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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
Tel:(08)8211 9077 Fax:(08)8231 6194
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT POLITES
C2003/1865
TRANSPORT WORKERS' UNION OF
AUSTRALIA
and
A.E.(BEN) DREW PTY LIMITED AND
OTHERS
Notification pursuant to section 99 of the Act
of an industrial dispute re log of claims
ADELAIDE
10.41 AM, FRIDAY, 13 JUNE 2003
Continued from 14.5.03 in Melbourne
PN27
THE SENIOR DEPUTY PRESIDENT: Good morning, may I have the appearances please?
PN28
MS TISDALE: If the Commission pleases, I appear for the Transport Workers' Union.
PN29
THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Tisdale.
PN30
MR MANUEL: May it please the Commission, seeking leave to appear as counsel for Catering Workforce.
PN31
THE SENIOR DEPUTY PRESIDENT: Any objection, Ms Tisdale?
PN32
MS TISDALE: No, your Honour.
PN33
THE SENIOR DEPUTY PRESIDENT: Leave is granted, Mr Manuel.
PN34
MR MANUEL: Thank you, your Honour.
PN35
THE SENIOR DEPUTY PRESIDENT: Mr Manuel, you have foreshadowed an adjournment here, are you pursuing that?
PN36
MR MANUEL: No, your Honour, we are in a position to proceed this morning, thank you.
PN37
THE SENIOR DEPUTY PRESIDENT: Proceed, thank you. Well, there is no clear indication in the Act as to who should go first in these applications. Would you like to, Mr Manuel?
PN38
MR MANUEL: Not at all, thank you, your Honour. We would suggest that really if you follow the strict structure of the Act, the section 99 matter has to be dealt with first and then the section 111AAA but I would be quite comfortable with them having been rolled together, but I would still suggest that it should be for the union to proceed in the fist instance.
PN39
THE SENIOR DEPUTY PRESIDENT: Well, I think that is a reasonable request, Ms Tisdale?
PN40
MS TISDALE: Thank you, your Honour, we would certainly be comfortable with proceeding indicating that we are seeking a finding of dispute and on what basis we are seeking that finding. It would seem to me though, that if the company wish to pursue their section 111AAA application that they would need to substantiate that application and it would seem sensible for us to respond to what they put on on that basis.
PN41
THE SENIOR DEPUTY PRESIDENT: Well, it is not clear whether it is an application or an obligation on the Commission, Ms Tisdale. I would be happy if you put everything you can think of to put and if there is anything else that I think you need to put or if you feel prejudiced in any way, then I can deal with that as we go along.
PN42
MS TISDALE: Certainly, your Honour. It would be our understanding based on the authorities that in terms of an assertion that a state award or agreement does govern the terms and conditions of employment of the relevant employees that that is an obligation that the company needs to meet.
PN43
THE SENIOR DEPUTY PRESIDENT: Well, there may be an evidentiary onus in that regard.
PN44
MR MANUEL: Perhaps I can assist the Commission, we accept we have an evidentiary burden but the point that your Honour made is with respect, the one that we propose and that is it is strictly it is a question of jurisdictional fact but we accept that we have an evidentiary burden which we will seek to meet.
PN45
THE SENIOR DEPUTY PRESIDENT: Yes, thank you.
PN46
MS TISDALE: Thank you, your Honour, well we are seeking a finding of dispute under section 101 of the Act. We say that there is an industrial dispute that exists between ourselves and Catering Workforce Proprietary Limited. That dispute arises out of the service by the union on Catering Workforce of a letter of demand and log of claims. They were served on the employer by registered mail at the registered address on 28 March 2003. On 10 April, 2003, the union notified the Commission of the alleged industrial dispute.
PN47
The matter was set down for hearing on 14 May, however, the day before the matter was set down for hearing Business SA, who then represented Catering Workforce, wrote to the Commission indicating that they were making an application under section 111AAA for the Commission to cease dealing with the matter. We would be seeking that the finding that an interstate industrial dispute existed between the union and a number of companies, that finding that was made on 14 May 2003, be amended to include a finding between the union and Catering Workforce Proprietary Limited.
PN48
A number of objections have been foreshadowed by the current representatives of Catering Workforce Proprietary Limited and I might group those together. Some go to a section 111AAA application and others it seems made more generally to suggest that the Commission does not, in their view, have power to make the finding of a dispute that the union is seeking. Those objections, as I understand them, relate to the constitutional coverage that the union has of the employees in question.
PN49
The representatives have also, I understand made a - raised an issue about interstatedness and whether the - - -
PN50
MR MANUEL: I withdraw that.
PN51
MS TISDALE: Thank you.
PN52
MR MANUEL: Yes, I managed to - it is only because of the lack of time I haven't been able to actually chase down who else was served with the log, but I found out that my client in fact operates into Victoria, so I think that probably answers the question.
PN53
THE SENIOR DEPUTY PRESIDENT: It does, thank you.
PN54
MS TISDALE: Thank you. So as I understand it in terms of general objections to the ability of the Commission to find a dispute exists, that that - the only objection that would fall under that heading relates to the rules of the union. We would say, as a way of setting some context or background for this matter, your Honour, that - it is our view that the employer and the employer's representative are seeking to make this as complex a matter as they can. We have had the issues of interstatedness raised and subsequently withdrawn. We have had the issues of the rules and constitutional coverage of the union raised. We have had a claim made that the company is in fact a labour hire company despite outward appearances and that that somehow does not fall properly within the union's rules.
PN55
We would say that we could also make this case extremely complex. We could take the company at their word, that Catering Workforce is a labour hire company and we might investigate whether or not there is a transmission of business between Golden Chef Australia Proprietary Limited, a company that was roped into the Federal Award in 1996 and who did originally employ employees to do this work and Catering Workforce Proprietary Limited, who we understand is being characterised as a labour hire company that now provide the labour of doing the same job in the same way under the same trading names and so on.
PN56
So is there a transmission of business? We could ask was Catering Workforce established in 1996 to deprive the employees of Golden Chef of the advantages of the industrial instrument to which they had become entitled and was that in contravention of Part XA of the Act? We could ask did the employer seek to assign contracts of employment of employees between Golden Chef and Catering Workforce and was that done with the consent of the employees? We could ask is there an entitlement to underpaid wages that we are able pursue as a result of any of these, what we might call, shenanigans, that have happened between 1996 and the current day.
PN57
We actually see this application that is before the Commission today as a very simple and relatively straight forward matter which is about trying to put in place a fair and effective safety net award to protect a group of low paid and relatively vulnerable employees. The employees that we are talking about are overwhelmingly female and evidence will be led by the union a little later to the effect that these are employees that are barely earning a living wage. They are not well paid employees, there is no enterprise bargaining occurring at this site in a collective sense, although we understand the company has conceded there are Australian workplace agreements in place for some employees.
PN58
So that is what we are seeking to achieve here today, looking forwards rather than at the moment, looking back to the period between 1996 and today. We are seeking to put in place a fair and effective safety net and we say that that safety net is not there at the moment. So we could start by looking at some of the objections put forward by the employer's representatives. Firstly in relation to the union's rules. We say that the TWU has constitutional coverage of the employees, the subject of this dispute. We note that the employer has not provided, at least in the outline of submissions that were served on the union, any reason or provided any basis for saying that we have not got that constitutional coverage.
PN59
It is a point of our assertion that we do have constitutional coverage, we point to a number of facts. The Transport Workers' Union has a significant number of members employed in this industry, what I might call the mobile food van industry across Australia - - -
PN60
MR MANUEL: Objection, I have got to take issue with an attempt to lead evidence from the bar table. If my learned friend wishes to put some evidence before the Commission she should do so in the proper way.
PN61
THE SENIOR DEPUTY PRESIDENT: Well, I think there is some merit in that. If you say you have members, some evidence of that ought to be called, Ms Tisdale. But I would rather you started with the rules frankly.
PN62
MS TISDALE: Yes, your Honour.
PN63
THE SENIOR DEPUTY PRESIDENT: You told me which rules you say apply.
PN64
MS TISDALE: I have an exert of the union's rules.
PN65
MR MANUEL: Your Honour, I actually have a full copy of the rules.
PN66
THE SENIOR DEPUTY PRESIDENT: I have got one.
PN67
MR MANUEL: You have got one, your Honour, yes.
PN68
MS TISDALE: So I don't need to hand one to anyone?
PN69
MR MANUEL: No.
PN70
MS TISDALE: If you go to annexure A and also annexure B are the relevant parts of the union's registered rules.
PN71
THE SENIOR DEPUTY PRESIDENT: Yes.
PN72
MS TISDALE: The rules are written in the way that these things are often are in language that comes from a historical past. It would certainly be our submission that there is plenty of settled authority on how the rules of a union should be interpreted. They should be interpreted in their common sense meaning or in their industrial relations context and the words should not interpreted narrowly or with an eye to so much where they came from but to their ongoing organic development of industry, of technology, of industrial relations matters and so on.
PN73
The rules at annexure A(a) state that the union has coverage of employees who are employed in or in connection with road or aerial transport. We would say that in itself covers the work of the employees, the subject of this industrial dispute. We will seek to lead evidence from Mr Loader of the union who will describe the work in some detail from his experience of it. Crucial to that evidence will be the description of the work that essentially these women are involved in selling food from a van which they drive from place to place across the day.
PN74
There are no sales, if the van does not move, if the food isn't transported to the customers. We would say it is pretty much as simple as that, but there are some other persuasive facts we say, that could lead the Commission to confidentially determine that the work of these relevant employees does fall within the union's rules and certainly in the absence of any particular argument, a detailed argument from my learned friend. And those persuasive facts we say, are the fact that there are a number of employers involved in this work, roped into the Federal Award that we will subsequently seek, be made to bind this company and that is the Transport Workers' Mixed Industries Award 2002.
PN75
The company in an earlier guise, as I alluded to before, is a named respondent of this award. In the state jurisdictions we have awards which specifically cover this work. In the Western Australian Industrial Relations Commission, the Transport Workers' Union is the only union respondent to the Transport Workers' Mobile Food Vendors Award 1987. We are also the union respondent to an award in the New South Wales State jurisdiction which covers ice cream van workers - ice cream van sales people.
PN76
We say that we also have extensive membership in the food and catering industry which could be evidenced by the fact that we have awards and agreements which cover catering staff, cooks, kitchen-hands, drivers, in fact anyone who is involved directly or incidentally in the preparation of food for Qantas and also formerly for Ansett Airlines. So I understand that none of these facts prove that our rules enable us to cover mobile food van drivers employed by Catering Workforce but we say that each of them is persuasive.
PN77
That in a number of roping in orders have been made by this Commission, a number of awards have been made by this Commission and other Commissions, a number of enterprise agreements have been certified by this Commission all on the basis that the Transport Workers' Union has constitutional coverage of employees involved in this kind of work which I might call a mixture of driving, food preparation, food selling. And we say taken together, these factors provide a fairly overwhelming sense that that is the case, that this work is properly covered under our rules.
PN78
We would say that particularly in light of any - that any assertion to the contrary has not been backed up at least at the moment with any detailed argument or any authority. We say in this respect that it is irrelevant in our view whether or not Catering Workforce is characterised as a catering company, or some such thing, or as a labour hire company. The fact that - the same facts about the Transport Workers Union's constitutional coverage would apply are whether or not we accept the characterisation of Catering Workforce as a labour hire company.
PN79
We do say though that we believe it is incorrect to characterise Catering Workforce in that way as a labour hire company. Certainly, our understanding of a labour hire company is a company that provides labour for a range of host companies and that there is no direct relationship, or necessary relationship between the principle, the host company and the labour hire company, and we will be leading evidence - in fact I can hand it up now - of the number of company searches which show that the principals of the two companies Catering Workforce and Golden Chef are the same.
PN80
PN81
MS TISDALE: Thank you, your Honour. The Catering Workforce Proprietary Limited, the company search for that, T2, that is, the company that it is asserted is a labour hire company. You will notice that the director and secretary of that company, Mr George Charitopoulos - I'm sorry if I pronounced that incorrectly - he is also a co-director along with his wife and secretary of Golden Chef Australia Proprietary Limited, who it is asserted is the host company and who it is also asserted in the employer representative's outline of contentions, that there is no - I think it was said - no legal or equitable interest between Catering Workforce and Golden Chef.
PN82
I'm not sure of the accounting or legal technicalities of that, but it certainly on the face of it in our view, there is a very close relationship between the two. One is merely, in effect, an employing company that has been separated out from other perhaps asset holding, or operational companies, but there is in our view an extremely close relationship between the two, and on the evidence that Mr Loader will give in a little while, it would seem to us it is not appropriate to characterise one as a labour hire company providing labour to the other.
PN83
We say though that, essentially, that does not have particular significance at this point in time. If the Commission was minded to view Catering Workforce Proprietary Limited as a labour hire company, then we would say further down the track if an industrial dispute was found, it would be appropriate then that that company be roped into the Transport Workers Award 1998, rather than the Mixed Industries Award - the Mixed Industries Award functions, where there is, for example, a manufacturing arm of the company and the transport function is ancillary to that arm.
PN84
As Golden Chef are involved in the preparation and selling of food with the transport arm being an ancillary part of distributing that food around, if it is characterised in that way then it would be appropriate that the company is roped into the Mixed Industries Award, and there are slightly different entitlements under the two awards for employees, but that is something that we can return to if and when a dispute is found. Certainly, we say the fact that Mr Manuel has characterised on behalf of the employer - the firm Catering Workforce is a labour hire company - has no significant impact on the issue of our rules and whether or not we can cover this kind of work under our rules.
PN85
The Transport Workers Union, I think it is a matter of common knowledge, rather than something needing to be particularly proved, has many agreements with such companies and labour hire companies are well represented in the respondency lists of our awards. There is nothing in the fact that a company is a labour hire company per se that would make it inappropriate for us to cover them under our rules.
PN86
We say, really, this comes back to the first question about whether our rules cover mobile food van employees and we say the overwhelming conclusion here is that they do. On our understanding of the employer's objection to the finding of dispute, these are the matters - the ones that have just been dealt with - are the matters kind of to one side of section 111AAA that the employer says - mean that the Commission has no power to make the dispute finding that we are seeking.
PN87
We can come now to the original arguments put by the employer's representatives and subject of the application that they have made and that is listed for hearing today. That is, that the Commission should cease dealing with this matter because State Awards govern the wages and conditions of employment of the employees who are subject to the industrial dispute.
PN88
There are two main reasons why we say this application must fail. Firstly, there are in existence - and this has been conceded by the employer's representative - there are Australian Workplace Agreements in place covering the terms and conditions of at least some of the employees subject to the industrial dispute. We seek to rely on a decision of the Full Bench of the Commission in relation to the Airport Retail Concessions Award 1990, it is Print S7888.
PN89
THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Tisdale. Have you got a copy of this, Mr Manuel?
PN90
MR MANUEL: Yes, thank you, your Honour.
PN91
MS TISDALE: At paragraph 45 of that decision I take the Commission to the Full Bench, although saying that it was unnecessary in the context of this decision to express a concluded view on the point, they said:
PN92
In the ordinary course an AWA under the Act seems intended to occupy the field, as it were. Section 170VR causes the AWA to prevail also over certain State laws to the extent of any inconsistency ...(reads)... accept that during the life of such an agreement it could plausibly be held that a State Award, or even a State Agreement, dependent upon a State law, governs the employment for the purposes of section 111AAA.
PN93
It is our view that the existence of AWAs that are in operation mean that State Awards cannot be in place for at least those employees and so a roping in order as sought by the union could be made, subject only to general arguments about the public interest that the employer might wish to put at that point, but we say that the existence of AWAs in operation mean that the application under section 111AAA must fail.
PN94
We say it is appropriate to characterise the existence of AWAs that are in operation as evidence that the company has made a choice as to jurisdiction. They have made a choice to operate in the Federal jurisdiction and it is not appropriate to be seeking to pick and choose between the jurisdictions to find the cheapest instrument possible but, rather, the choice has been made as to Federal jurisdiction and that there are consequences that flow from that.
PN95
Secondly, we say that the State Awards nominated by the employer cannot govern the wages and conditions of employment of employees, the subject of this dispute. I would like to hand up in this regard a decision of Deputy President Drake in the Theatre Managers Association v Greater Entertainment Proprietary Limited - that is at P7651. In this decision her Honour concentrated on the meaning of the word "govern" as it appears in section 111AAA. I will just find the relevant paragraph. On page 6 of the Osiris version of the decision, the first full paragraph from the top, her Honour says:
PN96
A party who wishes to displace another's prima facie right to a finding of dispute should demonstrate why this should occur. In my opinion, that applies equally ...(reads)... governs the wages and conditions of relevant employees.
PN97
Three paragraphs down in a paragraph all of its own, as if to highlight the importance of the point, her Honour says:
PN98
"Govern" is a word which infers an active regulation of wages and conditions of employment.
PN99
Our submission is that the State Awards nominated by the employer's representatives, the Retail South Australian Award and the Delicatessen Industrial Commercial Canteen Unlicensed Cafes and Restaurants Etcetera Award, cannot govern the wages and conditions of the employees, the subject of the industrial dispute, and that is because they do not have within their scope, or within their classification structures any classification, or coverage of the kind of work that the relevant employees perform. If we can go to the scope of the Delicatessens Award. Your Honour, do you have a copy of that?
PN100
THE SENIOR DEPUTY PRESIDENT: No, I don't, I'm sorry.
PN101
MR MANUEL: I have a couple of spares.
PN102
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Manuel.
PN103
MS TISDALE: I have got one.
PN104
MR MANUEL: I am assuming you want to hand up the Retail Award as well?
PN105
MS TISDALE: Yes.
PN106
MR MANUEL: Your Honour, I don't know whether they need to be tendered as they are not within this jurisdiction, but I'm quite comfortable for them to be so.
PN107
PN108
MS TISDALE: Thank you, your Honour. The scope of the Delicatessens Award is at clause 4 of that award. The final part centres in that scope refers to:
PN109
The trade or business of canteens in industry and commerce, the purpose of which is the supply of meals and/or refreshments to the general employees in the industry, or commerce in which the canteens are located.
PN110
We have no dispute with the claim that such a scope might easily and properly cover canteens that are located, for example, within a factory or shops that serve lunches and operate and are located, say, within an industrial park and they service the clients - the other premises that are in that geographical area.
PN111
We have no dispute with the fact that this award might properly cover that work, but we say that it does not properly cover the work of the employees, the subject of this dispute, because those employees are crucially mobile, they are moving their vehicle from place to place and selling food at places from place to place, and Mr Loader will give evidence about that in a moment.
PN112
If we go to the classification structure of the Delicatessens Award, that is at schedule 1, which mine isn't paginated. It is some way perhaps three-quarters of the way towards the back of the agreement of the award. It is just after page 20.
PN113
THE SENIOR DEPUTY PRESIDENT: Yes, I have it.
PN114
MS TISDALE: Schedule 1 wages sets out the classification structure available under this award and the only classifications are, cook, tradesperson, senior cook, general cook, food and beverage assistant, shop assistant and kitchen hand. We would say none of those classifications properly cover or properly describe the work that the relevant employees do.
PN115
Although one might call them a shop assistant, we say that this is would require a contortion of the facts to fit them within that category and they are much more sensibly - they are much more sensibly described in terms of the actual job that they are performing. There is no classification there for driver. No recognition of driver duties or responsibilities anywhere in the award in the form of a classification or an allowance. So we say this award cannot govern the wages and conditions of the relevant employees.
PN116
There is even less ambiguity in relation to T5, the Retail Industry South Australia Award. The scope of that award is at clause 4. There is a reference in that scope, at H, to the supply of food or beverages or in connection with canteen, cafe, restaurant, tea room, take-away chicken shop or a fish shop which is located in or about a shop operated by employer otherwise bound by this award. We say that does not describe the situation of these employees either and cannot reasonably be construed as a shop in the way that this award conceptualises that.
PN117
THE SENIOR DEPUTY PRESIDENT: That picks up the exception of the Delicatessens Award, does not it? If you look at clause 5 of the Delicatessens Award, there is a exclusion for people employed under the Retail Award.
PN118
MS TISDALE: Yes, that is correct. I have seen nothing yet from my learned friend to indicate which of the two awards are in place applying to our mobile food van employees.
PN119
THE SENIOR DEPUTY PRESIDENT: Given time.
PN120
MS TISDALE: Also in relation to the Retail Award the classification structure just bears no relationship to the work of the relevant employees. It is clearly - the closest is the reference to a fork-lift operator so a store person who also operates a fork-lift. No other reference to vehicles except it does cover people who sell automotive spare parts but it is clearly an award that is about check-out staff, staff who operate cash registers in shops, at fixed location. Very much a supermarket award.
PN121
So we would say on these two bases that the company's application under section 111AAA must fail. I will shortly seek to call Mr Loader to give evidence about the work in question so that the Commission has a clearly idea of what is the work of the employees that we are talking about. I would say that if the Commission was not satisfied about our argument about the fact that the AWAs displace a state award and that the state awards do not govern the wages and conditions of employment of the relevant employees, then section 111AAA requires the Commission to consider public interest reasons that the Commission must cease dealing with the dispute unless it is not in the public interest to do so.
PN122
The Act itself gives guidance about how the public interest is to be approached and that guidance is the main public interest consideration is the views of the employer and the employees. I believe it is quite clear what the views of the employer is but I would say that we are not in a position, if we get this far in this case, we are not in a position, at this point in time, to say with enough certainty or complexity to satisfy the Commission what the views of the employees are.
PN123
THE SENIOR DEPUTY PRESIDENT: You do not have any members at all?
PN124
MS TISDALE: We have 32 members, your Honour and we certainly know what their views are. We have canvassed our members across a number of issues that are directly related to this and that touch on this incidentally and Mr Loader can speak about that.
PN125
MR MANUEL: He may try. This is objectionable again, to lead evidence to the views of persons are clearly hearsay.
PN126
THE SENIOR DEPUTY PRESIDENT: Well, it is clearly hearsay unless some poll is conducted.
PN127
MS TISDALE: It may be hearsay, we say, but Mr Loader can certainly speak about conversations he has had with our members about their concerns about their workplace and about disputes and so on that they have had but where I was going, your Honour, is that we think, if the case does come to this point, there does need to be a ballot with information put to the employees so that they can make a properly informed decision and convey that to the Commission so that the Commission is able to be satisfied about what the views of the employees are.
PN128
THE SENIOR DEPUTY PRESIDENT: So you have a two stage process in mind, do you, Ms Tisdale. First, that I should determine whether or not the state awards apply and if I find that they do, then I should conduct a ballot.
PN129
MS TISDALE: I think so. That is the only way, your Honour, that I could see this working with any efficiency. I notice that Mr Manuel had not put much in his submissions either about public interest. It perhaps seems more efficient to - - -
PN130
THE SENIOR DEPUTY PRESIDENT: I only asked for outlines.
PN131
PN132
MS TISDALE: It might be appropriate, your Honour, any witnesses that Mr Manuel was seeking to call leave the courtroom.
PN133
MR MANUEL: I apologise for not raising that with my learned friend and the Commission before.
PN134
MS TISDALE: Mr Loader, could you state your name and address again for the transcript?---My name is John Alexander Loader. My address is 24 Perseverance Road, Tea Tree Gully, South Australia.
PN135
Can you tell the Commission what your job is?---My job, I am employed by the Transport Workers' Union of Australia, South Australia/Northern Territory branch as an organiser.
PN136
How long have you done that work for, John?---Approximately 3½ years.
PN137
Can you describe for the Commission what your experience is with Golden Chef/Catering workforce?
PN138
MR MANUEL: Well, I object to that question. We already have evidence before the Commission that these are two separate companies. I think my learned friend needs to avoid trying to roll them into one. I know that is her position. We are currently taking evidence, not making submissions.
PN139
THE SENIOR DEPUTY PRESIDENT: You might ask in relation to each company, Ms Tisdale.
**** JOHN ALEXANDER LOADER XN MS TISDALE
PN140
MS TISDALE: Certainly. Could you describe for the Commission your experience with Golden Chef?---My experience with Golden Chef is that is what we would call a "yard" assigned to myself to look after in terms of visitations, recruitment purposes and looking after the current membership that we had at the time and in terms of wages and conditions of those particular people and in terms of perhaps negotiating enterprise bargaining agreement with the company in terms of any disciplinary matters that crop up from time to time that the member required some assistance with.
PN141
How long have you been an organiser with responsibility for Golden Chef?---Since February 2001.
PN142
So in excess of 2 years?---Yes.
PN143
The members that you spoke about as representing from Golden Chef, do you have knowledge about who employs those members?---I have knowledge which has come since February 2001. My understanding at February 2001 was that they were all employed by the company called Golden Chef. There was, some time during the course of 2002, I think some time after June 2002, that I was informed, by the company, that these people were not actually employed by Golden Chef but were actually employed by a company called Catering Workforce. Prior to that, it was my understanding that all of these people were actually employed by Golden Chef.
PN144
Who was it, from the company, that informed you of that?---It was the company operations manager who was actually sitting here in this courtroom this morning, Marina - surname I have trouble pronouncing so I will not.
**** JOHN ALEXANDER LOADER XN MS TISDALE
PN145
Have you had any dealings with Catering Workforce?---Well, my dealings, obviously, have been ever since February 2001, in fact with Catering Workforce rather than with Golden Chef even though I am unable to sit here and say I don't know who Marina actually works for. I have had dealings with Marina on a number of occasions and her father on a number of occasions, who those particular people actually work for I can't say. The members that I have dealt with and the people that are eligible to becomes members that I have dealt with, clearly worked for Catering Workforce albeit I wasn't aware of that fact until later in 2002.
PN146
During the time you represented the members employed doing this work, have the people that you have - the major people you have dealt with changed across that period of time?---No, they have stayed constant, the same. Can I just clarify that by saying I don't know all the people that are management at the company. It is not my position that I should know them all, I don't believe but the ones that I have dealt with clearly has been Marina, in the first instance, and second instance her father, George, I have dealt with him. In fact I received a letter from Golden Chef that the only person I should deal with should be Marina.
PN147
Should be Marina?---Yes.
PN148
Do you know what George's role in the company is or the companies?---You would describe him, I guess, colloquially as the boss. I believe he is - I am not sure of his exact title, it could general manager or executive director, I am not really sure, the CEO possibly but I would just describe him as being the boss.
PN149
Of the operation in total?---Yes.
**** JOHN ALEXANDER LOADER XN MS TISDALE
PN150
Could you describe for the Commission the basis for your familiarity with the work of the employees that we are talking about here today?---Well, the basis is just, in essence, the job that I actually perform. I am employed, in the first instance, at the Transport Workers' Union when I started employment there I started as a branch official. Secondly, I was appointed as an organiser and the job of an organiser is you visit - visitation of work areas that we have coverage of, where we have membership or non membership, recruitment of those people, collecting of their fees and dues to the union and talking to them about whatever issues or problems they may have and approaching management about trying to negotiate better wages and conditions in respect of whatever they might be working under. I guess it is a very generalised position. Probably trying to make a fair and just society as well.
PN151
How frequently would you have contact with these employees?---Fairly regularly. I look after probably 200 different work sites and most probably around about 1000 to 1500 different workers or members plus if we put into that figure the number of non members that I talk to and deal with the figure grows remarkably but I guess in particular at Golden Chef or Catering Workforce, which ever it wants to be referred to, I would try and visit there - in the first 12 months I probably visited maybe five to six times. In the year 2002 my visitation became a little bit more regular. There was a period when the company actually moved premises. There was a period there where I hadn't visited for some time but then I started visitation again and visitation was quite regular. I think would have been on a monthly type cycle. I also see the Catering Workforce people in other work sites where I am able to communicate and talk to them and I have sen one or two of them also in our office where they have come to have a meeting with either myself or our industrial officer so I have spoken to them there on a number of occasions. With the number of work sites that I do visit, it is not unusual that I would come across a Golden Chef van with a Catering Workforce person driving it and have a conversation and that could be almost on a daily basis. There was also a time when the union employed another particular person in the last 6 months of 2002 and his name was Andrew Richards. One of his tasks was - one of my tasks was to supervise Andrew and his task was to recruit, purely as a recruitment officer. One of the roles given to him was to recruit within Golden Chef organisation and so there were times when he was visiting the establishment perhaps three times a week and speaking to Golden Chef
**** JOHN ALEXANDER LOADER XN MS TISDALE
employees or Catering Workforce employees, if you put it right, on a daily basis and I was overseeing that from instructions from Alex Gallacher, the secretary of the South Australian Branch of the union and so visitation through to the company was albeit not necessarily myself, it was very large visitation and I was involved in all of that.
PN152
So you are you able to say that you viewed the work first-hand?---Yes, I can say that. I can say that I have been to the company - the premises of the company at 6 am in the morning whilst the vans were loaded. I can say that I have seen the people in operation during the course of the day and course of their work day and I have visited the premises in the afternoon when the vans have arrived back from their work and seen them unloading and I have held meetings with them after they have finished work in the company's car-park and I have had a number of meetings, also after they finished work with themselves and Marina in respect of conditions and disciplinary matters.
PN153
On the basis of this knowledge, can you describe for the Commission your understanding of what the job is of these employees?---Yes, well I think it's a, it's a simple description really that may involve many tasks but the simple description is that they, they drive a van to a work site where people from the work site come to the van, purchase the foods - the goods from the van and then they drive to their next allocated work site and they do the exactly same thing. So they do this all day, once they have left the depot, until they return to the depot. They - there are no other associated tasks of course. That's simplification to an extreme, I guess, but they drive all over Adelaide. These vans - I think there's just under 100 vans, obviously with just under 100 drivers, they, they go the wide breaths of the suburban area of Adelaide and the outer suburban areas of Adelaide where they deliver to those work sites the, the food and drink - beverages that people eat on a daily basis.
PN154
What kind of food is it?---There's a variation of food. There is snack type foods in the way of lollies and chocolate bars, etcetera. There is sandwiches and rolls, freshly made sandwiches and rolls which they deliver which are packaged in plastic bags and there is hot food. Foods in the order of pies and pasties and that type of food. There is all sorts of beverages in terms of soft drinks, waters, milk, milk drinks and mild products. They also deliver - I think there's cigarettes involved as well and newspapers, I think they carry those on board the van as well. I may well have missed some of the products.
**** JOHN ALEXANDER LOADER XN MS TISDALE
PN155
These employees we are talking about, do they, to your knowledge, prepare sandwiches or rolls or food of that sort?---No, they don't do that.
PN156
Okay. So you have talked about driving and selling, what are some of the other tasks that you are aware of that they are responsible for?---We'll pick up on the word prepare. They prepare their van for departure. So their van in the, in the morning, when they arrive at work will have very little in it. So they load the van with, with all the produce, the hot foods, the cold foods, the cold drinks. I think the things that would stay constant in the van overnight would be the lollies, the cigarettes possibly, those types of products that don't need any refrigeration and that don't need to be refreshed every day. So they would stay in the van. All of the other products, the refrigerated products, drinks, refrigerated foods, the hot foods, etcetera, all of that, they load themself in their own van. They also load the, the ice that keeps everything cold because these are not refrigerated vehicles as such. The cool foods, the cool drinks, they're on ice. They do have an oven at the back of vehicle where the hot foods are kept and so they - their separate compartments. So they load all of this, they clearly - they have a float, I think. I may be not quite right about this but have a very large float, I think, of around about $200, so they're obviously - get their cash and the money tray and whatever paperwork that they, they clearly need at the time. So this they do prior to departure and that takes, that can take anywhere from I think, in my experience of watching it, from 45 minutes to an hour for somebody to do that. But that is not the preparation of any foods. They then leave the, the depot in Athol Park and go about - they all have a set run. So they set calls, they have set times that they need to be, to be at and they, they go about the business for the, for the day of doing all of that. Later on as the day's progressed and they're finished their, their selling, they go back - they go to a bank and they do their banking prior to the returning to the depot and the, the bank - that's the takings for the day and then return to the depot. Upon returning to the depot, they empty the van and the company has a storage area, they have fridges, they have trolleys. So each particular driver puts all those goods that are to be returned. The cold goods that need to be stored in a refrigerator. They go on the trolley and come back on that particular tray where they stay until the next morning. So each particular vehicle - there is a tray for each particular one and they need to go into the refrigerator in a certain order, so that they come out the next morning in a certain order. They obviously - they - any returns such as food that is perishable that has to be
**** JOHN ALEXANDER LOADER XN MS TISDALE
reconciled, they have to empty their van to the state where it's totally empty except those non-perishable items that remain in there like cigarettes, etcetera, then they have to clean that van which is, which is a bone of contention for them but they have to clean the van and then they do some, some paperwork which I'm not entirely sure about but paperwork prior to them departing the premises.
PN157
Okay. Are you in a position to say how much the vans earn?---My understanding is, and I believe, and Marina's told me this in the past - - -
PN158
MR MANUEL: Objection, this is clearly hearsay. I might also add it is a question of relevance as to where does this get us in respect of the rules on the matters.
PN159
THE SENIOR DEPUTY PRESIDENT: Yes, why is this relevant, Ms Tisdale?
PN160
MS TISDALE: It is relevant if this is the only evidence that is going to be taken of this sort. It is relevant to the question of relief. Both of the relevant federal awards provide money handling allowances which would add a reasonably significant amount to the weekly rate of pay to the employees and the state awards do not provide any allowance of that kind. So it would go to a public interest argument that we would seek to make if it is necessary at a later time.
PN161
MR MANUEL: I maintain my objection on hearsay grounds in any event, your Honour.
PN162
THE SENIOR DEPUTY PRESIDENT: How would you know that figure?---I know that figure from communication with Marina and from communication with our membership and I've seen in some certain disciplinary hearings where those figures were mentioned.
**** JOHN ALEXANDER LOADER XN MS TISDALE
PN163
I will allow the question?---The amounts vary between a minimum of approximately $2,000 for a week to a maximum of up to $8,000 for a week.
PN164
MS TISDALE: Are you in a position to say how much time, on average, would be spent driving?---I'd say - it's a difficult question to ask. They - sorry, to answer. I think on average it would be around about between 5 to 6 hours of driving and I think the company allows 45 minutes prior to departure for loading and a similar period of time on arrival for unloading the van, etcetera.
PN165
How much time would be spent actually selling?---Well not a great deal of time because each call into a work site would probably last a maximum of up to perhaps 15 minutes, but many calls into a work site would be for most probably less than 10 minutes. They're a quick, quick call. Business is quick. People come up to the van, they don't want to be standing around a van for a long period of time. Some of these people only have 30 minute lunch breaks. So they come up to the van, get what they want quickly, pay for it and go back to their lunch area where they're going to each their lunch and the van moves on to the next site. So the actual time spent in each individual work site would not be a great deal of time, and I would have thought the company could actually verify that because they have all these runs where people go and times, etcetera. The time - the actual time resting with the, with the van doors open, selling, would be small.
PN166
John, are you aware of how much our members employed by Catering Work Force are paid?---I believe the hourly rate today is $15.50 an hour. This is a - has a loading for casual - these people are all employed as casual employees, with the - perhaps with the exception of a small minority who are supervisors who are employed as full-time people.
PN167
You say they are employed as casuals, do they work in a irregular, ad hoc way?---No. They work in a regular way Monday to Friday for those that have runs Monday to Friday. There's also some, some work on weekends. The work predominantly is in the mornings to the middle afternoon, however, there are some, some runs that are in the afternoon and early part of the evening, but most are regular starting before 7 am in the morning and finished by 2 o'clock in the afternoon.
**** JOHN ALEXANDER LOADER XN MS TISDALE
PN168
John, could you tell the Commission some of the matters of concern that drivers might have brought to you or you've discussed and advised the members on over the course of you - - -?---Yes.
PN169
- - - looking after this yard?
PN170
MR MANUEL: I object to this. I'm sorry, but this is clearly hearsay. It's clearly within the power of the Transport Workers' Union to call these people to give direct evidence and it is not appropriate for Mr Loader to seek to give their evidence and shield them from cross-examination.
PN171
MS TISDALE: Could perhaps re-phrase it if - - -
PN172
THE SENIOR DEPUTY PRESIDENT: Yes, Ms Tisdale.
PN173
MS TISDALE: Mr Loader, could you tell the Commission about concerns that you have, as an organiser, in relation to the conditions under which our members work at this site?
PN174
MR MANUEL: Objection, I'm sorry, but this is opinion. It also has very limited relevance that I can possibly see but it is clearly an opinion evidence. It is not admissible.
PN175
THE SENIOR DEPUTY PRESIDENT: I will permit it Ms Tisdale, but I do wonder about the relevance?---Perhaps you could ask me - sorry.
**** JOHN ALEXANDER LOADER XN MS TISDALE
PN176
MS TISDALE: Certainly, could you give the Commission, perhaps something of a short overview of any concerns that you might have as an organiser representing the industrial interests of these members?---Concerns I have is that firstly, they're all employed as casual employees. Secondly, they are doing a function that is regular Monday to Friday. Thirdly, that their rates of pay don't reflect everything that they do. In other words, there are times when they are doing work that they don't get paid for. I'm concerned that not enough time is allowed for the loading of vehicles and the unloading of vehicles. I'm concerned that there's not enough safety requirements for the handling of cash and the banking of such. I'm concerned that there is credit allowed to these drivers. I'm concerned that, that is personal credit and that is allowed to these drivers and gets way out of hand. I'm concerned that they are allowed to issue credit to their customers and they are expected to control such credit. I'm concerned that some of the tasks that they have to do, in terms of the cleaning of the vans, is unsafe and unpaid for and is way beyond what would be reasonable expectation and I'm concerned that some of the ways that, that the company deals with disciplinary procedures. I'm concerned that the - about - - -
PN177
THE SENIOR DEPUTY PRESIDENT: Well, Ms Tisdale, I'm just not sure that this is helping us at all. It is not a question of the industrial terms and conditions of people. It is a question of what award covers.
PN178
MS TISDALE: What award covers them, you Honour, and then later on what award should cover them, and some of the - - -
PN179
THE SENIOR DEPUTY PRESIDENT: Well that is a question for another day. You have got to get out of the first hurdle first.
PN180
MS TISDALE: Certainly, Okay. Mr Loader, to your knowledge, does the company operate only in South Australia?---No. The company - my knowledge is that the company operates in Victoria and for a period of time operated in Sydney.
**** JOHN ALEXANDER LOADER XN MS TISDALE
PN181
On what basis do you say that?---Well on the basis of conversation with George.
PN182
MR MANUEL: Objection, this is hearsay and I've also admitted, by the way, that they do do work in Victoria and that was the reason for withdrawing the interstatedness issue, your Honour.
PN183
THE SENIOR DEPUTY PRESIDENT: Well, he can say that he has had a conversation with George in which he was told something, but Whether I believe it or not is another matter.
PN184
MR MANUEL: Well, it can't go into the truth, as I said - - -
PN185
THE SENIOR DEPUTY PRESIDENT: Yes, that is right.
PN186
MR MANUEL: I just don't want to be seen to be accepting - the acceptance of the evidence without qualification, your Honour.
PN187
THE SENIOR DEPUTY PRESIDENT: Yes.
PN188
MS TISDALE: Sorry, Mr Loader, was it only on the basis of a conversation that you are aware of that?---No, it's on a conversation with George and also a conversation with a person that had a business, Queen of Hearts and a further conversation with Marina's brother, whose name alludes me, as I said here, but a conversation with him at another time, and I might just say that Marina's brother is the person that manages the operation in Victoria.
PN189
John, on the basis of your knowledge, who manages the employees, the relevant employees on a day to day basis?---Marina manages the employees on a day to day basis.
**** JOHN ALEXANDER LOADER XN MS TISDALE
PN190
Are you aware of any other person who our members report to or receive their work direction from?---Yes, there is a, there is a hierarchy within the company of - and I'm not entirely sure what their called, I think there is two supervisors and - that report directly to Marina and act on her behalf. Then there is a number of other people, and these are the people that are employed as full-time permanent employees. There is a number of those that wear a different coloured uniform that supervise a, a few of the drivers. I think it's they supervise probably up to 10 or 15 drivers and there's perhaps six or eight of those particular people. So that is the - you have the drivers, driving staff, you have then those immediate supervisors, I think six to eight of those particular people, then there are the two supervisors that report directly to Marina and then there is Marina and then there is George.
PN191
George the owner, and is it correct to say that apart from the drivers you are not aware of which particular legal entity employs any of those other people?---No, I'm not.
PN192
Nothing further.
PN193
PN194
MR MANUEL: Mr Loader, you said in your evidence that in 2001, it was your belief that Golden Chef employed the people out on the vans. Is that right?---It was my understanding. That is correct.
PN195
You were here for the opening by my learned friend, weren't you?---I've been sitting in this room since we started, yes.
PN196
In her opening, she said that, in fact, these changes occurred in 1996. Do you recall that?---Yes.
**** JOHN ALEXANDER LOADER XXN MR MANUEL
PN197
Are you saying that that is wrong or you are wrong?---I think, to be sure, it is unfair to put that to me.
PN198
Well, I'm sorry, but I am?---But I believe it is unfair.
PN199
Well, too bad, please answer the question?---Well, I will. I am not putting that anybody was incorrect. I am just putting that to my knowledge, I was going to Golden Chef and organising a yard that was Golden Chef.
PN200
That is not what you said in your evidence, Mr Loader. What you said in your evidence is that these persons were employed by Golden Chef. That is rot, isn't it?---That was my understanding that they were employed by Golden Chef.
PN201
When you say it was your understanding, you don't actually know these things yourself, do you? These are matters that someone else has told you, aren't they?---I know that these people now employed by Catering Workforce - - -
PN202
Perhaps, if you could answer the question that would be helpful. You don't know this information, other than from what someone else has told you, do you?---It's from - it is from knowledge gained over a period of time.
PN203
From other people, isn't it?---From other people and from documents.
PN204
Documents. Could you bring the documents forward, please. I call for production. Have you got the documents?---I have no documents with me now.
**** JOHN ALEXANDER LOADER XXN MR MANUEL
PN205
I didn't think so. I would point out to you that extract T2 of the document tendered by my learned friend shows that Catering Workforce was, in fact, started on 1 July 1996. Does that jog your memory at all?---Well, I wasn't working for the union in July 1996. I have no knowledge that that occurred in July of 1996 in that respect. It's not until later, some time in 2002, that I gained knowledge of that after being told that by Marina which I think I said in evidence previously.
PN206
Even now, your knowledge of who employs these people is based upon what someone else has told you, isn't it?---It's what someone else has told me and documents that I have seen.
PN207
All right, what documents?---Pay slips, documents that Marina has shown me.
PN208
I don't want you to talk about documents. I want you to tell me what sort of documents. Pay slips. What else?---The other documents I don't - I can't recall exactly what documents they were. However, I do recall having seen some documents. I have - - -
PN209
The only - - -?- - - also seen a letter which was addressed to Alex Gallacher, I believe, attention of myself, that said from the company that these people were employed by Catering Workforce.
PN210
Right. In terms of the pay slips, the only pay slips you have seen showed these people as employed by Catering Workforce, didn't they?---Can you repeat the question?
PN211
You said you have seen some pay slips. Those pay slips indicate that these people were employed by Catering Workforce, didn't they?---Yes.
PN212
You have never seen a pay slip indicating someone is employed by Golden Chef, have you?---Not as I recall.
**** JOHN ALEXANDER LOADER XXN MR MANUEL
PN213
Now, in terms of your evidence about the vans. As I understand it, the most frequently that you personally have been at Golden Chef was about once a month. Is that right?---Generally speaking, yes.
PN214
During a period of some 2 or so years, or a couple of years, you have developed an understanding of what the people do when they are driving these vans. Is that right?---Yes.
PN215
You have said in your evidence that they would drive for approximately 5 to 6 hours. Is that right? A day, are you talking a day here?---Yes.
PN216
There are approximately near 100 vans. Is that right?---That's my understanding.
PN217
They would all operate in different areas, wouldn't they?---Yes.
PN218
They would all have different routes to take, wouldn't they?---Yes.
PN219
They would all vary in the amount of distance and time that they would need to complete those routes?---Yes.
PN220
How many times have you been with one of these vans for a whole day?---Never.
PN221
You have never followed one of these vans?---I've followed them, not for a whole day.
PN222
Have you timed them as to how long they are driving for?---No.
**** JOHN ALEXANDER LOADER XXN MR MANUEL
PN223
You have made no record of any of this information, have you?---No.
PN224
But you are prepared to say that all of these nearly 100 vans drives 5 to 6 hours a day. Is that right?---Yes.
PN225
How many of these vans have you seen?---Well, I've - as I said earlier and I will repeat. I have been to the work site at 6 am in the morning, and I've been to the work site at 2 pm in the afternoon and further than that, I have seen those vans come and go. I have never actually gone out and done an audit of exactly how many vans there are. I've been told, I believe by Marina, that - - -
PN226
I don't want you to tell me what other people have told you. I want you to focus on what you know?---Well, my knowledge is that I believe there are somewhere between 80 to 100 vans.
PN227
When you have been at the workshop - we will call it the site, the depot. What did you call it? I can't recall - the yard. When you have been at the yard in the morning, the vans are stationary, aren't they?---Yes, except for the ones that are moving.
PN228
You see the ones drive out the gate?---Yes, you can see them driving out of the shed.
PN229
How long did that take?---Well, they start leaving at different times of the morning.
PN230
No, I'm talking about the individual van. Mr Smith gets into the van or Ms Smith, and then drives the van out of the yard. How long does it take? A couple of minutes?---What to get actually - - -
**** JOHN ALEXANDER LOADER XXN MR MANUEL
PN231
To get out of the yard?---To actually hop into the van and drive it out of the yard?
PN232
Yes?---Well, firstly, the yard is a very large shed.
PN233
Just tell me how long?---Secondly, once they've driven out of the shed, they stop to get their ice.
PN234
Can you see them at that time?---Yes.
PN235
When they have filled up - how long does it take them to get to the ice?---Well, the drive is a very short drive. It's - for some vans, it would be from here to the wall. They're out of the shed and they're getting their ice. For other vans, it would be from here to another 60 metres away - - -
PN236
About 60 metres?--- - - - to drive down through that shed, out of that shed, to get their ice so they all are taking different - - -
PN237
Right, is it fair to say that it is a couple of minutes drive, at best, to get the ice?---Well, it would be less than that.
PN238
They fill up with ice, however they do that, don't worry about that, and where do they go then?---They leave and depart on their round.
PN239
They are then outside of your eyesight, aren't they?---Well, in that very instance, yes, they are. However, in the course of events of the day, I see these people because I drive around. I am mobile going to different work sites, and I see these people - not all of them but many of them - in different locations, in different parts of Adelaide, both within the inner city area, the inner suburban area and the outer suburban area.
**** JOHN ALEXANDER LOADER XXN MR MANUEL
PN240
From that, you gleaned - sorry, I withdraw that. When you see them, do you then follow them and time them for a period?---No, I'm not a time and motion study person. I do not do that.
PN241
There's really no basis at all. You are just taking a wild guess at 5 to 6 hours a day, aren't you?---No, I don't believe that.
PN242
Do you know Ms Thomas, Julianne Thomas?---Yes, I think I do.
PN243
Well, she is a supervisor - - -?---Yes, she is.
PN244
- - - at Catering Workforce. She is going to give evidence that it is about 5 to 10 per cent of the day that is spent actually driving the vehicle?---Well, that would be her position not mine.
PN245
Now, do you know who owns the vans?---Not specifically. I don't know who they are registered with. I'm not privy to that information.
PN246
Do you know who owns the food?---I'm not privy to that information.
PN247
The people who operate the vans are also responsible for stocktaking, aren't they?---Yes.
PN248
They are also responsible for ordering as goods run down?---Yes.
PN249
I understand they make sure the pasties don't burn as they are operating during the day, don't they?---Well, I guess they do that.
**** JOHN ALEXANDER LOADER XXN MR MANUEL
PN250
They make sure the cold food is cold as well, don't they, by ice?---Exactly right.
PN251
Just like you are not privy to the information on the ownership of the vans, you are not privy to information as to the relationship - or the contractual relationships between Golden Chef Australia Proprietary Limited and Catering Workforce, are you?---No, I'm not privy to that information.
PN252
Now, you referred to work being done in Victoria. You don't personally have responsibility for that work, do you?---No.
PN253
You are not able to assist the Commission as to the nature of the work that is done there, are you?---Well, I'm able to say it is the same nature of work as is done here.
PN254
When were you the organiser over there in Victoria?---I've never been the organiser in Victoria.
PN255
I have no further questions for the witness.
PN256
THE SENIOR DEPUTY PRESIDENT: Any re-examination, Ms Tisdale?
PN257
MS TISDALE: No, no.
PN258
PN259
THE SENIOR DEPUTY PRESIDENT: Have you any further evidence, Ms Tisdale?
PN260
MS TISDALE: No, your Honour. That is the submission that we would seek to make at this time.
PN261
THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Manuel?
PN262
MR MANUEL: Your Honour, I just want to put a clarification. I am a bit concerned that my learned friend seems to be wanting to keep the door open for further evidence. Our position is fairly straightforward. The TWU needs to put its case. If it has put its case, then well and good, and we will get on with ours, but if it is somehow saying that if your Honour finds certain things it may want to bring further evidence, well, we would say, with respect, that this is its opportunity.
PN263
THE SENIOR DEPUTY PRESIDENT: It is not a question of it being further evidence. As I understood the submission, it was that I should consider a ballot if I was satisfied as to the - - -
PN264
MR MANUEL: Yes, that was one of them.
PN265
THE SENIOR DEPUTY PRESIDENT: Yes.
PN266
MR MANUEL: I thought there was something of a - there was a discussion about not going to call certain evidence at this time, but I wasn't quite sure what that meant so before I embarked upon a case - - -
PN267
THE SENIOR DEPUTY PRESIDENT: Well, I assumed that to go to whether a roping-in award should be made which is a question - - -
PN268
MR MANUEL: Then I've misunderstood.
PN269
THE SENIOR DEPUTY PRESIDENT: - - - for a very different day.
PN270
MR MANUEL: Then I've misunderstood.
PN271
THE SENIOR DEPUTY PRESIDENT: Yes.
PN272
MR MANUEL: Your Honour, I am happy to open but I'm just as happy to call Ms Thomas directly. I think the issues are fairly joined between us.
PN273
THE SENIOR DEPUTY PRESIDENT: I think it would be better to call Ms Thomas.
PN274
MR MANUEL: Thank you.
PN275
PN276
MR MANUEL: Ms Thomas, who is your current employer?---My employer is Catering Workforce.
PN277
When did you start working for them?---I started working for them in July 6 years ago so that would be '97.
PN278
All right, and what were you doing with them at that time?---I was a van operator for a year and a half.
PN279
Your position changed, did it?---Yes. After a year and a half, I became a team leader, and I am now supervisor.
PN280
What is the difference between a team leader and a supervisor? Is there one?---Yes. The team leaders mainly fill in as a relief and do a lot of other duties. Supervisors are more, like, oversee what happens in the place.
PN281
What is your responsibility in a bit more detail as a supervisor?---I'm responsible for checking in with the operators under me, so I make sure that they have arrived at work, that they keep their vans clean, that they have done their ordering. I check in with their wastage and make sure it's at an adequate percentage. I try to make sure that their sales are improving, yes, and keep their vans clean.
PN282
How many van operators are there at this present time?---I think there's about 94 or 96 operators.
PN283
Now, are there the same number of vans as van operators or are there some people to spare?---No. No, there's the same amount of vans as operators.
PN284
Who employs the van operators?---Catering Workforce employs the van operators as far as I'm aware.
**** JULIANNE HELEN THOMAS XN MR MANUEL
PN285
Who runs the vans?---Golden Chef.
PN286
Have you had some involvement in the preparation of a document called a job profile?---Yes.
PN287
I seek to hand this up.
PN288
You should have before you a document with a cover page headed: Job Profile Mobile Canteen Operators and then various other information. Have you seen that document previously?---Yes.
PN289
Can you tell us what the purpose of this document is?---Basically, to outline each operator's duties and what their job description actually is, what they need to do.
PN290
PN291
MR MANUEL: You should have before you a document, in the top left-hand corner, called, "Run Sheet". Could you tell his Honour what this document is?---Yes, this document details the places that the operators go to and at what times they need to be at those places.
PN292
Is that a document that exists for all vans?---Yes, each van has its own document.
PN293
At the top where it says, "Van No 20", is there a particular van with a "No 20" on it?---Yes, there is.
**** JULIANNE HELEN THOMAS XN MR MANUEL
PN294
Right, and "Beverley", what does that tell you?---That's the suburb that the van is operating in.
PN295
With the vans - and tell me if there are any exceptions to this - in what type of area does each van operate?---Each van generally operates in a commercial area, or industrial area, usually in one suburb.
PN296
Are there any exceptions to that, that you can think of? For instance, where they might operate beyond one suburb, or there might be two in one suburb, something like that?---Yes, there is a lot of times when there is more than one van in each suburb and, yes, sometimes vans will have to drive to neighbouring suburbs.
PN297
Right, if I could just take you to this document so we can work out what all the columns are?---Yes.
PN298
It has got I think "No". What do those numbers down the left-hand side represent?---That's the numbers of people that are at each place.
PN299
Right, "TC"?---That's where we mark down whether it is actually a time clock, or not, so what we mean by a, "time clock", is whether those people actually come out on a bell, so they have like a lunch bell.
PN300
Right. The time is obviously self-explanatory?---Mm.
PN301
The company name?---Company name is the name of the company that we go to so, yes.
PN302
I see there is a couple of blanks, or blank spots where it says, "Company Name", with an asterisk, what does that mean?---That's where - that's in the time frame where they actually don't have anywhere to go at that time.
**** JULIANNE HELEN THOMAS XN MR MANUEL
PN303
Right. Obviously, the address, we understand?---Mm.
PN304
"Parking", is just where they park at the particular establishment?---At each company, yes.
PN305
The phone number to talk to the establishment if there is a problem, or something?---Yes.
PN306
And "The Notes", what are they?---Just anything special that you need to know, like, not to beep the horn, or to beep the horn. Whether to save a paper for someone in particular.
PN307
Right?---Yes, just little bits and pieces that are handy.
PN308
Now, that starts at 8.15. What are these people doing before 8.15?---Before 8.15, when they come in they need to come and collect their keys and their run sheet. They then go out to their van, they have to load their oven. They then get a trolley - a fridge trolley which they then have to go and load on to the van. They then need to go - - -
PN309
Sorry, what is a "fridge trolley"?---Okay, a "fridge trolley" has all the refrigerated stuff that we haven't used from the day before on it.
PN310
Right, okay?---So they then get that out, load that on to the van. They then go to distribution and collect a distribution trolley, which has everything that they have ordered for that day on the trolley, so that will have sandwiches, rolls, cakes, pies, pasties, drinks, chips, chocolates, the works. They then need to load those things on to the van.
PN311
Yes?---As they're doing that, they have to check off an invoice to make sure that everything that they have received is what is being charged to that van.
**** JULIANNE HELEN THOMAS XN MR MANUEL
PN312
You were talking about turning on the gas oven, I think?---Yes, yes.
PN313
What is the purpose of the gas oven within the van?---To heat up the pies and pasties and the other hot items.
PN314
Right. Do they sell coffee?---No.
PN315
Then, if you go through the work sheet that takes you to about 10 past 1, I think, is the last entry on the last page, BankSA, Kilkenny?---Yes.
PN316
Or for this particular sheet?---Yes.
PN317
When do they get back to the yard?---Straight after they've done their banking.
PN318
Right, so after - I see, BankSA is not a customer?---No, no, that's where the person - the operator on that van goes to do their own banking.
PN319
They all go to different branches, depending what areas they are in, do they?---Yes, yes.
PN320
Once they have finished that they then drive back to the depot, or the yard, is that right?---Yes.
PN321
Where is the yard, physically?---Physically, it's Hanson Road, Athol Park.
PN322
And perhaps to give - I'm sure his Honour probably knows where Athol Park - but just to cover that field, where is Athol Park from here?---Probably that way, yes. North-west from here.
**** JULIANNE HELEN THOMAS XN MR MANUEL
PN323
North-west?---Yes.
PN324
How far from the - do you know how far from the city it would be?---Not really.
PN325
That is all right, if you don't know, that's fine?---Yes, not really, no, no.
PN326
When they get back to the yard what do they do then?---Okay, generally, they need to re-fuel the van.
PN327
And that is at the yard, is it?---For most of them, yes, some are on diesel which they need to get on the way back.
PN328
Right?---When they get back they then need to work out their wastage, which is all the items - daily items, like sandwiches, rolls, some cakes, hot food and that that hasn't been sold, needs to then go to wastage.
PN329
Yes?---Okay, and that all gets entered into a computer. They then need to do their own ordering, so they need to work out what they need for each day, so that is everything, that is sandwiches, rolls, cakes, drinks, hot food, chips, lollies, chocolates, everything again.
PN330
Yes?---And that then needs to be entered into a computer as well.
PN331
Yes?---After that they then need to unload everything that is okay to be kept to use the next day on to their fridge trolley.
PN332
That is like non-perishable items?---Yes, like your milks and fruit juices and things.
**** JULIANNE HELEN THOMAS XN MR MANUEL
PN333
Yes, drinks and stuff?---Yes. That then goes in the refrigerator. They then go back to their van, they need to clean the van, they also need to re-stock all their soft drinks and things like that ready for the next day.
PN334
Right. I see, you have just clarified - what they take off the van are things which can't be left in the van, but can be used again, but they leave things like soft drinks, etcetera, on the van - - - ?---That's right, yes.
PN335
THE SENIOR DEPUTY PRESIDENT: What about the perishables, or the - - - ?---The perishables, that is what gets put in the fridge on the fridge trolley, like your pies and pasties that haven't been heated get put back in the fridge.
PN336
Yes. No, I meant the ones that have been heated, are they - do they take them out, or does somebody else?---That's wastage, that's what we call "wastage", so they do actually take them out.
PN337
They take them out?---Yes, yes, sorry.
PN338
MR MANUEL: I tender the running sheet, if I could.
PN339
PN340
MR MANUEL: There are 94 or so van operators, all with different areas, aren't they?---Yes.
PN341
What would you say is the range of time that they would spend driving their vans?---It's a bit hard to say, but they - it's normally only about 2 minutes driving distance from one stop to the next.
**** JULIANNE HELEN THOMAS XN MR MANUEL
PN342
What happens - let's say they have just finished serving the last person at Smith and Co, what do they do, do they have to close something?---Yes, they do, they need to close the doors down. They need to make sure they have still got their money on them and then they get in the van and drive to the next stop.
PN343
When they get to the next stop, what do they do once they have arrived?---Okay, when they have arrived they need to open up the van, make sure everything is displayed nicely and be prepared to start selling.
PN344
Right. You were saying that it is usually a couple of minutes between stops?---Yes.
PN345
Are you able to give the Commission an idea of how much time, as an average, a person would drive the van during the day, as opposed to setting up, packing, unpacking, selling. So the actual time in the driver's seat driving the vehicle?---I would say probably 10 per cent, 20 per cent.
PN346
I have no further questions, your Honour.
PN347
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Manuel. Ms Tisdale.
PN348
PN349
MS TISDALE: Ms Thomas, the exhibit M2 represents the run sheet for one van, that is correct?---Yes.
PN350
That is for the suburb of Beverley?---That's right.
**** JULIANNE HELEN THOMAS XXN MS TISDALE
PN351
Did you bring along run sheets for areas such as Lonsdale, or Gawler, or Stirling, or Virginia, for example?---No.
PN352
Why did you choose the one for Beverley?---I didn't choose it.
PN353
So out of the 92 vans, I think you said there were, you have provided this, or spoken to the run sheet for Beverley, are you saying that that is typical of the run sheet for the other 90 drivers?---Yes.
PN354
It is typical?---Yes.
PN355
So how much driving would the van that the mobile food van driver who looks after Virginia, for example, would they do more, or less driving than is set out on this run sheet?---They would have a little bit more driving, yes.
PN356
Why is that?---Technically, because it is further to drive to Virginia than it is to drive to Beverley.
PN357
How far away is Virginia?---About a half an hours drive.
PN358
And Gillman?---Gillman is about 10 minutes.
PN359
And Gawler?---Gawler is about 40 minutes.
PN360
And Stirling?---We don't go to Stirling.
PN361
Okay. So on what basis do you say that the run sheet for Van 20 is typical of the others? In what ways is it typical?---In the way that most runs have calls every 5 to 10 minutes and that most of the runs, each call is only a couple of minutes drive from each other.
**** JULIANNE HELEN THOMAS XXN MS TISDALE
PN362
What is the range of the calls that the vans have?---As in the number?
PN363
Yes?---It's usually around 30 to 40.
PN364
Right, 30 to 40, that would be average?---Average.
PN365
What is the range?---It's hard to say really.
PN366
You are not able to say?---The range, as in - so you want to know if some had 10 calls and some had 20? Over 100 runs that is very hard to say, but most of them have between 30 and 40.
PN367
But some have less and some have more?---Some may have less, yes, on a quiet run they might have less.
PN368
How do you mean, "quiet run"?---Some runs that don't have as many calls on them, so they may have like 5 minutes in between each call, where they would actually be sitting on the side of the road. Or we do have a run where they need to - some runs where they need to actually sit in the call for half an hour serving people.
PN369
And some runs where you need to drive more than 5 minutes to your next call?---It wouldn't be many but, yes, there may be one or two runs where there is more than 5 minutes drive to the next stop.
PN370
So you are saying out of over 90 runs there are only one or two occasions across those 40 calls, each across 90 runs, that are only more than 5 minutes apart?---Yes.
**** JULIANNE HELEN THOMAS XXN MS TISDALE
PN371
Is that what you are saying?---Yes.
PN372
What would be those calls?---For example, the Virginia run because it is such a wide area, there are quite a few calls that are more than 5 minutes drive from each other. It's a very big area that we cover.
PN373
Okay, how many kilometres do the vans do each week?---I wouldn't have any idea.
PN374
Each year - - - ?---I've never clocked it, I wouldn't know.
PN375
So you are not really in a position to say how much driving the vans do?---Well, I am because I have been an operator and I have been driving the vans for six years, but then again every van is different and I haven't actually physically clocked how far each van drives.
PN376
Do the vans have a cash register?---No, but they do have what we call a money clip.
PN377
How does that work?---That stores all the coins in the clip, so that it is easier to dispense.
PN378
Now, you said in your evidence that Catering Workforce employs the van operators, but Golden Chef runs the vans?---Mm.
PN379
You are employed by Catering Workforce?---Mm.
PN380
MR MANUEL: We need an audible response.
**** JULIANNE HELEN THOMAS XXN MS TISDALE
PN381
THE WITNESS: Yes, sorry.
PN382
MS TISDALE: So can you explain to the Commission how the process works of organising the labour supplied by one company to do work for another company, how does that work?---All I know is - I'm not involved in a lot of the employment process - so all I know is Catering Workforce employs them. They are then given to Golden Chef uses them on which van they like to use them.
PN383
So does Catering Workforce provide employees for any other businesses?---I don't know of any other businesses as such, but we have done other functions besides the actual runs.
PN384
But someone can't ring up Catering Workforce and say: I need 20 van drivers to deliver Coke, can you supply them?---I wouldn't know, it's not my area.
PN385
So who do you deal with at Golden Chef?---As in who is my superior or - - -
PN386
Well, you said they run the vans, who is the person at Golden Chef that runs the vans?---Marina Nikolakakis is the operations manager.
PN387
And Marina is employed by?---Catering Workforce.
PN388
But she runs Golden Chef?---Mm.
PN389
Right. So who runs Catering Workforce?---As far as I know, it is George Charitopoulos.
PN390
And George deals with the day-to-day issues relating to the employment of the drivers?---No.
**** JULIANNE HELEN THOMAS XXN MS TISDALE
PN391
Who does that?---Marina Nikolakakis.
PN392
So you say that between 10 and 20 per cent of the day's work that a driver does is spent driving, is that right?---Yes, that's right.
PN393
I think in submissions it was sort of at a lower, 5 to 10 per cent I think that my learned friend said but you say 10 to 20. So how many minutes would that be? How much is 20 per cent of a day's work?---Well, most operators are there from - for about 6 hours, 6 to 7 hours a day. So whatever 20 per cent of that is, 10, 20.
PN394
So that is an hour or 2 hours?---Possibly, yes.
PN395
Is that what you are saying?---Yes.
PN396
They spend an hour or two driving. What qualification do you need to have to get a job at Catering Work Force as a mobile food van driver?---You need to be able to add in your head. You need to be able to work with money. You need to be able to give change back.
PN397
Qualification I said rather than skills?---Skills, qualifications, there isn't any.
PN398
Do you need a driver's licence?---Yes.
PN399
So would that be the only qualification you need in terms of the formal qualifications that you hand over?---Yes.
PN400
So that is correct? Which runs did you do when you were driving, Ms Thomas?---I did the Seaford run.
**** JULIANNE HELEN THOMAS XXN MS TISDALE
PN401
That is the only one?---Yes, and from there I just did relief driving.
PN402
Okay. Nothing further.
PN403
THE SENIOR DEPUTY PRESIDENT: Any re-examination, Mr Manuel?
PN404
PN405
MR MANUEL: Where is Seaford?---Seaford is south of the city past Morphett Vale.
PN406
How far away from the yard was it?---It's about 50 minutes drive.
PN407
No further questions, your Honour. I might ask for Ms Thomas to be released, your Honour.
PN408
PN409
MR MANUEL: Your Honour, that is our case.
PN410
THE SENIOR DEPUTY PRESIDENT: Thanks. Well, final addresses then.
PN411
MS TISDALE: Yes, thank you, your Honour.
PN412
THE SENIOR DEPUTY PRESIDENT: Are you going to go first?
PN413
MR MANUEL: I think on the evidence but I'm comfortable if my learned friend wishes to.
PN414
THE SENIOR DEPUTY PRESIDENT: No.
PN415
MR MANUEL: Your Honour, there are two issues here we say. The first is the issue of the dispute and the second is the issue of the section 111AAA. In respect of the dispute, we say there might be some confusion arising here because it is accepted I think that where a union puts forward evidence of having properly or valiantly served a log of claims and a letter of demand, then it is incumbent upon the employer to bring forward some evidence, in effect bearing an evidentiary burden to establish that somehow that was defective or improper or whatever to defeat the finding of an industrial dispute but that is not the argument we have here.
PN416
The argument we have here is one which is fundamentally an objective argument and that is: do the TWU's rules allow these people to be their members? Because the answer is if they don't, then the TWU is incapable of serving a valid demand and that is really almost incontrovertible. The point we make though is that there's no evidentiary burden on the employer to establish that the TWU does not have rules coverage. It is a fundamental of jurisdiction for the TWU to establish that it does have rules coverage and we would say with the greatest of respect it has failed miserably.
PN417
The evidence of Mr Loader is of no assistance to you at all. Fundamentally his evidence was a raft of assertions based upon hearsay based upon assumption. There was very little that he could give you by way of direct evidence. He made sweeping assertions such as: they drive for 5 to 6 hours a day, but then his evidence basically fell apart in terms of how he could possibly have known what length of time they drove. He was down to the point of saying: well I see them here and there during the day but that is with respect a logical nonsense as a means of then asserting that they have been driving for 5 to 6 hours.
PN418
Conversely you have Ms Thomas. She has actually been driving vans either full time at Seaford which would be one of the furthest away routes, or on a relief basis as a supervisor and team leader for some 6 years. Now, of course unless we are going to roll in 94 people to give evidence as to each of their individual rounds, but the fact is you have got a supervisor, someone who overviews the situation who can give you direct information or direct knowledge. Her evidence was not contradicted or effectively attacked in cross-examination.
PN419
There is clearly a breadth as you would expect when you are talking about how long they drove for, it would be can I say deeply suspicious if someone was to say everyone drove 45 minutes a day and never deviated from that number. That is not what she is saying. She is saying some routes are shorter than others but they are between 1 and 2 hours. That is vastly different to the evidence of Mr Loader. Now, in terms of the interpretation of the rules, and I might add that this is also broadly applicable for the interpretation of the awards as well, the rules must be read as a whole and in context.
PN420
Although some allowance should be made for the fact that it may not have been drafted by lawyers, that does not avoid the need to get back to the plain meaning of the rules.
PN421
THE SENIOR DEPUTY PRESIDENT: I think that is the greatest joke of all time, that statement, because I know of no other area where lawyers have spent so much time as they have on drafting union rules.
PN422
MR MANUEL: It has been a particularly beneficial area of the law for us, your Honour, and I would say if you read the TWU's rules, and I'm not trying to give faint praise here but they are clearly drafted by lawyers. You know, the whole structure just reeks of a lawyer having drafted it but the point is we say that the focus of the TWU's rules is transport. If the TWU's argument is right, then you turn the logic of the world on its head because what you are saying is the managing director who drives from here down to the board meeting at the Hilton is going to be a member of the Transport Workers Union.
PN423
The sales person who just goes to pick up something for work is going to be a member of the TWU. I mean you can think of dozens of examples where people as an ancillary to their job, but I might add a necessary ancillary to their job, drive vehicles. Now, these vans are just that. As my learned friend was able to elicit, they don't require any special licence to drive them. So we are not talking about what you would typically consider to be some type of commercial vehicle or heavy vehicle.
PN424
Now, clearly they are a commercial vehicle in the sense that they sell things for profit but I'm talking about commercial vehicle in the sense of moving goods which is what these rules are about, moving goods. What these people do on the other hand is they go to people's places and they sell things. The fundamental of their undertaking is the sale of goods. It is not the driving. The driving is facilitative. It is the sale of goods which is the critical area. Now, I put this on two levels, your Honour.
PN425
The first level is: look this is a labour hire firm and a labour hire firm can't fall within the rules of the Transport Workers Union. The other is even if you look at - if you like, even if you mix them up and say: well look at Golden Chef's business as it were. Golden Chef's business does not fall within the principles or the rules of the TWU. Now, if I can take you to the rules, your Honour, because as with all these rules I think with respect my learned friend is quite right. These do have an historical context and you can sometimes see that they are a little archaic in some of the parts of the rules but nevertheless we would say that the natural meaning is reasonably straightforward.
PN426
If I can take you to annexure A which is the industry - I'm sorry, I will just get the page number for you, your Honour. Yes, we will get there eventually - page 82 of 97, your Honour, which is annexure A: description of industry in connection with which the union is registered, and it says:
PN427
In or in connection with road or aerial transport.
PN428
Before I go on further there, "in connection with" does tend to widen the scope of rules. That is certainly - but that is not argued but in this case you would in fact have to read it backwards because it would be transport in connection with the sale of foodstuffs. This is not the situation where in or in connection will actually advance the position of the TWU. Now, clearly I don't think there's any argument. It is not the delivery of milk, sanitary carting, mechanical excavations of earthworks, etcetera, etcetera, and it has certainly got nothing to do with transport - sorry, and it excludes indices of transport by water, etcetera, but what is clear in that first part of that rule is that this rule is about transport, the principal activity of transport, not selling goods as such but moving goods.
PN429
That is what is about. That is not what my client does and, sir, we say that - and the same applies when you go to section 4 because as with most rules, it is largely a replication of the industry rule and, sir, the same thing applies. The nature of the first paragraph of the TWU's rules is about general transport. It really requires a twisting of the words and although you are meant to give a broad assessment of the rules, that does not mean that it should be so broad that the rules become meaningless and in this case what we say is the main function is the sale of food.
PN430
That is what the business exists for. That is why the people are there and driving is ancillary. It does not bring it within the rules.
PN431
THE SENIOR DEPUTY PRESIDENT: Mr Manuel, isn't it one of these sets of rules which has both an employer and an employee industry in it? If you look at the second half of the eligibility rule it says: and/or the occupations and/or callings.
PN432
MR MANUEL: Yes. However if - sorry, are you still looking at annexure A, your Honour, or annexure B?
PN433
THE SENIOR DEPUTY PRESIDENT: No, I'm looking at annexure B.
PN434
MR MANUEL: Annexure B. Yes, there is. I mean the industry rule does in effect encapsulate what the employer is and of course it talks about here:
PN435
The union shall consist of an unlimited number of persons employed or seeking to be employed in or in connection with the industries and/or the occupation and/or the calling and/or the vocations.
PN436
And then it sets out - - -
PN437
THE SENIOR DEPUTY PRESIDENT: That is why I asked has it been drafted by a lawyer because it is obviously alive to the distinction between the employer and the employee industry and has sought to pick up - well it is arguable it has sought to pick up both.
PN438
MR MANUEL: If I could just - and I thank your Honour for this, if you look - what would be it be, sub-placitum (a), that is again we say talking about the transport of people - well things. People, goods, etcetera. That is not what our client does.
PN439
THE SENIOR DEPUTY PRESIDENT: Yes. It was only the first part of the rule that I was - - -
PN440
MR MANUEL: Yes, yes, but I should add that we probably should take you to (b) as well as a matter of fairness and that is all driving but again the point is what we say has to be asked is: are these people in the occupation or calling, etcetera, of driving? And the answer is no they are not. Driving is a necessary part of their function but they are in the occupation or calling of someone who sells food. That is what they do. I don't think there can be any argument that that is what their fundamental purpose for the business is.
PN441
I would also note, and this is a very thin point so I will spend no time on this at all but annexure C which is the application form, the assumption within annexure C is that it is transport that we are talking about, if you look at the types of jobs that are included in there, and it also gives your Honour a good example I would say with respect of in or in connection with and so for instance they've got baggage handler as the second example and that is we say whether it be for railway or whether it be for airline that that is a good example.
PN442
Now, the point we make is that to bring our clients in to this rule is to basically render the rule irrelevant because it becomes so wide that anyone who drives a vehicle for purpose during their employment is within the rules of TWU and that was never its intention and if you look also at the obligation of the Commission to try and avoid demarcations, you can imagine that that would start casting the net extremely wide in respect of other unions. I would note at paragraph 9 I think it is of the union's outline, and when I find it, there's a reference:
PN443
This is indicated by the fact that a number of employers providing services identical to those provided by Catering Work Force are already respondents to the Federal Award.
PN444
Well, the first thing we note is that is a mere assertion. There is in fact no evidence in support of that but in any event, and I don't mean this in any way with any level of disrespect at other members of the Commission but we will see occasionally matters which are consented to which perhaps don't necessarily meet the strictest of tests of the Commission because the parties are happy and that is - I don't think anyone has an objection to that. It is just that that can't then be used against a party who is not happy as in this case and so we say that that is just not relevant.
PN445
Paragraph 11 likewise seeks to raise the argument by its bootstraps. It says:
PN446
This is also indicated by the fact that the TWU is the sole union respondent to an award which specifically covers this kind of work.
PN447
Well, we don't actually have that award before us so again it just a mere assertion but in any event the acts of a State Commission, and particularly when we have no background as to what they had before them, cannot in any way bind the Federal Commission. At paragraph 12 it say:
PN448
This is also indicated by the fact that Golden Chef, a company related to the Catering Work Force and employing employees in the State of Victoria is a named respondent and is abiding by the wages and conditions provided for by the Federal Award.
PN449
There's no evidence of that. There's evidence from our concession that Catering Work Force works in Victoria. There's no evidence that Golden Chef employs anyone in Victoria, nor that it is abiding by these terms and conditions but even if it was, it still does not add anything to the argument, unless there's some connection drawn, effective connection. As a consequence we say the fundamental point here is that there should be no finding of industrial dispute. However if your Honour is against us on that we would seek in effect in the alternative to put a section 111AAA argument.
PN450
I would raise for the Commission's consideration the possibility that we are not capable of seeking a section 111AAA in respect of any employees of my client who are in Victoria. Having looked at the terms of section 111AAA and having regard to the peculiar circumstances of the Victorian system which has now effectively been ceded to the Federal Commission, we would doubt that there would be jurisdiction, even if we - - -
PN451
THE SENIOR DEPUTY PRESIDENT: There's no state jurisdiction.
PN452
MR MANUEL: No state jurisdiction to - - -
PN453
THE SENIOR DEPUTY PRESIDENT: I think that has been held, Mr Manuel.
PN454
MR MANUEL: Has it, your Honour? I wasn't aware.
PN455
THE SENIOR DEPUTY PRESIDENT: I can't remember the case but I'm almost certain that there's been a decision to that effect.
PN456
MR MANUEL: We are comfortable to concede that point in any event, your Honour.
PN457
THE SENIOR DEPUTY PRESIDENT: Yes.
PN458
MR MANUEL: I think that is a plain reading of the legislation.
PN459
THE SENIOR DEPUTY PRESIDENT: Yes.
PN460
MR MANUEL: We accept - or perhaps I should come back. We put two awards forward to you.
PN461
THE SENIOR DEPUTY PRESIDENT: Yes.
PN462
MR MANUEL: It is our view that if the Delicatessens, Industrial and Commercial Canteens, Unlicensed Cafe and Restaurants Award - I might just call that the Delicatessens Award from now on if I may?
PN463
THE SENIOR DEPUTY PRESIDENT: I think that would be easier.
PN464
MR MANUEL: I have gone on a flight of fancy of my own and included the Retail Industry (South Australia) Award. It certainly is, in my client's view, that it is the Delicatessen Award that applies but because this is an objective test, at least the covering, you know, what award, if any covers these people that is a question that is objective, it is not a matter of me merely saying, well, we think it is the Delicatessen Award. We are going to put before you both of them on the basis that you may disagree with us, hopefully not on both, but at least agree with us on one.
PN465
Now, there is no, we would say with respect, onus of proof in respect of section 111AAA. It is a matter of satisfaction for the Commission. Nevertheless, we would accept, as was put by my learned friend, that we have an evidentiary onus because it is really us who seek to enliven the Commission's jurisdiction on the point and so we accept we have to bring this forward. That having been said, the coverage of these awards is really again back to statutory interpretation.
PN466
Your Honour, I must admit I am at a little bit of a loss as to whether the standard rules of the Federal Court or Federal Commission would also be applied by interpreting another jurisdiction's industrial instrument but can I say to your Honour, the leading authority in South Australia is a decision of the Full Court of the Industrial Relations Court of South Australia in a case called Deckers v Minda Home - D-e-c-k-e-r-s. I am sorry, I didn't bring the citation with me, your Honour, but I can say to your Honour that it is fundamentally consistent with the Federal approach and is in fact - they have been cited opposite each other so the fundamental rules remain the same.
PN467
If I can take you to the Delicatessens Award first. The first point I would make about it, firstly, clause 3, the locality, it applies throughout South Australia so wherever someone is working who is under this award within South Australia will be covered. Clause 4 is the scope of the award. Again you will see the broadening of the words "in or in connection with" and then you will see cake shops, bread shops, fruit and vegetable shops, confectionary shops, cool drink shops, milk bars, delicatessens, pie stalls, fish shops, etcetera.
PN468
In interpreting this, I think one of the things that needs to be borne in mind, your Honour is that I have never seen a cool drink shop. I am not sure that there is any such thing standing on its own. So some care needs to be taken in giving a literal view of what these headings would mean. Instead, what we say, pardon the pun, you get the flavour of this clause by looking at the nature of the shops that are put forward. The business that my client runs will have - the business that they carry out for Golden Chef would have pies, they would have things that are in delicatessens. I must admit, the concept of a milk bar, I can't really recall what a milk bar did, your Honour, I think it has been some time since they have been around, cool drinks, cakes, bread, confectionary - you heard Ms Thomas' evidence about chocolate and the like.
PN469
These are not things which are alien to what my client does. The fact that it talks about a shop, there is no doubt - if you look in the Macquarie Dictionary, the first definition of a shop is something which is in a building or a building where goods are sold retail but that is not the exclusive definition. If you look further on there is a broader definition that it can just mean a place for selling and that would fit a van. It is a place for selling. The fact that it is mobile does not change the inherent nature of what is done from within it and that is selling food and other items at retail. I would note that - if you look at the last part of clause 4, it says:
PN470
And with the trade of business and canteens in industry and commerce the purpose of which is to supply meals and/or refreshments to the general employees in the industry or commerce in which the canteens are located.
PN471
Now, but for those last three words - last five "in which the canteens are located", that is exactly what my client does. There is nothing in there to say that located means permanently located. Located is just where you happen to be any particular time. We are currently located in courtroom 1. Hopefully soon we will be located somewhere for lunch but it does not mean that we are permanently there so find for the Transport Workers' Union you have to add words to this award and we say that is just not appropriate.
PN472
I note the comment in respect of the wages schedules but shop assistant, there is nothing wrong with that as a descriptor in this matter, particularly if you accept my position that "shop" is wider than just the fixed enterprise. So what we say is that they are clearly within that scope. Now, if we are right about that, then the evidentiary burden falls back to the Transport Worker's Union in respect of why it is against the public interest to allow section 111AAA to apply. They have not meet the test.
PN473
It is not enough to call the union organiser to say he has concerns. I mean no disrespect when I say I have not met a good union organiser who has not got concerns because that is their job but that does not answer the question about their members. There was quite a proud assertion, they have 32 members, well, where are they? They haven't given evidence here. They really fall foul of the presumption in Jones v Dunkel (1958/59) 101 CLR 295. If you had evidence that you could have called and perhaps that you should have called and you don't call it, then there must be a presumption that nothing that witness would have said would have assisted your case.
PN474
Now, we have had no explanation as to why these people haven't been called. It is hard to see that they are somehow overwhelmed if there is 32 of them out of 100, it is a fairly significant, I would say, membership. So when they talk about public interest, they are just making assertions. The public interest is not satisfied - sorry, the argument against us on the public interest is not satisfied by saying the Federal award provides higher wages. Many awards, in this Commission itself, depending on where you are employed and what you do, provide different wages. That is a historical fact.
PN475
The fact is the South Australian Awards are clearly minimum standards which have been approved by the Industrial Relations Commission of South Australia and if that was not intended to be a relevant factor, then you would have to wonder why section 111AAA exists at all and so that is why they are there. All that has been put forward is concerns about the different in rates, that is not enough. The fact is that this award provides a fair minimum standard. The Act specifically provides that the views of the employer and the employee should be given prominence or precedence.
PN476
You don't have any evidence from the employees. You have some evidence from the employer, but I admit not at the higher level in terms of those sorts of issues but what you are basically faced with is a void. You have no evidence before you of any negativity that would go to public interest therefore the Act requires, we say, that the order under section 111AAA must flow. I should also say, in respect of the ballot, I am not sure what the ballot would actually answer. What you need to ascertain, as I read the legislation, your Honour, is the views of the employees, giving somebody a yes or no question such as: would you like to be paid more money, is not going to tell you anything.
PN477
I mean, the only way that really you could do this is by putting employees in the witness-box and saying: Well, what do you think about this, what do you think about that. The opportunity has been there and it has not been taken and we say that that really is the best opportunity the TWU has had and should not be allowed any further. Your Honour, could you excuse me for a moment.
PN478
THE SENIOR DEPUTY PRESIDENT: There is just one point I want to raise with you, Mr Manuel, that is the AWA point.
PN479
MR MANUEL: My apologies, your Honour, I should have addressed you on that. One can see the basis of that argument. We don't actually have before you who is covered - not necessary even by names or by numbers but it would be possible if you were minded to say, well, while an AWA is in place you don't have power under section 111 therefore this order will be made but will exclude anyone covered by an AWA. What we would say though is that leads to some rather unusual results. You would have a situation - what we say is this, in any event, it is too narrow an interpretation.
PN480
There is clearly an intention in 111AAA to focus upon the minimum standards and the maintenance of state regulation in appropriate circumstances. Australian Workplace Agreements don't actually have anything to do with industrial disputes and are corporations power document. There is no doubt that they displace, not just State awards but also Federal Awards to the extent of inconsistency but they only displace them for a period that they are in operation.
PN481
In other words, the award, whatever that may be, is the fall back if and when the AWA ceases to operate. Now, you would have the rather strange situation that you would have to have an employer with a dispute in respect of say 20 people on an AWA and there may be a Federal award for them going off and doing things and on the other side 80 people who are not, who are basically out of the process. Now, it may be that that argument is a section 111(1)(g) argument as well, put that to one side for the moment.
PN482
You would also have the situation where you could have one group covered by a State award and another group sitting next to them doing exactly the same work for the same employer covered by a Federal award. What we say is that can't be a correct interpretation. It defeats all the objects of the Act of efficiency, flexibility, all those types of matters. So what we say is the award does still maintain a function because if it didn't maintain a function as for instance when legislation is overridden by other legislation, it does not come back into life if the subsequent legislation is deleted, it still has a function because if the AWA ceases to operate, that award will immediately come back and impact on the individual.
PN483
Therefore, what we say is the interpretation is just too narrow and should not be followed. That having been said, if that narrow interpretation is deemed to be or seen by the Commission to be the appropriate interpretation, we would say that that then comes in - does not stop you making an order under section 111AAA, it just would require you to identify the group who would not be affected by such an order and we note the particular wording of section 111AAA would, this is possibly against my own argument, would appear to support the ability to make some variation.
PN484
It talks about particular employees. So that would seem to indicate that it is probably a class of employees but you can have, although this has been debated, you should be able to have a class of one but you certainly can have a class of five or ten so it may be that we get to the unfortunately but nevertheless possible situation whereby your power is circumscribed so as only to be able to make an order under section 111AAA in respect of persons who are not covered by AWAs but we would say that is not a factor to not make an order in respect of the persons who are not covered. I hope that was not too clumsily put. Is there anything further you would see to hear, sir?
PN485
THE SENIOR DEPUTY PRESIDENT: No.
PN486
MR MANUEL: May it please the Court.
PN487
THE SENIOR DEPUTY PRESIDENT: Ms Tisdale.
PN488
MS TISDALE: Your Honour, we would say, despite my learned friend's best efforts, that nothing in his submissions as to the rules of the union have put in any doubt the TWUs ability to cover the mobile food van drivers under our rules, under our registered rules. There is nothing in the registered rules of the union which says the union can't cover such people who are involved in transport which is only incidental or facilitative to some other function. Annexure B of the rules it quite clearly refers to all driving as being a function that falls under the rules of the union.
PN489
My learned friend says that Catering Workforce's business is about selling food, and we say, as I think your Honour rightly picked up, that is all well and good but that is not the end of the question. What do the employees do, not just what the employer - what industry the employers fits themselves within. We say that in order for the food to be sold by this Golden Chef business, it has to be moved. It has to transport from place to place to place.
PN490
If it is not transported, it is not sold. There is selling food. Transport is an integral part of a mobile food selling operation. We have called attention to a number of factors that we say supports this interpretation of hours about how our rules function. It includes the fact there is an award made in the WA jurisdiction, which I am happy to hand up. Your Honour might think that is useful.
PN491
THE SENIOR DEPUTY PRESIDENT: I don't think I will trouble you on that, Ms Tisdale.
PN492
MS TISDALE: If there is an assertion that because a person is somehow selling something they can't properly fall under our rules then why would the award in question, the one that we are ultimately seeking to have made, have an allowance for a driver/salesperson, that is spelt out at clause 4.5 of the award. A driver/salesperson is defined as an employee who is entrusted by the employer with goods or articles for sale. It goes on:
PN493
Driver/salesperson does not include a driver who is entrusted with goods or articles for delivery to customers but those where there is a requirement to exercise selling skills.
PN494
Although I take my learned friend's point, things often aren't tested until they are tested, but there was a finding of dispute found on this log of claims against two other mobile food van companies, being Fresh in Daily and Tasty Trucks Proprietary Limited, both Victorian mobile food vendor companies and there was no objection raised to the union's ability to cover such people during the previous hearings in relation to that matter.
PN495
We say the argument about our rules has no legs, there is really nothing that my learned friend has put forward that creates any doubt in our mind about our ability to cover these people and should create any doubt in the Commission's minds long and settled practice culminating in a multitude of awards and agreements and large levels of membership I would submit.
PN496
So all that leaves us with is the 111AAA argument. It has been conceded, I think, now that it is actually Catering Workforce that employs employees in Victoria. No state award system in Victoria, no access to 111AAA to prevent the company being roped into a Federal Award with respect to their Victorian employees. There are AWAs in place, our reading of the Full Bench authority is that there is a very strong suggestion by that Full Bench that where there are AWAs in place there is no access to 111AAA for those employees.
PN497
So who is creating the inflexibility and the absurd situation? Logically it seems then we could have Federal coverage of the employees in Victoria, the employees under AWAs but somehow a group of employees based in South Australia should remain under a state system under a state award which we say does not accurately describe their work or reward their work. We are not seeking the inflexibility or inefficiency, we say that that flows from my learned friend's argument. So we say, certainly our submission, that the 111AAA application of the company must fail for those two grounds, the employees in Victoria, the employees on AWAs.
PN498
Then perhaps a little more subtlety, that we say that the Delicatessen's Award does not govern - does not actively regulate the wages and conditions of employment of the relevant employees. That is because the kind of the operation that Catering Workforce is engaged in is not properly covered by the coverage clause of that award and the work of the relevant employees is not covered in the classification structure. Can it really be said that shop assistants accurately describes the work of these employees? Do shop assistance drive a van, toot the van, park the van, clean the van, fuel the van, bring the van back to the depot?
PN499
Does Catering Workforce advertise for shop assistance or drivers when they are looking to fill these rolls? We say frankly, the idea that these employees are shop assistance is a contortion and requires a very creative reading of that classification structure. Therefore on our view, the 111AAA application fails also on that ground, that there is not a state award in place that actively governs or actively regulates the wages and conditions of these relevant employees. Therefore we see that the way is open for the Commission to make a finding of dispute and upon the making of that finding we would be seeking the making of a Federal Award.
PN500
Although we would be perfectly happy to engage in discussions with the company about any concerns that they had about the details of that process. If the Commission was not convinced at this stage that the 111AAA application had failed, but wished to go on to the considerations of the public interest, we reiterate our suggestion that a ballot is necessary. It is perhaps unfortunate to have to have discussions in these terms at this place, at this time.
PN501
But frankly the reason why we did not call our members here to give evidence, the reason why we think that the only way the Commission can appropriately be informed of the views of the employees is through a ballot that is authorised by the Commission, is that we are frankly concerned about victimisation of our members. We have had delegates dismissed - - -
PN502
MR MANUEL: I object to this.
PN503
THE SENIOR DEPUTY PRESIDENT: Well, I don't think that helps, Ms Tisdale. I mean you can say that you are concerned, but I don't think giving evidence from the bar table about that is - assists me.
PN504
MS TISDALE: Perhaps the evidence that has been given will certainly support perhaps a more structural look at this workforce that they are low paid, they are casual, they are overwhelmingly female. One could easily draw a conclusion they are in particular protection - in need of protection of the Commission were they to come forward.
PN505
THE SENIOR DEPUTY PRESIDENT: Of course the Act seeks to give them that protection. I mean the Act does pretty ghastly things to people who try and intimidate witnesses or interfere with their giving of evidence before the Commission.
PN506
MR MANUEL: Yes.
PN507
MS TISDALE: Sometimes these rights are more theoretical than live though, your Honour.
PN508
THE SENIOR DEPUTY PRESIDENT: Well, I have heard that put before, but it is - but nobody ever seems to try either.
PN509
MS TISDALE: We would say we would seek a further opportunity to make submissions on the public interest subsequent to some mechanism for the Commission to inform itself of the views of the employees if you consider that necessary? But fundamentally the submission we would making at that time is that what we are seeking is a fair and effective safety net award to be put in place.
PN510
Even if your Honour were to come to the view that the Delicatessens Award did in some way govern the work of these employees, we would say that it is not a fair and effective safety net and that there are a range of important public interest reasons about why that award should be supplanted by a Federal Award with the support we anticipate of the majority of drivers and that is purely because that award does not recognise or reward the skills and the work value that is associated with the work that these employees do. If the Commission pleases.
PN511
THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Tisdale. Well, I thank you - yes, Mr Manuel?
PN512
MR MANUEL: I'm sorry, your Honour, I neglected to hand up the bundle of cases, I have given a copy to my learned friend, I just - if I could perhaps hand it up now?
PN513
THE SENIOR DEPUTY PRESIDENT: Thank you, I see that. Thank you. Well, I do want to consider what has been put so I will be reserving the decision and I will consider in the course of that whether it is necessary in the event that I'm against you, Ms Tisdale, in relation to the award, whether it is necessary to call for extra submissions on the public interest or not. We will adjourn on that basis.
ADJOURNED INDEFINITELY [1.11pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #T2 COMPANY SEARCH FOR CATERING WORKFORCE PN81
EXHIBIT #T3 COMPANY SEARCH FOR GOLDEN CHEF AUSTRALIA PN81
EXHIBIT #T4 DELICATESSENS INDUSTRIAL AND COMMERCIAL CANTEENS UNLICENSED CAFES AND RESTAURANTS ETCETERA AWARD PN108
EXHIBIT #T5 RETAIL INDUSTRY SOUTH AUSTRALIA AWARD PN108
JOHN ALEXANDER LOADER, SWORN PN132
EXAMINATION-IN-CHIEF BY MS TISDALE PN132
CROSS-EXAMINATION BY MR MANUEL PN194
WITNESS WITHDREW PN259
JULIANNE HELEN THOMAS, SWORN PN276
EXAMINATION-IN-CHIEF BY MR MANUEL PN276
EXHIBIT #M1 JOB PROFILE PN291
EXHIBIT #M2 RUNNING SHEET PN340
CROSS-EXAMINATION BY MS TISDALE PN349
RE-EXAMINATION BY MR MANUEL PN405
WITNESS WITHDREW PN409
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