little pocket.
PN741
MR HEATHER: Just with regards to by mutual agreement or the majority agreement, I'll just go straight to that, because that appears to be the next issue of concern. What I would submit, Commissioner, is that the vote taken in May 2000 in Darra was never overridden prior to either March or June the year 2002. It was not rendered obsolete by the passage of time, and that it was merely the search of adequate technology to live up to the respondent's end of the bargain, so to speak, that prevented its implementation effectively at an earlier time. And that since the agreement of the majority of the employees was secured at that depot, or the yard, there should be no concerns as to restructure and the shifting of staff, because that site had already agreed. I would have thought that it's a geographical, if you like, agreement as opposed to groups of fellows all over the countryside who, at any one stage, would have to agree.
PN742
THE COMMISSIONER: I don't think Mr Duffin - well, I don't think Mr Duffin's submission went to that. I think it's acknowledged that the site did agree.
****
PN743
MR HEATHER: Yes.
PN744
THE COMMISSIONER: I think Mr Duffin's submission to me was - and I think what he was trying to say to me was, "Well, look, when agreements are lodged out of time and the Commission had discretionary power to waive the prescribed time one of the things the Commission looks at is has there been a change in the work-force, and if there hasn't been, then I would say most if not all members will waive the requirements of the 21 days." I think that's what he's - I don't think he was disputing that it was a site - that the site had agreed. I think his point was that the composition of the work-force had changed - well, he said significantly, I think.
PN745
MR HEATHER: Okay. Well, it's just that the respondent would distinguish this case from that because there's no facilitative provisions requiring any time limits and so on to be complied with, whereas there most certainly is for the certification of agreements. But the certified agreements must be done expeditiously, but there appears to be no similar requirement for the affecting of these sort of changes.
PN746
THE COMMISSIONER: Do you agree with Mr Duffin that there has been a significant change in the Darra work-force?
PN747
MR HEATHER: The evidence given by two witnesses appears to support that in that one 25 or 20 at either site are new employees and then between 40 and 60 per cent in total are original and the rest have either moved in from - - -
PN748
THE COMMISSIONER: Sorry, I missed that. Some what? Original?
PN749
MR HEATHER: Well, it's probably - to break it down simplistically, probably a third at each site are originals.
PN750
THE COMMISSIONER: Just the Darra site, isn't it?
****
PN751
MR HEATHER: We'll say a third at Darra, a third are from West End and a third are new employees, just very very roughly. And that I think 40 per cent might be new at Virginia whereas the rest are established or longer standing employees. I think the number of originals might be 36. That might have been what Mr Hazlehurst said. Sorry, 36 at Darra and 30 at Virginia. So in the case of Virginia that's 30 out of 55 and at Darra that's 36 out of perhaps 54.
PN752
THE COMMISSIONER: 36 at Darra and what did you say at Virginia? I'm sorry, I missed that.
PN753
MR HEATHER: Sorry. It's 30 at Virginia out of 55, so that's 25 new employees, and Darra it's 36 old employees and about 20 new ones. But of that - - -
PN754
THE COMMISSIONER: No, there's 36 over 56, isn't it, in Darra? Was that it?
PN755
MR HEATHER: I think that's very close to it. That is right.
PN756
THE COMMISSIONER: You mightn't be able to answer this, Mr Heather. Possibly not relevant either, but why did your client take a vote in May 2000 when they didn't have a system up and running?
PN757
MR HEATHER: I can't answer that question, Commissioner.
PN758
THE COMMISSIONER: No. The thought just crossed my mind.
PN759
MR HEATHER: Other than they certainly didn't have the technology, but as for why they might do that, I couldn't say. Mr Hazlehurst was in the organisation at the time. Perhaps he could shed some light on that if you thought that was relevant.
****
PN760
THE COMMISSIONER: No, no, no. I just thought I'd ask. I know the SAP system takes a while to implement as well, this - - -
PN761
MR HEATHER: It could well have been that it was simply an option that was on the horizon; they thought they should act on it. Who could tell? The other issue of majority agreement perhaps we should focus on is that of all of the employees that we're aware of, only four raised concerns with the employer contrary to our original submissions. It was - we were aware of none, but obviously based on the evidence today there must have been four. That's still only a fraction or a minority of all of those affected and that the employees generally didn't appear to have any issue with the payment of wages by EFT. So certainly Armaguard has been left with the understand that there appeared to be an agreement by the majority of employees regardless of how the circumstances arose as of 30 June. But they still had the majority on board.
PN762
As for the offering of choice for payment of wages by EFT, that is, payment of wages by EFT was an option in November 2001, that was certainly an option which was unitarily offered by the employer at that stage, but that offer of choice, if you like, was subsequently and not unreasonably withdrawn. So to be left as of the 17th - or the notification of it was notified on the 17th and that that choice no longer existed after 30 June.
PN763
THE COMMISSIONER: Withdrawn on 17 March.
PN764
MR HEATHER: Well, certainly notice was given that it would be withdrawn on 17 March, but that effectively they could choose to be paid wages by cash up to and including 30 June. So I would argue that perhaps from 1 July onwards there was no choice, but previously to that there certainly was.
PN765
THE COMMISSIONER: And your argument still is being maintained that the respondent has the right.
****
PN766
MR HEATHER: Well at the time that there was no choice, that is, 1 July, the respondent's view is that they had the majority agreement of employees. And there doesn't seem to have been anything adduced to the fact that that's not the case. That is, there's only four - - -
PN767
THE COMMISSIONER: Yes, but I asked some questions on that very point: how many.
PN768
MR HEATHER: There was only four or eight I thought that remained paid by cash or not paid by electronic funds transfer.
PN769
THE COMMISSIONER: Were those questions asked? Did you - I must say I didn't take a note of them.
PN770
MR HEATHER: They may have been raised at a previous time in previous dispute hearings or conciliation conferences. There appeared to be a small number.
PN771
THE COMMISSIONER: That's no good to me.
PN772
MR HEATHER: Okay. Fair enough, Commissioner.
PN773
THE COMMISSIONER: I think what I asked is how - even if you are right on your interpretation that once you got individual signatures that satisfies the clause, I still have some major concerns with that submission, but even if you are right in regards to that submission, then when did the majority in the particular sites come in? And I don't know that I did get that answer, but if I didn't, I didn't.
****
PN774
MR HEATHER: Certainly in terms of providing opposition to the change, a great deal of time was provided and the unions and employees were widely informed. So there didn't appear to be any hiding behind shock or surprise at the change. It was obviously a major change that had to be widely conveyed to both the employees and other parties like the unions, and the respondent did do so. I would also go on to say that the payment of wages by cash is quite unusual. It is inefficient and costly and that the respondent went to a great deal of trouble over the last 10 years - actually, I'll withdraw that.
PN775
But certainly there have been changes over the last 10 years as to just generally in the community how many people are paid by cash. In the decision that you've probably got in front of you, that is, Deputy President Marsh, J8986, there's - - -
PN776
THE COMMISSIONER: Yes. I couldn't understand why I had that.
PN777
MR HEATHER: That was just to highlight that over time there has been a marked shift from the payment of wages amongst employers and employees.
PN778
THE COMMISSIONER: Well, I had a look. That's a decision in 1990 - - -
PN779
MR HEATHER: Yes, it was.
PN780
THE COMMISSIONER: - - - and a decision in 1991 and they were both Section 113s - - -
PN781
MR HEATHER: They were.
****
PN782
THE COMMISSIONER: - - - and they were to do with manning, start times and part time.
PN783
MR HEATHER: That's true, but there was also - - -
PN784
THE COMMISSIONER: And 89 SEP.
PN785
MR HEATHER: There was a passage in there that explained the reduction in the payment of wages by cash over time for both the - - -
PN786
THE COMMISSIONER: Yes, but I mean, why is that relevant to me? That's a completely different matter.
PN787
MR HEATHER: Just to buttress the argument that the practice of paying wages is archaic and obsolete; that it is quite unusual, in fact.
PN788
THE COMMISSIONER: That doesn't - all right, I won't go there. Okay. Thank you.
PN789
MR HEATHER: The reasons provided to date for not wanting to be paid for - in cash: there hasn't been any reasons provided in writing that we're aware of although there has been discussions between the affected employees and managers or management but there's been nothing adduced in writing by those fellow, prior to 30 June, to establish serious reasons as to why they would fail to agree or fail to provide. All they came up with was - and to some degree, the TWU submissions have touched on this - that they were spurious; they were quite weak; it was an idea of the principle.
****
PN790
That is, "I no longer have the choice so therefore I will not provide these details and that I will be slapped with extra bank charges for which I shouldn't be responsible for carrying," although there had been no exploring of alternative providers which may arguably have provided for lower, if in fact, perhaps not free services in terms of ATM charges and what-have-you. So, certainly, the respondent was left in a position where nothing in the way of serious reasons were provided as to why these employees couldn't be paid their wages by electronic funds transfer. May it please the Commission.
PN791
THE COMMISSIONER: Yes, thank you, Mr Heath, for those submissions. Mr Duffin, anything in reply at all?
PN792
MR DUFFIN: Look, I'll just be very brief. Just in relation to the last point raised, it's not necessary for the employees to have provided reasons in writing. They did clearly do so and they've actually given sworn evidence today as to it. In any case, the reasons are no more spurious than anyone else's reasons. They are their reasons. The issue of the question as to when the majority took place by way of signed EFT, I think Mr Hazlehurst informed the Commission that he did not - he wasn't able to advise the Commission. He didn't know. So, in relation to your question to Mr Heather on that issue, he just didn't have the information with him and I suspect he doesn't.
PN793
It was said by my friend that only four employees raised issues in relation to this. Certainly only four have raised it in these proceedings. However, it was quite clear from the evidence of Mr Chester that there were a number of employees he was seeing in relation to this matter. It may well have been that a number of them signed things after being told that this was what was going to occur on 1 July.
PN794
THE COMMISSIONER: Well, we don't know that because we don't have any evidence before us.
PN795
MR DUFFIN: Other than he said that he'd seen - - -
****
PN796
THE COMMISSIONER: That's right. Oh, no, I - and I think one of the witnesses, earlier today, was giving a certain amount of her evidence - one could say hearsay - but nobody objected but - - -
PN797
MR DUFFIN: No.
PN798
THE COMMISSIONER: - - - we really - I don't think we do know and I don't think I can have regard necessarily either way because - except the point you've raised, Mr Heather, that you say that your client has majority because people have signed those banking details but the why and the wherefore of that - I don't know that I necessarily have the evidence except, as you say to me, Mr Duffin, have regard to the letter of 17 March - - -
PN799
MR DUFFIN: And the circumstances following that.
PN800
THE COMMISSIONER: That's - yes, that's the submission so I suppose we can only smile as - - -
PN801
MR DUFFIN: And I guess the only other thing that - oh, well, I think that's probably all I need to address the Commission on, in reply.
PN802
THE COMMISSIONER: I hope you don't think I cut you off in mid-flight, Mr Duffin. I would hate you to think that.
PN803
MR DUFFIN: Commissioner, I'm very rarely in mid-flight. I would say, mid-stumble is perhaps more accurate but I did not feel that I had stumbled too early on this occasion.
PN804
THE COMMISSIONER: No, I don't think you or Mr Heather have stumbled at all today. I've possibly been a tad difficult with both of you and, if I have, my apologies. Is there anything more, gentlemen, in regard to submissions?
****
PN805
MR DUFFIN: No, I've got nothing further, Commissioner.
PN806
THE COMMISSIONER: Look, I plan - I will reserve decision in the matter. I am conscious of the fact that a very, very speedy decision is required and I am conscious of that and I will give a commitment to do that but I'm sure you really want me to consider and weigh up your respective arguments in the material you've presented, in particular when it is a 111AA. So I will do that but I will attempt to get a decision out as soon as possible. Mr Duffin and Mr Heather, I thank you for your submissions, both written and oral, and the conduct of the case today. Thank you, gentlemen. The Commission is adjourned.
ADJOURNED INDEFINITELY [2.15pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #TWU1 OUTLINE OF SUBMISSIONS OF APPLICANT PN81
EXHIBIT #TWU2 TWO-PAGE BROCHURE ENTITLED WEEKLY PAYROLL PROCESSING PN83
EXHIBIT #TWU3 MEMORANDUM PN110
EXHIBIT #MN1 MAYNE NICKLESS SUBMISSIONS PN211
RICHARD JOHN HOWARTH, SWORN PN249
EXAMINATION-IN-CHIEF BY MR DUFFIN PN249
EXHIBIT #TW4 STATEMENT OF MR R.J. HOWARTH PN261
CROSS-EXAMINATION BY MR HEATHER PN276
RE-EXAMINATION BY MR DUFFIN PN301
WITNESS WITHDREW PN305
DENIS ROBERT MEAKIN, SWORN PN310
EXAMINATION-IN-CHIEF BY MR DUFFIN PN310
EXHIBIT #TWU5 STATEMENT OF MR D.R. MEAKIN PN314
CROSS-EXAMINATION BY MR HEATHER PN345
WITNESS WITHDREW PN375
EXHIBIT #TWU6 STATEMENT OF MR P. SRAMA PN377
EXHIBIT #TWU7 STATEMENT OF MR I. TURNER PN378
EXHIBIT #TWU8 ARMAGUARD LETTER TO MR H. WILLIAMS PN406
ROSS JAMES HAZLEHURST, SWORN PN412
EXAMINATION-IN-CHIEF BY MR HEATHER PN412
EXHIBIT #MN2 STATEMENT OF MR R.J. HAZLEHURST PN418
CROSS-EXAMINATION BY MR DUFFIN PN419
WITNESS WITHDREW PN511
DARREN JOHN CHESTER, SWORN PN513
EXAMINATION-IN-CHIEF BY MR HEATHER PN513
EXHIBIT #MN3 STATEMENT OF MR D.J. CHESTER PN519
CROSS-EXAMINATION BY MR DUFFIN PN521
WITNESS WITHDREW PN552
EXHIBIT #MN4 STATEMENT OF MR J. KERSCHNER PN565
ROSS JAMES HAZLEHURST, RECALLED AND RESWORN PN573
WITNESS WITHDREW PN589
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