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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N VT10333
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER LEWIN
C2003/996
CAR PARKING (VICTORIA)
INTERIM AWARD 1995
Application under section 113 of the Act
by Wilson Parking Australia 1993 Pty Ltd
to vary re an exemption from the requirement
to pay a redundancy payment
MELBOURNE
10.01 AM, FRIDAY, 11 APRIL 2003
Continued from 24.3.03
PN487
THE COMMISSIONER: Good morning. I have received a number of items from the parties since we were last together. There is some suggestion there is a jurisdictional argument in the air.
PN488
MR LEVIN: My friend and I have actually had some discussions this morning and it may assist. Yes, last night a jurisdiction issue was raised which briefly orally sort of rebutted along the lines of all the unfair dismissal cases which have tested this issue but there is other authorities my friend wants to rely on.
PN489
We have agreed that the best course of action is that because she has a witness who is going to be unavailable other than immediately and that is going to fit in, we would need to come back for jurisdictional argument and perhaps closing submissions, that we get through Ms Roberts today, that we go through Mr Larkin, that we hopefully then get to Mr Oates and that we come back on another convenient time for Mr Katsiavos who apparently is not otherwise available and we don't object to that. And then, because we are going to have to come back, then if my friend gives me, as has been agreed, an outline of her submissions on jurisdiction and the case authorities and then we will be in a position to then respond to that and then do any closing arguments on another convenient day.
PN490
In terms of the progress with Ms Roberts, obviously there has been two statements that have been filed and I thank my friend were those. They were received on Wednesday to give us a time to have a look at them, which is appreciated, and what we have agreed is, if it is okay with you, sir, is that Ms Roberts would actually go back in in examination-in-chief. I would put those statements to her, then cross-examination would finish and I would re-examine on any matters that are appropriate. If that is convenient.
PN491
THE COMMISSIONER: It is.
PN492
MR LEVIN: So we would aim to finish at 1 o'clock.
PN493
THE COMMISSIONER: Yes, very well. Go ahead.
PN494
PN495
THE COMMISSIONER: Would you please be seated, Ms Roberts. It might convenient to give Ms Roberts the documents that you intend to give to her at this moment because I would like my associate to do something for me and now is a convenient time to give the witness the documents. I won't be marking these at the moment because the authors haven't given any evidence yet and I don't think there is any necessity to mark them for identification either. Just a moment, please, Mr Levin. Go ahead.
PN496
MR LEVIN: Ms Roberts, just resuming your examination-in-chief now, which means that I will continue to ask you some questions. Now, you have had an opportunity to have a look at the statements that have been prepared by Mr Katsiavos and Mr Oates?---I have.
PN497
What I would like to do is just take you to some parts of them and ask you to comment on them. If we could start first with Mr Oates statement?---Certainly.
PN498
Can you go to paragraph 5?---Yes.
PN499
There is a reference there to the union, someone at the union being contacted by a member, an un-named member, who is allegedly employed by Wilson Parking who said he had been informed in writing that Wilson had lost the carpark contract and workers would be terminated. Now, perhaps if I could just for a moment pause in my questions. Commissioner, I should say that I will be making some objection about the hearsay nature of a lot of the paragraphs, a lot of this evidence, but I will just proceed with that having been placed on transcript that I will be objecting later when the evidence is given about the hearsay nature of it. Can I just ask you in relation to that comment, that workers have been told they would be terminated on Sunday, the 4th, what can you say about that?---I would say that that is incorrect in that I specifically met, as I said in my earlier evidence, with the employees at the carpark, who work at the carpark, at the McDonald's in Frankston. I believe it was the 4th but I am prepared to be told it was 5 July. I am afraid my memory is evading me on that, and at that time I very clearly explained that in addition to the opportunity to apply for employment with Tempo Services anybody who was either unsuccessful or chose not to accept employment with Tempo Services would be meeting with us, if they chose to do so on an individual basis, so that we could talk through other options for employment that would be available through our extensive network. We have a significant number of carparks in the CBD and therefore we offered to at that time and then in fact did meet with some employees later to make that offer. So therefore I would say that that is not the case.
**** SUSAN ROBERTS XN HIEF BY MR LEVIN
PN500
Would you turn to paragraph 11?---Eleven.
PN501
There is as reference that two union members were paid their redundancy entitlements after some negotiation:
PN502
I am not aware if the other employees were paid the redundancy entitlements or not.
PN503
What can you say in relation to the payment of the other employees redundancy entitlements?---I would say that all employees who chose not to - who were either unsuccessful in obtaining employment with Tempo Service or chose not to accept any of the employment options available to them in the CBD network, were paid redundancy entitlements in accordance with the award.
PN504
Would you turn to paragraph 15?---Yes.
PN505
Yes, just accept there is some hearsay in it but just assume for a moment that what is said there is correct:
PN506
Mr Ozols said to me when he was terminated by Wilson Parking that he was told that he would not be paid a termination payable of his entitlements and that annual, long and sick leave had been transferred to Tempo. Mr Ozols and the other employees did not question this at the time of starting work.
PN507
What do you have to say about that?---I would say that - - -
PN508
Perhaps I will start with who do you assume - or who would have been - - -
**** SUSAN ROBERTS XN HIEF BY MR LEVIN
PN509
THE COMMISSIONER: No, well - - -
PN510
MR LEVIN: No, sorry. I am just using perhaps - I withdraw that.
PN511
THE COMMISSIONER: I think we might - - -
PN512
MR LEVIN: Who was the person who held the discussions with Mr Ozols?---I need you to clarify the question.
PN513
Yes. In terms of people being told about what their entitlements would be, there is reference in this that he is alleging, Mr Oates is saying that he had a person call him, that is Mr Ozols saying:
PN514
Brian, I have been told that I am not going to get a termination payment of all entitlements because they are being transferred to Tempo.
PN515
Okay, that is what Mr Oates is saying that Mr Ozols said to him.
PN516
THE COMMISSIONER: On 4 September.
PN517
MR LEVIN: On 4 August?---Okay. The only time - - -
PN518
THE COMMISSIONER: I beg your pardon, yes?---Sorry. The only time that I am aware of speaking to Mr Ozols on this matter, and I assume his advice is, from that day, is at the meeting with the staff at the McDonald's in Frankston and it was explained to all staff at that time that entitlements that we were required to hand over we would and that the employment with Tempo Services, assuming people were successful, would continue.
**** SUSAN ROBERTS XN HIEF BY MR LEVIN
PN519
MR LEVIN: There is a reference there that Mr Ozols said to Brian Oates that he was told by Wilson Parking management?---Yes.
PN520
Did you hold discussions or did Chris Bedford hold the discussions with the employees in relation to their entitlements? Who was it that would have spoken to Chris?---That would have spoken to Mr Ozols?
PN521
I beg your pardon. Who would have spoken to Ozols, you or Chris?---I spoke to Maris Ozols as part of a group of people at this briefing that I have referred to before. I am unaware of and have no recollection of any individual consultation that he sought with me on - - -
PN522
Would there be anyone else from Wilson? I am just trying to identify - - -?---Not that I am aware of, no.
PN523
So are you aware of anyone other than yourself addressing the employees?---Who would have provided that advice, no, no.
PN524
Okay. Have you inquired of Mr Bedford if he held any meetings with the employees in relation to their entitlements?---Mr Bedford discussed through the period of the - - -
PN525
No, I will ask the question again?---Okay, sorry.
PN526
Have you inquired of Mr Bedford as to whether he held discussions with employees regarding their entitlements?---My answer is that Mr Bedford told me of individual discussions that he had with some individuals and none of those individuals was Mr Ozols.
PN527
Thank you. Paragraph 20?---Yes.
**** SUSAN ROBERTS XN HIEF BY MR LEVIN
PN528
Now, we are now into a period of 5 September. If you see paragraph 18 to give you a notice, that Mr Oates will say that on Thursday, the 5th, he called Chris at Tempo and he will say that Chris said that he was not aware of the transfer of business or funds, "He told me to talk to the pay office". He says he spoke to someone at Tempo and then he called you, in paragraph 20, okay?---Yes.
PN529
Do you understand the context?---Yes, I do.
PN530
Okay. What can you recall your conversation with Mr Oates in relation to that issue as he has raised there?---I recall Brian Oates calling me, as he states in paragraph 20, to alert me to the fact that a member of staff at the carpark, and I believe it was Maris Ozols, had contacted him after he had attempted to claim payment for a day's sick leave and he had been unpaid for that day and Brian called me and asked me what I knew about the transfer of entitlements and I said to him that it was my assumption that that transfer had occurred but I would investigate the matter. He and I had a meeting already booked with a staff member in the next few days and we subsequently discussed it at that meeting briefly.
PN531
Was that with that staff member about this incident, this transfer, or about another issue?---It was about another issue. It was - - -
PN532
That is all right. We don't need to. Has it got anything to do with this case?---No.
PN533
Okay. Now, what steps did you then take to check about the transfer of moneys for presently accrued entitlements?---I left my desk and immediately went to Chris Bedford's desk and asked him what the position was with the transfer of entitlements. He said to me that he believed that the transfer had been effected but he would investigate immediately with the accounts department and I left that situation with him.
**** SUSAN ROBERTS XN HIEF BY MR LEVIN
PN534
All right. Just one moment. I am afraid we don't have a copy of this but I am just going to show it to my friend and then if I could impose for a couple of copies I would be grateful.
PN535
THE COMMISSIONER: Ms Roberts, you might have answered this question earlier, but is Wilson a public company?---It is a private company.
PN536
Thank you.
PN537
MR LEVIN: I wonder if the witness could be shown exhibit A3 and A4, please. They are exhibits A2, 3 and 4. Do you recall those, they were submitted through you last hearing?---Yes, I do.
PN538
I wonder if I could also show you this document and ask you to identify it and then I will ask that it be tendered. Now, is that a cheque requisition made out and stamped processed in relation to the moneys for annual leave?---Yes, it is.
PN539
Have you made inquiries from Mr Bedford as to the origin and the source and the process that accompanied this and the other exhibits and what happened and if so can you tell the Commissioner?---Yes, I have. Mr Bedford arranged for this cheque requisition to be drawn up and it was passed to the accounts department who then drew this cheque. The accounts department also prepared this spreadsheet which was an analysis of what was fundamentally the contents of the cheque and Mr Bedford tells me that he personally placed in an envelope addressed to Ms May Chung at Tempo Services this cheque, the original cheque, the original of this document and a with compliments slip for Wilson Parking and forwarded it, put it into the franking pile for mail to go out.
PN540
Yes, I wonder if that could be tendered, please?---All pieces or just that piece?
**** SUSAN ROBERTS XN HIEF BY MR LEVIN
PN541
PN542
MR LEVIN: Thank you, Commissioner.
PN543
THE COMMISSIONER: Has there been any steps taken - I mean I am not quite sure whether you have had the time to - - -
PN544
MR LEVIN: I beg your pardon?
PN545
THE COMMISSIONER: Have there been any steps taken, and then I said I am not sure whether you have had the time, to procure the bank record of the transit of the cheque?
PN546
MR LEVIN: It has not been presented. We have checked and unless it is contested from the bar - well, has the cheque been presented to your knowledge?---The first I was aware that the cheque had not been presented was in fact when I saw Mr Katsiavos's witness statement and I immediately went to the State accountant to inquire about this particular cheque and he referred me to another accountant who checked the ledger and no, it has not been presented.
PN547
Do you have any explanation or any contact from Tempo as to why they chose not to bank the cheque?---No, none at all. I have not had - - -
PN548
That is fine. Are you aware - or you have seen in the statement from Mr Katsiavos that there is no dispute that they received the entitlement sheet, okay. Do you have any explanation of why there is no reference to the cheque but there is to the entitlement sheet?---No, I am at a loss to understand why the three pieces that I am told that were attached to each other have somehow become separate.
**** SUSAN ROBERTS XN HIEF BY MR LEVIN
PN549
Yes.
PN550
THE COMMISSIONER: Have any of the cheques - is there more than one cheques?---There is one cheque only.
PN551
MR LEVIN: No, there is only one. Just the one cheque for the two people's annual leave, Commissioner.
PN552
I would just ask you just on this issue, are you aware of - well, I think it is not contested that the two employees who started employment the next day were Jennifer Letts and Maris Ozols, is that correct?---That is correct, yes.
PN553
And that the exhibits you are referring to are the annual leave for those people?---They are.
PN554
Could you please explain to the Commissioner what your understanding is about when Ms Letts ceased or resigned her employment at Tempo and went back to Wilson, as to whether her annual leave pay out was on the basis of and including her accrual with Wilson?---Yes, and that is why I suppose I am particularly surprised that we then had not received any contact from Tempo Services seeking reimbursement or clarification on moneys that they have paid that were part of accruals we believed to be passed over. They have paid out, Jennifer Letts tells me, both the accruals incurred while she was an employee of Tempo Services and also her time with Wilson Parking.
PN555
Thank you. I wonder if those could be handed back. Thank you. If you could turn to paragraph 23 of Mr Oates?---Mm.
PN556
Wilson Parking he alleges refused to pay termination payments to the employees at Prahran carpark?---That is a carpark known as Royal Mist Carpark. It is next to the Como Centre. It is an open air carpark on the corner of Malcolm and Chapel Streets and at a similar time we stepped out of that management agreement and the carpark was assumed by King's Parking.
**** SUSAN ROBERTS XN HIEF BY MR LEVIN
PN557
And was that assumed in effect the next day?---Yes, absolutely.
PN558
And what if anything did Wilson do in relation to transfer of entitlements there? Was there any cheques drawn or anything of that nature?---There was. A cheque was drawn and forwarded to King's Parking. King's Parking subsequently returned the cheque. They declined to accept the entitlements which was an entirely - that was a complete surprise to us.
PN559
Well, can you explain in relation to - well, no, that is a matter for submissions. Paragraph 24?---Mm.
PN560
It says that on Wednesday - or at the end of that paragraph in particular, it is alleged that when on 11 September you met with - well, first of all did you meet Mr Oates on 11 September?---I did. Mr Oates represented a member who had sought his assistance in clarifying an internal audit issue.
PN561
Something else?---Totally else. Totally something else and I had an area operations manager with me as a witness.
PN562
Okay. Did he raise the issue - yes, okay. Thank you. Did he raise the issue in relation to Mr Ozols?---Yes.
PN563
And what do you say about him saying that you said you will have to take us to court?---I absolutely deny and refute that statement and I have a witness who was with me all through the meeting with whom I have spoken. His name is Andrew Snaidero. He is the area operations manager and he absolutely denies that that statement was made.
**** SUSAN ROBERTS XN HIEF BY MR LEVIN
PN564
What did you discuss when - well, did he make a request? What requests did he make in relation to Mr Ozols?---I recall Mr Oates making at - at the conclusion of the meeting, I am sorry, I have to step back to explain it. We were meeting with a staff member who had a concern about an internal audit issue. We concluded that meeting. The meeting seemed to be satisfactory to all parties and as we were leaving the table Mr Oates, as he will often do, he will raise another meeting as we are concluding a meeting, he will sort of seize the opportunity to talk about something else considering we are face to face and he raised this matter as we left the table as an aside I suppose. I recall only that he said that he was concerned about and still speaking with Tempo Services about the transfer of the staff and that he would be speaking more to us about King's Parking.
PN565
If you could finally to paragraph 26 of your statement?---Yes.
PN566
The top of the last page?---Yes.
PN567
Where it says:
PN568
May Chung in Tempo pay office informed Brian Oates that some funds had been transferred to Tempo from Wilson Parking the week ending 20 September 2002. She didn't know the amount and hadn't had time to work out what the entitlements of the individual employees would be.
PN569
How many funds - - -?---Cheques.
PN570
Yes, how many cheques were transferred?---One cheque and therefore I will say that that statement is consistent with my understanding from Chris Bedford.
PN571
That?---That he sent a cheque, a statement of reconciliation and a with compliments to May Chung.
**** SUSAN ROBERTS XN HIEF BY MR LEVIN
PN572
Thank you. Could you turn to Mr Katsiavos's statement, please. I will just ask you some questions about that.
[10.26am]
PN573
If you could turn to paragraph 7, please?---Yes.
PN574
Mr Katsiavos will say that he has read your statement and says that at no time did Wilson Parking encourage Tempo engage the staff or take any active steps to gain employment for them with Tempo. With whom did the discussions occur from Wilson Parking about the efforts to transfer or assist in the transfer of employees?---The initial contact with Mr Chris Katsiavos was - - -
PN575
No, I am sorry?---I am sorry.
PN576
The question was - - -?---Yes.
PN577
Just initially - well, who did Wilson have discussions with in relation to the issue of the transfer of staff or the potential transfer of staff?---Primarily Mr Steve Luby and that was between John Larkin and Steve Luby.
PN578
And were there also discussions with Chris Katsiavos?---Yes, I spoke with Chris Katsiavos.
PN579
Please describe - - -?---I was the first person that rang Chris Katsiavos after John Larkin gave me his contact details. Chris Bedford, the area operations manager, would normally have handled these steps but as he was away on annual leave on that period then I was asked to contact Chris Katsiavos, introduce myself as a company representative, which I did, and to let him know about the steps that we were going to take and had taken thus far to inform the staff of both the cessation of our term of contract and also of the arrangements for facilitating interviews, resume preparation - - -
**** SUSAN ROBERTS XN HIEF BY MR LEVIN
PN580
Perhaps rather than summarising them what did you tell him about those things?---I explained exactly those things. I explained it that I was in essence the human resources manager, that the area manager, Mr Chris Bedford, was away on leave and in his stead I would be his point of contact with the group. I gave him my telephone numbers and explained to him that I had spoken with the supervisor, Jennifer Letts, that I had arranged letters and explained to him that we would copy him in on a letter, which we subsequently did, and that we - - -
PN581
What letters were they that copied him on?---The letter I sent to Mr Katsiavos, a copy of the letter that each staff - or the template for the letter that each staff member received from Wilson Parking to explain what we were saying to them so he would know that they were being directed as per my instructions from John Larkin to fill out the application for employment, to then go and see either Jeanette or Barbara on site, lodge that and if they wanted to make an appointment for an interview, to go right ahead and do that.
PN582
And what did he respond to all of that?---His response in essence was that that sounded fine and, you know, we all just - I said to him, specifically I recall saying to him that we would do everything in our power to assist him to have an easy transition. I also mentioned that I was going to introduce myself to Jeanette and Barbara on site when I was there and I did that.
PN583
Yes. To what extent did you encourage Tempo to talk up the employees or anything of that nature or were you silent about the employees? What do you say when he says that there was no attempt to encourage Tempo to engage the staff?---I did not encourage Tempo or Chris Katsiavos to engage any individual staff member. I merely stated that we would provide all support both in resume preparation, availability for interviews and any other assistance they would require to make staff available to be considered for employment.
PN584
To what extent was Wilson in a position to require Tempo to take people on?---As we had our instructions from Steve Luby through John Larkin, so I am getting information from John Larkin and he is speaking directly with Steve Luby, we were under no obligation - or they were under no obligation to take any particular staff member.
**** SUSAN ROBERTS XN HIEF BY MR LEVIN
PN585
It was their choice?---Absolutely.
PN586
Paragraph 12?---Yes.
PN587
He refers to a conversation he had with Chris Bedford, asking about the employee entitlements to ascertain if they are going to pay them out or transfer them over and he says that Chris indicated that Chris would contact Wilson's pay office and get back to Chris and he says that is the last time he heard from Wilson Parking about that matter. What do you say to that?---I am unable to comment.
PN588
Okay. What timing in relation to that, are you able to comment on the timing of when that bundle of documents were sent, as you say, to May Chung?---It is my understanding that the sequence of events as Brian Oates has stated in his statement and then is reflected here is the sequence of events that occurred, that a phone call was made to me, I then spoke to Chris, Chris then checked on where the accounts department were with this cheque and subsequently spoke to Chris Katsiavos about the fact that the cheque would be forward to May Chung because he only got the name May Chung from Chris Katsiavos - Chris Bedford. That is the only way he would have got her name.
PN589
Thank you. Paragraph 13?---Yes.
PN590
He says that Ms Frenzel has explained to him that Wilson has alleged that they have paid the annual leave entitlements and has tendered a copy and that he has checked and that they have never received this money. In light of your evidence that you have given so far, what do you say about the expression that they have never received the money? What would you say that have or have not received?
PN591
MS FRENZEL: Can I rise to object on the basis that it is probably a better question for my friend to ask Mr Katsiavos in cross-examination. This witness wouldn't be in a position to indicate to the Commission in any fruitful way about what Tempo may or may not have received.
**** SUSAN ROBERTS XN HIEF BY MR LEVIN
PN592
MR LEVIN: Except that they can say what they said?---Yes, and that is the only thing I can say. I can certainly say that Chris Bedford tells me that he personally put in the envelope, as I said, those three items, with - - -
PN593
THE COMMISSIONER: I think you have already given that evidence, yes.
PN594
MR LEVIN: Thank you?---And therefore I suppose if you look at point 14, I am at a loss to understand how one part of that package of three items arrived and not the other two parts.
PN595
Are you talking about paragraph 14 in the Katsiavos statement?---Yes.
PN596
Where he refers to receiving a calculation sheet?---Yes.
PN597
If you look at - - -
PN598
THE COMMISSIONER: Sorry. Just in relation to the annual leave, you may or may not know the answer to this question, but under the relevant award does it require that when the employment of an employee of Wilson Parking is terminated that an employee be paid their annual leave entitlement, their accrued annual leave entitlement?---I believe the answer is yes but could I ask you to clarify. Could I ask you to repeat the question?
PN599
It is all right. If that is all - - -?---Yes, I believe that it is.
PN600
It is your understanding at least that that is probably the case?---Yes.
PN601
Yes, that is all. It is no more than that.
**** SUSAN ROBERTS XN HIEF BY MR LEVIN
PN602
MR LEVIN: Are you sure about what is in the award or not? Are you certain?---That is why I have asked the question to be clarified.
PN603
THE COMMISSIONER: We have just confined it to the witness's understanding and it may or may not be right and it is obviously not informed by a recent reading of the award and I don't know the answer to the question. I am just trying to test whether or not the perception was that it was something that would normally happen by virtue of the award.
PN604
MR LEVIN: Yes, I also can't assist you at this moment on that. I think any other matters are - - -
PN605
THE COMMISSIONER: Sorry. I beg your pardon?
PN606
MR LEVIN: No, that is fine. I think any other matters would be more properly saved for re-examination. I think that they would be re-examination, not examination-in-chief, so I have no further questions of - - -
PN607
THE COMMISSIONER: Well, I admire your prescience, Mr Levin, but it is the first time I have come across the proposition that one can anticipate what will be available for re-examination.
PN608
MR LEVIN: There already has been cross-examination. There are some matters I will want to re-examine but perhaps I will save it to the end.
PN609
THE COMMISSIONER: I see. I am sorry, I misunderstood. You want to re-examine in relation to the previous cross-examination. Yes. Not in relation to this episode of the evidence.
PN610
MR LEVIN: I have no special skills.
**** SUSAN ROBERTS XN HIEF BY MR LEVIN
PN611
THE COMMISSIONER: Yes. And I agree with you in the circumstances. Yes, that is appropriate?---Sir, may I ask for some more water, please?
PN612
Yes, it won't be a moment.
PN613
MR LEVIN: I am sorry, I wonder if I could just ask my instructor something? There is one other matter in-chief that is probably appropriate to raise. Have you received a copy of the witness statement, sir, of John Larkin? I have a copy if you - - -
PN614
THE COMMISSIONER: I think I have it.
PN615
MR LEVIN: Faxed to your associate, sir.
PN616
THE COMMISSIONER: Yes, I think I have it. I think I read it this morning. I just want to check that that is the case.
PN617
MR LEVIN: Perhaps if my instructor just hands a copy up to you, if that is all right?
PN618
THE COMMISSIONER: Yes, that will be fine, thank you for that. Yes, I am just trying to arrange to get some documents from chambers, that is all.
PN619
MR LEVIN: I wonder if this could be handed to the witness, please. Thank you.
PN620
I will just ask you to have a quick read through this. Have you had a look at this before, the statement of John Larkin?---Yes, I have.
**** SUSAN ROBERTS XN HIEF BY MR LEVIN
PN621
Okay. Can you have a quick glance again through it and just say whether you agree or disagree with parts or all of it?---I have read this statement quite recently and I agree with it completely.
PN622
No further questions, thank you, Commissioner. Just wait there, please, Ms Roberts.
PN623
THE COMMISSIONER: Thank you.
PN624
MR LEVIN: Can I say that that probably also doesn't need to be tendered, probably also because when the witness comes he can perhaps - - -
PN625
PN626
MS FRENZEL: Thank you, Commissioner.
PN627
Ms Roberts, can I take you to exhibit A1 which is your statement?---I don't have a copy in front of me.
PN628
MR LEVIN: I have a spare if it assists.
PN629
THE COMMISSIONER: It is all right. I have one too?---Thank you. Yes.
PN630
MS FRENZEL: And in particular paragraph 16 of your statement. Can I ask you this firstly, what did you mean in paragraph 16 where you say that all accrued entitlements would be recognised by Tempo?---It was my understanding that the entitlements accrued by employees in the period of their employment with Wilson Parking and also with employers prior to Wilson Parking, because some employees had been - - -
**** SUSAN ROBERTS FXXN MS FRENZEL
PN631
No, all I am asking you is what accrued entitlements. That is all I am asking you?---That is all I am trying to answer.
PN632
Sick leave, annual leave, those sorts of things?---Yes, I am explaining the fact that that is my understanding, that all accrued entitlements accrued by anybody at that time, yes, including sick leave, annual leave, any severance or redundancy type entitlements, would be recognised by - - -
PN633
THE COMMISSIONER: Long service leave?---Long service leave certainly would be recognised by Tempo and that we would specifically hand over those entitlements that we would be to required to hand over by law.
PN634
MS FRENZEL: Can I ask you this then, it is now a matter of fact that the cheque hasn't been presented and Tempo say it hasn't been received and you say it got sent, so it is somewhere. But - - -?---I can also say it has not been returned to us.
PN635
Can I put it to you that in fact Wilson's did not send a cheque for all of the accrued entitlements for Maris Ozols to Tempo?---Wilson Parking sent a cheque representing the annual leave component of any entitlements that an employee would be able to draw upon.
PN636
But Wilson Parking didn't send a cheque including the accrual of sick leave, did it?---No, Wilson Parking was not obliged to send a cheque with respect to sick leave.
PN637
And can I ask you why it is not the case from your perspective?---It is my understanding that we are not obliged to send - or to transfer entitlements with respect to sick leave unless a specific contract specifies that they are the terms and conditions of the hand over and this contract did not or those instructions did not.
**** SUSAN ROBERTS FXXN MS FRENZEL
PN638
With respect to exhibit A2?---A2.
PN639
Which is the Bayside Shopping Centre letter from Mr Luby to Mr Larkin dated 5 August?---Yes, I am just having that handed back to me if I may.
PN640
Are you aware if Mr Larkin ever responded - I withdraw that. Are you aware if Wilson's ever responded by providing the list of entitlements for all staff together with the remittance of entitlements to Bayside Shopping Centre? The request was made, I am asking you if there was a written response given to the shopping centre to the best of your knowledge?---I would need to seek advice. I am unaware. I know there is a response. I am unaware of whether it is specifically to Mr Luby, so I would need to seek advice, check the file.
PN641
Are you aware of the financial statements for the month of July and the period up until 4 August - - -?---I say the same thing. I would need to check the file. I am unaware of whether there is a specific response to both those points.
PN642
But we do agree, do we not, that the only moneys that was purported to be transferred from Wilson to Tempo was with respect to annual leave entitlements?---Yes.
PN643
Now, with respect to paragraph 15 of your statement again about your understanding that all accrued entitlements would be recognised by Tempo?---Yes.
PN644
Did you speak to anybody at Tempo about them recognising all accrued entitlements?---No, I did not. My instructions came from Mr Larkin and his discussion with Mr Luby.
PN645
So it is fair to put to you now that in actual fact paragraph 16 of your statement is incorrect and your understanding was incorrect as well?---No.
**** SUSAN ROBERTS FXXN MS FRENZEL
PN646
Well, your understanding was that all accrued entitlements would be recognised by Tempo?---No, I think I explained in my previous evidence that as had been evident in the case of Mr Ron Teunissen the arrangement at the carpark, and specifically the relationship between Wilson Parking and Gandel's, Mr Larkin, Mr Luby, was a very strong one and through other employees who had either been - their positions had been made redundant or in other ways that their - well, specifically in the case of Mr Teunissen who I have discussed in - - -
PN647
Can we limit the - - -
PN648
THE COMMISSIONER: Well, I think you need let this answer be completed otherwise it is going to be a bit nonsensical.
PN649
MS FRENZEL: All right, very well.
PN650
THE COMMISSIONER: It has been put to you that para 16 is incorrect?---And I say that it is not incorrect and that it is our understanding that the arrangement at the site and has been evidenced with the termination of another employee, another long term employee, is that the spirit of all parts putting in their share has been both pursued in fact and also in spirit.
PN651
MS FRENZEL: But you didn't put in your share of the sick leave with Tempo, did you?---I beg your pardon?
PN652
You didn't put in, to use your expression, your share with respect to Mr Ozols sick leave with the transfer, if you like, of the money from Wilson to - - -
PN653
MR LEVIN: I object to this question. That has been admitted about three times now, keep asking how much money was transferred, the witness has said in relation to a direct question - - -
**** SUSAN ROBERTS FXXN MS FRENZEL
PN654
THE COMMISSIONER: I think it is prefaced though, isn't it?
PN655
MR LEVIN: Well, just continuing to ask.
PN656
THE COMMISSIONER: I mean I anticipated - you have given evidence that you didn't put your sick leave in therefore how do you say that - - -
PN657
MR LEVIN: Well, we will see what is said.
PN658
THE COMMISSIONER: I mean I was just assuming that the question would move onto another point.
PN659
MR LEVIN: If there is something.
PN660
THE COMMISSIONER: Yes, rather than just repeat the evidence that has already been given by the witness to the effect that it was only in relation to accrued annual leave that steps were taken.
PN661
MS FRENZEL: Now, at paragraph 20 you say that Ms Letts subsequently resumed working with Wilson. How long was she working at Tempo for?---Approximately six months.
PN662
And did she ever show you her termination pay slip from Tempo?---She has not shown it to me. She has discussed it with me.
PN663
So therefore you are not actually privy to the information on that pay slip, are you?---Only from the narrative provided by Ms Letts to me directly.
**** SUSAN ROBERTS FXXN MS FRENZEL
PN664
Now, you gave evidence that employees who are unsuccessful in getting jobs with Tempo and who chose not to accept jobs with Wilson's were paid severance payments under the award, redundancy payments?---Yes. They were in accordance with the award. They were paid whatever entitlements they should have been paid under the award.
PN665
Are you certain they were paid redundancy pay?---No, I am saying to you that they were paid whatever they were required to be paid in accordance with the award. Mr Oates represented, as he has noted in his statement, Mr Oates represented two of those employees. He and I met with those employees, both through the process of looking at some of the options for carparks that were available and also discussing the fact that if they didn't wish to accept those that they would be eligible to receive moneys in respect of their severance.
PN666
Ms Roberts, you gave evidence-in-chief when my friend was asking you about paragraph 5 of Mr Oates's statement?---Yes.
PN667
Sorry, paragraph 11 of Mr Oates's statement?---Do I need to look at that again?
PN668
THE COMMISSIONER: Do you not have it any more?---Yes, I do. I just need to find it. Yes.
PN669
MS FRENZEL: Where Mr Oates says:
PN670
I am not aware if the other employees were paid their redundancy entitlements or not.
PN671
Your evidence-in-chief was that the employees who were unsuccessful in getting jobs with Tempo, or in the alternative chose not to accept jobs with Wilson's, were paid redundancy entitlements?---Yes, they were paid in accordance with the award.
**** SUSAN ROBERTS FXXN MS FRENZEL
PN672
No, no, that is not the question. You have given evidence they were paid redundancy entitlements. Can I put it to you, you don't know if they were paid redundancy entitlements or not?
PN673
MR LEVIN: Sorry, can I ask that if the question be put in relation to identifying which employee so the witness knows whether the question is being asked in respect to?
PN674
THE COMMISSIONER: No, I don't think that is a necessary adjustment at this stage of the witness being asked about her state of knowledge. This question was about her state of knowledge.
PN675
MR LEVIN: Thank you. Apologies.
PN676
MS FRENZEL: The employees who refused alternative employment Wilson?---Yes.
PN677
Can I put it to you that you don't know if they were paid redundancy entitlements or not?---I know that they were paid the appropriate payments under the award and if on their pay slip it said redundancy, I did not prepare their pay slip personally. I prepared the letters that went with each of those statements. The matter was negotiated with Brian Oates in the case of the union members and to all intents and purposes they were paid appropriately.
PN678
THE COMMISSIONER: Yes, I think the question is not so much whether or not they were paid appropriately. It is quite a specific question as to whether to your knowledge - - -?---I believe that - - -
PN679
- - - any or all of them were paid any redundancy payments, what do you know about those payments as opposed to those entitlements?---They were paid - - -
**** SUSAN ROBERTS FXXN MS FRENZEL
PN680
MR LEVIN: Perhaps before the witness answers that. It is not a proper question unless there is going to be some evidence put to rebut the question. You can't cross-examine in relation to a question if you are not intending to provide evidence and that should be shown to the witness. If there is going to be no further evidence from my friend - - -
PN681
THE COMMISSIONER: But with respect, Mr Levin, this is not something that requires rebuttal. The knowledge that Ms Roberts has about this subject is entirely private to her.
PN682
MR LEVIN: On the question, sir, of whether she knows whether, one, two, three or four of them got redundancy pay.
PN683
THE COMMISSIONER: It is not a specific question of any number. It is about the knowledge that she has. She has been asked to state what knowledge she has about the payments as opposed to the entitlements that might accrue under the award. Does she know as a matter of fact that payments were made?---Yes.
PN684
You do?---I do.
PN685
And do you know to whom those payments were made?---Yes. I would need to look at each person's file.
PN686
That is all we want to establish, as to whether you had any knowledge of payments as opposed to entitlements?---Yes, I was directly involved in all of them.
PN687
Yes, go ahead, please, Ms Frenzel.
[10.52am]
**** SUSAN ROBERTS FXXN MS FRENZEL
PN688
MS FRENZEL: Can I ask you this then, Ms Roberts, if Wilson's paid severance payments in accordance with the award to those employees who refused alternative sites?---Yes.
PN689
With you at that time on this particular contract change only, then why do you say that Mr Ozols who has got a new employer is not entitled to the same payments?
PN690
THE COMMISSIONER: Well, I don't think that is said. I think the purpose of the application is to vary that entitlement.
PN691
MS FRENZEL: That is right. No, I withdraw that.
PN692
What is the difference from your point of view between Mr Ozols claim then and the claim of other employees who refused alternative employment? In other words, why did they get paid?---It is my understanding of the purpose of a redundancy payment to provide continuity of income and lifestyle, I suppose, for a period of time to allow somebody to seek alternative employment. Given that Mr Ozols and Ms Letts, whom has been named before, were not required to seek alternative employment because they continued to work at the same site doing, as we understood it, the same duties the next day, it is my opinion that redundancy payment is not required. They had no requirement therefore to go and seek alternative employment and to maintain their quality of life during that period.
PN693
Thank you. Now, it is true, is it not, also that the claim for Mr Ozols is being currently processed in the Magistrates Court which you gave evidence about previously is not confined to redundancy payment but it also deals with his classification?---Yes that is correct.
PN694
And with respect to the statement of Mr Katsiavos?---Yes.
**** SUSAN ROBERTS FXXN MS FRENZEL
PN695
Can I just ask you this, you gave evidence with respect to Mr Katsiavos's statement that you did not encourage - I am sorry. Wilson's did not encourage Tempo to engage the employees will be provided support with a resume service and you gave people time off for interviews, is that the extent of your evidence?---No, I actually said that we did not, or I, speaking with Mr Katsiavos, did not encourage Tempo to engage any individual. I did not comment on any individual staff. We did not make any individual representations.
PN696
Did you encourage Mr Katsiavos to engage a number or all of the staff?---No.
PN697
You are aware of course - no, I withdraw that. How well acquainted are you with the terms of the Car Parking Victoria Award?---Reasonably well.
PN698
With respect to the time off for interviews, just how much time off was given for interviews?---I informed all the staff at the meeting at McDonald's that up to eight hours of paid time would be available to them to attend interviews, both with Tempo Services or with any other employer. I made it clear that it wouldn't be confined just to Tempo Services that that time would be available.
PN699
That is an award provision, is it not?---Yes.
PN700
Did you advise your staff it was an award provision and it was an entitlement?---Yes, I did. I said it at the meeting at McDonald's.
PN701
So therefore can I put it to you that outside the award provision for time off for interviews that the only support that Wilson gave to these employees was offering a resume service?---No, I would reject that saying that as I took the time to go and introduce myself to both Jeanette and Barbara to offer any assistance that we could as a company offer to facilitate a smooth transfer and hand over and by also making a phone call to Chris Katsiavos and stating explicitly exactly the same things, that we wanted to make it a smooth and seamless transfer. I am told by Chris Bedford, the area operations manager, that he similarly said the same thing.
**** SUSAN ROBERTS FXXN MS FRENZEL
PN702
Can I just ask you this?---Yes.
PN703
That save and except for providing the resume service?---Yes.
PN704
That your evidence is that you did not encourage Tempo to either engage particular staff or a number of staff or a group of staff, so therefore the support to the support if you like is limited to the resume service?
PN705
THE COMMISSIONER: Aren't you going towards a situation as to how that evidence should be construed rather than as to what happened? Isn't that how it should be characterised? Is that a matter for submission? The evidence should be about what happened, not the meaning of it. That is for me to decide, isn't it?
PN706
MS FRENZEL: Can I ask you, you were asked by my friend about when you saw the witness statement. When did you see that witness statement?---Of Mr Larkin?
PN707
Yes?---Yesterday and I saw it again this morning when I reviewed it.
PN708
And your evidence was that you agree with the contents of that statement?---Yes, I do.
PN709
So therefore you also agree that the employers needed to make application for employment at the site with Tempo, that the Tempo process involved people filling out applications for employment and going through an interview process, you agree with that? Sixth paragraph down on the second page?---Yes. Can I ask you to repeat the question, please?
PN710
You agree that the employees needed to make application for a job at Tempo?---Yes.
**** SUSAN ROBERTS FXXN MS FRENZEL
PN711
You agree that they needed to undertake an interview process?---Yes.
PN712
I have got no further questions, thanks, Commissioner.
PN713
THE COMMISSIONER: Yes, just before you start, Mr Levin. Could I just go to Mr Larkin and just check a couple of things with you about that?---Yes, certainly.
PN714
If you look under the heading Hand Over To Tempo in the early part of the statement?---Mm.
PN715
Mention is made of long service leave in the second paragraph?---Mm.
PN716
How long did Mr Ozols work for Wilson?---Mr Ozols was employed with Wilson Parking for the entire we had the carpark.
PN717
Which was how long?---Which was from 1997 to 2002.
PN718
And do you know whether he worked for the previous contractor?---Yes, he did.
PN719
And did you know how long he worked for the contractor before?---I am unaware of how long he worked for the previous contract. I have actually looked in our records to see if I could source that information and I have not been able to do so at this time.
PN720
Now, is it possible that under the arrangements that Mr Larkin refers to and which you say you wholly agree with, that Mr Ozols might become eligible for pro rata service leave on termination during the employment with Tempo?---Yes.
**** SUSAN ROBERTS FXXN MS FRENZEL
PN721
And did you receive any money from anybody in relation to any potential long service leave entitlement with the previous contractor?---No. As we did not with Mr Teunissen.
PN722
Not from the contractor or Gandel?---That is right.
PN723
And so if Mr Ozols were to become eligible for long service leave on termination of employment during his employment with Tempo and his employment was terminated by Tempo, what arrangements would apply for the various periods of service with the contractor prior to Wilson, with Wilson and with Tempo?---The same arrangements that occurred with Mr Ron Teunissen. I would expect that Mr Luby who tends to be the facilitator in all these arrangements, Mr Luby would be spoken to by Tempo. They have regular meetings, I would assume, rather in the way that we have regular meetings with Mr Luby, and that Mr Luby would contact John Larkin and let him know that they would be seeking from us a pro rata with respect to those moneys.
PN724
And you would anticipate that Gandel would pay from any proportionate - - -?---They would, as they did with Mr Teunissen, yes.
PN725
- - - component of the long service leave entitlement?---They have demonstrated that with Mr Teunissen. I can only expect that they would do the same thing again. That was the nature of the discussions that had always been undertaken at that site.
PN726
So that you are giving evidence that Wilson would pay such long service leave liability under this scheme that you are describing?---Absolutely.
PN727
To Gandel?---Or Tempo Services if we were directed by Gandel. Mr Luby tends to be, as I said, the central point. We would follow his direction on the matter.
**** SUSAN ROBERTS FXXN MS FRENZEL
PN728
So Mr Ozols potential entitlement, if not real entitlement, to any long service leave payment on termination that might arise and its payment to him are considerably dependent upon the goodwill of Gandel, is that right?
PN729
MR LEVIN: Commissioner, I will be taking you to the operation of the long service leave provisions which - well, I could say now, it is no secret, is that under the long service leave provisions, because there is a three month provision, if you take over a business regardless of whether it is a transmission or not, you are legally obliged under the Victorian Long Service Leave Act to pay it anyway. So it would be our submission by simple reference to the Long Service Leave Act that for that entitlement, but as long as it hasn't been more than three months - - -
PN730
THE COMMISSIONER: You say that it is legislatively protected?
PN731
MR LEVIN: Totally. There is actually about two different ways under the - - -
PN732
THE COMMISSIONER: And that Tempo would be liable if it occurred during their contract?
PN733
MR LEVIN: And I would say without any shadow of a doubt.
PN734
THE COMMISSIONER: Right.
PN735
MR LEVIN: Under two of the different transmission provisions of the Long Service Leave Act which don't require an actual transmission of business per se.
PN736
**** SUSAN ROBERTS RXN MR LEVIN
PN737
MR LEVIN: Just a couple of quick questions. You were asked last time and indeed a couple of questions this time by my friend about sick leave?---Yes.
PN738
What is the - could you clarify, what is the situation at the Bayside Carpark compared with other sites in relation to the transfer or non transfer of sick leave - I am sorry, I will rephrase that. When Wilson comes onto a site and takes over operation from a previous operator what difference, if any, is there between its practice at Bayside about recognising long service leave as opposed to other sites?---When you say long service leave do you mean long service - - -
PN739
I am sorry, sick leave. Thank you?---That is all right.
PN740
I will rephrase the question for clarity, that was my mistake. In relation to sick leave when Wilson comes onto Bayside?---Yes.
PN741
Can you explain what its arrangement is there and when Wilson comes on and takes over at some other site what is its arrangement there in relation to sick leave recognition of accrued sick leave?---The arrangements are different on a site by site basis and they depend on the nature of the contract that is drawn up between the parties. The practice at the site and an individual's decision is made on a case by case basis.
PN742
Yes. In relation to the issue of the annual leave cheque, what is Wilson's proposal in the event that Mr Katsiavos says that it hasn't been located or they don't know where it is or they haven't received it, what is the position of Wilson regarding the transfer of those moneys or the non transfer of those moneys to Tempo?---Given that they have already paid out some of those moneys to Jennifer Letts we must pay it without delay. I would expect that they should contact us and we would pay it without delay.
PN743
Yes, and do you have any issue or objection to reissuing the cheque?---No, none at all. As I said, until yesterday we were under the impression it had been presented.
**** SUSAN ROBERTS RXN MR LEVIN
PN744
I have no further questions, thank you.
PN745
THE COMMISSIONER: Thank you for your evidence, Ms Roberts. You are released from your oath and free to come and go as you please?---Do I leave these here, the statements?
PN746
PN747
MR LEVIN: Could Mr Larkin be called? I hope he is outside. Can I, while the witness is being called, just put my friend on notice that I would ask that Mr Katsiavos when he gives evidence produce the termination details including the annual leave pay to Ms Letts?
PN748
THE COMMISSIONER: Or file them. Either produce them or file.
PN749
MR LEVIN: Well, perhaps if a copy could be sent to us in advance of the next time that we meet, unless my friend requires a formal order.
PN750
PN751
THE COMMISSIONER: Thanks, Mr Larkin, please be seated.
PN752
MR LEVIN: Excuse me. Have you made a statement in relation to this matter?---I have.
PN753
If the witness could be shown this document. Now, it is unsigned so I ask you to - well, have you read it this morning?---I read it yesterday.
PN754
What time?---About 4 o'clock.
PN755
And can you read it through and if it is correct please sign at the bottom?---Okay. That is correct.
PN756
Okay. Do you have a pen on you?---I don't actually.
PN757
And do you say on oath that that is your evidence in this case?---It is.
PN758
PN759
MR LEVIN: I will just ask you a couple of brief questions. to what extent are you aware of the individual circumstances of the individual employees at the site in relation to their transfer?---Very limited. Very limited information on that.
**** JOHN LARKIN XN MR LEVIN
PN760
To what extent are you aware of the circumstances relating to Mr Ron Teunissen and the arrangement that occurred with the payment of his entitlements when he left?---I am not aware of the details of his payment but I am aware he left as a result of his position being no longer required by the owner of the site.
PN761
To what extent are you aware of the details of the payments that were made by Wilson when he left?---I don't know the details of that.
PN762
Who handles things like that?---We have officers in our company that handle that.
PN763
No further questions.
PN764
PN765
MS FRENZEL: Are you aware of the process that was undertaken with respect to the termination and then subsequent engagement of people down at Bayside Shopping Centre?---In terms of what I have put in my statement that is what I am aware of. My dealings were with Mr Luby.
PN766
Can I ask you with respect to paragraph 4 of your statement - I am sorry, the fourth paragraph on page 2 - sorry. Yes it is page 2. You say:
PN767
I explained to Suzie the process for staff who want to be considered for continued employment at the site.
PN768
What exactly did you explain to them?---That we would no longer be managing the property, in agreement with Mr Luby, and that Mr Luby would be seeking an alternative operator to operate the carpark going forward.
**** JOHN LARKIN XXN MS FRENZEL
PN769
No, but this is after Mr Luby has notified you that Tempo is going to be the new incoming contractor. He does that, in your statement anyway, on the second paragraph?---Mm.
PN770
On the fourth paragraph I am asking you to elaborate on the process you explained to Ms Roberts about the staff who want to be considered for continued employment?---It was very simple. Our aim was to explore opportunities for the staff that we employed at the time to continue employment with Wilson or if we could, to assist them with gaining positions with the new operator.
PN771
And what assistance to the best of your knowledge was provided by Wilson for those people who wanted to transfer to Tempo - would be employed by Tempo, I am sorry?---Having a meeting of staff explaining what was going on, we provided, to my knowledge, a service assisting them with writing of resumes if they required that assistance because a lot of the staff hadn't applied for jobs for a considerable amount of time and we wanted to give them the opportunity to - well, to assist them in being able to put their best case forward for a new role with Tempo.
PN772
And are you aware of any discussions that were held between Wilson and Tempo encouraging Tempo to engage the staff?---No.
PN773
And the staff who did not get engaged by Tempo, in other words the ones that remained with Wilson's, are you aware of what alternative arrangements were put in place for those staff?---My only knowledge of the matter is that we explored opportunities for placement of staff within our operations in Melbourne.
PN774
And how many of those staff were placed?---I am not aware.
PN775
Are you aware if there were any staff who rejected alternative sites with your company?---I am not aware.
**** JOHN LARKIN XXN MS FRENZEL
PN776
Are aware if Wilson's paid any severance payments to any of the staff involved in this contract change at Bayside?---No, I am not.
PN777
Now, have you seen the statement of Ms Roberts?---No, I haven't.
PN778
Can I ask that the witness be shown exhibit A1.
PN779
Can I ask you to go to paragraph 16 of that statement?---Numbered 16?
PN780
Paragraph 16. Now, where you say, it is third paragraph from the bottom of your statement on page 2, where you say:
PN781
During the period of notice I discussed the hand over process with Steve Luby and confirmed that Wilson Parking would send a cheque for annual leave entitlements directly to Tempo and that the usual arrangements in relation to employees who would stay on site with the operator would be funded by Wilson.
PN782
What were those usual arrangements?---Well, the arrangements are very much on a site by site basis. In this particular case we dealt with the client being Gandel's and our commitment was to pay over accrued annual leave entitlements to the new operator.
PN783
Did you ever have any discussions directly with Tempo yourself?---Not one.
PN784
Did you have any discussions with Ms Roberts about her understanding referred to in paragraph 16 of her statement, that accrued entitlements would be recognised by Tempo?---We seek advice as to what entitlements we are obliged to pay and that was what I instructed Ms Roberts to do.
[11.18am]
**** JOHN LARKIN XXN MS FRENZEL
PN785
Are you aware that the cheque which is exhibit A3, has not been presented by Tempo for payment?---I am not aware of that.
PN786
Are you aware of the Magistrates Court proceedings currently on foot with respect to the redundancy payments claim of Mr Maris Ozols?---I am aware there is a case but I don't know anything about the detail of the case.
PN787
Are you aware that Mr Katsiavos will give evidence when his time comes that Wilson's actually lost the contract of Bayside as opposed to handing it back?---Could you repeat that question, please?
PN788
Are you aware when Mr Katsiavos from Tempo Services - no, I will rephrase that. Have you seen the statement of Mr Katsiavos?---No, I haven't.
PN789
Could I ask that the witness be shown the statement of Mr Katsiavos. Can I ask you to read paragraph 2 and paragraph 3 of that statement?---Right.
PN790
Do you agree or disagree with that statement?---In what respect? There is two statements there.
PN791
Do you agree or disagree with the two paragraphs?---I can't - - -
PN792
Mr Katsiavos's evidence will be that Wilson's lost the contract and Temp gained the contract?---We didn't lose the contract. We chose to gave it up.
**** JOHN LARKIN XXN MS FRENZEL
PN793
THE COMMISSIONER: Would it be true to say then, or fair to say, your contract was - had it elapsed?---No, it was a contract that had a tenure on it which expired earlier in the year, last year. We had discussions with Gandel's about going forward. We explained to Gandel's that it wasn't commercially viable with the terms and conditions set at the start of that contract for us to continue. We sought to negotiate a contract rate with them. They considered it. The process was very amicable. We were advised by Gandel's that they couldn't meet what we required to sustain our contract down there and at that time we agreed together that they would seek an alternative operator to manage the carpark at Bayside. And our relationship with Gandel was one throughout our contract and throughout the change that the changeover process was one of high professional standards and very amicable. We are in contact ..... as we speak.
PN794
Well, it was ended by mutual agreement?---Yes.
PN795
But in essence it seems that that came about because of your initiative in requiring that Gandel meet different commercial terms or the contract be terminated?---We explained to them that it wasn't commercially viable for us to continue under the same terms and conditions. Having read - - -
PN796
So you made them an offer to continue the contract?---Yes, we did.
PN797
And they declined that?---That is correct.
PN798
MS FRENZEL: Now, just so I am clear, is it your evidence that the undertaking to pay the proportion of long service leave and redundancy payments previously given by Ms Roberts on Wilson's behalf is limited to the site and the site only?---That is correct. Our proportion of it.
PN799
Do you have arrangements like that at other sites?---We have specific arrangements across a various amount of sites. They are not all identical.
**** JOHN LARKIN XXN MS FRENZEL
PN800
I have got no further questions, thanks, Commissioner.
PN801
THE COMMISSIONER: Just a moment. Mr Larkin, a part of this case has been comprised of a suggestion that Mr Ozols interests will be taken of in the event that say the carpark closes down while Tempo for instance is there by Wilson Parking at that time making some source of payment?---If the carpark was to close down?
PN802
Yes, to someone, either Gandel or to Tempo in relation to the period that Mr Ozols has worked for Wilson's?---We would pay our pro rata share of any payment owing.
PN803
Such that if, for instance, a redundancy benefit was payable based on years of service then you would pay to Tempo or to Gandel, whoever is going to pay Mr Ozols, the proportionate rate of accrual of that benefit in respect of the years of service or what other periods of service are relevant with Wilson on Mr Ozols behalf?---At this particular site that is the case because when we took over the contract the previous operator had actually gone into liquidation and the owner, Gandel's, actually had to pick up the accruals for staff who in turn transferred to them and then in turn transferred to us. So we have always agreed in this particular site that we would honour our pro rata share.
PN804
Now, has that agreement ever been anything other than verbal?---It is a verbal agreement.
PN805
And Wilson Parking is a private company?---Correct.
PN806
And these potential events against which the contingency payments have been discussed may never come to fruition. The carpark and the shopping centre may continue for a long period of time. But in the event that they did, Wilson would have to be around and in a position to make the payments?---That is correct.
**** JOHN LARKIN XXN MS FRENZEL
PN807
MR LEVIN: It might be of assistance if you were to ask Mr Larkin to describe the ownership and the structure.
PN808
THE COMMISSIONER: That is exactly what I was coming to, in case you could help me with - - -
PN809
MR LEVIN: If I could just advance it?
PN810
PN811
MR LEVIN: Who owns the shares in Wilson Parking Victoria 1992 Pty Ltd?---It is a private family holding.
PN812
And what family?---It is the Kwok family based in Hong Kong.
PN813
The?---Kwok family, K-w.
PN814
Based in Hong Kong. Are you aware of - well, without going into the detail, is Wilson Parking Victoria 1992 Pty Ltd trading profitability?---We are.
PN815
And is the other Wilson entities of which it is related in a corporate sense trading profitability?---They are.
PN816
Are you aware of any potential changes to Wilson Parking Victoria Pty Ltd?---None whatsoever.
**** JOHN LARKIN RXN MR LEVIN
PN817
THE COMMISSIONER: It wouldn't be true however to characterise these potential contingency payments as debts though, would it?---No, we keep accruals for all staff.
PN818
Yes. And does the company have significant accumulated shareholders funds?---It is privately owned.
PN819
I appreciate that?---Sorry, no good to you.
PN820
Well, I understand your answer is that you would prefer not to disclose that information unless required to, is that right?---No, that is not the case. I am not fully aware of the shareholder arrangements but I do know it is a privately owned entity.
PN821
In the company itself I meant, not how much funds the Kwok family have accumulated, but rather, whether or not the company's balance sheet reveals any accumulated?---I couldn't answer that.
PN822
Good, thank you. Mr Levin.
PN823
MR LEVIN: I have no questions.
PN824
PN825
MR LEVIN: That completes the evidence for the applicant. Obviously there will be further submissions to be made at the appropriate time.
PN826
THE COMMISSIONER: Thanks, Mr Levin.
PN827
MS FRENZEL: Could we just have a five or 10 minute adjournment?
PN828
THE COMMISSIONER: Yes, a short break?
PN829
MS FRENZEL: Thank you.
PN830
THE COMMISSIONER: Very well, 10 minutes.
SHORT ADJOURNMENT [11.29am]
RESUMED [11.45am]
PN831
THE COMMISSIONER: Yes, Ms Frenzel.
PN832
PN833
THE COMMISSIONER: Thanks, Mr Oates. Please be seated. Yes, Ms Frenzel.
PN834
MS FRENZEL: Thanks, Commissioner.
PN835
Mr Oates, can you please restate your full name and address for the record?---Brian Oates, 17 Chantel Avenue, Endeavour Hills.
PN836
Mr Oates, did you prepare a witness statement for today's proceedings?---I did.
PN837
Can I ask you to identify this document, please?---Yes, that is my witness statement. I guess the only difference there is that I put down the union's address on the witness statement rather than my personal address.
PN838
PN839
MS FRENZEL: Thank you. Now, Mr Oates, I will just ask you a couple of questions. Firstly, at paragraph 5 you say:
PN840
On Thursday, 22 July the union was contacted by a member.
PN841
Was that you who was contacted?---I was contacted, yes.
PN842
And who contacted you?---A member by the name of Mr Paul Corbett.
**** BRIAN OATES XN MS FRENZEL
PN843
With respect to your statement at paragraph 9 to 11, are you aware of how many employees were engaged by Wilson's at that carpark?---Not off of the top of my head, no.
PN844
Thank you. With respect to paragraph 24 of your statement where you raise the issue, amongst other issues, of Mr Ozols entitlements. You say:
PN845
Suzie Roberts response was that you will have to take us to court.
PN846
Can I put it to you that Ms Roberts has refuted ever making that statement to you?---That is my recollection of the discussion on that matter. We were meeting on another matter at the time and I had explained the situation and the discussions that I had had and that was really the response. There was nothing further to discuss, you will have to take us to court.
PN847
So what steps as the organiser for the area did you take leading on from that discussion about Mr Ozols entitlements?---In terms of that matter with Mr Ozols, I believe that I then did a calculation for underpayment that Mr Ozols was entitled. There had been other circumstances where unfair dismissals had been taken out but in this case we had run out of time.
PN848
Are you aware of any legal proceedings with respect to Mr Ozols claim?---No, no, several matters as far as I am aware.
PN849
Now, paragraph 26 you indicate that May Chung from Tempo indicated to you that she had received some funds from Wilson. Can I indicate to you that the evidence of Ms Roberts now is that the cheque has not been presented?---All I can say is that was the telephone conversation that I spoke to this lady May Chung and at that time she did tell me that she believed there was a transfer from Tempo to Wilson's but she hadn't looked into the matter so she didn't know - - -
**** BRIAN OATES XN MS FRENZEL
PN850
From Wilson's to Tempo?---From Wilson's to Tempo, sorry, yes. From Wilson's to Tempo. She hadn't looked into the matter and was unable to give me any details of it.
PN851
And with respect to the issue of Mr Ozols sick leave which triggered your union about the transfer of funds, what action if any did you take with respect to Tempo about trying to get Mr Ozols paid for that sick leave?---Well, I phoned Tempo and asked what the situation was and that is when the whole thing started to unravel. At the same time there was another carpark that had lost the contract and it was exactly the same situation going on in that carpark, so things were a little bit complicated between the two matters at the same time.
PN852
Is that the carpark that you refer to at paragraph 22 and 23 of your statement?---Referred to in paragraph? Which paragraph?
PN853
22 and 23, on page 3?---Yes, that is the one, yes.
PN854
I have got no further questions, thank you, Commissioner.
PN855
PN856
MR LEVIN: Had you been down to the Bayside carpark before the Wilson transfer to Tempo?---Yes, I used to go down there quite regularly, probably once every two or three months.
PN857
Can you describe - well, it is true to say, isn't it, that you see a lot of different carparks?---Yes.
**** BRIAN OATES XXN MR LEVIN
PN858
Can you describe how did this carpark - just to describe this sort of carpark?---It is a carpark under and along the side of a shopping centre in Frankston. There is one entry in a sort of one way street situation and another one at the back. So it is multi level. It is underground. There are two pretty busy booths and entry points.
PN859
Two booths?---There even be more than that actually. There might be another one on the slope.
PN860
Two or three?---Yes, might be three entry and exit points.
PN861
Is it one of those ones where you have to pay for the first hours or pay the whole way along?---It is a little bit of a different one because I think if you are in and out in a certain point in time you are in free. It is one of those things that are tied to the shopping centre. If you spend the money in the shopping centre then they are happy for you to park there, but if you are going somewhere else and you just use that as a carpark in the centre of Frankston then you have to pay.
PN862
And that arrangement was the same with Wilson's and Tempo?---As I understand it, yes.
PN863
Has there been any changes to the business, the actual carpark since Tempo took it up?---Not that I am aware of.
PN864
Do you know who Steve Luby?---I did know until earlier today I was talking and the name came up.
PN865
Did you know he is the guy who on behalf of Gandel's looks after the services?---That is right. He is the manager down there.
**** BRIAN OATES XXN MR LEVIN
PN866
So in relation to the change from when Wilson was running this carpark to when Tempo ran the carpark, in effect the business that was being run by Wilson's became part of the business being run by tempo?---Mm.
PN867
Sorry, you are nodding. You are meant to say - - -?---Sorry. In effect, well, the business being operated by Wilson's was taken over by Tempo, yes.
PN868
And it was pretty much the same business?---Yes.
PN869
Now, Tempo didn't have any obligations to employ the former Wilson people, did they?---No, and they didn't in the case of four.
PN870
But your position would be that there are real practical benefits for a new company taking over a site for them if they pick up some of the older formers, the former employees?---The union always goes in wherever there is change of employer and - - -
PN871
I am sorry, I will just get to that. Do you accept that there are benefits to a successor if they take over some of the previous employees?---We always maintain their benefits, yes.
PN872
And so, for example, they would get the benefits of that person's experience?---Yes.
PN873
They would get the benefits of their qualifications. Is that a yes?---Yes.
PN874
They would get the benefits - sorry, just for the transcript. They would get the benefits of knowing who is available to work what shifts?---That is right. Yes, regular customers.
**** BRIAN OATES XXN MR LEVIN
PN875
Regular customers like having the same face?---Yes.
PN876
And you would say that any successor of a carpark that one company stops at midnight and the next company starts at a second past midnight, you would say they should honour their obligations of continuing the benefits and entitlements of people who worked?---That is not normally the procedure in carparking. Normally it is - - -
PN877
I am not asking you what the procedure is?---Yes.
PN878
Would you say it is the union's position that say for example, I will give you an example, let us imagine Wilson's tomorrow takes over the carpark from Secure downstairs?---King's.
PN879
King's, thank you. Downstairs. Would it be okay if Wilson, as far as you are concerned, did not take up accrued sick leave, would you have any problem with that?---I guess there would be three options.
PN880
No, would you have a problem if Wilson's said no, we are not going to pick up the sick leave, it is not our problem?---Well, I would if that was part of the arrangement, but historically the general arrangement has been that carparking attendants have been absorbed further into the business so that if - - -
PN881
And what happens with sick leave?--- - - - King's were losing this business they would absorb their carparking attendants into other parts of their business and Wilson's would come in with new people. That is the traditional way.
PN882
And if new people wanted to stay in the place they have worked for many years, just using the example of downstairs, if some of the King's people said no, look, we want to stay and Brian, we want you to help us, you know, we want to stay here, we don't want to move, you would help them?---I certainly would, yes.
**** BRIAN OATES XXN MR LEVIN
PN883
Would you expect that if Wilson were taking it over that Wilson's should honour the sick leave?---I would expect that would be an arrangement that would be in place before that change over of business and that they would get a statement from King's.
PN884
Mr Oates, I am not asking - I will just have to - - -
PN885
THE COMMISSIONER: Well, it is not as if he is being unresponsive, Mr Levin.
PN886
MR LEVIN: I don't think he is being deliberately unresponsive but I would just - - -
PN887
THE COMMISSIONER: So you should really let him finish his answer.
PN888
MR LEVIN: Well, except it is not answering the question I asked. The question I asked is not what arrangements he would expect to be in place. I am asking him - - -
PN889
THE COMMISSIONER: Yes, but you know, we are not conducting a criminal trial here.
PN890
MR LEVIN: No.
PN891
THE COMMISSIONER: This is a straight forward inquiry into the exercise of an arbitral discretion.
**** BRIAN OATES XXN MR LEVIN
PN892
MR LEVIN: Yes, Commissioner. Please continue?---Yes, under certain arrangements I would expect that to be honoured, but the arrangements would have to be in place for that to be honoured. If the people were absorbed into King's then, you know, they would continue on with all their entitlements in King's. If they were retrenched by King's and then picked up jobs with Wilson's, I would expect them to start from scratch. If there was an arrangement that there was continuation of their employment within that carpark and a transfer of business, then I would expect that King's would give them a statement of their entitlement and that Wilson's as the incoming contractor would also give them a statement of their entitlements so that they knew exactly what was being transferred over at that midnight point in time.
PN893
So coming back to the question I asked about sick leave and I will ask it again. In relation to sick leave what under those circumstances where there is a transmission would you expect the successor to take on the sick leave?---Yes, absolutely.
PN894
You would?---Yes.
PN895
So what you are saying is at this site you would be expecting there will be talking about Tempo to honour the sick leave?---At this site that we are talking about I would expect there to be a transfer. If there was a formal transfer of business I would expect Tempo to honour the sick leave and to honour all the entitlements and in fact the only change for the employees would be the overalls they were wearing and the people that paid them at the end of the week.
[12.01pm]
PN896
Yes, indeed. And you found out that Tempo was refusing to honour the sick leave accruals, correct?---I found out that Tempo had no understanding of the transfer of business arrangement.
**** BRIAN OATES XXN MR LEVIN
PN897
I am sorry, I will ask you to answer my question. Isn't it the case that the basis of what you just said about what should happen with a transfer that you are saying that Tempo should recognise the sick of Mr Ozols?
PN898
THE COMMISSIONER: He has already answered in the affirmative to that. Your question was about what he found out. Your question was, "And you found out that they were not honouring the sick leave".
PN899
MR LEVIN: Yes.
PN900
THE COMMISSIONER: And his answer was, "I found out that they had no understanding about a transfer of business".
PN901
MR LEVIN: Yes, thank you, Commissioner.
PN902
When you did find out that they were not honouring the sick leave you in effect said to them, well, you should, words to that effect. Is that correct?---When I found they weren't honouring the sick leave I found, as I say, they had no understanding of the situation and so I then went to Wilson's.
PN903
I am sorry, this is becoming quite obvious that he is not answering my questions and I would ask that he just be asked to answer what I am asking which was quite specific then, yes or no. Did you say words to the effect to Tempo that they should honour the sick leave?---No, I don't believe I did. I believe I found out what the arrangements were.
PN904
So you were happy - - -
PN905
THE COMMISSIONER: It doesn't follow from that, Mr Levin. It doesn't follow that he answers no that he is saying anything about his happiness about it.
**** BRIAN OATES XXN MR LEVIN
PN906
MR LEVIN: I haven't put the question. But I want to go to that.
PN907
So when you found that they weren't honouring it, given you said you expect they should honour it, what steps have you taken to - - -?---Under certain circumstances I would expect they should honour it. Those circumstances were not the circumstances that I found to be in place there so I didn't expect them to honour it. I then contacted Wilson's - - -
PN908
So if for example - no, I am not asking you about what you did with Wilson's. What I am asking you then is, is it okay as far as you are concerned for, in the example we were using downstairs, for Wilson to come in and if Tempo refuses to transfer the sick leave across, says that we don't have to pay it, we are not going to, are you saying that it is okay as far as you are concerned for Wilson not to honour that sick leave of one of the King's people that is - - -
PN909
THE COMMISSIONER: Wilson or Tempo?
PN910
MR LEVIN: Wilson. I am talking about the example we were giving downstairs?---If in the example you were giving downstairs there was an arrangement in place and any part of the entitlements, annual leave, long service leave or sick leave were not paid - - -
PN911
I am sorry. I will ask you to - - -?--- - - - then I would not be happy - - -
PN912
MS FRENZEL: Commissioner, can you - - -
PN913
THE COMMISSIONER: Mr Levin, I am lost frankly. I don't know what you are trying to achieve. We are talking about a hypothetical situation downstairs. What is the relevance of it? There is no such situation downstairs in this building.
**** BRIAN OATES XXN MR LEVIN
PN914
MR LEVIN: Am I not allowed to ask a hypothetical?
PN915
THE COMMISSIONER: Well, I question the relevance of a hypothetical question.
PN916
MR LEVIN: Because it goes to explaining what the ordinary expectation would be of what would happen at a site.
PN917
THE COMMISSIONER: What is the ordinary expectation? What is that exactly? What is, "The ordinary expectation"?
PN918
MR LEVIN: The ordinary expectation from the union as to how things would go. That is what I am trying to get at.
PN919
THE COMMISSIONER: Well, I think Mr Oates is trying to explain his expectations to you?---Yes, as I said - - -
PN920
MR LEVIN: But then he started talking about - instead of what I asked him about he started going back to his discussions with Wilson Parking.
PN921
THE COMMISSIONER: Yes, because your question may not have anything to do with his expectations.
PN922
MR LEVIN: I can only ask the question, but I ask that he limit himself - - -
PN923
THE COMMISSIONER: There is the practicality of it being answered and the fairness of it too.
**** BRIAN OATES XXN MR LEVIN
PN924
MR LEVIN: All right, I will adopt another line of questioning, Commissioner.
PN925
THE COMMISSIONER: It is not the subject matter. If you want to ask Mr Oates about the union's policy or what it believes it is the case under the award or something of that nature for the purposes of this matter, that is relevant, but I find it very difficult to understand how some sort of hypothesis about a carpark downstairs that we know nothing about is relevant.
PN926
MR LEVIN: Well, it would have set the foundation for further questions but I will ask it another away. I am happy to ask it another way.
PN927
In relation to the situation that occurred at Bayside are you content that Tempo did not honour the sick leave?---If there was no arrangement then that is the situation.
PN928
THE COMMISSIONER: Mr Levin, look, he doesn't have to answer your question exactly the way you want him to.
PN929
MR LEVIN: No the way I want him but I ask that he answer the question.
PN930
THE COMMISSIONER: No, look, you are being completely unreasonable about this. It is just not open to you to insist that a witness has to answer the question only the way that you prescribe.
PN931
MR LEVIN: I accept that.
PN932
THE COMMISSIONER: A witness can responsively answer a question in a manner using a verbal formulation which doesn't necessarily fit exactly the way that you would like to hear it.
**** BRIAN OATES XXN MR LEVIN
PN933
MR LEVIN: I accept that. I didn't think that his answer in any way dealt with the question I asked.
PN934
In relation to the situation with Mr Ozols, other than he got paid more after he transferred across for doing - well, he did the same job, correct?---Yes.
PN935
And he got paid more?---Yes, he got paid level 3 I understand.
PN936
So there was no change to the nature of his duties?---No.
PN937
There was, other than one half hour earlier start and finish, no change to his hours?---Not that I am aware of.
PN938
Okay. And his pay went up?---He was recognised as a level 3, carrying out level 3 work under the award.
PN939
Did his pay go up?---And that involved an increase in his pay, yes, and I believe we instituted underpayment claims on his behalf for back pay of that level 3 against Wilson.
PN940
Yes. Now, you are satisfied, aren't you, in terms of the annual leave that money for Mr Ozols annual leave be transferred across to Tempo?---That is not my understanding. My understanding was that as there was no arrangement for transfer of business Mr Ozols would be paid out all of his annual leave and his termination pay.
PN941
I didn't ask you that. Okay, I will ask you again. In relation to what has actually taken place, not what you say you would have liked to have taken place, in relation to what has taken place, you are satisfied, aren't you, that the transfer of the moneys across to Tempo will ensure that there is recognition of his annual leave and payment is made for it, correct?---No. I wouldn't be satisfied with that because that is only part of the arrangement.
**** BRIAN OATES XXN MR LEVIN
PN942
I just said in relation only to annual leave so in relation to annual leave?---In relation to only annual leave - - -
PN943
Just that item?--- - - - in isolation, I am not satisfied with that because that is only one part of the - one component of the arrangement that should take place.
PN944
Just putting aside the other components and accepting your qualification on the issue only of annual leave, are you satisfied that that is an appropriate way of dealing with that component, subject to you saying that you would like it all be dealt with together?---Yes.
PN945
Okay. How long have you been an organiser?---I have been an organiser with the LHMU since 1998. I was an organiser with the previous union from 1989.
PN946
Are you aware of the general way that the law works without the specific sections but just generally about long service leave recognition when people transfer from one employer to another?---Generally.
PN947
Are you aware that the Victorian Act says and I quote:
PN948
Sets out several situations in which an employee is to be regarded as having been employed by one employer even though the employee may have worked over the relevant period for more than one employer in a strict legal sense.
PN949
?---Within certain awards, yes.
PN950
And this is the Long Service Act I am talking about?---There are different arrangements in different awards also.
**** BRIAN OATES XXN MR LEVIN
PN951
Are you aware that the Long Service Act provides that if an employee performs duties in connection with any assets used in carrying on a business of his employer and the assets transferred to another employer if the employee continues employment with the new employer, that they are regarded as having started employment with that second company on the date when they started at that business originally, are you aware of that?---Mm.
PN952
So without drawing legal conclusions, just your own understanding, is that any of your members who transfer, who will work one day with one company and one day the next with the second, they are protected in respect of long service leave by the Act, aren't they?---I don't understand that to be the case in all awards but I understand that in the Act that is the case.
PN953
Okay. That is annual leave and long service leave. In respect of sick leave do you accept that there is no obligation under the award to pay out sick leave on termination?---No, there is no obligation to pay out sick leave on termination.
PN954
Okay. In respect of severance payments, in the event that Mr Ozols were ever made redundant by Tempo at this carpark, you are aware that there are provisions in the Carpark Industry Award in relation to transmission of business generally speaking?---There is a particular clause in there regarding transmission of business, yes.
PN955
And the thrust of that is that if a new company comes in and is doing what the old company did they have got to recognise the start date or the length of service. They can't just say no, it starts from day one when we come in. They have got to recognise the length of service going back?---Yes, they continue to honour that particular place.
PN956
And you would expect any employer that comes in as a successor to recognise their full length of service?---Recognise that, yes.
**** BRIAN OATES XXN MR LEVIN
PN957
And so hypothetically if Mr Ozols were ever made redundant tomorrow, for example, some time in the future by Tempo, you would expect Tempo to recognise the full length of service that he has worked at that site?---Yes, we would certainly be claiming that.
PN958
Yes. So in effect from what I have said, apart from not getting sick leave, the annual leave, the long service leave and the severance payments he would still be protected and get all of those in the form that annual leave would be transferred as a cheque, long service leave is protected by the Act and severance pay, as you say, is under the award the obligation of Tempo, correct?---Well, yes, that is correct, as you say, under the Act. I don't know of too many carparks where that has been achieved but that is certainly the thrust of it.
PN959
And in respect of this carpark, even if there were arguments about that legal summary that I have put to you just then, there is an arrangement at this carpark, isn't there, that if people work for different operators that when they get to an entitlement accruing like a particular amount of time, like 10 years and they terminate it for long service leave, that it all gets organised by Gandel's and they get bits of money from the different people, pro rota, like Ron Teunissen?---No, I am not aware of that. I didn't know there was any portability of long service in the industry that was organised by any particular operator.
PN960
Sorry, weren't you directly involved in the Ron Teunissen situation?---Who, sorry?
PN961
Ron Teunissen?---No.
**** BRIAN OATES XXN MR LEVIN
PN962
Okay. So you are not in a position - well, if I put to you then that there is an arrangement that has occurred at this site in relation to one of your members - I don't know if he is still a member now but a member, that he got terminated by Wilson and he accumulated long service leave of more than 10 years with Wilson and KC before that, or whoever the predecessors were and Gandel's provided Wilson a cheque for the employers that were before Wilson and Wilson provided a cheque for its bit?---I would be very surprised if Gandel's produced a cheque KCs seeing as they bankrupt during the century.
PN963
But the uncontested evidence is that Gandel's did in fact provide their share - - -
PN964
THE COMMISSIONER: KCs share.
PN965
MR LEVIN: Provide a share, I beg your pardon. Provide a share in respect of the period before Wilson was there. You are not aware of that?---No, I am not aware of that.
PN966
So you are not in a position to deny that there is an arrangement at this site where Gandel's allocates proportionately who is responsible for which bits of accruing entitlements? You are not in a position to deny that?---No, I am not in a position to make any statement on that at all, apart form the fact, as I say, I know that KC went bankrupt in 2000 and their finances are still being investigated.
PN967
But you don't contest that Mr Teunissen was paid - - -?---I have got no knowledge of that at all.
PN968
About any of the payments made?---Yes.
PN969
Okay. You can't dispute that Wilson's gave notice to Gandel's that they wanted to renegotiate the contract?---No, I couldn't dispute that. I wouldn't have any knowledge of that either.
**** BRIAN OATES XXN MR LEVIN
PN970
And you can't dispute Wilson giving its employees a service to assist them in putting together their CVs?---I am not aware of that.
PN971
And you are not in a position to dispute that Ms Roberts had a meeting a meeting in the McDonald's kids playroom with the staff, provided them with information about the transfer?---I understand there was a meeting with Wilson's between the 22nd and the 30 July. I was off sick that week and I understand there was a meeting with Wilson's during the course of that week.
PN972
But you are not in a position to deny that there were discussions held or the nature of the discussions held at that meeting?---No, I couldn't give you any information on the discussions held at that meeting, other than I guess that, you know, I have now been told by Mr Ozols - - -
PN973
No, I don't want other people have said to you, just your direct knowledge?---Yes.
PN974
You don't dispute that the employees were given alternatives such as moving to a job in the city with Wilson?---I know that the four people who weren't picked up were given the alternative of a job in the city and - - -
PN975
But you can't dispute that there was an option given to them at that meeting at McDonald's? You can't dispute that, can you?---I would find it hard to believe - - -
PN976
Can you dispute it?--- - - - because it was only when the four people were not employed by Tempo - - -
PN977
Do you have any direct knowledge?
**** BRIAN OATES XXN MR LEVIN
PN978
MS FRENZEL: Can we ask that the witness be allowed to answer the question, Commissioner?
PN979
THE COMMISSIONER: Mr Levin, why do you need to pursue this sort of badgering approach to the witness? Why don't you just let him finish his answer?
PN980
MR LEVIN: Because I would rather it be done quickly and - - -
PN981
THE COMMISSIONER: But I am interested in his answer. This is an inquiry for the purpose of creating a right. This is not a proceeding in a court of law. This is an arbitral jurisdiction. By necessity it is inquisitive.
PN982
MR LEVIN: Of course, sir.
PN983
THE COMMISSIONER: I am interested in the full range of what this witness has to tell me. I am not going to confine it to just whatever part of his answer to your questions you choose to interrupt. I think you just misconceive the nature of this jurisdiction.
PN984
MR LEVIN: Well, sir, for 15 years I have practised in this jurisdiction alone. It is the only jurisdiction I have practised in for a long time and I think I do - - -
PN985
THE COMMISSIONER: Well, you know that it is an inquiry into the facts of this case. It is not a trial.
PN986
MR LEVIN: I am aware of that.
PN987
THE COMMISSIONER: In relation to existing rights of a criminal nature or even a civil nature.
**** BRIAN OATES XXN MR LEVIN
PN988
MR LEVIN: Yes, yes.
PN989
THE COMMISSIONER: So the witness is giving an answer about his knowledge.
PN990
MR LEVIN: Yes.
PN991
THE COMMISSIONER: And it is just a matter of elementary politeness to let him finish it. It is not prejudicial to your case to let him finish it.
PN992
MR LEVIN: I absolutely accept nothing has been prejudicial. It is more just my keenness to just move the evidence along. Sorry.
PN993
THE COMMISSIONER: I am interested in what he has to say.
PN994
MR LEVIN: I apologise to the bench if I am limiting information that is of assistance to the bench. It was really just more to keep moving it along. Is there anything you want further to say about that?---Yes, look, I had had a number of discussions with people in Tempo and my expectation was that everybody would be picked up by Tempo. I believe that Wilson's had that same expectation and it was something of a shock to us all on Thursday when we found out that there were four people that weren't going to be picked up. There were negotiations regarding two of those people, Mr Corbett and Mr Grimshaw. Mr Grimshaw had only recently been transferred to the site and was approaching his long service leave threshold and the explanation that I got was that Wilson's at the time had lost a number of carparks, there was not really anywhere much to put these people, but there were opportunities at Melbourne Hospital, Royal Melbourne Hospital, and that came during the course of discussions after 4 August when the transfer had taken place.
PN995
Now, in relation to Mr Ozols, just what we are focusing on at the moment, the choice he took was to apply for a job at Tempo, correct?---Yes, I think everybody applied for a job with Tempo, everybody there.
**** BRIAN OATES XXN MR LEVIN
PN996
And he was told of that option by a letter of 3 July. Perhaps if the witness could be shown exhibit A1, please, of Ms Roberts. He was made aware of that on 3 July. If you go to the very back page of that. In fact I will take you to the bottom of the first page. There is a description of what they would have to do if they wanted to have the assistance of someone to prepare a professionally prepared resume. Do you see that on the first page?---Yes.
PN997
And see how it says in the middle:
PN998
If you want to be considered for employment submit your resume and a covering letter.
PN999
And it tells you to send it to Tempo?---Mm.
PN1000
Well, you would have to accept that that is some assistance, isn't it, to the employees to get a job at Tempo, to inform them of who is taking over the site, who to send their letter to and if you need any help to put a CV together, you would accept that that is some help?---Yes, I guess the only thing that I could say about that is it is strange that I was called in early July and informed that that was going to happen but it was all hearsay at that time. People did some to know the details of it all, but it wasn't until 22 July that I was actually called and told we have got the letter saying that the contract is changing and we are being terminated. So although it is dated 3 July I don't know exactly when people received it.
PN1001
But just coming back to what I was asking you about. Not when you got told that it was received, but you accept that telling people who the new operators are going to be, providing them with resume assistance, telling them who to send it to, providing help to send it, is assisting people to obtain employment with Tempo, isn't it?---Yes, yes, and the union would do that as well.
PN1002
Right. No further questions - I am sorry. No, no further questions, thank you.
**** BRIAN OATES XXN MR LEVIN
PN1003
THE COMMISSIONER: Thank you. Any re-examination, Ms Frenzel?
PN1004
PN1005
MS FRENZEL: How long have you organised in the carparking industry for?---Since 1998, five years.
PN1006
Have you organised in any other industries as well at the same time?---Yes, licensed clubs, cleaning industry and sort of a geographic based organising for a while.
PN1007
Now, Mr Oates, since you have been organising the parking industry only have you ever come across a situation where a contract is lost and a contract is gained, doesn't matter by whom, where there is a transfer of entitlements from employer A to employer B, apart from this instance?---No.
PN1008
Are you aware of any previous contract changes with Wilson Parking?---Yes, several.
PN1009
Did you represent the interests of LHMU members in those contract changes?---Yes.
PN1010
Who did you discuss those contract changes with?---With the management of the relevant companies, the company that owned the contract to begin with and the one that won it afterwards.
PN1011
And with respect to Wilson, is a particular contact point that you have?---Suzie Roberts is the person there.
**** BRIAN OATES RXN MS FRENZEL
PN1012
And how long would you have been liaising with Suzie about these matters?---Probably two and a half years.
PN1013
In that two and a half years have you and Ms Roberts had discussions about this type of transaction with respect to other sites?---Yes, we have. Yes.
PN1014
Can you elaborate on that?---Well, generally, as I explained before, the situation is that if Wilson's lose the carpark or a carpark employer loses a carpark they generally redeploy the full time employees, the permanent employees into other carparks and the casuals lose out on hours somewhere else.
PN1015
Now, you have given evidence that Mr Ozols gets paid more with Tempo. You have also given evidence that is because he is classified as level 3 under the award?---That is correct.
PN1016
Are you aware of what level Mr Ozols was paid when he was with Wilson's?---I believe most everybody in Wilson's are paid at level 2 after their probation period.
PN1017
To the best of your knowledge with Wilson, have you on a contract change seen recognition of previous service for annual leave purposes before?---No.
PN1018
My friend put the proposition to you that assistance writing a resume was assistance to gain employment with Tempo. Are you aware of other times when Wilson's have offered to help with resumes on contract change?---Not that I am aware of.
[12.28pm]
**** BRIAN OATES RXN MS FRENZEL
PN1019
You gave some evidence that Tempo had no understanding when you raised the issue, no understanding of the transfer of business. What do you mean by that?---Well, that they didn't believe there was any arrangement in place for any continuity of service to be recognised or any of the entitlements to be transferred over to them. They believed they were coming in and starting at day one with a new crew of employees and they did have some employees that they had employed from outside as well.
PN1020
What was your view about that?---I wasn't too happy that members had not been picked up by Tempo and other people had been employed from outside.
PN1021
Were you aware of the - leading on with this line of questioning about Tempo's understanding of transfer of business, or transmission, are you aware of the employment conditions these people were engaged on? If you don't know the answer just say you don't know. The employment conditions, in other words - - -?---Well, I understood they were employed under the Carparking Award.
PN1022
Are you aware of they were employed on probation?---Generally Tempo operate in the cleaning industry and wherever they take up a new contract they always tell people they are on a probationary period there, so I would assume they would have done the same with the carparking.
PN1023
But you don't know for sure?---But I wouldn't know for certain, no.
PN1024
I have got no further questions, thanks, Commissioner.
PN1025
PN1026
THE COMMISSIONER: Now, as I understand it that is the evidence to be taken today is it?
PN1027
MS FRENZEL: Yes, it is, Commissioner, but my friend and I did have a discussion prior to the proceedings recommencing about one factor which is emerging and that is that Ms Roberts was unable to advise the Commission on her evidence for how long Mr Ozols had been at the site and I might at this point foreshadow that we may well be requesting the Commission issue a summons to Bayside Shopping Centre and in particular Mr Luby, about records that Gandel's hold about the employment records of Mr Ozols. But we will see how we travel, we may not need that. That certainly for today's proceedings concludes our witness evidence.
PN1028
THE COMMISSIONER: All right. So what is the plan, that we are going to list another day now?
PN1029
MS FRENZEL: Yes, thank you, Commissioner.
PN1030
THE COMMISSIONER: And you are going to provide what it was that Mr Levin asked for in relation to Mr - - -
PN1031
MR LEVIN: Ms Letts pay out details.
PN1032
THE COMMISSIONER: Yes, that is right. Mr Katsiavos. Tempo has paid Ms Letts accrued annual leave entitlements on termination and the understanding and the understanding that Ms Roberts has of that is that it included an amount in respect of her employment with Wilson and what is requested is information confirming that or otherwise and that Mr Katsiavos should either file that prior to or be prepared on the day to give evidence about that.
PN1033
MR LEVIN: I wonder what my friend will consider to be an appropriate course for going into a jurisdictional argument?
PN1034
THE COMMISSIONER: Ms Frenzel.
PN1035
MS FRENZEL: I am not exactly certain I understand what the question was, Commissioner.
PN1036
THE COMMISSIONER: Well, procedural perspective is are you going to put it in writing, are we going to hear it on the next day, are we going to take all the evidence, that sort of thing.
PN1037
MS FRENZEL: I am happy to put a brief outline and file and serve that together with the authorities that we wish to rely upon certainly before the next proceedings.
PN1038
THE COMMISSIONER: All right, all right.
PN1039
MS FRENZEL: As I say, it will be a brief outline though.
PN1040
MR LEVIN: A brief outline is fine. I wonder if we can just fit that in when we look at our calendars?
PN1041
THE COMMISSIONER: Can you just tell me what it is in one sentence?
PN1042
MS FRENZEL: That the applicant to vary doesn't go to the relationship between employees and employers and that a single application with respect to one employee and in addition to that, it appears to me to have retrospective, or what the application seeks to do is have retrospective operation as well.
PN1043
THE COMMISSIONER: That is within jurisdiction though, isn't it?
PN1044
MS FRENZEL: With the jurisdiction.
PN1045
THE COMMISSIONER: It is within jurisdiction to make the application retrospective?
PN1046
MS FRENZEL: It is.
PN1047
THE COMMISSIONER: So it is not a jurisdictional argument. It is a merit argument, isn't it?
PN1048
MS FRENZEL: The retrospective part of it is, but the relationship between employees and employers we say is a jurisdiction argument.
PN1049
THE COMMISSIONER: Yes, all right.
PN1050
MR LEVIN: I should, just again it might just save time, obviously section 493 deals with the first element of the Victorian power, there doesn't need to be any interstate element. A single application is now, in this jurisdiction, is permitted.
PN1051
MS FRENZEL: I am not arguing about interstateness.
PN1052
MR LEVIN: I have got to say, sir, I fail to actually apprehend how there can be an argument about employer/employee relationship in relation to an existing matter under an award. I mean my friend is entitled to bring the application but I just don't quite understand how - - -
PN1053
THE COMMISSIONER: I suppose we will see in due course in the outline the mystery will be revealed.
PN1054
MR LEVIN: Yes, sir.
PN1055
THE COMMISSIONER: One more day?
PN1056
MR LEVIN: Yes, sir.
PN1057
MS FRENZEL: I might indicate, Commissioner, that I am on leave for the next fortnight and interstate for the next fortnight.
PN1058
THE COMMISSIONER: Yes. It won't be until after the 28th. In fact it will be on 1 May at 10.30 am. Good, thank you. I will adjourn these proceedings till 1 May at 10.30 am.
PN1059
MR LEVIN: Were we going to then have a date for a convenient time for my friend just perhaps if she could get me her outline - - -
PN1060
THE COMMISSIONER: Yes, I was just about to direct that.
PN1061
MS FRENZEL: Commissioner, I am not back actually in Victoria until the 28 April. I don't want to drag things out. It is just going to be a tad difficult, can I say.
PN1062
THE COMMISSIONER: To proceed on the 1st?
PN1063
MS FRENZEL: No, no, to get the outline and all that sort of material in because I am leaving tomorrow morning.
PN1064
THE COMMISSIONER: Well, we can just hear the evidence on the 1st.
PN1065
MS FRENZEL: Very well.
PN1066
THE COMMISSIONER: In which case - - -
PN1067
MR LEVIN: May I make a suggestion, sir? Just so that we don't have to have a full day, is it possible that we can conclude all of the matters on the 1st except the jurisdictional argument and that perhaps just a written submission on jurisdictional argument and we put in a written response and they have an opportunity for reply?
PN1068
THE COMMISSIONER: Yes, I think that is a good idea and I think that what we should anticipate is that the only thing that will be done on the 1st is that further witness evidence will be completed and the parties will address all of the evidence and the jurisdictional points that have been raised in writing, according to a timetable to be agreed between them or fixed by the Commission. I direct the parties confer for the purpose of establishing that timetable prior to the 1st if possible. Thank you.
ADJOURNED UNTIL THURSDAY, 1 MAY 2003 [12.36pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
SUSAN ROBERTS, RECALLED AND RE-AFFIRMED PN495
FURTHER EXAMINATION-IN-CHIEF BY MR LEVIN PN496
EXHIBIT #A5 CHEQUE REQUISITION PN542
FURTHER CROSS-EXAMINATION BY MS FRENZEL PN626
RE-EXAMINATION BY MR LEVIN PN737
WITNESS WITHDREW PN747
JOHN LARKIN, SWORN PN751
EXAMINATION-IN-CHIEF BY MR LEVIN PN751
EXHIBIT #A6 STATEMENT OF MR J. LARKIN PN759
CROSS-EXAMINATION BY MS FRENZEL PN765
RE-EXAMINATION BY MR LEVIN PN811
WITNESS WITHDREW PN825
BRIAN OATES, SWORN PN833
EXAMINATION-IN-CHIEF BY MS FRENZEL PN833
EXHIBIT #R3 STATEMENT OF MR B. OATES PN839
CROSS-EXAMINATION BY MR LEVIN PN856
RE-EXAMINATION BY MS FRENZEL PN1005
WITNESS WITHDREW PN1026
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