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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N 5530
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT KAUFMAN
AG2003/7823
APPLICATION FOR CERTIFICATION
OF AGREEMENT
Application under section 170LJ of the Act
by Australian Nursing Federation - Victorian
Branch and Others for certification of the
Alcheringa Hostel Inc ANF and HSUA Certified
Agreement 2002
8.59 AM, FRIDAY, 28 NOVEMBER 2003
Continued from 27.11.03
PN1461
THE SENIOR DEPUTY PRESIDENT: Mr Turner, you are going to call the next witness are you?
PN1462
MR TURNER: Your Honour, hopefully the first bus load has arrived. They left Alcheringa 10 minutes ago I was told and should be here well by now. If I could just check.
PN1463
THE SENIOR DEPUTY PRESIDENT: I was told that everybody was ready to go so I though we would start a few minutes early but if you are not then we will - - -
PN1464
MR TURNER: I haven't seen any of them arrive as yet but maybe they are outside. I will just check.
PN1465
TAPE MALFUNCTION
PN1466
MR TURNER: The copy statements that I tendered yesterday with the originals.
PN1467
THE SENIOR DEPUTY PRESIDENT: Yes, thank you.
PN1468
PN1469
MR TURNER: Mr Codling would you repeat your name and address please?---Donald William Codling, 14 Whitlock Lane, Pental Island.
PN1470
And are you employed as a driver by Alcheringa Hostel Limited?---Correct.
PN1471
Did you make a statement relating to this matter?---Yes.
PN1472
Would you have a look at this document please? Is that the statement you made?---Correct.
PN1473
Is it dated 31, 30 October?---31st.
PN1474
31st October. Yes. And there are three paragraphs?---Correct.
PN1475
PN1476
MR TURNER: I have no questions.
PN1477
PN1478
MR NIALL: Thank you, your Honour. Mr Codling, you are a driver employed by Alcheringa. Do you have an office or a station within the building?---Not as such, an office, no. But we - like the cleaner's room.
**** DONALD CODLING XXN MR NIALL
PN1479
And that is where you use - - - ?---Yes.
PN1480
- - - when you are not driving you need to put your belongings or whatever - you put them in the cleaner's room?---Mm.
PN1481
You will have to answer, I am sorry?---Yes. Yes.
PN1482
The recorder will pick it up. It doesn't amplify it. If you just keep your voice up and we will be fine. Now do you ever go in the staff dining room?---Occasionally.
PN1483
Now prior to making your statement on 31 October 2003 did you know that the ANF and the HSUA at Alcheringa had been trying to negotiate a work place agreement?---Yes.
PN1484
When did you first know about that?---I couldn't give you a specific date.
PN1485
But roughly, we are talking - could the process have been going on for some time as you recall?---Yes.
PN1486
Over more than a year?---I am not too sure on that one.
PN1487
Certainly more than a few months?---I would say yes.
PN1488
And you appreciate that, did you, that a certified agreement or an agreement between the ANF, the HSUA and Alcheringa would govern the terms and conditions of employment of various employees?---I wasn't too sure on what the procedure was.
**** DONALD CODLING XXN MR NIALL
PN1489
Do you know that it is possible for employers and employees to reach a work place agreement?---Yes.
PN1490
And that that agreement can set things like wages?---Yes.
PN1491
And overtime rates?---Yes.
PN1492
And a whole range of terms and conditions of employment can be agreed?---Yes.
PN1493
And that was what you understood was the process that was being undertaken by the two unions in Alcheringa?---I am not too sure what was going on. I didn't take much notice of it actually.
PN1494
But you knew that there was an agreement being negotiated? You will have to answer, I am sorry?---Yes. Sorry.
PN1495
And did you know that that agreement was going to be put to - withdraw that. Did you know that an agreement was going to be put to the vote of employees?---No.
PN1496
Well, do you know that now, that there was a vote?---Yes.
PN1497
And when did you first find out that there was a vote?---I honestly don't know. I can't remember.
PN1498
Well, was it in September?---I am sorry I can't put a date to it.
**** DONALD CODLING XXN MR NIALL
PN1499
Well, did you know a vote was going on? That a ballot box was open for a certain period of time?---Yes.
PN1500
And did you know that that was going on during the period which the ballot vote - - - ?---Sorry, what was that again?
PN1501
Did you know that a ballot time for voting had a start date and an end date?---Yes.
PN1502
And the start date was 3 September and the end date was 10 September. I am telling you that. That is the evidence before his Honour. Okay. Now, so that was the period in which employees could vote. 3 September and 10 September. And they could vote by putting a vote in a box that was kept in the staff care room. That is the evidence before his Honour. Now did you know during that period that a vote was going on?---Yes.
PN1503
And did you know before 3 September, that is before the opening of the ballot, that a ballot was to take place?---That I am not too sure of. I just haven't got any dates.
PN1504
But you have agreed with me that you knew that the ballot was open between, sometime between 3 and 10 September?---Yes.
PN1505
And you knew did you not that you were entitled to cast a vote for the agreement?---Yes.
PN1506
And you could have voted in favour of the agreement if you wanted to?---Yes.
PN1507
I am not asking you what you did or whether you voted or not. I am just asking you knew that you could vote in favour of it?---Yes.
**** DONALD CODLING XXN MR NIALL
PN1508
And you knew that you could vote against it?---Yes.
PN1509
And you knew that voting wasn't compulsory?---Yes.
PN1510
Now in the staff dining area Ms Higgs has said that she left copies of the agreement from about 18 August. So before the opening of the ballot. And she left them in the staff dining area and you have indicated that from time to time you go into the staff dining area?---Yes.
PN1511
Did you see the agreements there?---No.
PN1512
Did you look for them?---No.
PN1513
Did you know that they were there?---No.
PN1514
There is a notice board in the staff dining area?---Yes.
PN1515
And Alcheringa puts important notices up there from time to time?---Yes.
PN1516
Do you look at the notice board?---No.
PN1517
You never look at it?---No, I go in there probably once a month.
PN1518
Could I just show the witness PG12 and perhaps for convenience it can just stay up that end of the room. Mr Codling there is some evidence before his Honour that if you go to the next page there is a bulletin dated, I think that is 12 August, is the date on it?---Yes.
**** DONALD CODLING XXN MR NIALL
PN1519
And there has been some evidence before his Honour that that was blue and the next page is at one of 11 August and there was some evidence that the original was pink and that both were placed up on the notice board of the staff dining area. Do you remember seeing those?---No.
PN1520
Did you know that Mr Gilbert - do you know Mr Gilbert from the ANF?---No.
PN1521
That is this gentlemen here. Have you seen him before?---I have seen him. Yes.
PN1522
He is an officer or an official with the Australian Nursing Federation and he came up on 3 September to explain the agreements to any of the employees that wished to attend. Area you aware that he did that?---No.
PN1523
Do you go to the nurse's care office?---Yes.
PN1524
Again, there is a notice board there?---A white board.
PN1525
Not a notice board for notices put up there?---I - no, I am not too sure on that one.
PN1526
But - perhaps I will - you have not seen either of those two bulletins before?---No.
PN1527
Yes. Well, the evidence is that they were placed on notice boards, at least three notice boards in the facility, but you didn't see them?---No.
PN1528
And there is also evidence that agreements were placed in the staff dining area, the nurse's care office, the kitchen and the area out the back. Notices of the agreements were placed in those places but you didn't see them?---No.
**** DONALD CODLING XXN MR NIALL
PN1529
But you knew a vote was going on. That you knew you could vote?---Yes.
PN1530
Did you vote?---No.
PN1531
Okay. Did you ever ask anyone to explain the agreement to you?---No.
PN1532
Were you interested in finding out what the agreement was?---It didn't really concern me, as the way I thought of it, so I didn't ask anything about it.
PN1533
Okay. They are the only questions I have your Honour.
PN1534
PN1535
MS CHAMBERS: Yes. Mr Codling you say in answer to questions from Mr Niall that you knew you would have an opportunity to vote if you wanted to?---Yes.
PN1536
Yes. And that the ballot box was actually in the carer's room. You knew that?---I am sorry I don't really remember where it was.
PN1537
Right. Did you receive a copy of the ballot envelope or a ballot to cast a vote?---I received something that I, you know, could have voted with.
PN1538
Yes. So that you could have indicated - - - ?---Yes or no.
**** DONALD CODLING XXN MS CHAMBERS
PN1539
- - - whether you agreed with the ballot and you just decided not to exercise that vote?---Correct. Yes.
PN1540
I have no further questions.
PN1541
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Turner.
PN1542
MR TURNER: Mr Codling was the agreement explained to you before the ballot opened on 3 September?
PN1543
MR NIALL: I object to that your Honour. He has given some evidence-in-chief the agreement was not explained to him before the ballot.
PN1544
THE SENIOR DEPUTY PRESIDENT: Yes. Yes, I have that evidence Mr Turner. It wasn't explained.
PN1545
MR TURNER: Yes, I just thought there was some attempt to be clear on that.
PN1546
THE SENIOR DEPUTY PRESIDENT: I am quite clear that it wasn't explained and he didn't seek an explanation.
PN1547
MR TURNER: Okay. Well, I have no further questions.
PN1548
PN1549
MR NIALL: Your Honour, I have given your associate PG12. I just ask they hold on to that as I will be showing it to a couple of witnesses.
PN1550
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1551
MR NIALL: And I think Mr Turner will hand up a bundle of originals.
PN1552
MR TURNER: Yes, I have the original witness statements here. The remainder of the witness - perhaps if I gave them to your associate. They are in alphabetical order and then - - -
PN1553
THE SENIOR DEPUTY PRESIDENT: Are they in the order in which you are calling your witnesses?
PN1554
MR TURNER: No, just in alphabetical order your Honour. It is just as simple for me to hand up individually.
PN1555
THE SENIOR DEPUTY PRESIDENT: I think so.
PN1556
MR TURNER: Yes. Right.
PN1557
THE SENIOR DEPUTY PRESIDENT: Yes, who are you calling next Mr Turner?
PN1558
PN1559
MR TURNER: Could you re-state your name and address please?---Lynette Carmel Carmichael, 84 North South Road, Woorinen.
PN1560
Yes, and are you employed as a division one nurse at Alcheringa Hostel Limited?---That is right.
PN1561
Yes. Did you make a statement in relation to this matter?---Yes, I did.
PN1562
Will you look at this document please and identify whether that is a copy of the statement?---That is correct.
PN1563
That is the statement you have made and it is dated 13 October?---That is right.
PN1564
And it has four paragraphs?---Yes.
PN1565
PN1566
MR TURNER: Thank you. Are you aware that there were meetings conducted on 3 September by the ANF?---There were several meetings. I couldn't recall the dates but there were meetings.
PN1567
Did you go to one of those meetings on 3 September?---No, I haven't attended any of them.
**** LYNNETTE CARMEL CARMICHAEL XN MR TURNER
PN1568
THE SENIOR DEPUTY PRESIDENT: I am sorry I couldn't hear that?---I didn't attend.
PN1569
THE SENIOR DEPUTY PRESIDENT: Yes, thank you.
PN1570
PN1571
MR NIALL: Ms Carmichael, were you aware that over the course of many months the ANF, the HSUA, which is the other union that has some members at Alcheringa, and Alcheringa were trying to negotiate a certified agreement?---I understand there was an agreement being negotiated I suppose.
PN1572
And the purpose of that agreement if it had been reached would be to try to regulate the terms, some of the terms and conditions of employment of employees?---That is right.
PN1573
Yes. So it would deal with wages?---Yes.
PN1574
And other matters relevant to employment?---That is right.
PN1575
And you understood that that process was going on?---Well, I - yes.
PN1576
And at some point in time, and I suggest it was in September, an agreement was to be put to the vote to see whether the employees wanted the agreement or didn't want the agreement?---Well, my understanding was, yes, we were going to have a vote but there was a document around to say that Alcheringa weren't in a - well, had withdrawn from any agreements therefore I didn't consider it was relevant anyway.
**** LYNNETTE CARMEL CARMICHAEL XXN MR NIALL
PN1577
All right. So you had been told by notice from Alcheringa that they had said that they had withdrawn from the agreement?---That is right.
PN1578
Sorry, you just have to?---Yes.
PN1579
Thank you, Ms Carmichael. But you also knew that an agreement was to be voted on?---I understood there was going to be a vote. Yes.
PN1580
And you were given a ballot - and the purpose of the vote was to ask employees whether or not they wanted to vote in favour of the agreement or against the agreement?---That was the purpose.
PN1581
And you were given a copy of a ballot paper by a Sally Higgs weren't you?---That is right.
PN1582
And she handed it to you?---Yes.
PN1583
And she did that, I suggest, around about 17 or 18 August?---That could be so. I couldn't be sure of the dates.
PN1584
And would you have a look at this please? Is that a copy of the ballot paper that you were given?---I think so. I couldn't swear on it but - - -
PN1585
Was it given to you in an envelope or?---No. I think it was just like this and I just signed - I think we signed when Loretta was with her, Loretta Market - - -
PN1586
So you were given it and it was recorded that you were given it?---That is right.
PN1587
Yes. Okay. And you knew the purpose of being given that document or a document like it, you are not entirely sure that that is exactly the same document, but a document like it, was to enable you to cast your vote either for or against the agreement. You knew that?---That is right.
**** LYNNETTE CARMEL CARMICHAEL XXN MR NIALL
PN1588
And you knew that the ballot would open on 3 September?---Mm.
PN1589
Again, sorry, Ms Carmichael?---Yes. Sorry. Yes.
PN1590
The procedures are being recorded?---Yes, I understand that the - well, I couldn't be sure of the date but I understand that yes we were to vote and there was a ballot box there.
PN1591
And you were given the ballot paper before the ballot opened I suggest?---Well, I am assuming.
PN1592
And you could have cast your vote in favour or against the agreement?---That is right I could have.
PN1593
And copies of the agreement had been placed by Ms Higgs - she has told his Honour were placed in the staff dining area. Did you see them there?---Not in the dining room.
PN1594
Placed in the nurse's care office?---Care office.
PN1595
You saw copies there?---Yes, I saw one there towards the later stage of the - - -
PN1596
I suggest that they had been there since 18 August 2003?---I didn't see them. I wasn't looking for them. I wasn't - you know, I knew how I felt. To me it wasn't, you know, if the facility wasn't in agreeance then, you know, what are we voting on. Because it had to be agreed with everyone.
PN1597
So you formed a view. You knew you could vote and you had a ballot paper. There was a ballot box which you could put it in and you were entirely free to make up your own mind what you wanted to do about it?---That is right.
**** LYNNETTE CARMEL CARMICHAEL XXN MR NIALL
PN1598
Is that a fair summary?---That is a fair summary.
PN1599
Now can I ask the witness to be shown PG12. That is a document and the evidence has been that the originals of those were pink and blue and they were placed up on notice boards in the facility and the top one there advises that Mr Gilbert was coming on 3 September to explain the agreement. Did you see those notices?---I see lots of notices from the ANF. I - - -
PN1600
Do you take - - - ?---I don't take a lot of notice. No.
PN1601
In fact Mr Gilbert attended on 3 September - sorry, you have attended meetings with the ANF before haven't you?---Not to my recollection.
PN1602
Never?---No.
PN1603
Not in respect of this?---Yes, I have been to ANF meetings. I used to work for the hospital and they had a lot of ANF - - -
PN1604
Have you been to an ANF meeting at Alcheringa?---I think I may have earlier, many years ago, actually.
PN1605
And did Mr Gilbert or Ms Higgs approach you on 3 September and tell you there was a meeting and invited you to attend?---No, not really.
PN1606
But you knew there was a meeting that day and you decided not to attend?---That is right.
PN1607
And I take it - you say at paragraph three that the terms of the agreement were simply not explained to me before the vote. But I take it that you had formed a view about what you wanted to do in relation to the agreement and you didn't need anyone to explain it to you. Is that fair?---That is fair. Yes.
**** LYNNETTE CARMEL CARMICHAEL XXN MR NIALL
PN1608
Now you say in paragraph four that you did not vote and you - you later found that the ballot paper was missing:
PN1609
... from where I had left it on my desk.
PN1610
When did you realise that?---After the ballot was over. I said hadn't - I said I actually hadn't voted on it. And then I thought I had better check and it wasn't on the desk.
PN1611
And do you keep your desk neat?---No.
PN1612
So a lot of papers - it wouldn't be unusual for occasional papers to go astray from your desk?---Not astray just in a different area on the desk.
PN1613
And you don't know what happened to the ballot paper but - - - ?---No, I am not making any comment on that. It wasn't there.
PN1614
After the ballot closed it was no longer there?---That is right.
PN1615
And it is possible that anything could have happened to it?---Well, that is possible. That is right.
PN1616
You could have thrown it out?---I don't think I threw it out but - - -
PN1617
It is possible? Well, you knew you weren't going to use it?---Absolutely. Yes.
PN1618
So you could have easily, when you were tidying up your desk, thrown it in the bin?---I don't think I did but it is possible.
**** LYNNETTE CARMEL CARMICHAEL XXN MR NIALL
PN1619
They are the only questions I have for Ms Carmichael.
PN1620
THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Niall.
PN1621
MR NIALL: While I am on my feet though, and I did ask the witness some questions about it, I am in a position to tender copies of the original documents but - would it be convenient to do that now your Honour or later.
PN1622
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1623
MR NIALL: I will do it after this witness is finished your Honour.
PN1624
THE SENIOR DEPUTY PRESIDENT: Ms Chambers.
PN1625
MS CHAMBERS: Yes, I have no questions your Honour.
PN1626
PN1627
MR TURNER: Ms Carmichael you say you are not sure when you received the ballot paper and you said that you assumed you got it before the ballot opened?---That is right.
PN1628
Is it possible you got it after the ballot opened or do you have any - - - ?---Look I know I signed to say I have got it so if there is a document that said I have received it on such and such a date that would be correct. I know that the box was sitting around well after I got the ballot paper so I am assuming, well, the box was there and you were entitled to vote at that time.
**** LYNNETTE CARMEL CARMICHAEL RXN MR TURNER
PN1629
My learned friend put it to you that you might have got the ballot paper back as early as 17 or 18 August. In your memory does that - - - ?---I just couldn't say. I just know I did sign to say that I had received it.
PN1630
Yes. Thank you.
PN1631
PN1632
THE SENIOR DEPUTY PRESIDENT: Who are you calling next Mr Turner?
PN1633
MR TURNER: While - - -
PN1634
THE SENIOR DEPUTY PRESIDENT: Perhaps we might do that at the - - -
PN1635
PN1636
PN1637
PN1638
MR TURNER: Ms Ford are you employed by Alcheringa Hostel Limited as a housekeeper?---I am.
PN1639
Have you made a statement in relation to this matter?---I have.
PN1640
I will get this document shown to you and ask you to identify whether the original of the statements were made?---Thank you.
PN1641
Is that the statement you made?---Yes, I did.
PN1642
And it is undated?---Yes.
PN1643
That is five paragraphs?---Yes.
PN1644
PN1645
MR TURNER: Thank you. I have no questions.
PN1646
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Niall.
PN1647
PN1648
MR NIALL: Ms Ford, you have got before you a five paragraph statement signed by you. What was the process by which that statement came to be? Did someone ask you questions and write answers or did you fill out a questionnaire? What was the process?---About what?
**** JENNY FORD XXN MR NIALL
PN1649
How that statement came to be created?---With the agreement.
PN1650
No, just your statement. You have got a five paragraph statement there?---I did not see a copy of the agreement.
PN1651
I will come - - -
PN1652
THE SENIOR DEPUTY PRESIDENT: I think what Mr Niall wants to understand is how you came to make this statement. Did you dictate it to somebody or did somebody ask you questions and write down your answers or?---No, I was given a voting sheet.
PN1653
It is in relation to the statement in front of you. That document there. How did you come to make that? Did you type it yourself?---No, I spoke to - - -
PN1654
Mr Turner?---Mr Turner. Yes.
PN1655
Yes. Thank you.
PN1656
MR NIALL: Now you knew did you that the ANF, HSUA, which is the other union on the premises who Ms Chambers represents here, and Alcheringa were in the process of negotiating a work place agreement. Were you aware of that?---I was aware of it.
PN1657
And that process took a number of months. Are you aware of that?---I was aware of it.
PN1658
And from time to time did you get information from Alcheringa about the process of negotiations for the agreement?---No.
**** JENNY FORD XXN MR NIALL
PN1659
Did you get any information from either the ANF or the HSUA?---No.
PN1660
But you knew that the agreement was being negotiated?---Yes.
PN1661
And that the purpose of the agreement, if it was made, would regulate at least to some extent the terms and conditions of employment of employees?---Yes.
PN1662
So you knew that the agreement would - might deal with things like rates of pay, hours of work, things of that nature?---Yes.
PN1663
That an agreement was to be put to a vote of employees?---Yes.
PN1664
And that vote - the process of that voting was that the employees would be given a ballot paper?---Yes.
PN1665
And you were given a ballot paper?---I was given a ballot paper.
PN1666
If you could just - if the witness could be shown. Is that a copy of the ballot paper that you were given?---Yes.
PN1667
And, for the record, I record that the document handed to the witness was taken from attachment 12 from Ms Rough's statement. And you were given a copy of that ballot paper and you knew that you could cast a vote either for or against the agreement?---Yes.
PN1668
And you would do so my marking on that sheet like that and placing it in the ballot box in the staff care room?---Yes.
**** JENNY FORD XXN MR NIALL
PN1669
And that is exactly what you did?---Yes. [9.29am]
PN1670
Now, you are a housekeeper. Do you go to the staff dining area?---No.
PN1671
The nurses care office?---Once a week.
PN1672
Now, Ms Higgs has given some evidence that from about 18 August copies of the agreement to be voted on were placed in the nurses care office on a table. Do you remember seeing them there?---No.
PN1673
You don't remember seeing them there?---No.
PN1674
Do you go to the kitchen?---Not very often. I only go to serve meals for the residents at lunchtime, 12 o'clock.
PN1675
So once a day?---Yes.
PN1676
And, again, Ms Higgs has given evidence that agreements were placed there. Do you remember seeing them there?---No.
PN1677
It is possible that you just didn't notice though, isn't it?---I don't go out into the back. I only go into the dining room part to serve the meals for the residents.
PN1678
And, again, in the nurses care office. It is possible that you just didn't see them there on the table, isn't it?---Possible.
PN1679
Now, some notices were put up. Could the witness be shown exhibits ANF6 and 7, please. Perhaps the original could be shown. Now, the evidence is that copies of those were placed on noticeboards prior to 3 September. Have you seen those before?---Yes.
**** JENNY FORD XXN MR NIALL
PN1680
You saw them up on the noticeboard?---Yes.
PN1681
Well, one is dated 11 August and one is dated 12 August, and do you remember when you saw them?---No, I don't. No.
PN1682
Ms Higgs has said that they were placed on the noticeboard around 16 August, 17 August. Would that be consistent with your recollection?---Which noticeboard?
PN1683
Well, they were placed on the noticeboard in the staff dining area?---I don't - I just go up there to clean. I don't - I haven't got time to be looking at noticeboards.
PN1684
Well, which noticeboard did you see them on?---I don't know. I can't remember.
PN1685
But certainly you had seen them?---Could have. I see plenty of pink and blue copies floating around. I get documents nearly every day.
PN1686
And you knew, having seen those documents, that a meeting was to be held by Mr Gilbert of the ANF on 3 September?---I do.
PN1687
And you knew that that was to take place?---Yes.
PN1688
And it was - one meeting was at 11.30?---Yes.
PN1689
And one was held at 1.30?---Yes.
**** JENNY FORD XXN MR NIALL
PN1690
And you were free to attend those?---Yes.
PN1691
And you made the decision not to attend them?---That is right.
PN1692
And you knew the purpose of the agreement - the purpose of the meeting was to have the agreement explained?---Yes.
PN1693
Now, you say that the agreement was not explained to you before you voted; you say that in paragraph 3?---Yes.
PN1694
Did you ask anyone to explain the agreement to you?---Yes.
PN1695
Who did you ask?---I asked Delia.
PN1696
Delia Weir?---That is right.
PN1697
Right, and her title, her position?---She was the CEO at that stage, or the manager of the - - -
PN1698
Manager of Corporate Services?---Yes.
PN1699
Did she explain it to you?---Yes.
PN1700
So you say the agreement was not explained to you before you voted, but Ms Weir explained it to you, did she?---Well, when it came to the voting - - -
PN1701
So before you voted Ms Weir had explained it to you?---Yes.
**** JENNY FORD XXN MR NIALL
PN1702
And you were happy with that explanation?---Yes.
PN1703
And that enabled you to cast your vote either for or against the agreement?---Yes.
PN1704
And you felt perfectly able to do that?---I did.
PN1705
If your Honour pleases.
PN1706
MS CHAMBERS: I have no cross-examination.
PN1707
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Turner, re-examination?
PN1708
MR TURNER: Your Honour, as the evidence in-chief is that she said she thought she was voting about the division 1 nurses, I don't wish to cross-examine on the last answers given there. One of the previous witnesses she said the evidence in-chief is as stated in the statement.
PN1709
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1710
PN1711
MR TURNER: Ms Ford, you said you had the agreement explained to you by Delia Weir, and then in your statement you say:
**** JENNY FORD RXN MR TURNER
PN1712
I thought I was voting about the division 2 nurses.
PN1713
?---Yes.
PN1714
Were you clear what you were voting about at the time you voted?---Yes, I knew that we were going - trying to go into an agreement with an EBA.
PN1715
Yes?---And the nurses as well, because the nurses were pushing for the EBA to go through.
PN1716
Yes, and what did you mean when you say in your statement:
PN1717
I thought I was voting about the division 2 nurses.
PN1718
?---I don't understand the question.
PN1719
You say in your statement - - -?---I say that - - -
PN1720
THE SENIOR DEPUTY PRESIDENT: I think what Mr Turner is asking you is what did you mean when you wrote paragraph 4 of your statement when you said:
PN1721
I thought I was voting about the division 2 nurses.
PN1722
What does that mean?---Look, I am not really sure. I just - I am a blank at the moment.
**** JENNY FORD RXN MR TURNER
PN1723
MR TURNER: Well, I won't proceed with that line of questioning. Ms Ford, you said to my learned friend you see plenty of pink and blue notices up on the noticeboards around Alcheringa. Are you aware who puts up these other notices, pink and blue notices?---From the office, we get notes sent to us about cleaning and different things, what is happening.
PN1724
And on occasions they are on pink and blue paper like this, are they?---Yes, yes.
PN1725
No further questions, your Honour.
PN1726
PN1727
THE SENIOR DEPUTY PRESIDENT: Who is next, Mr Turner?
PN1728
MR TURNER: I am advised that Judy Munro - - -
PN1729
PN1730
MR TURNER: Ms Munro, are you employed by Alcheringa hostel as a housekeeper?---That is correct.
PN1731
Have you made a statement in relation to the matter before the Commission?---Yes, I have.
PN1732
I will hand this document to you and ask you to identify whether it is the statement you made?---Thank you. That is correct.
PN1733
That is correct. It is dated 31 October?---Yes.
PN1734
And it has four paragraphs?---Yes.
PN1735
PN1736
MR TURNER: Thank you. I have no questions, your Honour.
PN1737
PN1738
MR NIALL: You say in paragraph 2, Ms Munro, that you:
PN1739
...may have seen a copy of the agreement before I voted.
**** JUDITH HELEN MUNRO XXN MR NIALL
PN1740
Now, the vote was open to be voted on from 3 September until 10 September; is that your recollection?---I can't be aware of the dates that it was open from.
PN1741
And you voted, I take it, from your statement?---I did.
PN1742
Can you recall whether it was early in the period or late in the period?---I voted the day of the count. I had an envelope passed to me that morning with my name on it saying that I hadn't as yet voted.
PN1743
And inside the envelope - your name was on the envelope?---My name was on the envelope.
PN1744
And the ballot paper was inside?---Correct.
PN1745
And you knew that the purpose of the vote was to determine whether or not you approved the agreement?---I was very unsure of that because I don't belong to the union and I wasn't - I believe that I possibly didn't have to vote, that is why I hadn't shown any previous interest in it at all.
PN1746
Well, you knew an agreement was being negotiated between Alcheringa and the two unions, the ANF and the HSUA?---I was partially aware of it. I wasn't terribly interested in it.
PN1747
Okay. You knew, I take it, that the purpose of the vote was to - I withdraw that. The ballot paper asked you whether - if the witness could be shown a copy of the ballot paper, please. That is a copy of the ballot paper that you got?---Correct.
PN1748
And you read it?---I did.
**** JUDITH HELEN MUNRO XXN MR NIALL
PN1749
And you knew that you could either vote in favour of the agreement or against the agreement?---That is correct.
PN1750
Yes, and you voted?---I did.
PN1751
And you put your vote in the ballot box?---Yes.
PN1752
And you felt able to do that, one way or the other?---I almost felt pressured to do that. The reason I hadn't read any information that was available is because I didn't think it was applicable to me because I didn't belong to the union and I didn't believe that this had any strength to it whatsoever. But when I was handed the ballot paper on that morning, I chose to vote.
PN1753
Yes, and you knew that you didn't have to vote?---I can't say that I precisely knew that I didn't have to, but I felt when I was handed the paper that I would solve the problem by voting.
PN1754
So you were handed a paper, and you made a decision whether or not to vote, and you voted?---I voted, yes.
PN1755
And it was pretty - the two questions for you were pretty clear, aren't they? You either say: yes, I vote in favour of the agreement; or, no, I vote against the agreement?---That is correct.
PN1756
And the agreement had been distributed around the facility for a period of time before 3 September?---Yes.
PN1757
Yes, and you could have at any time gone and had a look at that agreement?---I could have if I had have been interested, yes.
**** JUDITH HELEN MUNRO XXN MR NIALL
PN1758
Yes, and the reason you didn't read it because you weren't terribly interested in it?---Not at all.
PN1759
Now, you say you did not understand what you were voting on. Well, you knew it was an agreement, didn't you?---Well, I had chosen not to vote, not to show any interest in it because I didn't particularly think it was applicable because I was led to believe that it wouldn't be - wouldn't have any strength.
PN1760
And you were led to believe that by Alcheringa, were you?---Yes.
PN1761
They had said that they don't want to be party to the agreement?---That is correct.
PN1762
And you say the terms of the agreement were not explained to you - - -?---No.
PN1763
- - - before you voted?---Not at all.
PN1764
Did you ask anyone to explain them to you?---No, because I wasn't interested in it.
PN1765
All right. If the witness could be shown exhibits ANF6 and 7. Had you seen those before?---I do believe I saw the blue one, but I can't precisely say that I have seen the pink one.
PN1766
Right, and the blue one - could you just assist me, is that the one dated August 12, or August 11, the date of - - -?---August 12.
PN1767
Thank you. ANF7, so you recall seeing that before and that is the one that said that there was a meeting on 3 September?---Yes, I was aware of that meeting.
**** JUDITH HELEN MUNRO XXN MR NIALL
PN1768
Yes. You were aware before 3 September - - -?---Yes.
PN1769
- - - that the meeting was to be held, and you knew that you were free to attend?---I don't recall that. It didn't interest me so I don't - - -
PN1770
So you made a decision not to attend?---Yes.
PN1771
I have no further questions, your Honour.
PN1772
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Ms Chambers.
PN1773
PN1774
MS CHAMBERS: Ms Munro, you say that you voted on the date that the ballot closed when you received your ballot paper?---That is correct.
PN1775
And you then actually assisted Ms Higgs, didn't you, in the counting of the ballot?---Yes.
PN1776
And what time did you do that, after 12 noon?---Very soon after 12 noon.
PN1777
And so at that stage, what, you assisted her in untying the cables that were actually securing the ballot?---No, I didn't assist her in doing that.
PN1778
Did you see her do that?---I can't - - -
**** JUDITH HELEN MUNRO XXN MS CHAMBERS
PN1779
Do you remember cables being around?---I do remember the cables - - -
PN1780
Yes?--- - - - that you are referring to.
PN1781
So obviously they had to come - - -?---But I didn't actually see - I can't recall seeing them assisted - being taken off at all.
PN1782
But they would have had to have come off - - -?---Yes, I imagine.
PN1783
- - - for the papers to be taken out. Were you in the room the entire time the box was unpacked and the ballot papers were taken out?---Yes.
PN1784
Yes, yes. So they would have had to have come off - - -?---Yes.
PN1785
- - - for that to happen. And then can you just explain to me the process you and Sally went through to count the ballot papers?---Yes. Sally passed me a pad of about that size, just a lined pad. And she had the ballot papers and I had - I just wrote: yes, no. And as Sally read the ballot paper, I just ticked. And at the end of it I counted them and put the number in and circled it, or initialled it on both of them, and there was one I think that wasn't like - it was a - what do you call it, kind of a - - -
PN1786
A donkey vote?---A donkey vote, one of those. And I wasn't comfortable about being there, and when it was finished Sally said that she had to ring the union, and I left the room.
PN1787
Yes, all right?---But, yeah.
PN1788
Thank you very much?---But we walked to the room together.
**** JUDITH HELEN MUNRO XXN MS CHAMBERS
PN1789
Yes, yes. Thank you.
PN1790
MR TURNER: No re-examination, your Honour.
PN1791
PN1792
THE SENIOR DEPUTY PRESIDENT: Who are you calling now, Mr Turner?
PN1793
PN1794
MR TURNER: Mr Lindsay, could you re-state your name and address, please?---John Lindsay, 13 Mulvay Street.
PN1795
Are you employed as a chef by Alcheringa Hostel?---That is right.
PN1796
Have you made a statement in relation to this matter?---I have.
PN1797
I will have this document handed to you and ask you to tell me whether it is the statement you made?---That is - - -
PN1798
Is that your statement?---That is right, yes.
PN1799
It consists of four paragraphs, and it is undated; is that correct?---
PN1800
What - - -
PN1801
It is four paragraphs long, and it is undated?---Yes, yes.
PN1802
PN1803
MR TURNER: Mr Lindsay, Sally Higgs says in her evidence that Lynette Harvey or Leanne Easton gave you a copy personally of the agreement before the ballot closed; is that correct?---No, I didn't have one.
PN1804
I have no further questions, your Honour.
**** JOHN LINDSAY XN MR TURNER
PN1805
PN1806
MR NIALL: Mr Lindsay, you work as a chef so I take it you spend most of your time in the kitchen?---I do, yes.
PN1807
And in the kitchen there is a noticeboard?---At the - in the back office, yes.
PN1808
Yes. And a table?---A table.
PN1809
Yes, and documents occasionally are left on the table?---There is.
PN1810
Yes, and from about 18 August 2003 copies of the agreement that was to be voted on were placed in the kitchen on the table?---I didn't see one.
PN1811
You didn't see an agreement there?---I didn't.
PN1812
But you are not in a position to deny Ms Higgs has said that she placed agreements - copies of the agreement there. You are not in a position to dispute that, are you?---I am.
PN1813
Well, only to the extent that you don't recall seeing one?---I did not see one.
PN1814
Now, could the witness be shown ANF6 and 7?---No, I had not seen this.
PN1815
You have never seen those before?---No, I have not.
**** JOHN LINDSAY XXN MR NIALL
PN1816
Are you sure about that?---I am quite sure.
PN1817
Ms Harvey and Ms Easton gave you a copy of those, didn't she - didn't they?---No, I have not seen those.
PN1818
And they also gave you a copy of the agreement before you voted?---No, I had never seen any agreement.
PN1819
You knew the agreement was around, copies of the agreement were around the building?---No, there was that much going on around the place that nobody would take any notice.
PN1820
What do you mean, there was that much going on?---There has been that much troubles at Alcheringa, and it is every day occurrence. So you do your work, and you go home.
PN1821
So you knew, didn't you, that an agreement was being negotiated between Alcheringa, the ANF and the HSUA?---Through meetings that we had had with Ian Fisher, and it was explained to us that there was no enterprise bargaining.
PN1822
All right. But before that, you knew that there had been a process of negotiations?---I knew things had taken place.
PN1823
Yes, and you knew that the ANF had indicated that there was an agreement, and Alcheringa said there wasn't an agreement?---That is right.
PN1824
And you knew that the agreement was to be voted on?---Yes, and I also received their voting form.
**** JOHN LINDSAY XXN MR NIALL
PN1825
Yes, and you were given a ballot paper, the voting form?---The ballot paper is what I had.
PN1826
Yes, and you knew that you could use that ballot paper to cast a vote either in favour of the agreement or against the agreement?---Well, when I received it I didn't mark anything on it, and I just put it in the box.
PN1827
You knew when you got it that you - - -
PN1828
THE SENIOR DEPUTY PRESIDENT: Sorry, you put it in what box, Mr Lindsay?---In the ballot box that was in the nurses office.
PN1829
MR NIALL: Right. So you - - -
PN1830
THE SENIOR DEPUTY PRESIDENT: Without putting any mark on it at all?---I put no mark on it at all because we had no agreement.
PN1831
MR NIALL: But you knew you could cast - - -
PN1832
THE SENIOR DEPUTY PRESIDENT: Just a moment, Mr Niall. Yes, Mr Niall.
PN1833
MR NIALL: You knew that you could vote in favour of the agreement?---It stated that in favour or not.
PN1834
Yes, and you knew that you could vote against the agreement?---That is right.
PN1835
Yes, and it was a matter for you to decide whether you wanted to exercise your vote?---Well, there was no purpose in voting because we had been told there was no enterprise bargaining.
**** JOHN LINDSAY XXN MR NIALL
PN1836
But you were free to cast a vote?---I could have been, yes.
PN1837
And you regarded it as being no purpose in casting a vote because you had been told by Alcheringa - - -?---Excuse me, I don't understand what you mean.
PN1838
As I understand your evidence, you are telling his Honour that you believed there was no purpose in casting a vote because you had been told by Alcheringa that they weren't going to be party to it?---There was no enterprise agreement.
PN1839
So you wouldn't have been interested in having the agreement explained to you in any event, would you?---Not at all.
PN1840
Did you know that there was a meeting on 3 September conducted by Mr Gilbert, sitting here, of the ANF to explain the agreement?---Yes, I do remember seeing him there.
PN1841
Did you attend the meeting?---No, I didn't.
PN1842
You were free to attend the meeting?---I could have.
PN1843
Yes, and you chose not to?---I chose not to.
PN1844
Because you weren't interested in having the agreement explained to you because, as you have said to his Honour - - -?---Well, I was not a member of that union.
PN1845
But you have just - - -?---And I am not a member of any union so I didn't see any point of being there.
**** JOHN LINDSAY XXN MR NIALL
PN1846
Yes, but you have just said to his Honour that you were - regarded yourself as being free, as able to attend?---I could have but I chose not to.
PN1847
And you chose not to because basically you weren't interested in the agreement?---Exactly.
PN1848
Now, you say a number of ballot papers were removed from your work area, before the ballot closed at noon, at ten?---The previous day I had - there was sealed envelopes in what we call our staff letter box, and I - - -
PN1849
And there were three - - -?---I arrive at work usually half past three, twenty to four in the morning. The envelopes weren't there.
PN1850
On 10 September?---On the following day from when I had seen them.
PN1851
Well, which day?---Well, I seen them on the day they arrived, and some received envelopes, and they were placed in the - and then others were placed in what we call our letter box, staff letter box. The next morning when I arrived there was no envelopes there.
PN1852
Well, three envelopes were removed on the morning of 10 September?---I can't recall the dates.
PN1853
And those three were - they were sealed envelopes, weren't they?---They were.
PN1854
Can you remember the names of the employees whose names were on the envelope?---Oh, no, I didn't take any notice.
PN1855
You say that you did not understand what you were voting about; you say that in paragraph 3 of your statement. Now, you didn't care what you were voting about, did you?---Well, I had no intentions of voting.
**** JOHN LINDSAY XXN MR NIALL
PN1856
And you didn't care one way or the other?---No, because we had been explained that there was no enterprise bargaining.
PN1857
PN1858
MS CHAMBERS: Mr Lindsay, you gave evidence that some of the envelopes went missing. Was that towards the end of the ballot period or towards the start; do you remember?---From what I can remember, it was the day that it was - took place. They weren't there that morning.
PN1859
They weren't there that morning. All right. So you don't know whether the persons to whom they were addressed had actually taken some of those?---Well, I don't but I think what - if I can remember what drew my attention to it, somebody asked about their envelope and I said, well, they were in the letter box. And there wasn't anything there.
PN1860
So you think those envelopes were not there on the 10th, which was the day the ballot closed?---Closed. Well, that was when they were noticed they had gone.
PN1861
All right. And Ms Higgs has given evidence in relation to that. Thanks, your Honour.
PN1862
THE SENIOR DEPUTY PRESIDENT: Yes, but her evidence was, as I recollect it, that she removed them at around 7 am.
PN1863
MS CHAMBERS: 7 am.
**** JOHN LINDSAY XXN MS CHAMBERS
PN1864
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1865
MS CHAMBERS: Yes.
PN1866
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Turner.
PN1867
MR TURNER: No re-examination, your Honour?---Well, I arrived at 3.30 and they weren't there.
PN1868
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Turner?
PN1869
MR TURNER: No re-examination, your Honour.
PN1870
THE SENIOR DEPUTY PRESIDENT: You arrive at 3.30 am, in the morning?---Yes, yes.
PN1871
PN1872
THE SENIOR DEPUTY PRESIDENT: Your next witness, Mr Turner?
PN1873
MR TURNER: Your Honour, I was going to call Margaret Tripcony next. I have just been told, unfortunately, her mother died last night and she won't be attending today. So I will then call Kate Isma.
PN1874
THE SENIOR DEPUTY PRESIDENT: Kate?
PN1875
MR TURNER: Isma, I-s-m-a.
PN1876
MR LINDSAY: I have to go back and relieve Kate Isma so she can come up.
PN1877
MR TURNER: I assumed she was - - -
PN1878
THE SENIOR DEPUTY PRESIDENT: Well, you won't be calling her just now. While we are waiting for a witness, I might indicate that I have looked through exhibit A6 and there is not a blank ballot paper in that bundle. There is no ballot paper without a mark on it.
PN1879
MR TURNER: I am aware of that, your Honour.
PN1880
THE SENIOR DEPUTY PRESIDENT: I am just informing the - - -
PN1881
MR TURNER: Thank you.
PN1882
MR NIALL: Could we see the ballot papers, your Honour?
PN1883
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1884
MR NIALL: And while I am on my feet, I take it that Mr Turner is not pressing the statement of Ms Tripcony.
PN1885
MR TURNER: That is correct, yes.
PN1886
THE SENIOR DEPUTY PRESIDENT: No.
PN1887
PN1888
MR TURNER: Can you restate your name and address please?---Valerie Faye McLean, 3 Fylan Court, Swan Hill.
PN1889
Are you employed as a food domestic assistant at Alcheringa Hostel?---Yes, I am.
PN1890
Have you made a statement in relation to the matters before the Commission?---Yes, I have.
PN1891
I will have this document handed to you and ask you if this is your statement. Was that the statement you made?---Yes, yes.
PN1892
Is it dated 30 October this year?---Yes.
PN1893
And it is seven paragraphs long?---Yes.
PN1894
PN1895
MR TURNER: Thank you. Are you aware, Ms McLean if the union or the ANF held meetings at Alcheringa on 3 September?---I knew there was a meeting on, I am not sure what date it was.
PN1896
Yes?---But I didn't attend any meeting.
PN1897
No, okay. No further questions, your Honour.
**** VALERIE FAYE McLEAN XN MR TURNER
PN1898
PN1899
MR NIALL: Thank you, your Honour.
PN1900
Ms McLean, can I just get some things clear. You knew, did you not that Alcheringa and ANF and the HSUA were negotiate - negotiating or seeking to negotiate a work place agreement?---Yes, yes.
PN1901
And that was a fairly lengthy process?---Yes.
PN1902
And the outcome of that, if an agreement had been reached, would be an agreement that would regulate in part terms and conditions of employment?---Yes, yes.
PN1903
You understood the purpose of the exercise was to get a work place agreement?---Yes.
PN1904
And there hadn't been a work place agreement before, had there?---No, that is what I said here, I didn't think that we had a work place agreement.
PN1905
But you knew the process was to get an agreement?---Mm.
PN1906
And you knew that in September there was to be a bout of employees as to whether they wanted to vote in favour of the agreement or against the agreement?---Yes, I knew we had to vote, yes.
PN1907
When you say you had to vote, you knew you had the opportunity to vote?---Yes, yes.
**** VALERIE FAYE McLEAN XXN MR NIALL
PN1908
It wasn't compulsory?---No, no I knew that.
PN1909
And you knew that you could - you were entitled to vote if you wanted from 3 September until 10 September?---Mm.
PN1910
There was a period of time in which you could cast your vote?---Mm.
PN1911
Would you agree with that?---Yes.
PN1912
And you were given a ballot paper to do that?---Yes.
PN1913
And how were you given the ballot paper?---I can't remember if it was handed to me or whether it was out in the staffroom in the thing that I collected it from there or whether it was handed to me, I cannot agree but I was given - I got one.
PN1914
Yes, do you remember whether it was in an envelope or not?---It was in an envelope I think, I think.
PN1915
Did you read the ballot paper?---Yes.
PN1916
And you understood that it said that an agreement had been completed. Perhaps the witness could be shown the ballot paper please. Did you read the ballot paper?---Yes, yes.
PN1917
And you got the ballot paper some stage within the time where you were entitled to vote, didn't you? So you got it some time - you had had it at least before 10 September?---Yes.
**** VALERIE FAYE McLEAN XXN MR NIALL
PN1918
And the first paragraph says:
PN1919
That an agreement had been completed and had been circulated around the work place for more than 14 days.
PN1920
And that statement - you read that?---Mm.
PN1921
Yes?---Yes, but I wasn't at work every day. I don't work every day, but yes, I read that.
PN1922
Yes, and that accorded with your understanding that there had been an agreement around the facility for more than 14 days by the time you got the ballot paper?---Yes.
PN1923
And the next paragraph was:
PN1924
All employees are given an opportunity to vote by marking one box below.
PN1925
You read that?---Yes.
PN1926
And you appreciated that you were entitled to vote?---Yes.
PN1927
And the ballot opened on 3 and closed at 12 o'clock on 10 September. You noted that?---Mm.
PN1928
Yes, and:
**** VALERIE FAYE McLEAN XXN MR NIALL
PN1929
That completed ballot papers may be placed in the box - ballot box in the nurses station care office.
PN1930
And you knew that?---Mm.
PN1931
Yes?---Yes.
PN1932
And that is - you were then entitled to vote either in favour of the agreement or against the agreement?---Yes.
PN1933
And you had that ballot paper, you made a decision as to what to do?---Yes.
PN1934
Yes, and you voted, did you?---Yes, I voted, but I - - -
PN1935
Yes, I don't - we don't need to know how you voted, but you voted?---But as I said on my statement, I don't think I really understood what I was voting about or on.
PN1936
Well, we will come to that?---Okay.
PN1937
But you did vote?---Yes.
PN1938
And you knew that you could cast a vote either in favour of the agreement or against the agreement?---Yes.
PN1939
And you knew that the agreement had been circulating and was available for you to inspect?---But I never ever did see any agreement or any papers.
**** VALERIE FAYE McLEAN XXN MR NIALL
PN1940
No, but you knew that you were free to - did you ask anyone for a copy?---No, I didn't know that we had a copy. I didn't think that that was finalised or we had any agreement.
PN1941
But I thought you had earlier in your evidence indicated that you were aware or you had agreed that the agreement had been circulated around the work place for more than 14 days?---I did not see a copy of the agreement before I voted.
PN1942
No?---I said that on my statement.
PN1943
But you knew it was available if you wanted to inspect it?---I suppose I knew that, I don't know, yes. Don't understand, yes.
PN1944
Well if you don't understand the question, Ms McLean, please say so and I will ask it again?---Okay.
PN1945
You knew - - -
PN1946
THE SENIOR DEPUTY PRESIDENT: Please don't say "yes" to a question if you don't really mean it?---Mm.
PN1947
MR NIALL: You - - -?---Well it is not very easy.
PN1948
THE SENIOR DEPUTY PRESIDENT: Just take your time.
PN1949
MR NIALL: Well I will try - I will ask the question again, Ms McLean, to give you an opportunity to answer it. Before you cast your vote, you knew that you could ask for a copy of the agreement that was being voted on?---Yes.
**** VALERIE FAYE McLEAN XXN MR NIALL
PN1950
And you didn't ask anyone to have a look at the agreement that was being voted on?---No.
PN1951
Now you say the agreement was not explained to you before you voted. Is that true?---No, because I - I was under the impression that we had - the agreement hadn't been finalised, nothing had been finalised, that is what I was under the impression and that is why I voted how I voted.
PN1952
All right, but no-one explained to you the agreement?---No.
PN1953
Did you ask anyone to explain it to you?---No.
PN1954
And you knew the ANF were holding a meeting or two meetings on 3 September to explain the agreement?---I thought that was to do with the nursing staff and that is why I didn't attend that meeting. I thought it was only for the nursing staff.
PN1955
Could the witness be shown ANF6 and 7 please? Have you seen those before?---No.
PN1956
How did you know about the meeting on 3 September?---Because it was held, I think, in the dining room or the lounge room which is straight opposite the dining room and I saw that there was a meeting going on there.
PN1957
Did you know about it before you saw it?---I am not sure, probably just that day when I was at work that day. No, I didn't see this.
PN1958
Now you work in the kitchen, don't you?---Yes.
**** VALERIE FAYE McLEAN XXN MR NIALL
PN1959
And copies of the agreement were in the kitchen, weren't they, before you voted?---They may have been, I am not sure.
PN1960
Now - - -?---They wouldn't have been - - -
PN1961
- - - I think you have said to his Honour that your ballot paper came in an envelope. Now you say in paragraph 6:
PN1962
You were on duty with John Lindsay on 10 September when blank ballot papers were removed from our work area Lyn Harvey before the ballot was closed.
PN1963
Do you see that?---Yes, I was on duty that day.
PN1964
Yes, and you saw the blank ballot papers being removed by Lyn Harvey?---No, I didn't see them, but I was on duty that day.
PN1965
Well how do you know that they were removed by Lyn Harvey?---I - when I made that statement I said I wasn't sure, but I was on duty that day. That is what I am saying, I was there at work that day.
PN1966
Well did you know the blank papers had been - - -?---I had heard that they were removed - - -
PN1967
Who told you - - -?---- - - by other staff members.
PN1968
Who told you that?---I can't - other staff members, but I didn't actually see Lyn Harvey come into the room and take them.
**** VALERIE FAYE McLEAN XXN MR NIALL
PN1969
Yes, well when were you told, do you remember?---No, it would have been in my hours of duty so sometime in the morning - - -
PN1970
What time do you - - -?---- - - while I was there. I am there from 7 am until 12.30.
PN1971
Do you know Ms Harvey?---Yes.
PN1972
What does she do?---She is a nurse. She usually does night duty. Lyn Harvey, yes. She is usually on night duty.
PN1973
Now - - -?---But if she is on night duty she is there till after we start of a morning, so she leaves about 7, 7.30.
PN1974
Okay, now did you have any discussions with Chris Higgs about the agreement?---She had discussions with me about it in the work area, yes.
PN1975
And - so you never had any discussions with Sally Higgs, did you?---Not that I can remember.
PN1976
THE SENIOR DEPUTY PRESIDENT: Sorry I am a bit confused. I thought you said that Ms Higgs had discussions with you?---Yes, Chris Higgs is Sally's mum.
PN1977
Okay, right, thank you.
PN1978
MR NIALL: But you never had any discussions with Sally Higgs?---Not that I can remember, but I did as I have said there, with Chris.
**** VALERIE FAYE McLEAN XXN MR NIALL
PN1979
Yes. Pardon me one moment, your Honour. You have never said to anyone that Sally Higgs told you you would lose your entitlements like sick leave and superannuation, have you?---No.
PN1980
No. You say some time before you voted you had a conversation with Chris Higgs. When was that?---I could not remember exactly. I cannot say what day but she bailed me up one morning in the Miles room kitchen - Miles wing kitchen and went to lengths about telling me how to vote and why.
PN1981
And - - -?---As I have said in 7, number 7.
PN1982
Yes. You didn't believe that you would lose your entitlements to sick leave and superannuation if you voted against the agreement, did you?---I didn't think that could be so, but - - -
PN1983
And in fact you thought that the agreement wasn't even - hadn't even been made?---But why was she telling me to - how to vote. She shouldn't have been telling me how to vote anyway, should she?
PN1984
You didn't even think an agreement had been made, did you?---No, that is what I have said in me statement, yes.
PN1985
And Ms Rough had told you that, hadn't she?---No, nobody told me that.
PN1986
That an agreement hadn't been made?---Nobody told me that. I - by answering number 5, I thought we had had a meeting earlier on as in a whole staff meeting and Ann was there, I think Ian Fisher - Ian Fisher was there and I thought then that we were told that the EBA we were having - was in discussion, nothing had been finalised. That is what I thought.
**** VALERIE FAYE McLEAN XXN MR NIALL
PN1987
And they told you - - -?---And told all of us at a staff meeting, not me personally.
PN1988
Did you have any other discussions with Ms Rough about the agreement?---Not I - not that I am aware of.
PN1989
But you knew Alcheringa's position was that they didn't regard this agreement as binding on them?---Say that again. I knew - - -
PN1990
You knew Alcheringa's position in relation to this agreement was that they didn't regard it as binding on them. They said there was - - -
PN1991
THE SENIOR DEPUTY PRESIDENT: Their position was more that they didn't regard the agreement as - - - ?---Finalised.
PN1992
- - - as any longer applicable to them, not binding - not so much binding - - -
PN1993
MR NIALL: Thank you, your Honour.
PN1994
THE SENIOR DEPUTY PRESIDENT: - - - as that they were no longer a party to it.
PN1995
MR NIALL: Thank you, your Honour. Alcheringa said "We are not a party to this agreement", didn't they?---Yes.
PN1996
And your evidence to his Honour is that you had never seen those pink and blue sheets before?---Not that I am aware of.
**** VALERIE FAYE McLEAN XXN MR NIALL
PN1997
Do you look on the notice boards?---Yes.
PN1998
The evidence before his Honour - - -?---But sometimes you are busy, you don't have time to sit and read and - - -
PN1999
I am sure that is right, Ms McLean?---Yes.
PN2000
The evidence before his Honour that those were posted on notice boards at the facility, but you don't remember seeing them?---I don't remember seeing them, no.
PN2001
They amount the questions I have, your Honour.
PN2002
THE SENIOR DEPUTY PRESIDENT: Yes, Ms Chambers.
PN2003
MS CHAMBERS: No questions.
PN2004
THE SENIOR DEPUTY PRESIDENT: Mr Turner.
PN2005
MR TURNER: No re-examination, your Honour.
PN2006
PN2007
MR TURNER: Ms Wright, can you restate your name and address please?---Susan Therese Wright, 448 Campbell Street, Swan Hill.
PN2008
Thank you. Are you employed as a personal care worker by Alcheringa Hotel Limited?---Yes.
PN2009
And have you made a statement in relation to the matter before the Commission?---Yes.
PN2010
I will have this document handed to you and ask you if that is a copy of your statement?---Okay.
PN2011
Or the original. Is that the statement?---Yes.
PN2012
Dated 31 October?---Yes.
PN2013
And has five paragraphs?---Yes, that is right.
PN2014
PN2015
MR TURNER: I have no questions.
PN2016
**** SUSAN THERESE WRIGHT XXN MR NIALL
PN2017
MR NIALL: Thank you, your Honour. Ms Wright you were - you knew that the enterprise agreement was being voted on by staff?---Right.
PN2018
In September?---Yes.
PN2019
You knew that?---There was talk around about it. I didn't know that it was going to be a vote, I don't think, until it happened.
PN2020
Yes, but you didn't know until it happened. You were given a ballot paper?---Yes.
PN2021
Was that handed to you?---Yes.
PN2022
Did you read it?---Yes.
PN2023
Could the witness be shown a copy of the ballot paper please? Who gave you the ballot paper?---Sally.
PN2024
Do you remember when it was?---No.
PN2025
Now you read the first paragraph, it said:
PN2026
That an agreement had been completed some months ago.
PN2027
?---Yes.
PN2028
And it said:
**** SUSAN THERESE WRIGHT XXN MR NIALL
PN2029
The agreement reached has been circulated around the work place for more than 14 days.
PN2030
You saw that?---Yes, I saw that.
PN2031
Yes?---Yes, obviously.
PN2032
Sorry?---Obviously, yes.
PN2033
Yes, and in fact an agreement - copies of the agreement had been placed by Ms Higgs by 18 August in the staff dining area. Are you aware of that?---No.
PN2034
You didn't see them there?---No, I don't often attend the staff dining room.
PN2035
There were copies in the nurses care office. Would you agree with that?---There - there might have been, I am not sure.
PN2036
There were copies in the kitchen?---Don't go to the kitchen.
PN2037
And there is an area out the back where staff go to smoke and stand around. You don't go out there? And - well when you read that ballot paper, the agreement had been circulated and had been completed, did you ask to see a copy of it?---No.
PN2038
You - yet had you asked you would have expected to been given a copy of it?---Probably, if I had asked, yes.
PN2039
And you decided not to ask?---Yes, well no, it didn't cross my mind to ask.
**** SUSAN THERESE WRIGHT XXN MR NIALL
PN2040
And you say in your statement you cannot remember seeing a copy of the agreement before the ballot. It is possible that you did see one, is it, and that you just can't remember whether or not you saw it?---Yes, I can't remember seeing one. I mean there is that much stuff in there that - - -
PN2041
Now the next paragraph in the ballot paper says:
PN2042
All employees are now given an opportunity to vote by marking one box.
PN2043
You saw that?---Yes.
PN2044
And you understood that you had been given a ballot paper and you had an opportunity to vote?---Mm.
PN2045
Do you agree? Do you agree with that?---Yes.
PN2046
And what you are voting on is whether you approve the agreement or whether you want to vote against the agreement. You understood that, didn't you?---Yes.
PN2047
And that you could exercise your vote by marking a ballot paper and placing it in the ballot box?---Yes.
PN2048
You decided not to?---That is right.
PN2049
You knew you were entitled to?---Yes.
PN2050
And you just formed the view that you didn't want to?---No, well I was actually a bit confused because there was another memo sent out to staff saying that we - Alcheringa had actually pulled out of this, so I was just sort of - I - - -
**** SUSAN THERESE WRIGHT XXN MR NIALL
PN2051
Yes, there was a memo from Alcheringa saying they had pulled out of the agreement?---Yes.
PN2052
But the vote was going on?---Yes, but - - -
PN2053
And you had a ballot paper and you knew you could vote either for or against the agreement?---Yes, yes.
PN2054
Would you agree with that?---That is right.
PN2055
And did you ever ask anyone to explain the agreement?---No.
PN2056
Weren't interested?---No, as far as I knew, Alcheringa had pulled out of the whole agreement thing so what were we voting on.
PN2057
And you knew - you read the ballot paper though. You knew the ballot paper was to decide whether the employees wanted to vote in favour of the agreement or vote against the agreement. That was being asked of you?---Yes.
PN2058
Would you agree with that?---Well, yes, it was handed to me, I looked at it and I thought - and that is about it.
**** SUSAN THERESE WRIGHT XXN MR NIALL
PN2059
So you said you did not understand what the ballot was for but you knew, didn't you, that you could either vote in favour of the agreement or against the agreement?---I knew there was - yes, yes.
PN2060
You knew there was an agreement, and you could cast your vote in relation to it?---Yes, but I didn't know what the agreement was.
PN2061
But you never asked anyone to see it?---That is right.
PN2062
And you never asked anyone to explain it to you?---Because we had pulled out of it.
PN2063
Yes, but you never asked anyone to explain it to you?---No, that is correct.
PN2064
Did you know that the ANF - Mr Gilbert from the ANF had held meetings, two meetings on 3 September to explain the agreement?---Possibly, I knew the ANF were coming up occasionally.
PN2065
Could the witness be shown exhibit 6 and 7, please, ANF6 and 7? Have you seen the notice before?---Not that I can remember, no.
PN2066
Well a meeting was held on 3 September, two meetings I should say. One at 11.30 and one at 1.30. Do you remember being - I withdraw that. Did you know those meetings were taking place, those specific meetings?---I can't remember to be honest, no.
PN2067
If you had known, would you have attended?---No.
PN2068
You weren't interested in having anyone explain the agreement to you because Alcheringa had indicated they had pulled out? Was that the position?---Basically, yes.
**** SUSAN THERESE WRIGHT XXN MR NIALL
PN2069
If your Honour pleases.
PN2070
PN2071
MS CHAMBERS: So, Ms Wright, if I - if I could just summarise your position then, from the time - you attended a meeting with Mr Fisher, did you, at which he told you that Alcheringa had pulled out?---Yes, I think that might have been at a meeting too that that was stated and then there was actually a memo sent to everybody.
PN2072
So your position is from the time you saw that memo, you took no further interest - - -?---That is right.
PN2073
- - - in the process?---That is right.
PN2074
So - so memos that went up on the wall about the agreement or about meetings about the agreement, you just ignored from that time on?---Basically, yes.
PN2075
Yes, I have no further questions.
PN2076
THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Chambers.
PN2077
MR TURNER: No re-examination, your Honour.
PN2078
PN2079
MR NIALL: Your Honour, can I raise a matter - - -
PN2080
THE SENIOR DEPUTY PRESIDENT: Yes
PN2081
MR NIALL: - - - before my learned friend calls the next witness? Mr Lindsay indicated that he had passed a blank ballot and as your Honour - - -
PN2082
THE SENIOR DEPUTY PRESIDENT: Just wait a moment, please. Just pause, please. Yes, Mr Niall continue.
PN2083
MR NIALL: And as your Honour indicated that in exhibit A6 there does not appear to be a ballot paper that has not been marked. We would seek to recall Ms Munro to ask her some questions about that, your Honour.
PN2084
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Douglas, Mr Turner, what do you say about that?
PN2085
MR DOUGLAS: There are no problems with that.
PN2086
MR TURNER: No problems, no.
PN2087
THE SENIOR DEPUTY PRESIDENT: Yes, can you arrange that? Yes, well that will be down. Swear the witness please.
PN2088
PN2089
MR NIALL: Sorry, your Honour, before my learned friend commencing questioning, it may also be that we would seek to recall Ms Higgs, but we will take one step at a time, your Honour.
PN2090
THE SENIOR DEPUTY PRESIDENT: Yes, well if she is in your - - -
PN2091
MR NIALL: Yes, she is, your Honour.
PN2092
THE SENIOR DEPUTY PRESIDENT: - - - power, so if you want to recall her, make sure she is here when you make that application if you do.
PN2093
MR NIALL: Yes, your Honour.
PN2094
MR TURNER: I think Judy Munro is not here at the moment, but we will have her re-attend.
PN2095
PN2096
MR TURNER: Ms Isma can you - sorry. Yes I am just having an alternative position put to me but - - -
PN2097
MR DOUGLAS: Well it seems to be - - -
PN2098
MR TURNER: - - - the union wants - the union wants to - - -
PN2099
MR DOUGLAS: - - - sensible, your Honour, that if the question arises as to whether Mr Lindsay's paper is in that bundle, he is the one that should be asked to identify whether it is there - to say whether it is there or not.
PN2100
THE SENIOR DEPUTY PRESIDENT: Well, Mr Douglas, his evidence - clear evidence was that he didn't mark the paper.
PN2101
MR DOUGLAS: That is right.
PN2102
THE SENIOR DEPUTY PRESIDENT: There is no unmarked paper in the bundle.
PN2103
MR DOUGLAS: No, but there is one - one in the bundle, your Honour, the so called donkey vote one - - -
PN2104
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2105
MR DOUGLAS: - - - that is unmarked in terms of the boxes but it has got writing on it. Now it may well be that that is his. I don't know.
PN2106
THE SENIOR DEPUTY PRESIDENT: That is not the way I understood his evidence.
**** KATHERINE ANN ISMA XN MR TURNER
PN2107
MR DOUGLAS: No.
PN2108
THE SENIOR DEPUTY PRESIDENT: But it may well be. Well do you want to recall Mr Lindsay, do you?
PN2109
MR DOUGLAS: Well, that - that seems to be the quickest way around it.
PN2110
THE SENIOR DEPUTY PRESIDENT: Well I am content to. Subject to what the other side says I am prepared to have Mr Lindsay recalled if you so desire.
PN2111
MR DOUGLAS: It is up to my learned friend.
PN2112
MR TURNER: We have Ms Munro returning at the moment, but perhaps if that decision could be made by my learned friend.
PN2113
THE SENIOR DEPUTY PRESIDENT: Well I think I will make the decision here. We will recall Mr Lindsay and ask him if that was his ballot paper.
PN2114
MR DOUGLAS: Yes.
PN2115
THE SENIOR DEPUTY PRESIDENT: Could you arrange that, please, have Mr Lindsay come back.
PN2116
MR DOUGLAS: Yes, your Honour, it might require Ms Isma to go back to the facility - - -
PN2117
THE SENIOR DEPUTY PRESIDENT: I think we will have plenty of - - -
**** KATHERINE ANN ISMA XN MR TURNER
PN2118
MR DOUGLAS: - - - to relieve Mr Lindsay.
PN2119
THE SENIOR DEPUTY PRESIDENT: I think there we will be plenty of opportunity.
PN2120
MR DOUGLAS: I think so.
PN2121
THE SENIOR DEPUTY PRESIDENT: Yes, let us proceed with Ms Isma.
PN2122
MR TURNER: Thank you.
PN2123
THE SENIOR DEPUTY PRESIDENT: Sorry about that.
PN2124
MR TURNER: Ms Isma, could you restate your name and address please?---Katherine Isma, 37 ..... Street, Swan Hill.
PN2125
And you are employed by Alcheringa Hostel as a housekeeper?---Yes.
PN2126
Have you made a statement in relation to this proceeding?---Yes.
**** KATHERINE ANN ISMA XN MR TURNER
PN2127
I will have this document handed to you and ask you if that is your statement. Is that the statement you made?---Yes.
PN2128
Is it dated 31 October?---Yes.
PN2129
Consists of five paragraphs?---Yes.
PN2130
PN2131
MR TURNER: Yes, I have no further questions.
PN2132
PN2133
MS CHAMBERS: Thank you, your Honour. Ms Isma, you received a copy of the ballot vote?---Yes.
PN2134
Can I ask that you be shown - and you read that ballot paper before you actually voted?---Yes.
PN2135
And you understood that you could either vote in favour of the agreement or against the agreement?---Yes.
PN2136
And that what was being said was that the two unions, the ANF, the HSUA and Alcheringa had reached an agreement?---Well, I probably didn't understand the ballot paper so like, wandering around the facility, we discussed things and - yes.
**** KATHERINE ANN ISMA XXN MS CHAMBERS
PN2137
The ballot paper says that the agreement that had been reached had been circulated around the workplace for more than 14 days. That is right, isn't it?---I hadn't seen anything before I got this piece of paper.
PN2138
You work in the kitchen area?---Yes.
PN2139
Had you seen copies of the agreement on the dining table in that kitchen area?---No.
PN2140
You work in the - you go into the - Ms Higgs, you know her?---Yes.
PN2141
She gave evidence that copies of the agreement were left in the staff dining area. You are able to go into the staff dining area?---Yes.
PN2142
You do frequently in the course of a day?---Yes.
PN2143
You saw copies of the agreement in that area?---I don't recall seeing anything.
PN2144
Were you looking out for copies of the agreement?---No, because I didn't know that - I didn't know anything was happening until I got a ballot paper.
PN2145
So they may have been there. You may just not have seen them?---Yes.
PN2146
Yes, yes, because you weren't looking for them?---No.
PN2147
You were aware, were you, that the ANF was - and Mr Paul Gilbert from the ANF was attending the facility on 3 September?---No.
**** KATHERINE ANN ISMA XXN MS CHAMBERS
PN2148
Can I ask that the witness be shown ANF6 and 7. These are two bulletins produced by the ANF and Ms Higgs has given evidence that copies of those were put on the notice boards, the various notice boards at the facility. Did you see either of those documents?---No.
PN2149
So similarly to the agreement, was the fact that you were just not on the lookout for any information about the agreement?---No, I wasn't. I do read what is on the bulletin things but I don't recall seeing any of these.
PN2150
So you were not aware that the ANF was attending a meeting on 3 September at all?---No, no.
PN2151
Do you recall whether you were on duty that day?---No, I don't.
PN2152
Did you ask anyone about the agreement?---When we got these?
PN2153
Yes?---We did ask, yes, I did - - -
PN2154
Who did you ask?---Just in general, around the kitchen.
PN2155
And what were you told?---Well, to - that probably to vote no but like I said, I didn't really understand what was going on anyway, so - - -
PN2156
Did you ask anyone from management?---No.
PN2157
You would have been able to ask?---I am sure I could have, yes.
PN2158
The fact that an agreement had been negotiated, you understood that an agreement was being negotiated between the two unions?---Well, I knew there was things going on but - - -
**** KATHERINE ANN ISMA XXN MS CHAMBERS
PN2159
But you understood that it related to an agreement to cover things like - - -?---Yes.
PN2160
- - - wages and conditions?---Yes, yes, yes.
PN2161
You understood that that was the process?---Yes.
PN2162
You understood too that those were wages and conditions that would cover you?---Yes.
PN2163
But you just chose not to be interested?---Well, it is not that I wasn't interested. I just, like I said, didn't understand, hadn't heard anything about it, only that it was for agreements on wages and what have you.
PN2164
Did you attend any meeting with management where they told you that Alcheringa no longer saw itself as being a party to that agreement?---There were several meetings. There was a few that I haven't turned up for, not turned up for, but haven't been there on the day but I am not sure. I don't remember.
PN2165
Did you attend any of those meetings with management?---I have attended meetings but I don't remember any on this.
PN2166
Do you remember being told at any stage by management that Alcheringa did not think - or did not see itself as a party to that agreement any more?---Not that I can remember. If I knew it was going to be this important I am sure I would have taken a bit more in.
PN2167
You say in paragraph five that five or six ballot papers were removed from the kitchen before 7 am. Did you see that actually happen?---Yes, I did.
**** KATHERINE ANN ISMA XXN MS CHAMBERS
PN2168
Who - there were in fact only three ballot papers that were removed, weren't there?---I said I wasn't sure how many there were, there could have been five or six.
PN2169
Right, but there could similarly have just been three?---There could have been three, yes.
PN2170
And who did you see remove those ballot papers?---Lyn Harvey.
PN2171
Right, and at what time was that?---Well it was before seven, so it could have been anywhere between 6.30 and seven.
PN2172
When do you start?---I would have started at 6.30 that day.
PN2173
So some time between 6.30 and 7, you think you saw her take those ballot papers?---Yes.
PN2174
And that was on the day the ballot closed, which was 10 September?---Yes.
PN2175
Do you remember which date you voted?---It was - no, I don't remember the date, no.
PN2176
Who actually gave you the ballot paper?---Well, I don't know if mine was left in the box or whether it was sent to me.
PN2177
And did anyone have a discussion with you about voting?---Well, that is all we have spoken about, this voting.
**** KATHERINE ANN ISMA XXN MS CHAMBERS
PN2178
Other than the discussions you have talked about in the kitchen?---No, not other than that, no.
PN2179
All right. I have no further questions.
PN2180
THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Niall? Mr Turner.
PN2181
MR TURNER: No re-examination, your Honour.
PN2182
PN2183
THE SENIOR DEPUTY PRESIDENT: Who is next, Mr Turner?
PN2184
MR TURNER: Judy Munro.
PN2185
PN2186
MR NIALL: You indicated in some answers to Ms Chambers, just here on my right, that you were present during the vote count for the ballot?---Correct.
PN2187
And as I understood your evidence, you walked with Sally to the room - - -?---That is correct.
PN2188
- - - and were present at all time while the votes were counted?---That is correct.
PN2189
And you were sitting along side here, I take it?---I was sitting on her left, yes.
PN2190
And she opened the box, put out the ballot papers on one side?---Yes. I don't distinctively remember her opening the box and getting the ballot papers out but it would have had to have been done, wouldn't it?
PN2191
Yes. And you had a piece of paper with columns on it, a yes column?---Yes.
PN2192
Well perhaps - - -?---Which I created myself. I had a pad of paper that I wrote "yes", "no" on.
PN2193
And could you just tell his Honour how the actual vote process went?---As in - - -
PN2194
Vote count, I am sorry?---Sally counted the votes - like read the vote, yes or no, and I assume turned that over. I ticked whatever was applicable until such stage as we had completed the voting and we counted it up and I just initialled after the end of it and - - -
PN2195
And what did you do with that piece of paper that you initialled?---Sally took it all. Like Sally took that and everything and I departed.
**** JUDITH HELEN MUNRO XN MR NIALL
PN2196
And was every paper in the box counted?---I assume so. I can't confidently say that.
PN2197
And can you remember how many were counted?---No.
PN2198
What order, roughly?---I thought the vote was something like 17 to nine but I can't be precise about that.
PN2199
There are 33 ballot papers provided to his Honour. Does that - does 33 accord with your recollection of the total number of ballot papers counted?---No, I can't answer that.
PN2200
Your recollection was that it was in the order of 17 plus nine, 26?---Yes, approximately, and there was one invalid vote as well.
PN2201
Did you have a look at the invalid one?---Yes, Sally actually showed it to me because it had writing on it.
PN2202
Yes, it had two - do you recall what it looked like? Perhaps you could be shown?---Well it was the same as what is on the bottom of here, only it had handwriting on it.
PN2203
Is that the one you saw?---That is correct. Yes, that is the one I saw.
PN2204
And were there any papers that were blank? That is, they hadn't been marked in any way?---I didn't actually see but I didn't actually view the papers as such. Sally read them and I - that was the only one that I actually saw.
PN2205
And did Sally say to you that there was a blank paper?---No.
**** JUDITH HELEN MUNRO XN MR NIALL
PN2206
And she counted - as you were observing her, she counted all the papers that were in front of her?---Well in actually fact I wasn't observing her. I was sitting next to her and I was just indicating as she told me what was on the paper. No, it was very poorly performed. There should have been a third person there, I believe. She just asked me that morning would I be part of it and I said yes and then I became very uncomfortable about the fact that I was being part of it and she came to me at 12 or very soon after 12 and said "we will go and do it" so yes, I had very little part to do with it other than listening to her announce a yes or a no and me ticking and I was out of there as soon as there was a result.
PN2207
But she specifically raised that one with you?---Well she said this is - what is the word, donkey vote, and I said for why and that was when she actually showed me that. I asked her as to why it was - - -
PN2208
Did you record that on your piece of paper?---Yes.
PN2209
What as? Did you make a new column?---Well yes, underneath where we had the yes and the no, I don't know whether I headed it as donkey vote or what, but it was indicated as one.
PN2210
Yes, thank you. No further questions.
PN2211
THE SENIOR DEPUTY PRESIDENT: Anything, Mr Turner?
PN2212
MR TURNER: No questions, your Honour.
PN2213
PN2214
PN2215
MR TURNER: Ms Roberts, are you employed as an - sorry, first will you restate your name and address for the record please?---Joanne Roberts, post office box Lake Boga, 41 Lake Boga.
PN2216
Are you employed as a Personal Care Worker for Alcheringa Hostel Incorporated?---I am.
PN2217
Have you made a statement in relation to this matter before the Commission?---I did.
PN2218
I will have this document handed to you and ask you to identify whether it is the statement you made?---Yes.
PN2219
It is dated 31 October?---Yes.
PN2220
And it has six paragraphs?---Yes.
PN2221
Are the contents of that statement true and accurate?---It is right, correct.
PN2222
PN2223
MR TURNER: Thank you. I have no questions, your Honour.
PN2224
**** JOANNE ROBERTS XXN MR NIALL
PN2225
MR NIALL: Ms Roberts, were you aware that the Alcheringa, ANF and HSUA were in the process of negotiating an enterprise agreement and had been for many months?---No, I don't - didn't.
PN2226
You didn't have any understanding that the Alcheringa and two unions, that is the ANF and the HSUA, were trying to negotiate the agreement?---Yes, the EBA, yes. Yes, sorry.
PN2227
And that was a process that went over many months?---Yes.
PN2228
What was your understanding of the purpose of that process?---I really didn't understand it, I am sorry.
PN2229
But you knew that they were working towards getting an EBA together?---Yes.
PN2230
And the purpose of the EBA was to set out the terms and conditions of employment of the employees, or at least some of them?---I think so.
PN2231
Well, did you understand that an EBA - - -?---Not really, no.
PN2232
But you knew that they were getting an EBA?---They were trying to - getting an EBA together, yes.
PN2233
And that would deal with things like wage rates - - -?---Yes.
PN2234
- - - hours of work - - -?---Yes.
PN2235
- - - and other work related issues were going to be dealt with in the EBA?---I would believe so.
**** JOANNE ROBERTS XXN MR NIALL
PN2236
And that was a process that, as far as you were aware, was taking many months?---Mm.
PN2237
And you became aware that in September there was going to be a vote on an agreement?---No, I was not.
PN2238
Well, you now know that there was a vote on an agreement, don't you?---Yes.
PN2239
And do you now know that the vote took place between 3 September and 10 September?---The dates I cannot recall, no, I am sorry.
PN2240
But you knew that the vote would take place by the employees being given a ballot paper?---Only when Sally Higgs handed me a paper, a ballot paper.
PN2241
That was the first you knew about - - -?---Knew about it.
PN2242
- - - anything, that there was an agreement to be voted on and that you were entitled to a vote. That was the first time you knew about it?---Well, I wasn't interested because I knew that we had pulled out of the EBA so I just wasn't interested.
PN2243
When you say "we had pulled out of the EBA" - - -?---I mean Alcheringa.
PN2244
So when Alcheringa told you that they had pulled out of the EBA, you lost interest in it?---I did.
PN2245
So you weren't interested in finding out - - -?---No, I was not.
**** JOANNE ROBERTS XXN MR NIALL
PN2246
- - - the agreement. But you knew - you were given a ballot paper?---I was.
PN2247
Do you remember what day that was?---No, I cannot recall that day. All I remember, I arrived afternoon shift, there was quite a few staff in the nurses office compared to other days and as I put on the statement here, that is exactly what happened.
PN2248
You arrived for afternoon shift?---I was on an afternoon shift.
PN2249
What time does afternoon shift start?---2.30.
PN2250
And what time would you have got to work?---What time would I have got to work? Probably about 20 past two.
PN2251
So you arrived at work at about 20 past two on the day that Sally handed you a ballot paper?---Which I usually do.
PN2252
Yes, and did you vote?---I did.
PN2253
You placed the vote in the ballot paper?---I did.
PN2254
And you did that at about - before you started work?---I had signed on, I went and checked residents, which we always do, and then I came back.
PN2255
So it would have been 3.30?---Probably easy.
PN2256
4 o'clock?---I really cannot tell you a time, I am sorry.
**** JOANNE ROBERTS XXN MR NIALL
PN2257
But certainly not before 3 o'clock?---No.
PN2258
And you cast your vote in the ballot box?---I did.
PN2259
Now you say in paragraph six of your statement - do you have a copy there?---Yes.
PN2260
That:
PN2261
When I arrived at work on the last day of the ballot, Sally Higgs handed me a paper and said "tick yes or no on that and put it in the box over there".
PN2262
?---That is right.
PN2263
Why do you say that occurred on the last day of the ballot?---I didn't know it was the last day.
PN2264
Well what makes you say now that it was the last day of the ballot?---I am sorry, I got confused there. I had no idea it was the last day.
PN2265
It wasn't the last day of the ballot, was it?---Pardon?
PN2266
It was not the last day of the ballot, was it?---I am not sure.
PN2267
You don't know whether it was or it wasn't?---I can't remember.
**** JOANNE ROBERTS XXN MR NIALL
PN2268
Well there has been some evidence that the ballot closed at 12 o'clock on 10 September and no votes were cast after that time, so it couldn't have been 10 September, could it, if you voted after three?---I honestly cannot say what day I did it, what date it was.
PN2269
So the ballot closed on the 10th and opened on the 3rd. You are not in a position to say which of the days between the 3rd and the 10th you cast your vote?---That is correct.
PN2270
And you said that - so it is not true to say when you "arrived at work on the last day of the ballot Sally Higgs handed me a paper". That is not true?---Well, I honestly cannot remember saying that, the last day. I am sorry.
PN2271
All right. But you would agree with me that if the ballot closed at 12, it couldn't have been the last day?---I wouldn't have been there anyway because I started at 2.30.
PN2272
Where did she give you the ballot paper?---In the nurses office.
PN2273
That is also known as the Care Staff Room?---That is care staff.
PN2274
And that is where the ballot paper - the ballot box was?---That is correct.
PN2275
Yes. And Sally handed you a copy of the ballot paper?---She did.
PN2276
Was it in an envelope?---No.
PN2277
Just - and did she make a note of it on a - - -?---No, not that I recall.
**** JOANNE ROBERTS XXN MR NIALL
PN2278
Not that you saw?---No.
PN2279
All right. It - Ms Higgs has given evidence that most of the ballot papers that she personally distributed was done on about 3 or 4 September. Is it possible that it was that early in the vote that you were given your paper?---Honestly, I cannot answer that. I don't know.
PN2280
Did you vote on the same day that you got the ballot paper?---I did so.
PN2281
Right. Not - as I understand the process, Ms Higgs gave you a ballot paper, she said tick yes or no on that and place it in the box?---That is correct.
PN2282
She didn't - - -?---Explain anything.
PN2283
No, but she didn't indicate you should vote one way or the other, did she?---She said yes or no.
PN2284
So she gave you the choice, you have got to vote yes or no and put it in the ballot and she pointed to the ballot box. Do you agree with that?---Yes, she said "vote yes or no and put it in the ballot box" and pointed over to the ballot box and just walked off.
PN2285
And you then left the care room, didn't you, signed on?---Mm.
PN2286
Went and did your patient round?---I did.
PN2287
And then decided to cast your vote?---Well I had time.
**** JOANNE ROBERTS XXN MR NIALL
PN2288
Yes. So Ms Higgs wasn't saying you have got to cast your vote then and there while she was present?---Well, not exactly, no, but the way she handed it to me was more or less here.
PN2289
But she wasn't saying cast your vote then and there while I am standing next to you?---She did not, no.
PN2290
In fact she left the room, didn't she?---Well I can't remember whether she left the room or not.
PN2291
So you had the ballot paper?---I did.
PN2292
Could the witness be shown a copy of the ballot paper. Is that a copy of the ballot paper that you were given? The original that was given had blue writing for the ANF?---Pardon? Sorry.
PN2293
The original of the ballot paper was that document except it was on original paper, in the sense the ANF - - -?---I am not sure. I thought it was - I can't even really remember whether that was the right paper or not, I am sorry to say.
PN2294
When you say, what was the right paper?---This one.
PN2295
All right. Perhaps you could have a look at an original please. The one that was handed to you looked like that, didn't it?---I can't - I am not sure.
[10.53am]
PN2296
All right. Well, have a read of that, please?---Okay.
**** JOANNE ROBERTS XXN MR NIALL
PN2297
All right. Now, is that - that is the same, I take it, as the copy of the ballot paper that you were given?---Well, I am - honestly, I am not sure - I am not confident about that.
PN2298
Well, is there anything that you think looks different?---No, I just - when I gave my statement I thought there was more squares down one side. Look, I am sorry, but I have got confused, and -
PN2299
Did you - - -?---But I know I ticked one box.
PN2300
Did you look carefully at the ballot paper?---Not really.
PN2301
Did you read it?---Not really, no. Because I wasn't interested.
PN2302
All right. You say you hadn't seen a copy of the agreement before you got the ballot paper?---That is right.
PN2303
Ms Higgs had placed copies of the agreement in the staff dining area, do you agree with that?---No, I don't. I didn't see this.
PN2304
You don't know. Yes. Before you got the ballot, you didn't really know the process was going on, did you?---No.
PN2305
And when you got the ballot you weren't interested, so you didn't ask - - -?---Wasn't interested, sorry.
PN2306
Didn't want to go and ask any questions about the agreement?---No.
PN2307
Didn't want to go and find a copy of the agreement?---No.
**** JOANNE ROBERTS XXN MR NIALL
PN2308
Didn't want to read the agreement? Still have to answer that, I am sorry?---I didn't, no.
PN2309
You didn't want anyone to explain the agreement to you?---No, because as I said I wasn't interested.
PN2310
You had a ballot paper?---And - - -
PN2311
You had a ballot paper?---This ballot paper?
PN2312
Yes. You knew that - - -?---I had a ballot paper.
PN2313
Yes, you knew which way you wanted to vote?---I did.
PN2314
You cast your vote?---I did.
PN2315
And you put it in the box?---I did.
PN2316
Now, could the witness be shown ANF6 and 7. Have you seen those before? That is the pink and the blue bulletin?---No, I have not.
PN2317
There is some evidence that there were copies placed on noticeboards around the facility, but you don't - - -?---There could have been, but I - - -
PN2318
Could have been, you don't remember seeing them?--- - - - have not, did not see them.
**** JOANNE ROBERTS XXN MR NIALL
PN2319
Were you aware that - - -?---I didn't read them, didn't see them.
PN2320
Were you aware that Mr Gilbert was coming up on 3 September to talk about the agreement?---No, I was not.
PN2321
Now, for the purpose of this proceeding you gave a statement?---I did.
PN2322
And how did you come to give a statement? Did Ms Rough ask you to give a statement?---Yes, I believe so.
PN2323
She asked you personally, or you saw a notice on the board?---No, personally.
PN2324
She came to see you, did she?---Just trying to think. Yes, she did.
PN2325
And she asked you some questions about - - -?---No.
PN2326
No?---No.
PN2327
What did she tell you?---She said that the Alcheringa members were coming up and they need to interview you all about the ballot paper.
PN2328
But you hadn't seen any notice on the board, that if you had a problem with the process you could make an appointment to see the lawyers?---Pardon?
PN2329
You hadn't seen a notice on the board?---No, that is right.
PN2330
THE SENIOR DEPUTY PRESIDENT: Is there any evidence that there was a notice on the board?
**** JOANNE ROBERTS XXN MR NIALL
PN2331
MR NIALL: In my recollection, that was the evidence of Ms Rough. She said that they had put a notice on the board to that effect.
PN2332
THE SENIOR DEPUTY PRESIDENT: Maybe. I can't recall that?---I can't see if - I am sorry.
PN2333
MR NIALL: That was my recollection.
PN2334
MR TURNER: I certainly don't recall that.
PN2335
MR NIALL: Well, the transcript will reveal one way or the other.
PN2336
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2337
MR NIALL: This witness didn't see it, so nothing turns on it. Thank you, Ms Roberts.
PN2338
MR TURNER: I have no questions, your Honour.
PN2339
PN2340
MR TURNER: We are just checking, your Honour, if John Lindsay is back as yet, so we can ask him to look at the ballot papers and identify if his is there.
PN2341
MR NIALL: Can I indicate, your Honour, that we propose to re-call, or make an application to re-call Ms Higgs.
PN2342
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2343
MR TURNER: Don't object.
PN2344
MR DOUGLAS: No, that is fine. Fine for us.
PN2345
THE SENIOR DEPUTY PRESIDENT: There being no objection, leave is granted.
PN2346
PN2347
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Turner.
PN2348
MR TURNER: Mr Lindsay, you gave evidence before that you placed an unmarked ballot paper in the ballot box?---Yes, yes.
PN2349
Could you please - could the witness be shown the ballot papers please. All of them.
PN2350
THE SENIOR DEPUTY PRESIDENT: Which ballot paper do you want him to be shown?
PN2351
MR TURNER: The whole bundle, your Honour, I am going to ask him to look through and see if his ballot paper is there.
PN2352
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Turner?---I wouldn't know, unless it is unmarked.
PN2353
Well, I can just stop you there for a moment, Mr Lindsay. What was the first ballot paper that you looked at? What was on it? There is some writing at the bottom, is it?---"You're bloody joking."
PN2354
Yes, you don't need to go further. That is part of the writing, yes. Was that your - - -?---No.
PN2355
MR TURNER: That wasn't an answer, your Honour?---That is definitely not my writing. No, my writing is rather scribbly.
PN2356
THE SENIOR DEPUTY PRESIDENT: Yes. The transcript will probably show you that you said "You're bloody joking" to me, but that is what was written on the ballot paper. Yes, well?---That writing is very neat.
**** JOHN LINDSAY XN MR TURNER
PN2357
That is not your ballot?---No.
PN2358
That is not the one you cast, very well. Mr Turner, there is no point in him going through the remainder, is there?
PN2359
MR TURNER: Yes, as there are no other unmarked - yes. Thank you. Thank you.
PN2360
THE SENIOR DEPUTY PRESIDENT: We are all in agreement that there are no ballot papers that are entirely blank, are we not?
PN2361
MR TURNER: Yes, that is - yes, your Honour.
PN2362
THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Lindsay. You may be excused, and - - -
PN2363
MR NIALL: Can I - your Honour - - -
PN2364
THE SENIOR DEPUTY PRESIDENT: I am sorry, Mr - - -
PN2365
MR NIALL: No, I wish to - - -
PN2366
THE SENIOR DEPUTY PRESIDENT: Well, yes. Don't answer his question until I tell you to.
PN2367
**** JOHN LINDSAY XXN MR NIALL
PN2368
MR NIALL: Mr Lindsay, you have given evidence that you voted - I withdraw that - you have given evidence that you put a ballot paper in the box?---I did.
PN2369
Now, when did you do that?
PN2370
THE SENIOR DEPUTY PRESIDENT: Yes, you may answer?---I done it on the morning - the morning that I received it, over the servery.
PN2371
MR NIALL: Do you recall what day that was?---No, I don't.
PN2372
And - - -?---The only reason - I received it from Sally over the servery, and I looked at it, and I thought, well, this is a waste of time and I asked "Where is the ballot box?". And I was rather amazed to see this other box that was tied together with two bits of plastic and a great whole in the top.
PN2373
But you knew that you didn't have to vote?---That is right.
PN2374
And you say - - -
PN2375
THE SENIOR DEPUTY PRESIDENT: Mr Niall, you are now, I think, transgressing. The purpose of Mr Lindsay being called was to see if he could identify his ballot paper. You are now going beyond - well beyond that, I think.
PN2376
MR NIALL: I just wanted to clarify one thing, your Honour, and I will tell you what it is. It is this: whether Mr Lindsay is sure that he put no mark whatsoever on the paper, so that it was a completely pristine document.
PN2377
THE SENIOR DEPUTY PRESIDENT: Goodness knows how many times we have asked him that, but ask him one more time if you like.
**** JOHN LINDSAY XXN MR NIALL
PN2378
MR NIALL: There was no pen mark or any other mark by you on that document?---Not that I remember, no.
PN2379
Well, you say not - - -?---I don't - I - no, I wouldn't have - because I always keep a pen, you know, like in the side of my coat, so if I was going to write anything I would have done so.
PN2380
Is it possible that you cast a vote one way or the other and you just can't recall?---No, I wouldn't have, because I knew right from the start what I was going to do.
PN2381
Which was vote against the agreement?---Which - just ignore it.
PN2382
Well then why did you go and put the ballot paper in the box?---Well, it wasn't a very good idea to be leaving it laying around, was it?
PN2383
Well why didn't you just rip it up?---I didn't see - I was more interested in seeing what the box was like.
PN2384
You say you can't - it is possible, isn't it, that you voted No on the agreement, marked it, put it in the box?---It is - no. I would recall if I wrote on it.
PN2385
No further questions, your Honour.
PN2386
THE SENIOR DEPUTY PRESIDENT: Mr Lindsay, sorry to drag you back. You are excused yet again?---All right. Sorry for the fishy smell. All right. So I won't be called back again?
PN2387
MR TURNER: No.
**** JOHN LINDSAY XXN MR NIALL
PN2388
THE SENIOR DEPUTY PRESIDENT: No, Mr Lindsay, you won't.
PN2389
PN2390
MR TURNER: The next witness is Jenny Olney, your Honour.
PN2391
THE SENIOR DEPUTY PRESIDENT: Sorry?
PN2392
MR TURNER: Jenny Olney.
PN2393
PN2394
MR TURNER: Ms Olney, can you restate your full name and address please?---Jennifer May Olney, 22 Loch Drive, Swan Hill.
PN2395
Are you employed as a personal care worker at Alcheringa Hostel?---I am.
PN2396
Have you made a statement in relation to this matter before the Commission?---I have.
PN2397
I will ask that this document be handed to you to identify that is the statement you made. Is that the statement you made?---That is the statement I made.
PN2398
Are there six paragraphs in it?---Yes.
PN2399
Dated 3 November?---Yes.
PN2400
And are the contents of that statement true and correct?---Yes.
PN2401
I seek to tender that, your Honour.
PN2402
**** JENNIFER MAY OLNEY XN MR TURNER
PN2403
MR TURNER: Thank you. Could I just refer you to the last paragraph of that. You say you felt steamrollered by the whole procedure. Can you just explain a bit?---I felt steamrollered by the whole procedure simply because I felt we didn't really have a say. I was extremely upset when I saw the ballot box, because of the extremely large hole in the top, and it was only an old cardboard box, which I assumed, when we were told this ballot box it was going to be within the facility for 14 days with our votes in it, I assumed that it would be a properly locked steel box and it was an old cardboard box that looked like the kindergarten made. And I felt that some of the staff, particularly during night shift, would change our votes, and I felt like we weren't really having our proper say.
PN2404
Yes. I have no further questions.
PN2405
PN2406
MR NIALL: Ms Olney, you knew that what was being voted on was whether or not staff wanted to vote in favour of an agreement or against an agreement. You knew that?---I did know that.
PN2407
And copies of the agreement had been distributed around the facility before the ballot opened?---We didn't actually see any copies.
PN2408
Well, when you say "we", perhaps if you just - - -?---I didn't see any, no.
PN2409
And you are a personal care worker?---I am.
PN2410
You have got access to the staff dining area?---I do have access to that.
**** JENNIFER MAY OLNEY XXN MR NIALL
PN2411
Do you go there?---Not always, no.
PN2412
Sometimes?---Because the air is too thick sometimes.
PN2413
The air is too thick?---Yes.
PN2414
What do you mean by that?---There are a couple of staff members that make it very uncomfortable in there, so I chose and have my lunch or my morning coffee break outside in preference than going in there to answer their questions.
PN2415
Were you free to go there?---Yes, we are free to go there.
PN2416
Again - and copies of the agreement were in the staff dining room from 18 August. That is the evidence of Ms Higgs?---We didn't see any.
PN2417
You didn't see any?---No, I did not.
PN2418
Do you go to the nurses care office?---I do.
PN2419
And copies of the agreement were there from 18 August too, I suggest?---I didn't see any in there either.
PN2420
Yes, well, you didn't see - - -?---There is a lot of things in that office, so unless they were in a specific place, we will not see them.
PN2421
Well, they were on the table?---So are a lot of other things on the table.
**** JENNIFER MAY OLNEY XXN MR NIALL
PN2422
But you didn't see them?---I didn't see them, no.
PN2423
Did you look for the agreement?---I did look for the agreement. I went down and asked another care staff member, "Where is this agreement that we are meant to be looking at?" although I had already decided that I was going to vote No because we had been given a form from Ian Fisher that the facility was not going to go into that, so we weren't really worried, but I took it upon myself to find out exactly what it was. I was shown one sheet of paper, and all it had was wage rise on the top, underneath it it had in point form what it was all about, which I couldn't understand anyway, and I also felt that the union wouldn't have been sticking up for the PCs because of their - what they have already said about us in the papers I didn't think that they would be helping us out in the EBA either.
PN2424
Which union?---The union that was - that was - the union that Sally was in, and that I used to be in, that I have since pulled out of.
PN2425
The Australian Nursing Federation?---Yes.
PN2426
You know the - - -?---No.
PN2427
I am sorry?---Yes.
PN2428
THE SENIOR DEPUTY PRESIDENT: Ms Olney, who gave you the one page sheet to which you have referred?---Pardon?
PN2429
Who gave you that one page sheet, or showed - - -?---Heather Parkinson.
PN2430
And who is she?---She is another care worker.
**** JENNIFER MAY OLNEY XXN MR NIALL
PN2431
Yes, thank you.
PN2432
MR NIALL: If you could be shown exhibit ANF6 and 7 please. If you go to the pink one first, that is the document you were given, was it?---No.
PN2433
It was another document?---Yes.
PN2434
But it wasn't the agreement, was it?---No, probably not.
PN2435
It was a single page document?---Yes.
PN2436
But you knew when you saw it that that wasn't the actual agreement that was being voted on, that it was a summary, or a - - -?---It was a summary.
PN2437
Well did you ask to see the whole agreement?---Well, she was unaware where it was, and she told me that was it. I wasn't sure. We haven't got time to read through all of a big thick - not that I ever saw that big thick whatever it was, no.
PN2438
Did you ask to see the whole of the agreement?---I thought that was the agreement.
PN2439
I thought you said a moment ago to his Honour that you didn't think it was the whole agreement, but you thought it was a summary of the agreement. Now which is it?---I am saying to you now I know it is a summary now. At the time, I didn't know, I felt that was all it was.
PN2440
So at the time - - -?---And that was all I was interested in anyway, to see what they had actually wanted.
**** JENNIFER MAY OLNEY XXN MR NIALL
PN2441
Yes, you weren't interested in knowing the detail of the agreement, you just wanted - - -?---Not particularly, no.
PN2442
And that document was enough for your purposes?---Yes, it was.
PN2443
And you weren't going to vote for the agreement anyway?---No.
PN2444
You didn't ask anyone to explain the agreement to you?---No.
PN2445
And you were given a ballot paper?---I was.
PN2446
And you Sally Higgs is a delegate of the Australian Nursing Federation?---I do.
PN2447
And you have got a poor view of the ANF, do you?---Now I have, yes.
PN2448
And how long have you had that poor view?---Well, I was misled to joining the union when I was - when we first started doing medication, a lot of - and we were under the - we were told by Sally Higgs that they would help us, and we would be covered by the union, and that that was the only union that would take a personal carer on.
PN2449
All right. So you regard yourself as being misled by the ANF?---Yes, I do, well by Sally, yes. And she - and I think she was told to. She did say that the representative did tell her that they were the only union that would let a personal carer become a joint member.
PN2450
Well, the HSUA, have you heard of that? The Health Services Union of Australia?---Yes, we have, and they did say that they - we were told that they would not let us become members simply because we were not nurses, we were only personal carers.
**** JENNIFER MAY OLNEY XXN MR NIALL
PN2451
The HSUA told you that?---No, the union rep told us that.
PN2452
What union rep?---Sally Higgs told us that Loretta had told her that.
PN2453
Well, you have seen - you know that the HSUA is a union that has personal care workers as members, don't you?---No, we didn't.
PN2454
You don't know that?---No, we were unaware of that at the time.
PN2455
HSUA organisers haven't come up to Alcheringa from time to time, talked to personal care workers?---No.
PN2456
So your evidence is that you felt misled by the ANF?---Yes.
PN2457
That you didn't think they would look after your interests in an agreement they negotiated?---That is right.
PN2458
And you would decide to vote against the agreement - - -?---That is right.
PN2459
- - - if they had reached it?---Yes.
PN2460
Now - so you were suspicious of the ANF?---In what way?
PN2461
Well, you have indicated that you thought they had misled you in the past, that they weren't looking after your interests, that you couldn't go with an agreement they had entered into, so it is fair to say that you were suspicious of them?---I guess, yes.
**** JENNIFER MAY OLNEY XXN MR NIALL
PN2462
Yes. And Ms Higgs, as you have said, was the delegate, and she gave you a ballot paper, didn't she?---Yes, she did.
PN2463
And she handed you the ballot paper and told you that you could vote in relation to an agreement?---She just handed me the ballot paper.
PN2464
She didn't say anything?---She just said, "Look, we might win."
PN2465
Well, you say "She gave me the feeling that she assumed I would vote yes," - - -?---Mm.
PN2466
- - - that is just the feeling you had, is it?---At the very very start, when things started to go wrong at work, I was in full support of the Div 2s. I felt if we all stood together, we would see everything through in the right way. But that soon became evident that they didn't feel the same way about us PCs, and after we had read in the media what the union had spoke about the PCs, we all learned exactly where we stood and where the union felt we were.
PN2467
So you were, as I suggested to you, suspicious of the union?---Yes.
PN2468
You didn't trust them?---No.
PN2469
All Sally Higgs gave to you was a ballot paper?---Yes.
PN2470
She did not tell you to vote one way or the other?---No.
PN2471
She didn't say, "I assume you are going to vote Yes"?---No.
**** JENNIFER MAY OLNEY XXN MR NIALL
PN2472
So you say you had the feeling that she assumed that - that was just your feeling, and it was born, I suggest, or was a product of the fact that you were suspicious of the union, you were suspicious of Sally Higgs, and you were likely to think badly of them?---It wasn't personal.
PN2473
So the feeling is just - it is nothing that Sally said to you. It is just that what you felt from your experience with the union in the past?---Yes.
PN2474
And in fact she just simply gave you the ballot. And did you read the ballot?---Yes.
PN2475
And it explained to you that an agreement had been circulated for 14 days?---It said a lot of things that didn't actually happen, yes.
PN2476
Well, that you disagreed with?---Yes, I did.
PN2477
But you felt that you were able to cast a vote?---Yes.
PN2478
And you cast a vote?---Yes, I voted No.
PN2479
And you put it in the box?---Yes, it fell in the box.
PN2480
How long between the time Sally gave you a ballot paper and the time you voted?---That day.
PN2481
You weren't obliged to vote that day, were you?---No.
PN2482
Were there still - - -?---I thought I might lose it. We have got a lot of paperwork everywhere, so I thought, well I will vote today, because I knew we had already made up our mind - or I had.
**** JENNIFER MAY OLNEY XXN MR NIALL
PN2483
Well when you say you felt steamrollered, you weren't steamrollered into voting Yes, were you?---I wasn't steamrollered into voting Yes, no.
PN2484
You got your ballot paper, formed your own judgement, and exercised your vote in relation to the agreement?---Yes.
PN2485
And you didn't want the agreement explained to you because you didn't want to vote for it?---We had heard - I had heard parts of the agreement just in conversation.
PN2486
But you were comfortable in casting a vote on the ballot?---Yes.
PN2487
No further questions, your Honour.
PN2488
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Ms Chambers?
PN2489
MS CHAMBERS: No questions.
PN2490
THE SENIOR DEPUTY PRESIDENT: Mr Turner?
PN2491
MR TURNER: No questions, your Honour.
PN2492
PN2493
MR TURNER: Next witness will be Sue Harris, your Honour.
PN2494
THE SENIOR DEPUTY PRESIDENT: Yes. I propose to sit to 12 and take a short luncheon - or a luncheon adjournment at 12.
PN2495
MR TURNER: Yes, thank you.
PN2496
THE SENIOR DEPUTY PRESIDENT: Sorry, your next witness is?
PN2497
MR TURNER: Sue Harris.
PN2498
PN2499
MR TURNER: Ms Harris, could you restate your name and address, please?---Sue Ann Harris, 43 Chapman Lane, Tresco.
PN2500
Are you employed by Alcheringa Hostel as a personal care worker?---Yes.
PN2501
Have you made a statement in relation to this matter before the Commission?---Yes.
PN2502
Will you look at this document, please, and tell me if that is the statement you made. Is that the statement?---Yes.
PN2503
Does it consist of five paragraphs?---Yes.
PN2504
Is it dated 3 November?---Yes.
PN2505
Are the contents of that statement true and correct?---Yes.
PN2506
I tender that, your Honour.
PN2507
PN2508
**** SUE ANN HARRIS XXN MR NIALL
PN2509
MR NIALL: Ms Harris, you were handed a ballot paper by Sally Higgs, weren't you?---Yes.
PN2510
Was it in an envelope?---No.
PN2511
And she gave it to you?---Yes.
PN2512
And did you read it?---Yes.
PN2513
And you knew that the purpose of the ballot paper was to enable you to cast a vote on whether you approved an agreement or didn't approve of the agreement?---No, I didn't really understand it, because she hadn't said.
PN2514
Well, did you read it?---No, not really, because we had had a meeting with Ian Fisher, and he had said it was null and void.
PN2515
He told you the ballot paper was null and void, did he?---No, that the EBA was - - -
PN2516
That after - - -?--- - - - it didn't make any difference. The Alcheringa had pulled out.
PN2517
That Alcheringa - sorry, Alcheringa had pulled out?---Yes.
PN2518
So having been told that, you weren't terribly interested in the ballot?---No, I wasn't. I had only worked there a short time, and I was casual, so I didn't really think it affected me.
**** SUE ANN HARRIS XXN MR NIALL
PN2519
All right. You say you saw:
PN2520
... blank ballot papers left around various work areas, which I could have used to vote more than once.
PN2521
?---Yes.
PN2522
But you didn't vote more than once, did you?---No.
PN2523
And were they in envelopes?---No. There were no envelopes.
PN2524
Well, Ms Hicks has said, in evidence, that she hand delivered ballot papers to some of the staff, and you were one of those persons?---Yes.
PN2525
And she also placed in a sealed envelope, with the name of the staff member, other ballot papers?---No.
PN2526
When you say "No", what are you saying "No" to?---I didn't see any envelopes at all.
PN2527
Okay. So you didn't see any envelopes?---No.
PN2528
And you didn't get your ballot paper in an envelope?---No.
PN2529
But are you saying that there were no envelopes?---No, I didn't see any.
PN2530
So you are not in a position to say one way or the other? All you can say is you didn't see any envelopes?---I didn't see any, that is all I can say.
**** SUE ANN HARRIS XXN MR NIALL
PN2531
So if Ms Higgs has said she has given out a number of ballot papers in sealed envelopes with a name on it, you are not in a position to contradict that, are you?---Well, I am really, because I saw her give other people bits of paper with no envelope.
PN2532
You didn't ask to have the agreement explained to you?---No, because I had already been in a meeting with Ian Fisher, and - - -
PN2533
Who told you not to worry about it?---Yes.
PN2534
But you still cast your vote?---Yes.
PN2535
So you were free to cast your vote one way or the other - - -?---Yes.
PN2536
- - - for the agreement or against?---I was against.
PN2537
Yes. And you were free to cast your vote, whatever?---Yes.
PN2538
And you didn't feel any pressure on you to vote one way or the other?---Yes.
PN2539
You felt some pressure to vote, did you?---Yes.
PN2540
Now, do you know Sally Higgs?---Yes.
PN2541
She is a delegate of the ANF, isn't she?---She is.
PN2542
And did she ever talk to you about the agreement?---Yes.
**** SUE ANN HARRIS XXN MR NIALL
PN2543
Where did she do that?---Up in the Miles Wing.
PN2544
When?---Beginning - it was in August. Must have been near the beginning, because then I changed work areas.
PN2545
Well, when in August?---Before 14 August. Because then I started work in a different area, so I didn't see her.
PN2546
So it was before 14 August?---It was before the ballot papers were handed out.
PN2547
And it was before 14 August because you moved areas?---Yes.
PN2548
Now, where did that conversation with Ms Higgs take place?---In the Miles wing in one of the resident's rooms.
[11.21am]
PN2549
Who was present?---Sally, myself and a resident.
PN2550
Ms Higgs never told you that you would lose your entitlement to superannuation?---Yes, she did, she told me I would lose everything and I wouldn't get pay rises.
PN2551
You would lose everything?---Yes and I said, well, it doesn't affect me because I am casual and I have only been here a short time and I thought I was only going to be employed for a short time.
PN2552
She said you would love everything. Were they the words?---She said I would lose all my entitlements and the super, yes.
**** SUE ANN HARRIS XXN MR NIALL
PN2553
What she said was that the agreement had some benefits for - - -?---No.
PN2554
Yes. See, have you read the agreement?---No.
PN2555
It has some pay rises in it, doesn't it?---I don't know, I haven't read it.
PN2556
Well, I suggest to you that it does have some pay rises in it?---Well, I will have to take your word for that.
PN2557
And one of the things, that if the agreement got up, the employees would get a pay rise?---But we got one anyway. We were getting it and we had been told by Ian Fisher that we were getting it.
PN2558
He told you you would get it regardless of the agreement, did he?---Yes.
PN2559
Yes, well, the agreement was going to provide for pay rises, was it not?---I don't know, I didn't read it, I haven't seen it to this day.
PN2560
And Ms Higgs told you that if you wanted to get the benefits of the agreement you needed to vote in favour of it?---Yes, because I would lose everything, yes.
PN2561
She didn't say you would lose everything. Are you saying to his Honour that she suggested to you that you would not be getting paid if you continued to work?---No, she didn't say that, she said I would lose all my entitlements.
PN2562
She was saying - - -?---In the future.
PN2563
She was saying you would lose the increased benefits that the agreement offered?---Well, that is not the way it came across.
**** SUE ANN HARRIS XXN MR NIALL
PN2564
That is not the way you understood it?---No.
PN2565
No. You understood it that you wouldn't get any superannuation any more?---That is right or anything except my wage. That is all I would get.
PN2566
So you took it, if you don't vote for the agreement, you won't get superannuation?---Mm.
PN2567
You won't get sick leave?---That is right and I was not entitled to it because I was casual so it didn't really affect me but I still voted and I voted, no, because I do not believe what you people are doing to this place is good.
PN2568
So you have got a view?---Yes, I have.
PN2569
And you cast a vote in accordance with that view?---Yes.
PN2570
Yes. Now, Ms Higgs did not tell you that you would lose entitlements, what she told you was that you would not get the benefits that the agreement offered?
PN2571
THE SENIOR DEPUTY PRESIDENT: Mr Niall, you have been around that three times already?---Thank you.
PN2572
MR NIALL: If your Honour pleases. They are the only questions I have, your Honour.
PN2573
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Ms Chambers?
PN2574
MS CHAMBERS: No further cross-examination.
**** SUE ANN HARRIS XXN MR NIALL
PN2575
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2576
MR TURNER: No re-examination, your Honour.
PN2577
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Thank you, Ms Harris, you may be excused?---Thank you. Do I take this or just leave it?
PN2578
PN2579
MR NIALL: Your Honour, I propose to call Ms Higgs now if that is a convenient time.
PN2580
THE SENIOR DEPUTY PRESIDENT: Yes, do you - is that convenient to you, Mr Turner?
PN2581
MR NIALL: You have no objection to that course?
PN2582
MR TURNER: No, that is fine with us.
PN2583
PN2584
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Niall?
PN2585
MR NIALL: Ms Higgs, your name is Sally Higgs?---That is correct.
PN2586
And you have given evidence earlier in this proceeding?---Yes.
PN2587
Yes. I want to ask you a few short questions in relation to the count of the ballot. You were present with Ms Munro when the papers were counted?---That is correct.
PN2588
And that count took place in the staff room?---Yes, that is correct.
PN2589
Yes, could you tell his Honour the process by which it was counted? Firstly, were you seated?---Yes.
PN2590
And was Ms Munro also seated?---Yes.
PN2591
And how close were you?---Right next to each other.
PN2592
All right, now, at the time, you entered the room together?---That is correct.
PN2593
Yes, could you take his Honour through the process step by step slowly from the time you entered the room and how the vote proceeded?---Yes, Judy and I walked to the staff room, we had the ballot box with us; we had a pair of scissors to cut the cable ties for the ballot box. We checked the ballot box and it was secure. We cut the cable ties, sat down next to each other, we had a blank piece of paper and Judy wrote down on one side the yes votes and the other side the no votes. We then proceeded to pull all the vote papers out of - ballot papers out of the ballot box. We then started counting - - -
**** SALLY ANN HIGGS XN MR NIALL
PN2594
When you say we, could you just talk for yourself at the moment?---Sorry, yes, Judy and I - I said to Judy we better count the ballot papers now, so I assisted Judy to pull out all the ballot papers and we sat them in front of us on the table. We - Judy wrote down - she ticked off yes and no when I read the ballots out to her.
PN2595
All right, now, so the process was that you got a ballot paper, you read it out as a yes or not - - -?---Yes.
PN2596
- - - and then moved to the next ballot paper?---That is right.
PN2597
Did one of the ballot papers have writing on it?---Yes.
PN2598
Handwriting, I mean?---Yes.
PN2599
Yes. And did any of the ballot papers have no marking at all?---Not that I can recall.
PN2600
Are you sure about that?---Positive.
PN2601
And what did you do with the ballot papers once they had been counted?---Once they had been counted we clipped them altogether. I clipped them altogether with Judy, we put them in a yellow envelope and I proceeded to phone the Australian Nursing Federation to speak with Paul Gilbert and let him know the official result.
PN2602
Yes. And what did you do with the ballot papers?---I kept them in my possession.
**** SALLY ANN HIGGS XN MR NIALL
PN2603
Yes. And did you - did you produce them to his Honour yesterday?---Yes, that is correct.
PN2604
Had you taken them out of the envelope before that time?---No.
PN2605
And where were they kept?---Securely in my mum and dad's place.
PN2606
Yes, you live at your parent's place?---I have just moved back there.
PN2607
Right. At the time of the count where did you live?---At - In Campbell Street.
PN2608
And you have now since then moved back to your - - -?---The last three days.
PN2609
And Ms Munro has given evidence that she recorded the notes on the piece of paper?---That is right.
PN2610
And then initialled the piece of paper?---That is right.
PN2611
And gave it to you?---That is correct.
PN2612
Yes. What happened to that piece of paper?---I am unable to locate it. I thought it was with all the ballot papers but I can't seem to find it, unless I misplaced it.
PN2613
Now, your say that you rang the - and of the votes you counted do you recall whether a majority were in favour of the agreement or against the agreement?---I can recall a majority were for the agreement.
**** SALLY ANN HIGGS XN MR NIALL
PN2614
Yes. Do you recall seeing in the papers that you took out of the ballot box a ballot paper with no markings on it?---I don't recall a ballot - a blank one that had not been marked at all.
PN2615
They are the only questions I have, your Honour.
PN2616
THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Turner?
PN2617
MR TURNER: No questions, your Honour.
PN2618
PN2619
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2620
MR TURNER: Sue Jones will be the next witness.
PN2621
PN2622
MR TURNER: Ms Jones, can you re-state your name and address so it can be recorded please?---Susan Margaret Jones, 6 Douglas Avenue, Swan Hill.
PN2623
Thank you. Are you employed by Alcheringa Hostel as a personal care worker?---Yes.
PN2624
Have you made a statement relating to the matter before the Commission?---Yes.
PN2625
I will get this document handed to you and ask you if this is the statement you made?---Yes.
PN2626
Is that the original of your statement?---Yes.
PN2627
And it is five paragraphs long?---Yes.
PN2628
It is undated?---Yes.
PN2629
And are the contents of that statement true and correct?---Yes.
PN2630
PN2631
MR TURNER: I have no questions, your Honour.
**** SUSAN MARGARET JONES XN MR TURNER
PN2632
PN2633
MR NIALL: Ms Jones, you know that there was a vote on whether or not the staff employed at Alcheringa would approve an enterprise agreement?---sorry?
PN2634
You know that a vote took place - - -?---Yes.
PN2635
- - - on whether staff would agree to approve or not approve an enterprise agreement?---Yes.
PN2636
And ballot papers were distributed to the staff?---That is right.
PN2637
Were you given one?---I was.
PN2638
Who gave it to you?---Sally Higgs.
PN2639
She handed it to you?---Yes.
PN2640
And you knew that you could use that ballot paper to vote?---I did.
PN2641
Whether you wanted to approve the agreement or not approve the agreement?---She just said this is a ballot paper to vote and if we win we get all of our back pay and that is what she said to me.
PN2642
Yes, she told you that if you win - that is, if the agreement - - -?---If they win.
**** SUSAN MARGARET JONES XXN MR NIALL
PN2643
Yes, if - she said, if - did she say, if we win or if they win?---If we.
PN2644
Yes, her, so she was speaking?---Yes.
PN2645
So that is if - and she meant - and you understood that to mean, if the agreement gets up, everyone will get the back pay?---Yes, but I had only been there a few months so, I mean, it didn't - - -
PN2646
Much?--- - - - mean a lot to me because I had only just started a few months previous.
PN2647
Right, because the back pay would have gone back to February, would it not?---Yes and that is when I started.
PN2648
Right, well, you have got the benefit of the back pay?---I was only, sort of - I am a casual - - -
PN2649
So it didn't matter one way or the other?---No.
PN2650
Did you have any other discussions with Sally Higgs about the agreement?---No.
PN2651
No. So you had the one discussion when she handed you the paper and said if we win we will get the back pay?---Yes and then I was in the - up in the kitchen in, what we call, the Miles wing with Jenny Olney and Sally came up there and she just said, oh, it looks like we are going to win, so isn't that good we will get our back pay.
**** SUSAN MARGARET JONES XXN MR NIALL
PN2652
Yes, she told you that in the presence of Ms Olney?---Yes.
PN2653
Was that after the ballot had closed?---No, it was before because I was away actually when the ballot closed. I finished on 7 September for two weeks holidays and - - -
PN2654
Did she?--- - - - that all happened then - after - while I was away.
PN2655
When were you on leave?---From 7 September.
PN2656
So when was this discussion?---It was probably the week beforehand but I can't remember exact day or date.
PN2657
Do you recall whether it was after 3 September?---I really can't remember, I am sorry.
PN2658
So you had those two discussions with Ms Higgs The first - - -?---They were the only two.
PN2659
The first one when she handed the ballot paper - - -?---Yes.
PN2660
- - - and said we will get the back pay. And the second up in the Miles wing - - -?---When she said - - -
PN2661
- - - when she said?--- - - - it looks like we are going to win.
PN2662
Looks like we are going to - and that is all she said and that is the only discussion she had with you about the agreement?---With me, yes.
**** SUSAN MARGARET JONES XXN MR NIALL
PN2663
Yes, yes. In paragraph 5 of your statement and perhaps you could go to that. It says:
PN2664
Some time before the ballot Sally Higgs, who I now know to represent the ANF, stated that we had better vote yes or we would lose our entitlements, like, superannuation.
PN2665
Now, she didn't say that to you, did she?---She didn't tell me that I had better vote, yes, but she said we better - meaning everyone to vote, yes, so that - - -
PN2666
Yes, she said if we all vote, yes, we will get the benefits?---Yes, that - yes.
PN2667
That is pretty much what she said to you?---Yes.
PN2668
We will get the back pay?---Yes.
PN2669
All right?---And she kept, sort of, drumming that in.
PN2670
When you say she kept drumming it into you. She said it once when she handed the ballot paper and she said a similar comment - - -?---The two separate times that she said it, yes.
PN2671
Yes, yes, so when you say she drummed it in - - -?---Because I didn't - when you are working up in the Miles you don't see a lot of the other staff.
PN2672
I understand. So coming back to my question, she never said to you that we had better vote, yes, or we would lose our entitlements, like, superannuation, did she?---She never told me to vote, yes.
**** SUSAN MARGARET JONES XXN MR NIALL
PN2673
All right and she never - - -?---But she was hoping I would vote, yes.
PN2674
Firstly, she never told you to vote, yes?---She was hoping I would.
PN2675
We will just take it one step at a time, Ms Jones. Firstly, she never told you to vote, yes?---Not when she handed me the thing, no.
PN2676
Well, you have said you have two discussions - - -?---She said she was hoping we would vote, yes.
PN2677
Talking collectively, that is all of the - - -?---Everyone.
PN2678
Yes. And she never told you that we would lose our entitlements, like, superannuation?---I can't remember.
PN2679
Well, you said in your statement - - -?---That was ages - look, it was some time ago when I actually said it, but if it is on here I would have said it at the time, but this is quite a while since we made these statements.
PN2680
Let us just get this clear, Ms Jones. Mr Turner asked you some questions and you said the statement was true?---Yes.
PN2681
And then I asked you some questions and you said you had two discussions with Sally Higgs one in which she said - she hoped we would vote, yes, to get the back pay and another occasion with Ms Olney where she said, it looks like we are going to win; right?---Yes.
PN2682
Well - - -?---She said - - -
**** SUSAN MARGARET JONES XXN MR NIALL
PN2683
- - - at no time did she tell you that you would lose your entitlements, like, superannuation?---She didn't say you have to vote, yes, she said, if you vote, yes, we will win.
PN2684
Some back pay?---The back pay.
PN2685
Yes. She never told you if you voted, no, you are going to lose your superannuation, did she?---Well, I wouldn't have any superannuation.
PN2686
She never told you that, did she?---Well, I just presumed all the entitlements and back pay and that is all tied into together.
PN2687
She never told you that if you voted, no, you would lose your superannuation?---She - look, I can't remember exactly what she said to me back then, that is months ago.
PN2688
Well, if you can't remember, how can it be that you have said in your statement which is true, that that is exactly what she said. Now, which is it? You either can't remember or you can remember, which is it?---I can't remember exactly what I said. What - - -
PN2689
So, what she said?---What she said.
PN2690
She never said to you that you are going to lose your entitlements to superannuation, did she?---I just said I can't remember exactly, okay.
PN2691
What was the process by which this statement came to be? Did you talk to someone about it before you made it?---The statement?
**** SUSAN MARGARET JONES XXN MR NIALL
PN2692
Yes?---Who would I see to talk to?
PN2693
Did you talk to Ms Harris about it?---I don't think I did.
PN2694
Well, did you tell someone for the purpose of preparing your statement that Sally Higgs stated that we better vote, yes, or we would lose our entitlements, like, superannuation? Did you tell someone that or did someone tell you that is what you should say?---I did hear some of the PCs discussing but - all about the ballot which they thought was a load of rubbish and being so-called new kids on the block we went to some of the ones that had been there a while just for some advice; okay.
PN2695
Yes and you got advice from them as to what the agreement was all about and what you should do about it?---Yes, but we never, ever seen an agreement.
PN2696
Did you ask for it?---Well, I didn't know that there was - look, I had never been involved in anything like this before, okay, so I didn't know. She just handed me the ballot form and - - -
PN2697
Left it up to you?---Yes.
PN2698
To decide and you decided and you voted?---She gave it to me when I was having morning tea one morning and that was it. I didn't know there was supposed to be some agreement or anything.
PN2699
PN2700
MS CHAMBERS: Yes, if I could just ask for Ms Jones to be shown ANF6 and 7. Had you seen those two coloured sheets around the workplace at all?---No.
**** SUSAN MARGARET JONES XXN MS CHAMBERS
PN2701
No?---No.
PN2702
Do you look on the notice boards when you are at work during - - -?---I do but I didn't see them.
PN2703
See those. So you - - -?---Well, I don't every day, I go in, I sign my name - sign on and go but if sometimes if you are sitting there doing some paperwork you might glance around but I don't go in just to look at the notice boards. I go in, I sign my name to sign on and then I get on with my work because there is - when you start work early of a morning there is a lot of residents to be looked after, to be woken up and to be dressed and showered and that is the reason I am there.
PN2704
So you don't often - you don't always look at the notice boards that may be in, for example, in the carer's office?---There is often lots of notices but I still can't recall seeing it anyway,.
PN2705
Yes. You said you had - you have a clear recollection, don't you, of Sally Higgs saying that if you vote for the agreement - if we all vote for the agreement we will get the back pay. You have got a clear recollection of that?---Yes, she definitely said that.
PN2706
Yes. You do not have a clear recollection, do you, of her making any comment about losing entitlements to superannuation? You can't clearly remember?---She just said if we don't win the ballot we don't get any back pay.
PN2707
And that is your clear memory of what she said to you?---Yes.
PN2708
Thanks, your Honour.
PN2709
THE SENIOR DEPUTY PRESIDENT: Mr Turner?
**** SUSAN MARGARET JONES XXN MS CHAMBERS
PN2710
MR TURNER: I have no questions, your Honour.
PN2711
PN2712
PN2713
MR TURNER: Would you re-state your full name and address please?---Cheryl Lane, 101 Walkers Esplanade, Lake Boga.
PN2714
Are you employed by Alcheringa Hostel as a Personal Care Worker?---That is right.
PN2715
Have you made a statement in relation to the matter before the Commission?---Yes.
PN2716
I will hand this document to you and ask you to identify whether it is your statement or not. I do apologise, your Honour, I have just made some notes on the top of it, not realising it was the original. Can I just cross those out, there is just - - -
PN2717
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2718
MR TURNER: I apologise for that. Is that the statement you made?---Yes.
PN2719
And what is the date on that statement please?---31/10/03.
PN2720
And how many paragraphs in the statement? How many paragraphs?---Three.
PN2721
PN2722
MR TURNER: I have no further questions.
**** CHERYL LANE XN MR TURNER
PN2723
PN2724
MR NIALL: Ms Lane, you knew there was a vote on whether or not an agreement would be approved by the staff?---I knew - pardon, could you repeat that?
PN2725
Start again, it is my fault. You knew that there was an agreement between - I will start again. You knew that the Alcheringa ANF and HSUA, as the Health Services Union, were trying to negotiate an EBA over a period of months?---Yes.
PN2726
That there had been a process put in place to try and get an enterprise agreement?---Well, yes, I had heard people talking about it at work, yes.
PN2727
And Alcheringa - and the ANF indicated that an agreement had been reached and wanted to put that agreement to the vote of staff?---Yes, but I didn't fully understand it.
PN2728
Right. What didn't you understand?---I didn't know if it would affect me or not.
PN2729
Okay. And what steps did you take to try and find out whether it would affect you?---I didn't really take any steps.
PN2730
Is there any reason why you didn't?---Well, I thought if it affected me I would find out eventually.
PN2731
Yes. When you got the pay rise or whatever it is - - -?---Yes.
**** CHERYL LANE XXN MR NIALL
PN2732
So you didn't need to go out and get any more information?---No, well I didn't.
PN2733
And you knew that a ballot paper - you were given a ballot paper?---Yes.
PN2734
And the purpose of the ballot paper was to cast a vote as to whether you approved or didn't approve the agreement?---I was under the impression that it was compulsory to vote, so I done my vote and I went back to work.
PN2735
Who told you it was compulsory to vote?---I just had the impression that it was.
PN2736
Impression, all right. But anyway you voted, you went back to work - - -?---Yes.
PN2737
- - - put the ballot vote in the box?---Yes.
PN2738
You didn't take any steps to find out anything more about the agreement - - -?---No.
PN2739
- - - because you didn't think it was necessary to do so?---No.
PN2740
No. All right. Did you know that Mr Gilder from the ANF came up on 3 September to address staff about the agreement?---I - we have had a lot of meetings at work and I can't remember whether I was at that meeting.
PN2741
If you - if the witness could be shown ANF6 and 7 please. Have you seen those two before?---No, I haven't.
PN2742
You are a Personal Care Worker, do you work in any particular area within Alcheringa?---I work in activities.
**** CHERYL LANE XXN MR NIALL
PN2743
And where within the facility is that based?---Over in the hall.
PN2744
Do you have access to the staff dining area? If you want to go there you can go there?---Yes, well I do go there, yes.
PN2745
Yes. And Ms Higgs has given some evidence that on about 18 August she put some copies of the agreement in the staff dining area. Do you have anything to say about that?---I don't eat in the staff dining area and I don't go in there very often.
PN2746
So you are not in a position to know whether or not there were agreements there?---No.
PN2747
What about the nurses care office, do you go there?---I go in there to sign on and then I go to the hall.
PN2748
Again, there were agreements, Ms Higgs says were placed there; you didn't see them?---No, I didn't read them and I didn't see them.
PN2749
And the kitchen, do you go in there much?---No. When I go in there I go in there to do my dishes and I leave.
PN2750
So you didn't see a copy of the agreement before you voted?---No.
PN2751
You say you can't remember if you saw one?---No, I can't remember. I don't get time at work to stop and read things. I do my job and I go home.
PN2752
All right. But you knew that you were voting about an enterprise agreement, were content to vote and - - -?---I wasn't - I didn't quite understand it all, as I explained before.
**** CHERYL LANE XXN MR NIALL
PN2753
Yes?---I did my vote and I went back to work.
PN2754
Thank you, Ms Lane.
PN2755
THE SENIOR DEPUTY PRESIDENT: Mr Turner?
PN2756
MR TURNER: No, I have no questions, your Honour.
PN2757
PN2758
MR TURNER: Now, your Honour, there were two further statements distributed with the material and filed and Margaret Tripcony.
PN2759
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2760
MR TURNER: She is the lady whose mother unfortunately died last night, so we are not pressing for her statement.
PN2761
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2762
MR TURNER: And Maureen Jochinke who, I am advised, is on annual leave and unavailable, so we don't press her statement either. That completes the evidence we intend to call.
PN2763
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Douglas.
PN2764
MR DOUGLAS: Your Honour, I have some short submissions to make. I am prepared to start now if my friend is happy with it.
PN2765
THE SENIOR DEPUTY PRESIDENT: Yes, well we might as well go through until midday, I suppose.
PN2766
MR DOUGLAS: Thank you, your Honour. The sooner we finish the better, I think. Your Honour, I can't add anything further to what I said in opening about the alleged agreement. We simply say, your Honour, there is no agreement that is capable of being - there is no agreement and there is certainly no agreement that is capable of being certified by your Honour as a result of these proceedings and I should also say that there is no proper application for certification before your Honour. Your Honour, there is something very strange in the state of Denmark.
PN2767
We have called 18 witnesses, 16 employees and of course Ian Fisher and Ann Rough. 16 employees out of 66, not 63, it appears, who fall within the scope of the alleged agreement. We know that the ballot count says there were nine no votes. We have had 12 of our 16 witnesses tell your Honour that they actually put a ballot paper in the box, in other words that they did something. We know that Mr Lindsay didn't mark the paper. It is fair comment to say that when one looks at what each of the 16 employees said it is pretty clear that each of those employees was against any proposed agreement getting up. It is a very strange situation indeed. Your Honour, could I take you to - - -
PN2768
THE SENIOR DEPUTY PRESIDENT: Why is that strange, Mr Douglas?
PN2769
MR DOUGLAS: Well, your Honour, when you relate the fact that there were 12 people of the 16 who actually voted or put a ballot paper in the box - - -
PN2770
THE SENIOR DEPUTY PRESIDENT: And then there were only nine no votes.
PN2771
MR DOUGLAS: Only nine no votes.
PN2772
THE SENIOR DEPUTY PRESIDENT: So there should have been 12.
PN2773
MR DOUGLAS: Well at least 12 and we know that Mr Lindsay put a ballot paper in the box that is unmarked and that is not there. It just raises a very serious question, your Honour, which, along with other matters about the ballot, so called ballot, that I will come to in a moment, places the Commission in a position where it could not possibly come to the conclusion that there was a legitimate vote in favour of this alleged agreement getting up. Could I take your Honour very briefly back to the so called agreement. You will remember in opening I referred you to - took you to clause 5 - - -
PN2774
THE SENIOR DEPUTY PRESIDENT: Just let me turn it up, Mr Douglas.
PN2775
MR DOUGLAS: - - - and at clause 6 of the agreement.
PN2776
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2777
MR DOUGLAS: And I just repeat. Clause 5 of course said this agreement pertains to employees whose employment falls within one or other of the two awards that I have referred to. And clause 6 says the agreement is to be read in conjunction with those awards. So the agreement, it gives those awards an operative effect in that sense and then 8.1 says:
PN2778
The ANF HSUA employees and the employer bound by this agreement, acknowledge that this agreement settles all claims in relation to the terms and conditions of employment of the employees to whom it applies and agree that they will not pursue any extra claims during the terms of this agreement.
PN2779
Now, having in mind what was said by Mr Fisher in the - in his evidence in the proceedings before Commissioner Simmonds, it is pretty obvious here, your Honour, that is this agreement was certified it would place Alcheringa in a position where it could no longer do anything with respect to the problem that it sees as arising from the ANF award and the attitude to the ANF with respect to employees giving medicines. And I would then take your Honour to the transcript of the proceedings before Senior Deputy President Harrison on 3 October in the matter of the Transport Workers' Union of Australia and Another v Scotts Sydney Tanker Division Enterprise Agreement 2003. This is marked as part of A1.
PN2780
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2781
MR DOUGLAS: You will see at the outset of the transcript, your Honour, it would appear that the proceeding took place by way of video link because Mr Kuczmarski, I think, was in Adelaide and - - -
PN2782
THE SENIOR DEPUTY PRESIDENT: Yes that is so.
PN2783
MR DOUGLAS: - - - and Mr Irvine for the TWU was in Sydney and I think her Honour was in Sydney. That is so from the transcript. Her Honour said, at paragraph 37:
PN2784
This matter, that is the application for certification of an agreement was lodged on 1 July this year, was previously listed before me on 25 July and the matter didn't proceed to certification on that day.
PN2785
And if we go over the page to the top, paragraph 42, this is Mr Kuczmarski for the employer:
PN2786
We subsequently went into negotiations ...(reads)... concern was after 9 hours, but we reached agreement.
PN2787
Then to paragraph 44:
PN2788
Subsequently, because of the delay of the ...(reads)... today with a two year expiry date.
PN2789
And of course, today, was 3 October, some three or four months later than the original intended date.
PN2790
Her Honour then said:
PN2791
This is not the application that is before me. Do you wish to retire from the agreement that was lodged and in respect of which there is a statutory declaration supporting it back in July this year.
PN2792
Over the page, at 49, her Honour said:
PN2793
This matter could have proceeded before me on 25 July ...(reads)... therefore, we retire from the agreement then, your Honour.
PN2794
Down the bottom, at paragraph 56, her Honour says:
PN2795
The company no longer supports it, it withdraws ...(reads)... certification is not withdrawn.
PN2796
Paragraph 58, her Honour said:
PN2797
I have here a party to the agreement who no longer agrees to that.
PN2798
In paragraph 62, towards the bottom of that paragraph, she said:
PN2799
Now, I don't know what application you ...(reads)... Mr Irvine might be right.
PN2800
Mr Kuczmarski, in 64, said:
PN2801
We retire from the agreement.
PN2802
Her Honour, over the page:
PN2803
You no longer wish to be bound by the agreement ...(reads)... I don't think there is anything I can do.
PN2804
Paragraph 69, her Honour:
PN2805
I don't think I have an application before ...(reads)... or to no longer wish have it pressed.
PN2806
And then further down
PN2807
The consent position is that there ...(reads)... I can't make it remain bound by it I don't think, Mr Irvine.
PN2808
And then the last paragraph, 72, her Honour said:
PN2809
That is not the whole story, Mr Kuczmarski ...(reads)... the answer is no it is not appropriate. The Commission now adjourns.
PN2810
THE SENIOR DEPUTY PRESIDENT: Well it is clear from that passage or those passages of transcript and the transcript as a whole that her Honour was not taken to the decision of Senior Deputy President Lacy in Group 4 or the decisions that has followed it.
PN2811
MR DOUGLAS: That is so, your Honour. Her Honour, the other day in Sydney, when she drew this decision to my attention, did say that she was not aware of Senior Deputy President Lacy's decision at the time she gave this decision. Nevertheless, your Honour, it is our submission that her Honour's decision is correct in law and maybe your Honour is of the view that unfortunately - - -
PN2812
THE SENIOR DEPUTY PRESIDENT: Do I have to arbitrate between them, do I, Mr Douglas?
PN2813
MR DOUGLAS: Well unfortunately, your Honour, it falls to you in a sense to make some sense out of the conflict between the two decisions.
PN2814
THE SENIOR DEPUTY PRESIDENT: Well does it, because is not this situation different in that here, firstly, there was no agreement signed by the employer, secondly, the employer made it clear that it purported, for present purposes anyway, to withdraw from the agreement well before the ballot was taken.
PN2815
MR DOUGLAS: Before the ballot occurred and before any application was filed, your Honour, and of course it was never party to an application.
PN2816
THE SENIOR DEPUTY PRESIDENT: Yes. And that makes this situation, it seems to me, factually distinguishable from both the Group 4 matter and the matter that you have just referred me to.
PN2817
MR DOUGLAS: Yes, and with respect, your Honour, I agree with that totally and that is why I did say the other day that your Honour won't need to go into any great detail with respect to this issue because it is very easy for your Honour to come to the conclusion that there is not a proper application before the Commission that is the end of the matter; other questions don't need to be answered. Having said that, your Honour, does the Commission wish to adjourn at this moment?
PN2818
THE SENIOR DEPUTY PRESIDENT: I am in your hands. Do you want to complete your submission before we adjourn or do you want - - -
PN2819
MR DOUGLAS: I think that would be appropriate, your Honour. Could I say this, that the requirements of 170LJ and 170LT are mandatory and we submit that none of those requirements have been complied with. I refer to the decision in the Coles Supermarket matter, that is a Full Bench decision of 19 October 2000. It is in the bundle of documents that - - -
PN2820
THE SENIOR DEPUTY PRESIDENT: Which tab is it behind?
PN2821
MR DOUGLAS: Mr Turner will tell me that. Unfortunately, according to my usual practice I pull it out of a bundle that has been organised for me and I lose track. Behind 5. And the other one I want to refer to is the Bayswater Community Financial Services matter. I think that is behind tab 4. The Coles matter, your Honour, I go to paragraph 20 where the Bench says:
PN2822
The essence of the above provisions is that ...(reads)... that is to say an informed consent...
PN2823
And of course that was the view taken by Vice President Ross in the Grocon matter.
PN2824
And that they were advised of the consequences of their giving approval to the agreement.
PN2825
THE SENIOR DEPUTY PRESIDENT: So does it follow, in your submission, that if employees are given an opportunity to have a full explanation provided to them and they don't avail themselves of that opportunity, that the requirements of section 170LJ can never be met?
PN2826
MR DOUGLAS: No, your Honour, but I think something explicit has to be done, something more than just placing a few copies of the proposed agreement around at workplaces.
PN2827
THE SENIOR DEPUTY PRESIDENT: Yes, that is a different submission.
PN2828
MR DOUGLAS: Yes.
PN2829
THE SENIOR DEPUTY PRESIDENT: But you are not going as far as saying, because you did emphasise the word "all" that all employees have to have an explanation given to them?
PN2830
MR DOUGLAS: No, I am not going that far to say that every single one has to, your Honour, but certainly the factual position must be such that all, in a generic sense, are involved, save of course for people who might be away ill in circumstances where it is quite impossible for them to receive the same treatment as employees at work. But a genuine effort must be made to involve the group as a whole. In the Bayswater matter, your Honour, I go to paragraph 27. This decision is probably very - and your Honour is probably very familiar with this decision. It is dated 7 October of this year and it is a lengthy recent decision of Deputy President McCarthy, a Member of the Commission that I haven't had the pleasure of appearing before, as yet. In paragraph 27, his Honour said:
PN2831
Section 170LJ clearly provides for ...(reads)... both sections 170LJ and LK are mandatory in terms.
PN2832
Now if anybody came forward - if an employer came forward to the Commission seeking to have approved an alleged LK agreement with the factual background of the kind that is before the Commission in relation to this matter, then the Commission would treat that application very quickly and dismiss it. There would be absolutely no possibility of a certification of an LK agreement having the defects that are inherent in this proceeding. Of course it must follow, in my submission, that the same should apply here. We submit that LJ2 and LT5 were not complied with.
[12.11pm]
PN2833
THE SENIOR DEPUTY PRESIDENT: That is LJ2 and LT5.
PN2834
MR DOUGLAS: LT5. I don't take your Honour to those sections. We simply say that for the approval to be genuine the proposed agreement must be explained to the in scope employees. A real effort must be made to take the agreement and an explanation to all of the employees, there being exceptions, of course, before approval is given. Now, effort whatsoever was made here to do that in my submission. It is clear that many of the employees, no effort was made to have the employees involved across all of the shifts.
PN2835
That is to say with respect to those people who were actually in attendance at Alcheringa - at work - at their work locations from time to time during the relevant period, nor was there any genuine effort by post or other means to - on the evidence before the Commission to involve those persons who were away on leave - annual leave, long service leave and the like. 170LEC, your Honour, provides that there - for there to be a valid majority the employer must give all of the in scope employees a reasonable opportunity to decide about the agreement.
PN2836
Now, there is absolutely no evidence before the Commission that the employer, Alcheringa, did take any steps to comply with 170LEC.
PN2837
THE SENIOR DEPUTY PRESIDENT: Well, except insofar as it allowed - or permitted the ANF to do the work.
PN2838
MR DOUGLAS: Such a permission in the circumstances existing, where it was clear to the two unions and to the staff, I would suggest, or many of the staff on the basis of the evidence that you heard, that Alcheringa was no longer part of any agreed understanding between it and the unions, that for it to be said that the employer allowed the unions to do certain things, in my submission could not possibly lead to a compliance by the employer say of the requirements of 170LEC.
PN2839
THE SENIOR DEPUTY PRESIDENT: Yes, well, I am sure Mr Niall will say why should an agreement suffer at the hands of an employer who doesn't comply with the requirements of the Act.
PN2840
MR DOUGLAS: Because the Act presumes that the employer genuinely wants the agreement to be certified - to be made and certified. Here there is no such intent. In fact the evidence is that there wasn't such an intent and, therefore, it would be a fabrication in a sense in my submission for the Commission to conclude that the employer complied with LEC or - and/or that it complied with LJ(3)(a) by saying - by the employer allowing certain things to occur from a union point of view, that the employer in fact did take reasonable steps to ensure that the employees had a copy of the so called agreement at least 14 days before approval, etcetera.
PN2841
Or under LJ(3)(b) that the employer took reasonable steps before approval was given to ensure that the terms and conditions of the proposed agreement were explained to the in scope employees. The evidence is overwhelming, your Honour, that Alcheringa did none of those things. I refer briefly to rule 48. It provides that in the case of an LJ agreement that there must be - that the agreement that comes forward for certification must be signed by the employer and the union parties. We know that Alcheringa did not sign the alleged agreement and it is my submission that the requirements of that rule should not be waived in a case where the employer deliberately refuses to sign because it does not wish the agreement to be certified.
PN2842
A waiver should - the requirements of rule 48 in my submission should only occur when the failure to sign the agreement has occurred in an inadvertent manner. Now, finally, could I say these things about the ballot, your Honour. Even if we are wrong on all of those other matters, and we can't possibly be in my submission, the ballot just brings this whole thing undone. The Commission could not possibly certify this alleged agreement on the basis of what you know about the ballot. The ballot was fundamentally defective in a number of respects.
PN2843
The Commission - firstly, the Commission cannot be certain on the evidence as to how many ballot papers were produced by the ANF, nor do we know whether any were - on the evidence whether any were produced by HSUA - it be presumed that one were. We know that one ballot paper was posted by the ANF to Ann Rough on 6 August and we know that she received a second ballot paper from Sally Higgs. So the number of ballot papers produced by the ANF must have been in excess of the number of in scope employees one would presume - at least in excess by one. But we don't know whether there was more than one.
PN2844
In fact one could look at the other side of the coin and say, well, we don't even know whether enough were produced. Further, the Commission cannot be certain on the evidence as to how many ballot papers were received by Sally Higgs, nor can we look - - -
PN2845
THE SENIOR DEPUTY PRESIDENT: Didn't she say she got 20. No, I am sorry.
PN2846
MR DOUGLAS: No, that is the agreement.
PN2847
THE SENIOR DEPUTY PRESIDENT: That is the agreement, yes.
PN2848
MR DOUGLAS: Nor can the Commission be certain as to how many ballot papers were distributed by Sally Higgs to the employees. Nor can the Commission be certain on the evidence that some employees did not receive more than one ballot paper. We know that Ann Rough did and she was a person not in scope as far as the agreement is concerned. And, of course, it is also evidence that she voted on the agreement and that single fact makes the total ballot invalid. The ballot cannot be valid if somebody who is not intended to be covered, and cannot be covered by the agreement, votes.
PN2849
THE SENIOR DEPUTY PRESIDENT: And why can't Ms Rough be covered by the scope of the agreement?
PN2850
MR DOUGLAS: Because she is not covered by the award, your Honour. The evidence - - -
PN2851
THE SENIOR DEPUTY PRESIDENT: I don't know whether that is agreed or not between the parties.
PN2852
MR DOUGLAS: Well, on her evidence - - -
PN2853
THE SENIOR DEPUTY PRESIDENT: Well, she says she is not.
PN2854
MR DOUGLAS: She says she is not.
PN2855
THE SENIOR DEPUTY PRESIDENT: That is a question of law though.
PN2856
MR DOUGLAS: Yes. Well, in my submission, your Honour, there is a significant question mark over that.
PN2857
THE SENIOR DEPUTY PRESIDENT: Yes, I have not been taken to the award or why she is or isn't. I don't know if you need to do that, but - - -
PN2858
MR DOUGLAS: Well, I think, your Honour, if you go to both awards you will find that there is no classification in each award which would cover her, being a chief executive officer, because the award covers - the ANF award as I understand it covers division 1 and division 2 nurses and the HSUA Award in addition is covering division 2 nurses; is that right - no, no - personal care workers and domestic - employees in domestic classifications. I will have a brief look - - -
PN2859
THE SENIOR DEPUTY PRESIDENT: Perhaps you can have a look at that over lunch.
PN2860
MR DOUGLAS: Yes, I will.
PN2861
THE SENIOR DEPUTY PRESIDENT: Unless it is agreed I can't just accept a submission like that.
PN2862
MR DOUGLAS: No, well, I will have a look at that over lunch, your Honour, but if I could just complete. It is relevant, your Honour, to, as far as the integrity of the ballot is concerned, or the non-integrity of the ballot is concerned, that the only documentation that Sally Higgs has been able to bring forward are 33 ballot papers that have all been marked. There is no - she is unable to produce the record of the count, she is unable to produce the document which indicated who she gave ballot papers to and who she didn't, she is unable to produce any written record of those who voted.
PN2863
Lyn Carmichael told the Commission today that she signed a piece of paper indicating that she had received a ballot paper, presumably - and that was done for Sally Higgs. That document hasn't been produced. It is relevant that the letter to Ann Rough from the ANF dated 6 - this is attachment 14 to Ann Rough's statement - stated in the second dot point that these ballot papers will be identified with a stamp to avoid duplication. No ballot paper was so stamped and the Commission has on the evidence before it no way of knowing whether one or more of the employees received one or more ballot papers.
PN2864
We know there is some evidence to the effect that some ballot papers went missing and there is evidence that ballot papers were - at least three and possibly five - were removed by Lynette Harvey before the ballot closed. Now, Karen Barnes told the Commission yesterday that the ballot box had a large opening at the top. Two witnesses today, your Honour, really described that opening almost as a chasm. Now, that must raise concerns - - -
PN2865
THE SENIOR DEPUTY PRESIDENT: Who were they? That was Mr Lindsay and - - -
PN2866
MR DOUGLAS: Mr Lindsay and the lady who got a little bit stroppy with my learned friend.
PN2867
THE SENIOR DEPUTY PRESIDENT: Yes, yes. Don't pause now.
PN2868
MR DOUGLAS: It is on the record, your Honour, but she was very concerned about it. Now, your Honour, there are probably other things that can be said about why the ballot is bad, but those things, your Honour, are sufficient for a conclusion to be reached that the Commission could not possibly certify this agreement even if Alcheringa was standing here with the union saying to the Commission please certify it, and it is not. Therefore, we say when one turns to the two identical statutory declarations before the Commission - one by each union - we say that the Commission cannot accept that the agreement was genuinely approved by a valid majority of employees as stated in paragraph 6.1, or as stated in 6.5, that all employees were given the opportunity to discuss the agreement with their unions, or as stated in 6 - - -
PN2869
THE SENIOR DEPUTY PRESIDENT: Well, there is no evidence at all that there was an opportunity to discuss the agreement with HSUA, is there?
PN2870
MR DOUGLAS: No, that is correct, or as stated in 6.6 that the explanation of the agreement was conducted during the above meetings with opportunity for staff to ask questions and receive answers, or as stated in 6.7 that the employer allowed the above meetings to occur with the explanation of the agreement was given to employees. The employer was aware of copies of the agreement were circulated and that staff members were provided with a ballot paper and a locked box. Now, statements in relation to that paragraph, your Honour, are designed to overcome the mandatory requirements of LJ and LT and in our submission they do not.
PN2871
Finally, your Honour, could I take you to section 170LE which - - -
PN2872
THE SENIOR DEPUTY PRESIDENT: That is the section that deals - that defines a valid majority, is it?
PN2873
MR DOUGLAS: Yes, your Honour.
PN2874
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2875
MR DOUGLAS: Which says:
PN2876
For the purposes of ...(reads)... or if the decision is made by vote a majority of persons who cast a valid vote.
PN2877
Now, in my submission - - -
PN2878
THE SENIOR DEPUTY PRESIDENT: Decide or genuinely decide. Can I just ask you this. What is the meaning of that last sentence, decide or genuinely decide? Do they have to decide or do they have genuinely decide or do they have a choice? I have a bit of difficulty with that section.
PN2879
MR DOUGLAS: I think the agile draftsman, your Honour, with respect, got it wrong.
PN2880
THE SENIOR DEPUTY PRESIDENT: Was too agile.
PN2881
MR DOUGLAS: And I think every decision that I have ever read that has looked at this particular section - - -
PN2882
THE SENIOR DEPUTY PRESIDENT: Requires genuine consent - decision, yes.
PN2883
MR DOUGLAS: Yes, relies on the word "genuinely" in each case.
PN2884
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2885
MR DOUGLAS: And the same can be said in (b).
PN2886
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2887
MR DOUGLAS: Approval genuinely approved.
PN2888
THE SENIOR DEPUTY PRESIDENT: Genuinely, yes.
PN2889
MR DOUGLAS: The agile draftsman got it wrong, I think, your Honour, he forgot to cross out the first word in his redraft in each case. But that is my submission; it should be read by reference to "genuinely" in each place. In any event, your Honour - - -
PN2890
THE SENIOR DEPUTY PRESIDENT: And I am of the same view as you, subject to the other side saying something different, that all decisions of the Commission proceed on the basis that there needs to be a genuine approval and a genuine decision.
PN2891
MR DOUGLAS: Yes, otherwise the section would be somewhat absurd.
PN2892
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2893
MR DOUGLAS: In any event, your Honour, the thing I want to say is this, that what we know about the ballot is such that in my submission it is not - the vote that was taken is not a vote of the kind referred to in 170LE(b)(ii). The vote referred to there is intended to be in my submission a vote conducted on a ballot that has an integrity about it and this ballot didn't have such an integrity and that because of that this - any judgment that is to be made as to a valid majority in relation to the circumstances that are currently before the Commission, should be addressed by reference to 170LE(d)(i).
PN2894
That is to say there were nine, plus thirty-three people who did not vote, forming a majority of employees who are opposed or were opposed to the certification of this agreement. Those are my submissions, your Honour, subject to putting the position in relation to Ann Rough and the award coverage.
PN2895
THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Douglas. We will adjourn until 1.30 if that is convenient to everyone.
PN2896
MR DOUGLAS: Yes, your Honour.
LUNCHEON ADJOURNMENT [12.29pm]
RESUMED [1.31pm]
PN2897
THE SENIOR DEPUTY PRESIDENT: Mr Douglas.
PN2898
MR DOUGLAS: Yes, your Honour, the position in relation to the two awards - firstly, the ANF Award which is the Nurses (Victorian Health Services) Award 2000 varied to 12 March 2003, Ann Rough's employment doesn't fall within the scope of that award, your Honour. Clause 4.1 of that award, the incidence and application clause provides:
PN2899
This award shall apply to the employment of registered nurses, state enrolled nurses and mothercraft nurses in the State of Victoria provided that it shall not apply to persons employed under the Public Service Act 1974 Vic.
PN2900
THE SENIOR DEPUTY PRESIDENT: And Ms Rough is not employed as a registered nurse.
PN2901
MR DOUGLAS: No.
PN2902
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2903
MR DOUGLAS: Nor does her employment fall within the scope of the Health and Allied Services - Private Sector - Victoria Consolidated Award 1998, which I think - a print of that I think is - it has got a code number HO488. I am not sure whether that is the print number or not, your Honour. It is the award code, yes. In any event, your Honour, clause 5.1.1 says:
PN2904
This award shall apply to and be binding on the Health Services Union of Australia in respect of its officers and each and every person employed who is a member or eligible to be a member of the union.
PN2905
5.2.1(c) provides:
PN2906
This award applies to the State of Victoria in relation to the process, trade, business or occupation of a hostel giving residential care.
PN2907
And that would be Alcheringa. And importantly, 5.2.3 provides:
PN2908
In the case of persons employed in or in connection with the carrying on of work in those establishments described in 5.2.1(c) the incidence of -
PN2909
and that would cover a hostel giving residential care -
PN2910
the incidence of this award is limited to those persons whose work falls within the administrative and clerical, food services and general services streams as prescribed in clause 19, rates of pay, of this award.
PN2911
And the highest level in the administrative clerical services stream, as seen in clause 19, rates of pay, is administrative/clerical services 6 and that includes clerical supervisor as defined, private secretary as defined, interpreter qualified as defined, and private secretary as defined would cover Graham Muir who gave evidence, your Honour, and that is the highest administrative classification and certainly the same - and no classification in the other streams. The general services, food services and the like would be applicable to Ann Rough. So on that basis, your Honour, I submit that she is not covered by either of those two awards.
PN2912
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Niall.
PN2913
MR NIALL: If your Honour pleases. Your Honour, the ANF relies on its written submissions filed in support of the application to certify in respect of a number of those matters I wish to expand on and deal with but, in essence, in my submission, the agreement must be certified because it satisfies the statutory requirements for certification and an application has been made.
[1.38pm]
PN2914
Your Honour, can I at the start identify four stages. They are firstly, the making of the agreement; secondly, the approval of the agreement; thirdly, an application to certify the agreement; and fourthly, the process of certification at which time the Commission must satisfy itself that the approval is genuine approval. There is no doubt, in my submission, that your Honour must turn your Honour's mind to the question of whether or not the approval of the agreement was a genuine approval. However, your Honour does not need to consider that matter until one gets to the question of certification.
PN2915
Now, within those four stages can we say this. Firstly, there was an agreement between Alcheringa, the HSUA and the ANF. It is an agreement in writing. Such an agreement need not be signed. It simply must be recorded in writing. Section 170LI(1) so provides. In the present case the evidence is clear, your Honour, that there was an agreement in writing. I won't recite the evidence, your Honour. Can I just remind you in general terms that Dewan and Associates were appointed. They negotiated; agreement was reached and importantly, although not vitally so, the agreement was submitted to Alcheringa and they indicated they wished to proceed with the agreement.
PN2916
THE SENIOR DEPUTY PRESIDENT: Just remind me, the agreement that Mr Rahilly sent to Alcheringa, is that in evidence?
PN2917
MR NIALL: Yes, it is, your Honour. It is PFG4.
PN2918
THE SENIOR DEPUTY PRESIDENT: And I draw the inference that because neither of you has sought to demonstrate that that is in any respect different to the agreement sought to be certified, that its terms are the same.
PN2919
MR NIALL: Yes, your Honour, and we gave a number of opportunities to witnesses for the respondent, Alcheringa, to indicate differences. So what we are seeking to certify is the very same agreement that was prepared in writing by the agents of Alcheringa, which was submitted to the union for approval, which was approved by the union - or agreed to by the union and which was submitted back to Alcheringa and it also agreed. So whether one looks at Dewan having ostensible authority or actual authority, it is clear that it had authority to reach the agreement and agreement was reached and it was recorded in writing.
PN2920
THE SENIOR DEPUTY PRESIDENT: More than that, there is evidence that Alcheringa actually agreed to its terms.
PN2921
MR NIALL: Precisely, your Honour, precisely. I say no more about it, your Honour. The question is whether the employer or the union to such an agreement can withdraw. Now, we say, your Honour, that the reasons for which Alcheringa has given as to why it wants to withdraw are no more than it no longer wants to be held to the bargaining. But your Honour need not decide whether it is a good reason or a bad reason because in our submission they simply can't do it. But if your Honour was minded to pass upon that issue, it is a completely inadequate reason, we submit, because it is no more than a submission that they might do better now.
PN2922
THE SENIOR DEPUTY PRESIDENT: But if Mr Douglas is right and for one reason or another the underpinning awards don't apply to Alcheringa, wasn't the agreement entered into on a false premise?
PN2923
MR NIALL: No, your Honour.
PN2924
THE SENIOR DEPUTY PRESIDENT: Why not?
PN2925
MR NIALL: Well, for two reasons. One, it doesn't touch the HSUA, so there is a valid basis there - - -
PN2926
THE SENIOR DEPUTY PRESIDENT: Yes, the argument is that the ANF award doesn't apply, yes.
PN2927
MR NIALL: Yes, and secondly, the ANF award does apply. There is no basis on which your Honour has been invited to conclude that it doesn't apply.
PN2928
THE SENIOR DEPUTY PRESIDENT: No, and nor need I be invited.
PN2929
MR NIALL: That is so, your Honour.
PN2930
THE SENIOR DEPUTY PRESIDENT: But if Mr Douglas is right or even if the employer thinks that the basis on which it entered into the agreement is wrong, why can't it walk away from it?
PN2931
MR NIALL: Because, your Honour, there is no power to walk away from an agreement and Senior Deputy President Lacy was correct to so find. And can I put to your Honour the following reasons why you can't walk away from an agreement, whatever reason you advance. The first is this, that the agreement is an agreement between the union and the employer; that is an agreement under section 170LJ. And the way the process commences is that the union indicates it wants to make - or one party wishes it wants to advance some claims. There are some negotiations and those claims are settled in an agreement.
PN2932
No other party is necessary. The two parties to the agreement are the employer and the union. The employees are not party to the agreement. As it happens, they have got some roles to approve the agreement but they are not a party. And in that process of negotiation, the parties give up valuable rights. Your Honour will see in evidence PG1, PG2 that the nurses have significantly wide claims and no doubt Alcheringa also had some matters it wished to be in agreement but both sides, one can readily infer, gave up claims and compromised their interests and settled on a final agreement.
PN2933
Now, the second point - so the first point is the parties have given up valuable rights. The second point is that the making of an agreement has significant statutory consequences. Most importantly, it terminates the bargaining period. The making of the agreement brings the bargaining period to an end, and that is a very important statutory consequence. After the making of an agreement, any industrial action in furtherance or in relation to the issues would be unprotected.
PN2934
THE SENIOR DEPUTY PRESIDENT: For such time as it took the unions to initiate a new bargaining period and wait their statutory period of time before engaging in further industrial action.
PN2935
MR NIALL: That may be so, your Honour, and, your Honour - - -
PN2936
THE SENIOR DEPUTY PRESIDENT: Well, is there any other consequence?
PN2937
MR NIALL: - - - quite rightly points out that the union might have to wait but so too might an employer, your Honour. They might well have locked out some employees. And it is a significant consequence, your Honour, because the whole section is predicated - the whole provision is predicated on commencing a bargaining period, that is, you tell us you want to negotiate an agreement and the bargaining period come to an end when the issues have resolved. Now, that is a clear statutory indication that consequences are to be established or to attach to the making of the agreement.
PN2938
So we say it accords with - holding both parties to their agreement that has been recorded in writing accords with about 2000 years of law where people are held to their bargains; it accords with the statutory scheme in which you have a bargaining period which is terminated on the making of an agreement; it - - -
PN2939
THE SENIOR DEPUTY PRESIDENT: Just stopping you there, you are referring to the common law - - -
PN2940
MR NIALL: Yes, your Honour.
PN2941
THE SENIOR DEPUTY PRESIDENT: - - - and parties can walk away from agreements at common law and then they suffer the consequences, don't they? They are sued in damages or occasionally, if appropriate, specific performance is ordered, and that is what you are seeking here in a sense.
PN2942
MR NIALL: Parties are held to their bargain. The question is how the courts hold their parties to a bargain, and that is that remedies might flow for breach. But there is no question of a breach in this case, your Honour, no question at all. They want to walk away from the bargain and we say you just can't do it. And the context of the scheme and the Act in its entirety would be significantly undermined if parties could walk away from an agreement. And Senior Deputy President Lacy was correct in Group 4, and I will give your Honour the paragraph numbers, 38, 42 and 48. Given the time, I won't take your Honour to it.
PN2943
THE SENIOR DEPUTY PRESIDENT: Well, it might be worthwhile if you do. Let us just have a look at it.
PN2944
MR NIALL: It is under tab 3, your Honour.
PN2945
THE SENIOR DEPUTY PRESIDENT: Yes, I have the decision.
PN2946
MR NIALL: Your Honour will go firstly to paragraph 38.
PN2947
THE SENIOR DEPUTY PRESIDENT: Yes, that is where his Honour held that the reasons for Group 4 withdrawing may have been valid.
PN2948
MR NIALL: Yes.
PN2949
THE SENIOR DEPUTY PRESIDENT: And he said that he is:
PN2950
...not sure the principles of contract are entirely divorced from the situation at hand.
PN2951
MR NIALL: And then he goes on in paragraph 42 - there is an application; it is attached to an agreement in writing:
PN2952
No one has suggested that the agreement doesn't pertain to the relationship between employees. It seems to me all the necessary antecedent necessary to trigger the obligation of the Commission to certify are in place.
PN2953
In a key passage in paragraph 48, his Honour says:
PN2954
An agreement made under the Workplace Relations Act reflects a bargain between the parties. It affects rights established and accrued as a result of valuable exchanges ...(reads)... not affect the duty of the Commission to certify the agreement. I am bound to certify it.
PN2955
His Honour there is dealing with a party walking away from the agreement after an application has been made.
PN2956
THE SENIOR DEPUTY PRESIDENT: Yes, after a vote, after an application and a signed agreement.
PN2957
MR NIALL: In my submission, no difference in consequence or rationale applies where the party walking away does so before an application for certification is made. The application for certification does not affect consequences, does not affect rights. What it does do is enliven the Commission's jurisdiction.
PN2958
THE SENIOR DEPUTY PRESIDENT: Yes, although his Honour does emphasise in both paragraphs 48 and 49 that the agreement had been executed, "duly executed" in 48 and "executed" in 49. What does his Honour mean in 49?
PN2959
MR NIALL: I don't know, your Honour - - -
PN2960
THE SENIOR DEPUTY PRESIDENT: Well, you are not much help to me, are you?
PN2961
MR NIALL: - - - to be frank, but his Honour posits there may be other avenues, no one has put them to me, I suggest is probably what his Honour is saying. But, in any event, one of the consequences is that certification can proceed. Now, the rationale, your Honour, is, as his Honour pithily encapsulates in paragraph 48, that people have gone through this process; they have put their bottom line; it has been accepted; everyone's cards are on the table; the negotiations are over. It would be inimical to that process if one party can then say, having got the advantage of the bottom line, well, I am off, we will have another round. And that is exactly what the Commission dealt with in the Pampas decision, which is under tab 10.
PN2962
THE SENIOR DEPUTY PRESIDENT: That is Deputy President Hamilton's decision of 8 April.
PN2963
MR NIALL: Yes, it is, your Honour, and in particular I take your Honour to paragraph 14. Has your Honour got that?
PN2964
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2965
MR NIALL: Paragraph 14 - I won't read the initial paragraphs - his Honour says, the initial sentence:
PN2966
The practical consequences of a different view -
PN2967
that is, being able to walk away from an agreement -
PN2968
are extremely serious. It would mean that any individual union or other party could participate fully, reach agreement, support approval by a valid majority and then, despite being only one of many parties and representing perhaps a small fraction of the workforce, would be able to prevent certification and require the whole process to start again. This would be an absurd result, lend itself to abuse and enable parties to wreck agreements.
PN2969
Now, that is precisely what is happening here, your Honour. Alcheringa has in good faith negotiated with Ms Chambers' union and my client. Everyone has given up things. And now, apparently because they had the good foresight to see Mr Douglas on 28 May, they now can see themselves - perhaps they should get a better bargain.
PN2970
THE SENIOR DEPUTY PRESIDENT: Yes. His Honour did go on in paragraph 15 to suggest that a party could withdraw at a stage much later than the stage that Alcheringa withdrew in this case.
PN2971
MR NIALL: I am sorry, your Honour?
PN2972
THE SENIOR DEPUTY PRESIDENT: In paragraph 15 his Honour says:
PN2973
It is probably the case that the CEPU could not withdraw from the agreement after approval by a valid majority without the agreement of the other parties and a further valid majority vote, and certainly could not withdraw once the certification application was made.
PN2974
MR NIALL: Yes.
PN2975
THE SENIOR DEPUTY PRESIDENT: And he refers to Group 4 and then he suggests that Group 4:
PN2976
...did suggest, however, that a party may be able to withdraw prior to a hearing.
PN2977
MR NIALL: Well, with respect, Group 4 doesn't deal with that issue; neither decision does. Your Honour isn't - but in a slightly different factual context - but the principles, in my submission, have to be the same because - can I put it in this way, your Honour - an employer has given up agreement, has locked out some employees. The union comes along and says all right, we will take your bottom line, brings the agreement - signs an agreement, brings the industrial action to an end and then the union says only joking we want to do it again; we now know your bottom line; let us start the whole process over again.
PN2978
Now, as Deputy President Hamilton says, that is an absurd result. And it cannot be a different result if the union rushes to notify they will walk away from the agreement before an application for certification is made. It just can't be so, your Honour. It would be an absurd position where as long as the union got in quickly enough, they could walk away from the agreement. So we say as a matter of law, the Act does not permit a party to walk away from the agreement.
PN2979
Now, it may be, your Honour, that circumstances change and parties to the agreement wish they hadn't made it and it may be that parties seek to persuade the employees not to approve an agreement. And your Honour will have had experience of that happening, where after an agreement is made, one or the other parties try and persuade the employees not to agree. Now, nothing would stop that happening under the Act, but the important thing is that it is for the employees to decide the consequences for the agreement once it is made. So there is no power to walk away from the agreement, and dire consequences would follow.
PN2980
That being so, your Honour - if that is so - the question is whether your Honour should certify the agreement. Your Honour was taken to section 170LE and I need to briefly survey a few provisions of the Act, but can I tell your Honour in short compass what we say. It is this: in order to apply for an agreement to be certified, it must be in writing and it must have been approved by a valid majority but it need not be genuinely approved by a valid majority. One does not look at the genuineness of the approval at the stage of asking whether a valid application has been made. One asks that question later in the proceeding.
PN2981
And to make good that submission, can I take your Honour to section 170LJ. Your Honour will see LJ(1) provides the employer may make an agreement, and LJ(2):
PN2982
The agreement must be approved by a valid majority of the persons employed at the time.
PN2983
Does your Honour see that?
PN2984
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2985
MR NIALL: It does not say must be genuinely approved by a valid majority.
PN2986
THE SENIOR DEPUTY PRESIDENT: Until one goes to LE, where one finds the definition of "valid majority".
PN2987
MR NIALL: No, your Honour. But when one goes to LT(5), your Honour will see that one of the requirements for the Commission to consider and be satisfied of is whether the employees have genuinely approved the agreement. That is a question your Honour asks when you are considering whether to certify the agreement.
PN2988
THE SENIOR DEPUTY PRESIDENT: Isn't that what I am doing now?
PN2989
MR NIALL: Yes, your Honour, but not at the point as to whether there is a valid application, and - - -
PN2990
THE SENIOR DEPUTY PRESIDENT: You are distinguishing between a valid application and the point of the certification - - -
PN2991
MR NIALL: And the significance is important, your Honour, because if your Honour looks at 170LT(5), if your Honour is not satisfied that there was genuine approval - and, your Honour, can I say that there are matters which might lead your Honour to not be satisfied. We will submit that you should be so satisfied but we acknowledge that there are some matters which might leave your Honour unsatisfied as to that requirement. But if your Honour goes to LU(3), it provides:
PN2992
Despite section 170LT, the Commission must refuse...
PN2993
I am sorry, your Honour, LV, if your Honour goes to LV(1) - - -
PN2994
THE SENIOR DEPUTY PRESIDENT: Your submission is that if the agreement is an agreement and the steps that are taken don't satisfy LT, then I have got to give you an opportunity to have another vote and to have the agreement explained and so on.
PN2995
MR NIALL: Yes, your Honour, and the employer will cooperate with that, according to the evidence of Ms Rough.
PN2996
THE SENIOR DEPUTY PRESIDENT: She may change her mind if she receives the relevant advice, I suppose.
PN2997
MR NIALL: That would be a very serious matter, your Honour, because I asked her expressly if your Honour was to find that you had an agreement, would you cooperate with getting the steps, and she said yes. And one assumes that that is the state of her intention. And if your Honour gets to the point, your Honour is obliged under LV(5) to give the parties an opportunity, and one would think there will be no impediment because the employer has said there won't be an impediment, and in order to put the matter beyond doubt, we would ask your Honour to give a direction under 135(2A). And I would ask your Honour to go to that provision.
PN2998
If the Commission is required under part VIB to be satisfied that a valid majority of the persons employed ...(reads)... subject to the agreement to determine whether they could make the agreement or give the approval.
PN2999
And your Honour should, in my respectful submission, if your Honour is not satisfied there was genuine approval - and I am going to make some brief submissions on that shortly - your Honour is obliged under LV(5) to give the parties an opportunity to rectify and should, in my submission, include a direction that a ballot be taken under 135(2A). I might add even if your Honour was of the view that there was no valid application, your Honour should still give a direction under 135(2A).
PN3000
THE SENIOR DEPUTY PRESIDENT: Why is that?
PN3001
MR NIALL: Because if your Honour was with us that there was an agreement, then your Honour should properly give the employees an opportunity to vote and the only reason they haven't been given an opportunity to vote to date is because of the view taken by the employer. That is the only reason. And your Honour should not countenance a position, with respect, where an employer or, for that matter, a union can frustrate the purposes of the Act by simply saying they don't want to be bound by it and they are not going to do what the Act says they are required to do.
PN3002
So that is the submission, your Honour, that at the highest, Alcheringa's case is that your Honour shouldn't be satisfied that it is a genuine agreement. You are obliged under LV to act and your Honour should accompany that with a direction under 135(2A). Can I make submissions as to why your Honour should be satisfied there was genuine approval and firstly take your Honour to - and for completeness' sake, your Honour, can I, just before I do that, take your Honour to LE.
PN3003
Your Honour, LE - the draftsman, rather than making a mistake, has made a deliberate choice because the requirement for approval and the requirement for genuine approval occur in different parts of the Act and for different purposes. All that is required under section 170LJ(2) is approval. And that means, if your Honour goes to section 170LE:
PN3004
The employer gives all the persons so employed a reasonable opportunity to decide whether they want to make the agreement or give the approval.
PN3005
Now, your Honour, the evidence is overwhelming that the employer gave that reasonable opportunity, and can I tell you why it did that. It allowed the ballot to take place. It provided a room relevantly secure for the conduct of the ballot. It allowed Mr Gilbert to attend the premises to address members. It allowed Ms Higgs to distribute to distribute copies of the agreement. It allowed Ms Higgs to put up notices concerning the agreement. And despite all the evidence, your Honour, 16 or 17 or 18 witnesses, not one witness before your Honour, not one, said that they did not have an opportunity to cast their vote, not one.
PN3006
Section 170LEC is a mechanical provision. There is no genuine requirement. And not one witness said that they weren't given a reasonable opportunity. Now, the employer can satisfy it either by giving permission for other parties to assist in the process or by doing it itself. The employer could have appointed Mr Rahilly to go along and assist the process. And if they could appoint Mr Rahilly, there is absolutely no reason why they couldn't allow the union to do it.
PN3007
Secondly, your Honour, section 170LED, on the evidence before your Honour, a majority of the persons who cast a valid vote decided to approve. That is the evidence, your Honour. The evidence is that ballots were cast, they were counted and a majority was in favour of the agreement. That is the evidence. Now your Honour might want to later consider at another point about the genuineness of that approval but there was an approval and it satisfied LJ(2).
PN3008
Can I now explain to your Honour why we say it was genuine approval. Firstly, as I have indicated to your Honour, the employer satisfied LE(c). Secondly, the employer satisfied LJ(3). So I am now addressing your Honour on whether it was genuinely approved and we say they satisfied LE(c) and they satisfied LJ(3). I have made submissions about why they satisfied LE(c) and can I turn to LJ(3).
PN3009
LJ(3), your Honour, is all about the taking of reasonable steps to ensure an outcome. The fact that the outcome may not have been achieved does not mean that reasonable steps weren't taken to achieve it and the evidence is that the employer took reasonable steps to ensure that the agreement - that all persons had access or ready access to the agreement. They took reasonable steps. Mr Gilbert wrote to them, wrote to the employer and said Ms Higgs is going to distribute the 20 copies of the agreement. Now whether she did or she didn't, your Honour, is not to the point. The fact is the employer indicated that it would take steps to ensure that that occurred and - - -
PN3010
THE SENIOR DEPUTY PRESIDENT: Why is the leaving of a few copies of the agreement in three or four locations a reasonable step to ensure that everybody had access to it? Ready access to it.
PN3011
MR NIALL: Well, ready access simply means that it is available for inspection.
PN3012
THE SENIOR DEPUTY PRESIDENT: People have to know it is available for inspection, it has to be visible to them. There has been a lot of evidence of people saying "I didn't see it", "I didn't see it".
PN3013
MR NIALL: Yes, your Honour. Yes, your Honour. There has been no evidence that anyone who wanted it and wanted to look at it did not have access to it. No evidence of that, your Honour.
PN3014
THE SENIOR DEPUTY PRESIDENT: But there is no evidence to say that people who wanted it did have ready access to it, beyond the evidence of it was dumped on tables.
PN3015
MR NIALL: Your Honour - - -
PN3016
THE SENIOR DEPUTY PRESIDENT: In four locations.
PN3017
MR NIALL: With respect, that is - I mean the evidence - Alcheringa couldn't have gone to greater lengths to get evidence about this agreement. The evidence of Ms Rough was that she encouraged everyone to talk to the lawyer, provide their evidence. Now one would - - -
PN3018
THE SENIOR DEPUTY PRESIDENT: No, the evidence - as I recall, the evidence of Ms Rough was that on the day that she spoke to people, she spoke to whoever was on that particular shift; she didn't approach others, which leaves a lot out.
PN3019
MR NIALL: One could not be left with anything other than the impression that Alcheringa decided it would put its best case forward and not one person was called who wanted to have access to the agreement who was denied it. On the other hand, the evidence was that it was available. Now your Honour might take the view that access could have been better and reasonable steps should have been - better reasonable steps should have been taken in the circumstances of this case.
PN3020
THE SENIOR DEPUTY PRESIDENT: Well that is not the question. You say that is not the question.
PN3021
MR NIALL: No, your Honour. But if your Honour was minded that there wasn't, reasonable steps weren't taken, and we can understand although the employer was against the agreement, it did make - it did consciously make steps to facilitate the agreement. If your Honour was wrong to that, your Honour might come to the conclusion that there was no genuine approval and that has the consequences of LT(5). Secondly, reasonable steps to - - -
PN3022
THE SENIOR DEPUTY PRESIDENT: Well doesn't a failure to comply with LJ(2) also take us to LV?
PN3023
MR NIALL: Yes, it would, your Honour. And LJ(3), LJ(3)(b), before any approval is given, the terms of the agreement are explained, again the employer took steps, they allowed Mr Gilbert to come and tell everyone.
PN3024
THE SENIOR DEPUTY PRESIDENT: Well, on your conspiracy theory, they also scheduled a meeting to ensure that people wouldn't go to Mr Gilbert's meeting.
PN3025
MR NIALL: Well one of the two. I think that is - - -
PN3026
THE SENIOR DEPUTY PRESIDENT: One of the two, yes, and that would not have been taking a reasonable step to ensure that the agreement was explained to everybody, if I accept that theory.
PN3027
MR NIALL: Well, it might have been one of my flights of fancy, your Honour, but I think the evidence was that it wasn't so motivated.
PN3028
THE SENIOR DEPUTY PRESIDENT: Yes, very well.
PN3029
MR NIALL: Unless Mr Douglas might tell you that it was so motivated, but at the moment there was a denial of that effect and the same point applies, your Honour, that they took reasonable steps. Now LJ(3) - really, LJ(2), LJ(3) and LE all inform the question of whether there was reasonable - whether there was genuine approval. Can I take your Honour back to the Coles decision, tab five, paragraph 20, where the Full Bench, comprising his Honour Vice President Ross, Senior Deputy President Williams and Commissioner Smith:
PN3030
The essence of the above provisions -
PN3031
So that is reference to LT(5), LE and LJ(3):
PN3032
The essence of the above provisions is that a valid majority of persons whose employment would be subject to the agreement must have genuinely approved the agreement. Before such approval is given, the terms of the agreement must be explained to all of the persons asked to give their approval.
PN3033
Pausing there, your Honour, with respect, that goes further than the provisions of the Act but in any event, the need to explain the terms of the agreement is both an explicit requirement of LJ(3)(b) and is implied in the concept of genuine approval. Genuine approval implies that the consent of the employees was informed, that they were advised of the consequences of giving their approval to the agreement. Now on the evidence today, there is no employee who did not appreciate the consequence of their approval or disapproval of the agreement.
PN3034
Now in this case in Coles, it was held that the union had innocently misled the employees and the consequence of that is in paragraph 25:
PN3035
We are not satisfied that the requirements of LT(5) and (7) have been met. Before refusing to certify, we are obliged by virtue of 170LV(1)(b) to give the persons who had the agreement an opportunity to take any action that may be necessary.
PN3036
And I have made the submission that your Honour should accompany with a direction under 135(2). Now, your Honour, in terms of the criticisms of the ballot, can I say that in my submission the evidence establishes that there was a valid majority of persons voting. The criticisms are pure speculation. There was one - there is some evidence before your Honour that Mr Lindsay said he had voted without leaving a mark on the paper and on the evidence there was no such ballot paper produced by Ms Higgs. Your Honour should reject the evidence of Mr Lindsay on this point.
PN3037
In my submission, taken as a whole, his evidence was unsatisfactory. He said, your Honour, that the ballot papers were missing when he started work, which was I think 3.30 in the morning. The evidence of Ms - one of the other witnesses, said she saw Ms Harvey take the ballot papers out. That is Ms Lane. No, it wasn't Ms Lane, your Honour. Anyway, it was one of the witnesses, your Honour will recall, and she said she saw Ms Harvey take them out and there is no dispute that Ms Harvey took the ballot papers out but it must have been between 6.30 and seven because she started work at 6.30.
PN3038
Now, your Honour, Mr Lindsay was not, in my submission, a reliable witness. Your Honour asked him to look - or Mr Turner, I am sorry, asked him to look at whether his ballot paper was there and he started looking and he said "not on the ones I have seen".
PN3039
THE SENIOR DEPUTY PRESIDENT: That is not fair to Mr Turner. I stopped him.
PN3040
MR NIALL: As your Honour pleases.
PN3041
THE SENIOR DEPUTY PRESIDENT: I stopped him after he had looked at the only ballot paper that might have conceivably been his, which is the one that didn't indicate a preference and had a comment starting off with "you must be joking", or something. "You must be bloody mad".
PN3042
MR NIALL: I accept that, your Honour, but nevertheless we invite your Honour not to accept that evidence that he put it in but even if he did, all that shows is that one ballot paper, which was not for or against, was not counted. Now your Honour can't infer or speculate about anything else. Your Honour can't speculate beyond the evidence. Your Honour might conclude that it doesn't leave you with a state of satisfaction that there was genuine approval but that would be as high, in my respectful submission, as it could go.
PN3043
THE SENIOR DEPUTY PRESIDENT: And I couldn't certify it if I came to that view.
PN3044
MR NIALL: No, and your Honour would be obliged to go to L - yes, your Honour. Finally, your Honour, the two matters - in terms of the rules of the Commission, if your Honour is with me on all the rest of it, in my submission compliance with the rules ought not stand in the way. To the extent that his Honour Munro Js decision in Stork, that was a case in which his Honour certified an agreement and allowed a party to effectively - there was a number of unions and he didn't certify it in respect of one of the unions and his Honour took the view that he could do that and it is in paragraph 21 of Stork. It is behind tab eight. Your Honour, it was an ex tempore judgment of his Honour's - - -
PN3045
THE SENIOR DEPUTY PRESIDENT: As are so many of his Honour's judgments.
PN3046
MR NIALL: And it was given in circumstances which are apparent from the judgment of some urgency and some dire threat of industrial action and it was not clear and is clearly not a judgment in which anyone put contrary submissions about that union withdrawing and your Honour, with respect, should not follow it, it is inconsistent with what Senior Deputy President Lacy said and it is inconsistent with a reasoned approach to the provision. If it was not followed, although in another respect, by Commissioner Smith in Telstra Corporation, which is under tab six at print - at paragraph 27 on a different point, but Commissioner Smith declined to follow - - -
PN3047
THE SENIOR DEPUTY PRESIDENT: Declined to follow Stork.
PN3048
MR NIALL: Yes, on a different point, but it highlights the point that in my submission, Stork ought to be viewed with some care. So on a proper - and similarly with Deputy President Harrison's comments in transcript - - -
PN3049
THE SENIOR DEPUTY PRESIDENT: I am just looking at paragraph 26 of Telstra where the Commissioner says:
PN3050
The concept of genuineness must include the notion of informed consent.
PN3051
MR NIALL: Paragraph - I am sorry, your Honour? Paragraph 26 of Coles?
PN3052
THE SENIOR DEPUTY PRESIDENT: Yes, it needs to be informed consent. Only 12 people, at best, attended the two meetings conducted by Mr Gilbert. How informed was the consent of those who voted?
PN3053
MR NIALL: Yes, your Honour, that goes to genuineness. I am sorry, your Honour, your Honour is reading Coles at paragraph - - -
PN3054
THE SENIOR DEPUTY PRESIDENT: 26.
PN3055
MR NIALL: 26.
PN3056
THE SENIOR DEPUTY PRESIDENT: Sorry, Telstra, paragraph 26.
PN3057
MR NIALL: I am sorry, your Honour, Telstra at paragraph 26. That goes to genuineness, your Honour, and I have put all I can say on that matter but I did want to draw your attention to Stork as potential contrary authority or it is a contrary authority but for the reason I advanced, your Honour ought not follow it. Similarly for Senior Deputy President Harrison.
PN3058
Finally, your Honour, in relation to whether Ms Rough ought have voted, in our submission the evidence establishes that she is a Registered Nurse, so much appears from paragraph one of her statement, A3, and on my instruction, she falls within the scope of the award as a Registered Nurse employed in Victoria. Her classification is 29.36 and her salary is a minimum of 32.6.3 and Alcheringa is a multiple dual facility. 29.36 provides that:
PN3059
Classification for the position of a Director of Nursing Resident Care, a Registered Nurse appointed as a principal nursing executive officer, however styled, responsible for the overall managerial, professional, clinical and regulatory aspects of the nursing service and who performs duties which may include but are not confined to.
PN3060
Your Honour, in my submission she would fall comfortably within that and I can hand your Honour - I am not sure if your Honour has got a copy of the relevant award. I will just give your Honour the section. It is 29.36.1, alternatively 32.6.3, which is Director of Nursing in a multiple dual residential aged care facility which is defined in 29.39.1 and would include Alcheringa, 29.39.3. They are a multiple dual residential aged care facility. So we would submit, your Honour, that she would be eligible to vote for the agreement. Alternatively, as a consequence, a single vote by her would not invalidate the ballot. Unless there are other questions, your Honour, they are the matters I wish to put in addition to the written submissions in support of the application for certification.
PN3061
THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Niall.
PN3062
MR NIALL: As your Honour pleases.
PN3063
THE SENIOR DEPUTY PRESIDENT: Ms Chambers.
PN3064
MS CHAMBERS: Yes, if your Honour pleases. The HSUA relies on its outline of submissions and the actual reply it provided to your Honour. The HSUA does support the application of the ANF for certification of this agreement and in broad brush supports the submissions of Mr Niall on behalf of the ANF. The statutory scheme provides for a number of questions that need to be answered by you, your Honour. First of all, there was an agreement made. Well plainly, in our submission, an agreement was made.
PN3065
There is the evidence of Mr Fisher. There is consistent evidence he gave in earlier proceedings before Commissioner Simmonds and they are annexed to Paul Gilbert's affidavit at PFG7 and PFG6. Alcheringa rely on the fact the document hasn't been signed but as we have said in our submissions, that is surely a matter of being an evidentiary tool to the Commission to determine whether or not an agreement has been made but as his Honour Senior Deputy President Hamilton indicated in Pampas, it is not fatal to the finding of an agreement and I don't think it is, certainly not here.
PN3066
Alcheringa now takes the position - well I, first, that there was no agreement. Well that is simply not consistent with the evidence. Secondly, they assert that a conditional authority of types was provided to Clare Dewan and Associates. The submissions of the HSUA is that that is simply not consistent with the evidence. The documentation that was provided by Alcheringa never indicated any conditional authority being provided. The HSUA was certainly never advised that the authority of Clare Dewan and Associates was conditional. We were entitled to treat Clare Dewan and Associates as having actual authority and if that is not the case, they had ostensible authority and as a third party acting in good faith, which we certainly say we did, then they did have authority to enter into the agreement and did so.
PN3067
Plainly, there was a meeting of the minds. The agreement, Mr Fisher said, had been approved by them. That was consistent with the advice provided to Clare Dewan and Associates by Ms Weir, the Corporate Services Manager. Both unions confirmed the agreement and confirmed that the organisers would be proceeding out for the ballot to be processed.
PN3068
Now, your Honour, it seems that the second question arises and which is quite unique, your Honour, is the issue before you, is the distinction between the Group 4 type situation where for circumstances, and in that case valid circumstances given the collapse of Ansett, that the employer party to that agreement formed the view that it could no longer be a party and sought to withdraw from the agreement, albeit after the approval and after the application for certification.
PN3069
The reference your Honour made to that decision of his Honour Senior Deputy President Lacy, made reference to the comment that his Honour makes, which is not expanded on in any way, where he does indicate that there may well be other avenues available to a party to an executed agreement to avoid it before certification. Because he doesn't amplify on what he is saying, it is not clear whether he uses that term executed in the form of signed, or means it to have a greater meaning within the scope of the Act.
PN3070
THE SENIOR DEPUTY PRESIDENT: What do you mean by that?
PN3071
MS CHAMBERS: Well, whether he forms the view that the signing of an agreement, be it before approval or after approval, makes any difference but certainly I am not able to assist the Commission. I cannot think of the circumstances to which he purports to allude in that and if I can just take your Honour to the decision of his Honour Deputy President Hamilton in Pampas, which is behind tab 10, you were taken to paragraph 15 - I think your Honour raised paragraph 15:
PN3072
Thirdly, it is probably the case the CEPU could not withdraw from the agreement after approval by a valid majority without the agreement of other parties and a further valid majority vote and certainly could not withdraw once the certification application was made.
PN3073
And he then refers to Group 4 Securitas. He then refers to the suggestion made that there may well be other avenues available to the parties to an executed agreement to avoid it before certification but there at paragraph 16 he says:
PN3074
I am not aware of what those avenues might be in present circumstances where other parties such as the NUW were not supportive of CEPU withdrawal. In any event, the CEPU does not take any of those other avenues should they exist.
PN3075
So in my respectful submission, it would appear that whatever other avenues were available were not readily apparent to his Honour, Deputy President Hamilton either. Your Honour, in our submission, the temporal connection between the making of the agreement and the timing of the withdrawal is absolutely irrelevant within the scope and the scheme of the Act.
PN3076
Your Honour, you will be familiar, from your role on the panel, with the way in which agreements are negotiated, for example, in the public health sector and I know from my experience, agreements are negotiated and in principle agreements are reached commonly and as a consequence of that, the parties then move to a process of having the ballot take place but that can be a very long time between the agreement actually having been reached and the actual approval process taking place. It would be entirely prejudicial to the objects of the Act if unions could, at any stage during that period, or employers, withdraw from the agreements.
PN3077
Your Honour has been referred to the comments made by his Honour Senior Deputy President Lacy and Deputy President Hamilton about the position of parties and how the position of parties change. It is quite clear that in the negotiating process, parties do give away rights, do alter their positions and as is talked about in the industry, bottom lines become known.
PN3078
If employers or employees are then free to walk away from those agreements then what starts again, if you are free to initiate, given that the bargaining period has clearly ended, is that the bargaining then proceeds in an entirely artificial environment. The parties know each other's positions and it is surely not conducive to fair and effective, effective agreement making, if that is to be the case.
PN3079
Your Honour, there have been plenty of occasions, and I suspect some before you, where the Commission has been minded to tell organisations and employers that once agreements have been made, they are to stick to those agreements and rightly so. That promotes industrial peace. It would be undesirable, certainly most undesirable, if parties were able to use as a tactic in negotiations withdrawal following agreement for the purpose of, as Mr Niall suggested, perhaps ending a lockout or preventing further industrial action occurring. The temporal - so our submission is the mere fact the approval has not taken place is irrelevant. The principles identified by the Commission in cases such as Group 4 and cases such as Pampas should continue to apply, provided the requirements of section 170LT are met.
PN3080
In that regard, the HSUA supports the distinction drawn by Mr Niall between approval, where that word is referred to quite intentionally by the drafters in section 170LJ(2) and the reference to genuine approval in section 170LT(5) and you will also see a reference to genuine approval, for example, at section 170MC(3), which talks about the requirement for genuine approval where there is to be extension of the nominal expiry date of an agreement.
PN3081
It is that reading of section 170LJ(2), the reference to approval and not genuine approval, that gives use to the words "decide or genuinely decide", "approve or genuinely approve", as they appear in section 170LE.
[2.31pm]
PN3082
And that, your Honour, we say is consistent with the approach taken by the Full Bench in Coles where his Honour, Vice President Ross and his Honour, Senior Deputy President Williams and Commissioner Smith who omitted the reference of the agreement under section 170LV(1)(b) in circumstances where it was not satisfied the requirements of section 170LT(5) and (7) had been met. Now, that was in circumstances where, in the Commission's view, there was a fundamental - there was a concern there was a fundamental misunderstanding by the employees over the application of part of the agreement.
PN3083
And your Honour, I draw your attention just out of interest to paragraph 22 because by arrangement with Coles in that case the contents of the bakery agreement had been explained to employees by the SDA. And it was the SDAs misapprehension in turn that informed, or rather misinformed the employees. But significantly it was not found to be fatal to the existence of a valid application before the Commission or to an approval, albeit not a genuine approval under LT but, nonetheless, an approval under LJ for the application to proceed before the Commission. Because if that was not the case, there would be no valid application and the Commission wouldn't get to the stage of looking at genuineness under LT.
PN3084
Your Honour, we support the submissions of the ANF in relation to section 170LJ(3) in that it was a mechanical provision not to ensure that the persons have or have ready access to, but there is a reasonable - reasonable steps have been taken. It would be straining the language of that provision to require the employer itself to take those steps. Certainly those steps can be taken by another body or another person provided "reasonable steps have been taken to ensure that".
PN3085
I remind the Commission that the update, ANF6, was an explanatory document and that explanation of its terms were provided through distribution of that update on the noticeboards, and Mr Niall has taken you through the other steps through which steps - and, in our submission, reasonable steps - had been taken to ensure that section 170LJ(3) had been met.
PN3086
Your Honour, a peculiar circumstance would follow if an employer could withdraw from an agreement at any stage prior to the approval process and, through its action or inaction, thwart the processes whereas if an employee organisation was to withdraw prior to an approval process taking place, an employer could, more readily, ensure that genuine approval was given. It is simply not consistent with the scheme of the Act.
PN3087
Your Honour, on those bases we support the submissions of the ANF, that if you do find under LT that there has not been a meeting - a compliance with LT(5) and/or (7), that you must then proceed to act under LV(1)(b) and 135(2)(a). The outline of submissions we filed dealt with our submissions about the exercise of your discretion in circumstances where the procedural requirements of the Act have been - not been met and, for all the reasons I have given, we would urge that you so exercise your discretion. If the Commission pleases.
PN3088
THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Ms Chambers. Yes, Mr Douglas, have you got anything in reply?
PN3089
MR DOUGLAS: No, your Honour.
PN3090
THE SENIOR DEPUTY PRESIDENT: Well, I am going to have to reserve. We will adjourn the Commission.
ADJOURNED INDEFINITELY [2.40pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
DONALD CODLING, SWORN PN1469
EXAMINATION-IN-CHIEF BY MR TURNER PN1469
EXHIBIT #A9 MR CODLING'S WITNESS STATEMENT DATED 31 OCTOBER PN1476
CROSS-EXAMINATION BY MR NIALL PN1478
CROSS-EXAMINATION BY MS CHAMBERS PN1535
WITNESS WITHDREW PN1549
LYNNETTE CARMEL CARMICHAEL, SWORN PN1559
EXAMINATION-IN-CHIEF BY MR TURNER PN1559
EXHIBIT #A1O MS CARMICHAEL'S WITNESS STATEMENT DATED 13 OCTOBER PN1566
CROSS-EXAMINATION BY MR NIALL PN1571
RE-EXAMINATION BY MR TURNER PN1627
WITNESS WITHDREW PN1632
JENNY FORD, SWORN PN1636
EXHIBIT #ANF6 AUGUST 11 ANF UPDATE PN1637
EXHIBIT #ANF7 AUGUST 12 ANF UPDATE PN1637
EXAMINATION-IN-CHIEF BY MR TURNER PN1638
EXHIBIT #A11 MS FORD'S WITNESS STATEMENT PN1645
CROSS-EXAMINATION BY MR NIALL PN1648
RE-EXAMINATION BY MR TURNER PN1711
WITNESS WITHDREW PN1727
JUDITH HELEN MUNRO, SWORN PN1730
EXAMINATION-IN-CHIEF BY MR TURNER PN1730
EXHIBIT #A12 WITNESS STATEMENT OF MS J.H. MUNRO PN1736
CROSS-EXAMINATION BY MR NIALL PN1738
CROSS-EXAMINATION BY MS CHAMBERS PN1774
WITNESS WITHDREW PN1792
JOHN LINDSAY, SWORN PN1794
EXAMINATION-IN-CHIEF BY MR TURNER PN1794
EXHIBIT #A13 WITNESS STATEMENT OF MR J. LINDSAY PN1803
CROSS-EXAMINATION BY MR NIALL PN1806
CROSS-EXAMINATION BY MS CHAMBERS PN1858
WITNESS WITHDREW PN1872
VALERIE FAYE McLEAN, SWORN PN1888
EXAMINATION-IN-CHIEF BY MR TURNER PN1888
EXHIBIT #A14 STATEMENT OF MS McLEAN DATED 30/10/2003 PN1895
CROSS-EXAMINATION BY MR NIALL PN1899
WITNESS WITHDREW PN2007
SUSAN THERESE WRIGHT, SWORN PN2007
EXAMINATION-IN-CHIEF BY MR TURNER PN2007
EXHIBIT #AH15 STATEMENT OF MS SUSAN THERESE WRIGHT DATED 31/10/2003 PN2015
CROSS-EXAMINATION BY MR NIALL PN2017
CROSS-EXAMINATION BY MS CHAMBERS PN2071
WITNESS WITHDREW PN2079
KATHERINE ANN ISMA, SWORN PN2089
EXAMINATION-IN-CHIEF BY MR TURNER PN2096
EXHIBIT #AH16 STATEMENT OF KATHERINE ANN ISMA DATED 31/10/2003 PN2131
CROSS-EXAMINATION BY MS CHAMBERS PN2133
WITNESS WITHDREW PN2183
JUDITH HELEN MUNRO, RECALLED AND RESWORN PN2186
EXAMINATION-IN-CHIEF BY MR NIALL PN2186
WITNESS WITHDREW PN2214
JOANNE ROBERTS, SWORN PN2215
EXAMINATION-IN-CHIEF BY MR TURNER PN2215
EXHIBIT #A17 WITNESS STATEMENT OF JOANNE ROBERTS PN2223
CROSS-EXAMINATION BY MR NIALL PN2225
WITNESS WITHDREW PN2340
JOHN LINDSAY, RECALLED AND RESWORN PN2347
EXAMINATION-IN-CHIEF BY MR TURNER PN2347
CROSS-EXAMINATION BY MR NIALL PN2368
WITNESS WITHDREW PN2390
JENNIFER MAY OLNEY, SWORN PN2394
EXAMINATION-IN-CHIEF BY MR TURNER PN2394
EXHIBIT #A18 STATEMENT OF JENNIFER MAY OLNEY PN2403
CROSS-EXAMINATION BY MR NIALL PN2406
WITNESS WITHDREW PN2493
SUE ANN HARRIS, SWORN PN2499
EXAMINATION-IN-CHIEF BY MR TURNER PN2499
EXHIBIT #A19 STATEMENT OF SUE ANN HARRIS PN2508
CROSS-EXAMINATION BY MR NIALL PN2509
WITNESS WITHDREW PN2579
SALLY ANN HIGGS, RECALLED AND RESWORN PN2584
EXAMINATION-IN-CHIEF BY MR NIALL PN2584
WITNESS WITHDREW PN2619
SUSAN MARGARET JONES, SWORN PN2622
EXAMINATION-IN-CHIEF BY MR TURNER PN2622
EXHIBIT #A20 WITNESS STATEMENT OF SUSAN MARGARET JONES PN2631
CROSS-EXAMINATION BY MR NIALL PN2633
CROSS-EXAMINATION BY MS CHAMBERS PN2700
WITNESS WITHDREW PN2712
CHERYL LANE, SWORN PN2713
EXAMINATION-IN-CHIEF BY MR TURNER PN2713
EXHIBIT #A21 WITNESS STATEMENT OF CHERYL LANE PN2722
CROSS-EXAMINATION BY MR NIALL PN2724
WITNESS WITHDREW PN2758
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