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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 2, 16 St George's Terr PERTH WA 6000
Tel:(08)9325 6029 Fax:(08)9325 7096
TRANSCRIPT OF PROCEEDINGS
O/N WT0020
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER THATCHER
C2003/280
THE AUSTRALIAN WORKERS' UNION
and
CO-OPERATIVE BULK HANDLING LTD
Application under section 170LW of the Act
for settlement of dispute (certification
of agreement) re qualifying criteria
for appointment to the position of
Experienced Casual
PERTH
9.35 AM, MONDAY, 1 DECEMBER 2003
Continued from 2l.11.03
PN104
THE COMMISSIONER: Does anyone want to make any preliminary comments?
PN105
MR LLEWELLYN: No, I'm right to go, thanks.
PN106
MS KRUGER: No, thank you, Commissioner.
PN107
THE COMMISSIONER: Well, Mr Llewellyn, where do we go from here then?
PN108
MR LLEWELLYN: I don't think I need to open again, sir - just proceed straight to the witnesses' evidence.
PN109
THE COMMISSIONER: You are going straight to witnesses. I think the normal practice would be to clear the room of those who are going to be giving evidence during these proceedings. Is that the approach that is requested?
PN110
MS KRUGER: Yes, Commissioner, I would just ask permission from the respondent's side for Mr Jim Fuller to remain in the room even though he is going to be a witness. He is also the person I'm receiving instructions in the matter.
PN111
THE COMMISSIONER: Well, I would like the witnesses to follow the normal custom and just to wait outside until they are called. I am not convinced that that should not apply to Mr Fuller also, Ms Kruger. Is that really necessary at this stage?
PN112
MS KRUGER: Commissioner, I would feel more comfortable having my client present during the course of the proceedings. There are no other members of the representative company here to assist me in giving instructions during the course of the examination of evidence.
PN113
THE COMMISSIONER: What is your position on this witnesses thing, Mr Llewellyn?
PN114
MR LLEWELLYN: In terms of the jurisdiction locally it is common to have someone instructing remain. I understand the process in other states is that anyone who stays to instruct can't be a witness but we haven't necessarily followed that practice here for a number of years and it is only recently when I think SDP Lacey pointed out to me that his practice is that he clears everybody.
PN115
THE COMMISSIONER: That was my inclination but I think that - - -
PN116
MR LLEWELLYN: On the basis there's evidence in chief already led, of course Mr Fuller then just runs the risk of how you then treat his evidence given that he has had the opportunity to listen to everyone else.
PN117
THE COMMISSIONER: Yes. Thank you, Mr Llewellyn. On that basis I'm happy for Mr Fuller to remain but I would ask the other witnesses to vacate the room while the evidence is proceeding. Your first witness, Mr Llewellyn?
PN118
MR LLEWELLYN: I call Dominic Ripepi. Sir, I sent through on Friday and I trust you received some revised witness statements. I've also sent them to my friend. She has confirmed with me she got them on Friday.
PN119
PN120
MR LLEWELLYN: Mr Ripepi, have you prepared a witness statement in relation to this matter?---I have, yes.
PN121
Can I just have you identify the document I've just handed you. Can you tell me if that is your witness statement?---Yes.
PN122
And also if I can just ask you to turn over to DR1, the attachment at the back of the witness statement, can you confirm that the e-mail was the e-mail you received from Mr Fuller?---Yes, this is forwarded on from the District Manager to everyone, yes - and to all the committee members.
PN123
Sir, I'm not sure how you want to treat witness statements. Whether you mark this statement and the attachments as an exhibit or you seek to - - -
PN124
PN125
MR LLEWELLYN: Mr Ripepi, can I just ask you one other question. In relation to the issue of whether casuals should earn more or less than permanents, can you tell me what was said about that?---In a lot of cases - and I'm talking committee there was views earlier on in discussions that some of the committee weren't comfortable that casuals were getting more than permanents and some of them said that they should because of the - like, they don't get holidays or whatever and if they wanted them back. So the consensus on that was that some were in agreeance that they should and some were in agreeance that they shouldn't.
**** DOMINIC RIPEPI XN MR LLEWELLYN
PN126
Can you tell me what the final wash-up was?---The final wash-up as far as I understood it at our last meeting was that as it was written in the agreement that after two years they'd be automatically put to experienced seasonals - after two harvests, sorry - and any prior to that would be done by the zone manager only. That was brought up in the case where there was a lot of cases where they felt that some of the casuals and that weren't brought up because the district manager may not like them or the supervisor might have a beef with them. This was brought up by Shane Mason plus at our last meeting, and this is where this arises from.
PN127
PN128
MS KRUGER: Mr Ripepi, you were a member of the negotiating committee, is that right?---Yes.
PN129
And did you attend all of the negotiations of this committee during the lead-up to this specific agreement?---No.
PN130
What proportion of the meetings did you attend?---I attended right up to one in June, because I went to Italy and came back in September, so I think from either June or to September I didn't attend any of them and when I got back from Italy I attended the - and then from there on till the finish.
PN131
That is September 2002, is it?---Yes.
PN132
Are you aware of the fact that after each of these negotiating committee meetings rough minutes were drafted after those meetings?---Which ones, sorry?
**** DOMINIC RIPEPI XXN MS KRUGER
PN133
That minutes were taken of your meetings with the CBH representatives?---The meetings we had in his office?
PN134
Yes?---Yes, they were.
PN135
Can I ask you, Mr Ripepi, to have a look at this document, please.
PN136
Commissioner, the document that we are handing up is already part of the respondent's bundle of documents and evidence. You will find it as appendix A to the - - - ?---Appendix A.
PN137
- - - witness statement of Mr Fuller?---Can I just say one thing on this one?
PN138
I will be asking you a question now, Mr Ripepi, thank you?---Sorry.
PN139
It is minutes of meeting dated 21 January 2003.
PN140
THE COMMISSIONER: Did you say the attachment to the - - -
PN141
MS KRUGER: To Mr Fuller's - - -
PN142
THE COMMISSIONER: - - - witness statement or Ms - - -
PN143
MS KRUGER: Of Mr Jamie Fuller. It is attached as appendix A.
PN144
THE COMMISSIONER: Is that the minutes of the meeting of - - -
**** DOMINIC RIPEPI XXN MS KRUGER
PN145
MS KRUGER: 21 January 2003. Thank you, Commissioner.
PN146
THE COMMISSIONER: 21 January. I'm sorry. Thank you.
PN147
MS KRUGER: Thank you, Commissioner. Now, Mr Ripepi, I'd like you to just look at the third dot point there on those minutes where it says:
PN148
AWU wants clear documentation of how the RPO experience and casual sampler will be appointed on appointment by District Manager only.
PN149
Appendix A, of Mr James Fuller's witness statement.
PN150
MR LLEWELLYN: It is appendix A.
PN151
MS KRUGER: That's appendix A to Natasha's statement, I think.
PN152
THE COMMISSIONER: Mine was the appendix - it might be out of order.
PN153
MS KRUGER: To Ms Waclawik. Sorry for the confusion, there's probably two that I noted as appendix A.
PN154
THE COMMISSIONER: I've got an appendix A to Mr Fuller which is the 16 May and appendix A for this one. Anyway this is the one.
PN155
MS KRUGER: Now, Mr Ripepi, during this meeting some things recorded here under the third dot point there where it says:
**** DOMINIC RIPEPI XXN MS KRUGER
PN156
The AWU wants clear documentation - - -
PN157
MR LLEWELLYN: I'm not sure whether I'm looking at the same document, but if it is, Mr Ripepi wasn't present. On what basis is the question asked? I mean, the document gives those that attended and Mr Ripepi isn't one of them.
PN158
MS KRUGER: Commissioner, if my learned friend would allow me the opportunity to finish the question maybe the relevance will be clear from that.
PN159
THE COMMISSIONER: Yes, well, we will hear the question.
PN160
MS KRUGER: Thank you, Commissioner.
PN161
Now, it says here that during those discussions the AWU wanted to know about how the RPO experience and casual sampler will be appointed and it says there: "on appointment from the District Manager only." What I would like to know from your, Mr Ripepi, is in terms of your communication with the AWU representative, were they aware of the fact. Did you discuss this issue of appointment of casual experienced and third year samplers?---I can't discuss anything that happened at this meeting because I wasn't there.
PN162
I'm not asking about the meeting. I'm asking about your communications with the AWU representative?---With the AWU the discussion we had was at our last meeting was he asked about these casuals. As far as we knew it was as far as the agreement was not a problem. The only time that it became a problem was when I got a phone call from Don Roy asking me if we had any problems with experienced casuals in Merredin. I said that as far as I know, no. Then I think they had the Geraldton case and that memo came out. That was the discussion that asked me how I was understood how the agreement read and that's the way I understood it.
**** DOMINIC RIPEPI XXN MS KRUGER
PN163
Okay, but I'm talking now prior to the agreement actually being certified, Mr Ripepi. When you had discussions with the AWU representative about these two categories, casual experience and the third year sampler?---Well, we didn't have a discussion. The only discussion that we had was after the thing had been implemented because when we left that meeting we were under the impression that that's how it was.
PN164
So you never had a discussion with the AWU representative on this specific issue in the agreement before the agreement was certified?---I've never had a discussion with the AWU on the wording or the interpretation of in experienced casuals. It's memory - the discussion that we had was how the wording was read in the agreement and how it was understood and that's the way I perceived it and they said: well, they're having a meeting with CBH and this was discussed. That's all I knew.
PN165
Okay, but your discussions about those two categories and the appointment processes and so forth, this was all after the certification of the agreement?---With this latest memo, yes. Prior to that there was not very much - any discussion in depth, it was just how it was going to be implemented. Like, if it was going to be to harvest and so on.
PN166
Right. So from the employee's perspective there were no specific instructions that you gave to the union about how these two categories are to be dealt with?---No, because I just thought it was as the agreement. Because when I got back to Merredin and the agreement was passed the District Manager, Jamie Page, down there asked the question and I said: well, according to the agreement it's after two harvests, upgraded if it's before. It's got to be done by the zone manager and that's the way I understood it.
PN167
Thank you?---There was no problem and that seemed to happen and no problem in Merredin and as far as I knew there wasn't a problem with it until we got this.
**** DOMINIC RIPEPI XXN MS KRUGER
PN168
Is there a current problem in Geraldton, Mr Ripepi, in terms of how the casual experience people are appoints?---I couldn't tell you that.
PN169
You don't know?---Only what I've been told.
PN170
Now, Mr Ripepi, I would like you to look at a further document please. This is the other one marked appendix A:
PN171
I then suspected there was a difficulty with the minutes.
PN172
That would then be appendix A to the witness statement of Mr James Fuller. I'm talking about the minutes of the meeting 16 May 2003. If you look at those minutes, Mr Ripepi, do you notice your name appearing there?---Yes.
PN173
Do you recall, Mr Ripepi, if you received these minutes from this meeting?---Yes.
PN174
So they are sent forward to you after the meeting?---Yes.
PN175
Mr Ripepi, the date here says 16 May. In your witness statement you talk about the meeting in June or July of this year. Is that a separate meeting from this one?---Of this year.
PN176
Yes. The meeting that you refer to in your witness statement, Mr Ripepi, says that in June or July you attended a meeting. Is it this meeting or a different one?---Our last meeting, whether it was early June or late May, I don't know. I wasn't sure.
PN177
Was that the last meeting, the final meeting before the agreement was finalised?---Yes, yes.
**** DOMINIC RIPEPI XXN MS KRUGER
PN178
Now, Mr Ripepi, I put it to you that we will lead evidence that it was indeed the meeting of 16 May and that you may have been confused with citing dates in June or July?---I would have, yes.
PN179
Okay?---It was definitely the last meeting before it went to the vote which took place on 14 July,
PN180
Now, what I would like to ask, Mr Ripepi, if you look at this document and you go to the second page of it, where there's a heading that says: CBH counter proposal. Sorry, let me just start first off with the RPO committee proposal. It is on page one. That is there heading there. Then is there anything in that proposal where you can find a document of that you have suggested this 2 year or two harvest requirement before you are appointed to experienced casual?---No.
PN181
Did you object to that might be in - documented there when you got the minutes and you saw that they left out that important point? Did you contact Natasha, Mr Fuller and say it is missing?---No, no. Can I clarify something.
PN182
Yes?---When we were discussing changes to the proposal and we were going to the negotiation stage, all that was put up was like the rates, load of rates, leading hand rates, and so on. This discussion with the RPO casual rates was done - we discussed it all with Jim. The whole lot. We were on a full discussion and things were coming left, right and centre. The understanding was is when we got this we got the package as well. The agreement that was going to be certified. It was in that agreement. So all this was in there was the changes that we wanted made. The other stuff that was in there was just a general talk and it as discussed to and fro and like I stated before Mr Mason, Shane Mason brought up with Jim about favouritism and Jim's comments were there if he remembers right he says: well, Rhys is not going to let this happen because he is going to change the way things are and the discussions then come out and that's when John Roy was saying about if you've got one that's pretty good before 2 years, is what we're going to do. The total discussion around that we thought that was what we discussed. Then it come back in the
**** DOMINIC RIPEPI XXN MS KRUGER
package. We read it and we said: well, it is included in there. They've taken it to upper management. They've agreed to it and that's the understanding I've got. All you've got in this document is what changes we wanted made to the negotiation bargains.
PN183
So in terms of that - you say that in your witness statement you come up where there's two harvests as a proposal?---I suggested them, yes.
PN184
So was that a new change that you wanted to be included in the document or was there just the discussion?---It was a discussion. I brought that up after the comment was made about favouritism. We were discussing it around the table and all I said was as a suggestion: maybe you need - maybe we have two harvests and after that it's the casuals, it's automatic. Then if - one of discussions said: well, what happens if he's no good. Well, the discussion from John Roy. I mean the answer from John Roy is: if he's no good why would you employ him after 2 years.
PN185
Now, all of these discussions in the end, when we look at CBHs counter-proposal there on page 2. This is now their answer to the RPO committee's proposals. Is that correct?---Yes.
PN186
So the 2 year of the two harvest is not in your proposal, and then if you look at CBHs counter-proposal. If you look at paragraph 8 there under the heading where it says: casuals?---Yes.
PN187
There's two dot points there. The one says: "will not be altered" and it says: "remove the seasonal rate as per last agreement." What is your understanding of what that meant, Mr Ripepi?---There was one thing we brought up with the casuals that we are - they were going to increase the minimum rate from 2 hours to 4 hours. I understood that it will not be altered. That they stay as a minimum of 2 hours. So they can be employed for a minimum 2 hours. We wanted 4 hours, that was discussed. Then the removal of the seasonal rate meaning because of the seasonals was going to be removed.
**** DOMINIC RIPEPI XXN MS KRUGER
PN188
Now, I want to take you back, Mr Ripepi. You said initially this discussion started - this discussion that let to your proposal of the 2 harvest. That started because - - -?---Well, it's not my proposal. It was just a suggestion at the time that was discussed.
PN189
It is a suggestion. Now, you said that Mr Shane Mason brought up the issue of favouritism. Why did he bring up the issue of favouritism? What was he concerned about?---How can I put it. It was a group discussion and got a bit heated and he turned around and he virtually said: I've got a problem down in my area where we've got people that are playing on a bosses football team and they're getting employed. We've got blokes on our team, you know, like in there, and they don't like them and they don't get employed and the problem is they are better workers all in there and it's favouritism. That's where it started. I just thought the suggestion was well, just make it right across the board. Cut the favouritism out and then it is just a standard if they are good enough.
PN190
Now, the favouritism, does that result from the fact that the managers make appointments?---Prior to this agreement and I'm going prior to this agreement - the way you had to proceed was because you had seasonal the way it is. The recommendations made by your supervisor to your district manager and then the district manager makes it to whoever it needs to go to. To Jim, or whatever, to say: this bloke is an experienced. We want him lifted to the experienced seasonal rate. When these discussions took place because the seasonal rate was actually going to be removed they had to come up with two rates for casuals and that's what they come up with. Like I said, I made a suggestion. We discussed it. It went out. Come back on the agreement and I thought, well, they must have agreed to it because that's what it read. That's my understanding.
PN191
Now, Mr Ripepi, I want you to turn to the third page of minutes of those meetings and it says there: RPO committee proposal number 2. Then if you look there in paragraph 9 under the heading: casuals. You notice here that now there's a proposal being made about the minimum number of hours worked to be increased to 4 instead of 2. Now, you've just said, Mr Ripepi, that when CBH came back with their counter proposal on your first proposal,
**** DOMINIC RIPEPI XXN MS KRUGER
when they said casuals and it said "will not be altered" on the previous page, that that was referring to this proposal of 4 hours instead of 2?---As you will find in the CBH proposal, virtually all this area was in one discussion and it was going to and from two or three times. So we've discussed this all in length and then it has gone to and fro, to and fro. So it may be separate on the page, but the discussion was - - -
PN192
The outcome of that last proposal on the form, the 2 hours, can you remember what that was?---No, CBH said that won't alter. It strayed as a minimum of 2 hours.
PN193
Now, Mr Ripepi, do you remember there was a discussion during that meeting that dealt with the words "by appointment" in the agreement?---There was, as the old - as with the whole discussion, yes, when we were to and fro.
PN194
MS KRUGER: Yes. What was your position on the words "by appointment" that was in the agreement?---"By appointment" - my position is what we discussed - is by the zone manager - was prior to two harvests, because whatever - when this agreement came through, whatever was in the old one, would no longer apply. That's the way we understood it. So my understanding was we discussed this 2 year business; appointment meant by zone manager only, prior to harvest.
PN195
So, is it your evidence then that you put this brand new proposal at the meeting of 16 May on the two harvests?---No. I suggested it.
PN196
You suggested it? Is it then your evidence that you made that suggestions of two harvests and that at the meeting of 16 May, that was accepted by CBH?---I suggested it in there. It was taken back. It came back as worded, and as far as I knew, when it went through the Commission, they stamped it. They had agreed to what was in that agreement.
**** DOMINIC RIPEPI XXN MS KRUGER
PN197
What I'm asking, Mr Ripepi, is when you were in that meeting with Mr Fuller there and a bunch of other people from CBH and you have put the two harvests, did they, at that stage, agree to it?---Well, they didn't come back and say no. All they did is they came back with a final document when we left that room. When we left the meeting it was in the document. We - the understanding was that that was the package that we were to vote on and that's what we agreed on.
PN198
When you say it was in the document, what specifically do you mean, Mr Ripepi? What was in the document?---The two harvests and zone manager. Now, it was written in there, when the document was posted out to us, it was in the document so when we went around - well, I went around in our area. They came around and that's how it was discussed.
PN199
So that if you worked for less than two harvests, the zone manager can still put you on casual experience if you were good enough?---If you were good enough and you had to be - like, the district manager would have to go up and say to him, you know, I've got a bloke here who's really good but - - -
PN200
That process of reporting from a supervisor to a district manager, saying this guy's pretty good and so on and so forth - that comes from the way you used to do it in the past?---That's the way they used to do it. Yes.
PN201
Except now that you are also going to ask the zone manager to do this if the person is employed for less than two harvests?---No. Under the new agreement it's only the zone manager that can appoint. All it is that they can recommend but it is totally up to the zone manager to say yeah or no. It's not - and that's how the agreement reads.
PN202
All right. Thank you, Mr Ripepi. Just a moment, Mr Commissioner. Now, Mr Ripepi, you have said that the first time you really discussed this whole issue with your AWU representative was after the agreement was certified and then some difficulties arose out of it. Which centre do you work at, Mr Ripepi?---Merredin.
**** DOMINIC RIPEPI XXN MS KRUGER
PN203
Merredin, okay. What were the difficulties at Merredin?---None.
PN204
The other difficulties that you were aware of?---The only - John Roy rang me up twice, asking me if there was any problems in Merredin with experienced casuals and I said, no there's not. Then he rang again and I said, well, at this stage, I said, in Merredin, there's not a problem. I didn't know that there was a problem anywhere else.
PN205
Thank you, Mr Ripepi. Can I ask you just to look at your witness statement briefly? Paragraph 11 please. Now in paragraph 11, you talk there about the previous agreement. Is that the 1997 agreement, Mr Ripepi?---Yes, but you've got to realise that we weren't on this agreement. We've only - is it the last year or two - we were under plant operators agreement which worked different to what the agreement was from out the sections until we got dissolved. Now, we've only just come in, in the last two year - was it? We are now RPOs. So, in a lot of cases that didn't apply to us because we had a different award to what the out-sections did.
PN206
Now the experience seasonal here - you describe a process there where you say it wasn't in the previous agreement but the person would be put forward by the supervisor and then they would be put forward by the district manager?---Previous to this agreement, the understanding is that if you had someone - which is when we reverted to seasonals - if you had someone at experience, it had to be recommended by your supervisor to the district manager and then so on.
PN207
Thank you. Then the difficulties here in paragraph 15 that you refer to - a district manager - now I'm not sure Mr Ripepi. I would like you to just explain to me what you are talking about here in paragraph 15. I understand your evidence to be that there hasn't been any difficulties but in paragraph 15 you have explained some problem with the district manager?---No.
PN208
Which district manager are you talking about, Mr Ripepi?---My district manager would be Jamie Page.
**** DOMINIC RIPEPI XXN MS KRUGER
PN209
This is in Merredin?---Yes.
PN210
Okay?---When Jamie Page asked me about how the agreement was interpreted, I advised him about the two harvest and one harvest and if it's less than two harvests it's zone manager. He said, well how is it going to be applied and they sat in the office and they came up with this 20 week service to counteract how the two harvests is done in for the ones that have been there longer than 2 years and it came up on there. I said, they come up with the 20 weeks or whatever. I just explained to them how it had worked and they came up with the 20 weeks and the position of the manager and that's what they came up with. This is why I put that in there.
PN211
Now, maybe just for clarity's sake, Mr Ripepi, we talk about two harvests and then we talk about 2 years?---Sorry. I meant two harvests as the agreement. Sorry.
PN212
Yes, because how long do you actually work when you work a harvest season as a seasonal or now as a casual, as they are now called?---In a year like this year, you could end up having the casual on for the full 12 months. In the past we've had casuals on that have either been there just for 8 weeks or depends on how the harvest - - -
PN213
Yes. Now, I'm asking specifically just the harvest period, Mr Ripepi?---Well harvest period could go 3 months or it could go 8 weeks, depending on how good the season is.
PN214
It is accurate if I say approximately between 8 to 12 weeks?---Yes. Yes.
**** DOMINIC RIPEPI XXN MS KRUGER
PN215
Now, you say there in paragraph 19, that there is also a further difficulty with employees who have 5 to 6 years experience and can perform virtually all the tasks and they are now arguing to go onto the experienced rate. Is that an existing problem?---In some areas, there is, but not - because what happens is you may have these same casuals that come in, that have worked 8 weeks, you know, for harvest. Then they go and they come back and then they go. Where that stems is not so much in the Merredin depot area but out in the country area.
PN216
So what I'm asking, Mr Ripepi, is I'm trying to establish your previous evidence there aren't any problems - - - ?---In Merredin.
PN217
You are not aware of the details of any of the others?---No.
PN218
But in your witness statement you then say yes, there are people out there with 5 to 6 years who have this difficulty. How do you know this?---Because when the blokes come out, they talk to us and they say, what's going on and whatever it is. A few of them - I said, I explained to them, this is what you need to do. Either go and see your manager and so on. They're not part of the Merredin - like where we work.
PN219
Yes?---They just come in there and then they say, look, I've been on this for - then, I can't get it and this bloke over here has done this - and we get other people from other districts are the same. So what I say to them is well you need to go and see a supervisor if you're not happy or take it up with the union or whatever if you're in that. It's what is told to me and that's what was put in there and that's what Shane Mason put up and I did say to him, well hopefully this new agreement will alleviate your problems.
PN220
You don't have any detailed information about the company's response when these employees go and talk to their manager?---Well, I don't know whether they do or not because in a lot of cases they will say a lot of things to us but will say nothing when they get back.
**** DOMINIC RIPEPI XXN MS KRUGER
PN221
Now, Mr Ripepi, there's an attachment to your witness statement that deals with an e-mail. That e-mail originated from Miss Natasha Waclawik, is that correct?---It was forwarded on. Yes.
PN222
When you read that e-mail, in terms of how she describes how the appointment to casual experience is going to happen, what is your difficulty with that? Why don't you agree with - ?---I've got no difficulty with it. What I'm saying is I only read the agreement that we agreed to, as it is. This was forwarded on after and then it goes through the procedure - the criteria that was prior to the agreement.
PN223
So are you saying this is not as per the agreement?---No. What I'm saying is this here is what - the procedure you have to follow through to get an experienced seasonal, where you had to go back to say to your supervisor, district manager and so on. This is what this is. Prior to this - now, this new agreement we've got up says the two harvests and prior to one harvest it's zone manager. That alleviates - that problem there no longer exists because it doesn't apply if the new agreement is read as it is.
PN224
Mr Ripepi, I want you to specifically show me in this e-mail from Ms Waclawik, what bit is not in the current agreement which is wrong, in your interpretation of the agreement, and what bit is in that agreement, if any?---I'm not saying it's wrong. All I'm saying is this was forwarded on to us to discuss how a casual - experienced casual's going to be appointed.
PN225
Yes. Do you agree with that process?---Well, this was not discussed at our meeting. This is known - that's what was previously done. Under the new agreement, as I understand it, this no longer applies unless it's less than two harvests.
**** DOMINIC RIPEPI XXN MS KRUGER
PN226
Now, if you look at the second page of that e-mail, Mr Ripepi, where it is in bold - the second paragraph. It starts: "district zone managers can only authorise the appointment" - so on and so forth. Do you know where that rule comes from? Where does that process come from?---Well, this here - if you take out the word "casual", because when this is in there, no casuals were not - during the harvest there's no casuals. You would need to take that out and put "seasonal". So what they've done there is they've just added district and zone manager, put "casual" in front of it where it should be "seasonal", because that's where this thing has come in. Like I say, in the procedure before it was district manager or zone manager. Under the new agreement, it says zone manager - is the only one that can appoint.
PN227
So I'm trying to follow you, Mr Ripepi. It says - - - ?---Well you're asking me if this thing is - all I'm saying is that this is correct except for "casuals". It should be "seasonal".
PN228
It should be "seasonal" - and then it would be correct in terms of the agreement?---This is prior to this agreement. That's what I keep saying is this is the procedure prior to this new agreement.
PN229
So what should it have said then, there, if we are talking about the new agreement?---Well, I don't know. You've put it there. I can't tell you what you have to put in there.
PN230
I'm asking, Mr Ripepi, what is CBH supposed to do with the casual experience rate? Forget about the document - just tell me. What are they supposed to do with casual experience? How are they supposed to get somebody to the category of casual experience?---Well, like I stated before: a suggestion was made that after two harvests, they automatically upgrade to the experienced rate. If he's not any good, you don't employ him but the problem is this year, because of a big harvest, they need those casuals that they would not normally employ because they haven't got enough staff to run the bins.
**** DOMINIC RIPEPI XXN MS KRUGER
PN231
Then, under paragraph B of the e-mail, Mr Ripepi, it says, in exceptional circumstances a casual may be upgraded to casual experience before two harvests have been completed. Do you agree with that part there? Is that correct in terms of the agreement?---By zone manager, yes.
PN232
Just a couple of other things, Mr Ripepi. Just explain, for the benefit of the Commissioner, your structure with - where does the zone manager sit and then a district manager and then the RPOs?---Sorry?
PN233
What is the relationship between zone managers, district managers and RPOs? How does that work?---In regards to - - -
PN234
Just the structure of the organisation?---I don't understand the question.
PN235
At CBH, Mr Ripepi, who is the manager of Merredin? What do you call that person? The district manager?---In Merredin - and I'm only talking solely in my area - in Merredin we have got the RPOs, the site manager, supervisor and a district manager.
PN236
Then the zone manager - where does he feature?---The zone manager, like, ours is the Kwinana zone and the zone manager is in charge of the whole zone.
PN237
So he is one level up from the district manager?---Well, more than one level.
PN238
So he is a serious big boss?---Yes.
PN239
Just a minute, Mr Commissioner. Okay. Mr Ripepi, I just want you to go back prior to the meeting in May, to the meetings that happened before May, when they first took out the two seasonal rates. They collapsed the seasonal and casual into one - casual and casual experience. Do you recall that?---What meeting was this?
**** DOMINIC RIPEPI XXN MS KRUGER
PN240
Prior to the meeting of 16 May. Did you already have a situation where seasonals and casuals were collapsed into just a new category called "casuals"?---I'm just trying to work out which meeting you're talking about.
PN241
It is not a specific meeting?---You know, prior - there could be two or three.
PN242
Are you saying 16 May was the final meeting before the agreement was finalised? Is that correct?---If that was it, yes.
PN243
Yes. So I take it that, in that agreement, the draft at that stage - it had casual and casual experienced. Is that correct?---The casual rates. Sorry, casuals - - -
PN244
And casual experienced. Those two categories?---All I can remember is that we were talking about - prior to the last meeting or one in there is they wanted the seasonal rate taken out and just made casual. There was no rates - they were still working out on what rate the two levels were going to be paid at because there was discussion on how it was going to work and I'm not sure whether that took up to the last meeting that we finally agreed to say yes - no, the seasonal rate's gone. This is a casual rate. This is a one and two rates for casuals.
PN245
Now, Mr Ripepi, do you recall that the words "by appointment" sits next to the words "casual experienced" in those categories?---The "by appointment" was actually in the document when we read the last one. It was discussed because they still hadn't worked out what they were going to do with it and like I said, that clause that this is - we're disputing - all eventuated in a last meeting that we had because of regard to this favouritism.
PN246
So the "by appointment" was discussed during that last meeting?---Well, that's when it was brought up.
**** DOMINIC RIPEPI XXN MS KRUGER
PN247
Yes. Yes. Is it correct to say that you had a difficulty with the words "by appointment" being in there?---As it reads, my difficulty - and it's not my difficulty - the group's difficulty was that the favouritism and that's what was discussed. I haven't got a problem with the word "appointment" if it, as it reads, is appointed by zone manager, but like I said, the discussion prior to it was as this letter read. The discussion was about favouritism. A suggestion was made. It was discussed around the table, it was taken back and that's how it was worded in the document. That's how I read it and that's how I understood it but that was it. We all left the building, the document was presented to everybody, we've read it, people asked questions and I said well, that's the way I understood it. We voted on it, it got stamped and that was the end of the issue.
PN248
Thank you, Mr Ripepi. Just a moment, Commissioner. Thank you, Commissioner. No further questions for this witness.
PN249
PN250
MR LLEWELLYN: Mr Ripepi, when you say people asked you and you explained, in what forum was that?---When they got - everybody got their individual agreement, people were asking on various cases and a couple of casual came in and asked and I said well - I organised a meeting with - I went and saw Jamie, Jamie Page, the district manager. I said we need a meeting with everyone so we can go through this document and if they've got any questions and that's what happened. We had a meeting at Woolly Park and all the RPOs came in and casuals - - -
PN251
All the RPOs from where came in?---From our district - district five - except for two or three who didn't turn up because they had to work.
PN252
Can I just stop you there for a minute. For the purposes of the Commission, in Merredin you have the depot?---The depot - - -
**** DOMINIC RIPEPI RXN MR LLEWELLYN
PN253
You also have the Merredin district?---Yes, which is section 13 and section 12.
PN254
All right. The district manager you are referring to is the manager of both?---Yes.
PN255
THE COMMISSIONER: When was this meeting? I'm confused.
PN256
MR LLEWELLYN: I will get to that. Right. So, when - can you tell me when the meeting was?---Not a specific day. I think it was about probably a week after they all got their document.
PN257
So was it before or after the document was voted on?---No, it was before.
PN258
Okay?---Because there was a lot of questions asked and I went in there and I said, we need to go through - we all had our meeting and I explained what they brought up and this was what was - - -
PN259
In terms of the negotiating committee, who attended that meeting?---What, at our meeting in Merredin?
PN260
Yes?---John Roy and myself were there.
PN261
Anyone from CBH?---No.
PN262
Management level?---Only the RPOs.
**** DOMINIC RIPEPI RXN MR LLEWELLYN
PN263
Right. Can you tell me who from CBH,if anyone, explained what the agreement meant to you?---No. No one. Only what - the reason is we came straight up from the committee. I went and saw Jamie and I said, I need to explain this thing and he said, yeah, not a problem and he organised the meeting. It was just me and John Roy and then after that, they'd come up to me and ask me about, what's this mean and what's that mean and I'd just explain to them over the phone or if they were in the depot.
PN264
All right. Now, my friend put to you a number of questions about whether you had had any discussion with the union about what the agreement meant. Do you recall that?---Yeah. Yes.
PN265
Can you tell me if Mr Roy had anything to say at these meetings about what the agreement meant?---As far as when he got up, the casuals asked him and they weren't happy with a lot of things on it like the pay rate and all this. They asked him, how's it going to work and he explained to them, to my knowledge - we were all sitting around - as per the agreement.
PN266
Right. Can you tell me what he explained that you recollect?---Well, my recollection is that now, what will happen is, if this agreement goes through, two harvests a year, upgraded to experienced casual. If you are good in your job and it's prior to two harvests, it's got to be done by zone manager, as per the agreement. That was asked of me as well and that's the way I explained it because that's the way I understood it.
PN267
All right. In terms of the e-mail that you have attached to your witness statement, Mr Ripepi, was that sent out before or after the agreement was registered?---No. It was after because there was - it was said that there was confusion on how these rates were to apply and we got an e-mail saying that this will be the procedure.
**** DOMINIC RIPEPI RXN MR LLEWELLYN
PN268
Right. Prior to that e-mail, had there been any confusion in Merredin?---None at all. None at all. Not that I know. All the ones that were there were made - were appointed to experienced rates and the first time that I - like I said before, I got two calls from John Roy, asking me the same thing: have you got any problems in Merredin with experienced casuals and I said, at this stage we've got none. That was twice.
PN269
Right. Can you tell me who put those people to the experienced rate?---As far as I can see - as far as my knowledge, I was asked by Jamie Page about how the agreement read. I said this was the way it read and then the rest was left up to Mr Page and ones that had been there for 5 or 3 years, whatever, were upgraded to experienced rate.
PN270
Now, my friend went through a number of issues with you in terms of problems at CBH and she questioned you over paragraph 19 of your witness statement. Have you got that there. Now, Mr Ripepi, do you know who those employees are?---On and off there was one there which has worked with CBH and like, it was only last week that they approached - Terry Anderson approached - he was going to approach Barry.
PN271
Sorry, who is Barry?---Barry Pearson, the supervisor, because Jamie Page wasn't there. When he went into the office, they said that Barry wasn't there but the procedure now is that he has to be appointed by - recommended and appointed by the district manager. This person, Hope is his surname, I can't remember his first name, had said that he had been with the company on and off for 5 or 6 years and they were going to ask him whether him for the experienced rate. Now, I don't know what happened after that because Terry Anderson was the bloke in charge over there. He was going to deal with it. He was going to go and see Jamie or Barry when they got back and I don't know what happened after that. But that incident there was that he walked in the office and he said, appointment now is by - has to be recommended by the procedure that was sent out.
PN272
That is the district manager?---Yes.
**** DOMINIC RIPEPI RXN MR LLEWELLYN
PN273
Can you show me in the agreement where it says the district manager can appoint people?---Well, there's nothing in the agreement.
PN274
Can I just take you - have you still got the minutes of the meeting of 16 May there, it is appendix A from Mr Fuller's witness statement?---Yes.
PN275
Mr Ripepi, are they verbatim of what happened in the meeting? Is that a word for word account of the meeting?---Well, in short terms, yes, virtually, yes, but not everything was put in here.
PN276
So it is not everything that was said is recorded there?---No.
PN277
Now, my friend took you through these. Can I just ask you to look at the first heading on the page 1 which was APR proposal?---Yes.
PN278
Can you show me in that proposal where there's a claim to do anything with the casuals?---No.
PN279
So in terms of CBH's counter proposal, what were they counter proposing to, if you haven't got a claim?---Well, as my understanding is as I was asked on that number 8 casual, I know that we had asked for - it was put forward casual minimum 2 hours go to a minimum of 4 and that is where is the removal of the seasonal rate came in, yes. As I said before, that was my understanding.
PN280
Mr Ripepi, you were shown a file note from a meeting that Mr Roy attended back in January. Can you tell me how many meetings you had in terms of the agreement negotiations since January of this year?---We had one in - well, now you are pushing it. Prior to the last - prior to our last meeting, it could have been three or four, I'm not sure.
**** DOMINIC RIPEPI RXN MR LLEWELLYN
PN281
Can I just take you back for a minute. The meeting you said you had at Woolly Park, was that for everyone from the district or did it include the district and the depot?---It included the district and the depot and all casuals as well that were working. So virtually that area there.
PN282
So the entire Merredin area?---Yes, not everyone attended because some had to work. They rang me and just had points that they wanted brought up and I brought them up on behalf of them that couldn't turn up and then I explained to them when they got back. I rang them up and said this is what it meant.
PN283
I have nothing further, thanks.
PN284
PN285
PN286
MR LLEWELLYN: Mr Roy, can you just state your full name and address for the record, thanks?---My name is John Graeme Roy. I live at 7A Moore Street, Bunbury, Western Australia.
PN287
Have you prepared a witness statement in relation to this matter?---I have.
PN288
Mr Roy, can you confirm that that is your witness statement?---Yes, that is my witness statement.
PN289
PN290
MR LLEWELLYN: Mr Roy, I've just got one question for you. In terms of - sorry, that is covered in the witness statement. That concludes the evidence in-chief, thanks.
PN291
PN292
MS KRUGER: Thank you, Commissioner. Mr Roy, were you involved with the agreement that dates back to 1997, this agreements predecessor?---I'm not sure.
PN293
Mr Roy, are you familiar with the procedures that were followed, the practical procedures that were followed by management prior to this agreement in terms of upgrading employees to the seasonal experienced rate in the previous agreement?---I wouldn't have considered it to be an upgrade.
**** JOHN GRAEME ROY XXN MS KRUGER
PN294
What I'm asking is, do you have any knowledge about how that practice was done by CBH? How did you get to be a seasonal experienced employee?---I'm not really sure.
PN295
Was that ever discussed during the lead up to this agreement?---Not that I recall.
PN296
Now, Mr Roy, I would like you to have a look at minutes of a meeting dated 21 January. Do you recognise that document, Mr Roy?---Could I just have a moment to read it?
PN297
Yes, sure?---Yes.
PN298
Was it the practice that these minutes were drafted after the meeting and then distributed to all the parties present?---That's correct.
PN299
You got a copy of these?---I would assume so.
PN300
Now, Mr Roy, I want to ask you about the third bullet point there which says:
PN301
The AWU wants clear documentation of how the RPO experienced and casual sampler, third year, will be appointed on appointment from district manager only.
PN302
Now, I notice that you were the AWU representative at that meeting. Was it you asking clarification about this issue?---Yes.
**** JOHN GRAEME ROY XXN MS KRUGER
PN303
What exactly did you want to know, Mr Roy?---I wanted to know if there was going to be an appointment procedure on any basis other than the fact that the employee had served with two previous harvest, what the criteria would be and the criteria was never ever agreed on or never ever - there was no presentation of criteria to either the union or the RPO committee and that was one of the defining factors I suppose that we had. Or one of the problems that we had with this season casual was the fact that if it was going to be on any other basis other than the fact of certain length of service that we would need to have some defined criteria.
PN304
So can I ask you, Mr Roy, at this stage of the negotiations, you already had established that there were two rates, casual and casual experienced, is that correct?---Yes.
PN305
You had an indication in the draft documentation that behind casual experience it had, "by appointment"?---Well, that was on the document that CBH presented to us. It was already there prior to any negotiations or discussions.
PN306
So it was on that document in January and then you asked for clarification of how is this by appointment going to work. Is that correct?---Well, it was more a point that we weren't going to agree with it unless it was a more - unless things were presented in a more clear manner.
PN307
Now, I take it then here where it says, "on appointment from district manager only", is that the response from CBH to your question about how is this appointment going to be made?---Well, I think that more or less defines the question.
PN308
Yes. So that is what you wanted to know?---Wanted to know if this by an appointment by district manager only is going to go on, then what are the criteria because if there aren't any criteria, we are not going to find that acceptable.
**** JOHN GRAEME ROY XXN MS KRUGER
PN309
So there weren't any criteria established at that stage, is that what you are saying?---That's correct.
PN310
Now, you said earlier when I asked what you were asking about is you wanted to know what other criteria, apart from the two harvests, was the two harvests part of the discussion in January?---Yes.
PN311
Was that a proposal from the AWU that it should be linked to two harvests?---I think it was a concept that was put forward by CBH originally.
PN312
Was it CBH's idea?---From memory, yes.
PN313
Can you recall when they first made this proposal?---It would have been, from memory, in the - after the resumption of negotiations because negotiations were actually called to a halt during the harvest period of 2000 or 2002 and when we started negotiating again, somebody had obviously been doing a bit of lateral thinking and this was one of the things that came up, this proposal from CBH.
PN314
So when you asked them about how is this RPO experience and casual sampler, third year, how will they be appointed, did they then say: look, it is after two harvests? Was that CBH's response?---Well, in as much as was put forward as being firm, yes, that was their response.
PN315
So your answer that you got from asking how is this appointment going to be happening, one of the criteria that was mentioned by CBH that their initiative was the two harvests?---That was the only firm criteria put forward, yes.
PN316
It is not documented here in the minutes?---Well, those minutes don't actually cover - I mean, you have got half an A4 page to cover a meeting that probably went for 3 or 4 hours.
**** JOHN GRAEME ROY XXN MS KRUGER
PN317
Now, I ask you, Mr Roy, was this an important issue to get these criteria finalised?---From whose perspective?
PN318
From your perspective, Mr Roy?---Yes, I would say so.
PN319
Okay, because I notice in your witness statement, you say if these criteria weren't finalised, then you wouldn't have agreed to anything?---That's true.
PN320
So the criteria was in your mind January, two harvests?---Precisely.
PN321
Was that then included in the subsequent drafts of the agreement?---It was always this on appointment business, by appointment.
PN322
The by appointment business was always in the agreement?---Yes.
PN323
The two harvests, Mr Roy?---Can I finish answering the previous question?
PN324
Sorry for interrupting?---Yes. My understanding of by appointment, which I think is probably fairly relevant, from how I understood the by appointment to work would be that what we actually come to an agreement on would be that at the time of appointment, somebody who had already served two harvests would go on to the casual rate. That was why I didn't have any qualms about leaving it in the document as by appointment.
PN325
Because it was explained to you that the two harvests was the criteria to be used in this appointment process. Is that what you are saying?---Well, if we move on to going past 21 January, if you are asking me how did I think this was going to work at the time that it was actually presented to employees.
**** JOHN GRAEME ROY XXN MS KRUGER
PN326
I'm asking, Mr Roy, your understanding was you were happy by appointment because you have settled on some criteria for that appointment. In other words, there was two harvests as a criteria for the appointment?---I would say that would be a reasonable summation, yes.
PN327
Now, Mr Roy, Mr Ripepi testified earlier and he actually testified that this idea of the two harvests was a proposal that he put forward at a meeting of 16 May where the whole negotiating committee together with the RPO committee was present. Do you recall him putting forward the two harvest proposal at the meeting of 16 May?---16 May 2003?
PN328
Yes?---I do recall Dominic putting forward something like that. I'm not sure exactly when it took place.
PN329
Well, what I'm trying to establish, Mr Roy, is if you say that this was something that CBH had done and it was criteria mentioned in January of 2003 in response to a query you had in the January meeting, how is it that Mr Ripepi seems to think that he made the suggestion? He took the initiative and made the suggestion in May?---That is a very good question.
PN330
Are you positive that this is a CBH suggestion that dates back to January?---I'm positive that the experienced casual was a CBH proposal, yes.
PN331
I'm not talking about the category, Mr Roy, I'm asking the two harvest idea, that that would be the criteria. Are you positive that that was a CBH proposal in January?---Well, in light of his statement probably not.
PN332
Now, if I ask you, Mr Roy, in terms of the meeting of 16 May, that was aimed at finalising the agreement, is that correct?---That's correct.
PN333
So you had a draft there and in that draft, the words, "by appointment" were in there?
**** JOHN GRAEME ROY XXN MS KRUGER
PN334
MR LLEWELLYN: Sorry, sir, I don't mean to interrupt my friend, I'm just wondering if I can ask Mr Roy to speak up a little bit. I'm having some difficulty hearing him. So I should imagine somebody else is.
PN335
THE COMMISSIONER: Thank you.
PN336
MR LLEWELLYN: The microphones aren't amplified, they just record.
PN337
THE COMMISSIONER: Thank you, Mr Llewellyn.
PN338
MS KRUGER: Thank you, Commissioner. Can I ask you, Mr Roy, just to repeat my last question, the 16 May meeting was to wrap up the final document?---That was the intent of the meeting.
PN339
There was a draft of that document available of the meeting of the 16th?---There was a draft document there. I don't think it became a draft for the final proposal that was presented to the employees.
PN340
So there was a draft document and in that draft document, did it have the words, "by appointment" in it?---I would assume so.
PN341
Did it have anything in about two harvests?---I'm not sure./
PN342
Sorry, Mr Roy?---I'm not sure.
PN343
You recall a discussion taking place about the by appointment?---Yes, it was probably one of the most heated parts of the whole meeting.
**** JOHN GRAEME ROY XXN MS KRUGER
PN344
What was the AWU's position on that, Mr Roy?---The AWU's position was that if it was going to be - well, the AWU's position was that it had to be some sort of - we had to define some sort of criteria for if there would be an experienced casual rate who would be eligible to claim it or to be eligible to paid for it.
PN345
What proposals were on the table, and give us a flavour of that discussion?---Well, I think one part of the discussion was in regard that there should be some criteria because certain members of the negotiating committee felt that the chance for favouritism or a few other isms were raised would be there for the taking if we didn't develop criteria.
PN346
So at that meeting, did you then discuss criteria for this appointment?---Yes, there were quite a few different bits and pieces bandied around as to what the criteria should be.
PN347
Can you recall any of the details, proposals from the AWU in terms of the criteria?---Thinking back, I think this may have been when the 2 year thing came up. I think there was some discussion on skills and attitude was mentioned. There was also some discussion as to creating a system that wouldn't lock out exceptional employees. If we had set up a time line or a time base procedure, there could be some people who would come in an show either an extremely good attitude or an extremely good aptitude and we didn't want to come up with something that was too rigid and too structured and it would lock those people out.
PN348
So all of these criteria were then mentioned and were they then included in the agreement?---Do you mean did we come to an agreement on them?
PN349
Well, you said that there was a discussion on criteria. I guess the first step is, was there agreement on the criteria then?---Well, the only criteria we ever really came up with was the 2 years.
**** JOHN GRAEME ROY XXN MS KRUGER
PN350
Was there agreement that that would be criteria?---That was the criteria.
PN351
So your evidence is that the agreement was, is there is only one criteria for this appointment to be made and that is two harvests, is that correct?---No, that is incorrect.
PN352
My understanding of what we had come to an agreement at the time that we finished that meeting was criteria would be the completion of two harvests, or displaying excessive - not excessive - but exceedingly good attitude, or aptitude towards the job, so there were two criteria.
PN353
Were those two criteria the only ones agreed upon between the parties?---To my recollection, yes.
PN354
The other criteria by skills and experience and attitude, the parties agreed not to include those as criteria?---No, the skills - that was why the appointment thing was left in there. I think if you refer to section 11(k) of the agreement, it says something along the lines, I'm not quoting this verbatim obviously - something along the lines of: an employee who shows attitude or aptitude can be appointed by the zone manager, or regional manager, prior to the completion of 2 years - prior to the completion of two harvests.
PN355
So that is the exception to this criteria of two harvests, is that a correct interpretation?---Can you expand on your question a bit, I'm not sure what you're getting at?
PN356
Well, I'm asking - you have explained now if you don't - you were saying two harvests is the criteria for the appointment, and now you are saying, if there was a clause in there, 11(k), that says: if you have done less than two harvests, got these exceptional abilities and skills, that you may be appointed before you meet that criteria of two harvests. Is that correct?---No, not exactly. After two harvests it would be automatic, okay?
**** JOHN GRAEME ROY XXN MS KRUGER
PN357
Mr Roy, hang on a moment, you just testified all along that you were discussing criteria for the appointment, and now you are saying, no, there are no criteria for appointment. This is something completely different, there is going to be an automatic appointment, automatic upgrade if you like, is that what you are saying now?---Well, isn't that what you are asking me? You are asking me, what my opinion was, or what my understanding was of what we agreed.
PN358
Mr Roy, we started off and we talked about how you started back in January saying: we know this is by appointment, it is in the draft document, and we are now going to want to get particulars from the company. How are they going to do this? We have all these concerns about favouritism, how are you going to do the appointments? You originally said that there was an indication from CBH to - would it be from a district manager and you said back in January there was an indication from CBH that one of the criteria was going to be two harvests. Since then we have established that you said: well, probably the two harvest criteria came from the meeting in May, but that was the criteria for the appointment. What you are now saying, Mr Roy, is something wholly different, you are saying: this is not an appointment scenario any more, we are not talking about criteria, we are now talking about an automatic movement into that grade. So were you discussing criteria when you were discussing two harvests, or a wholly different set of circumstances?---I suppose, what I'm trying to explain to you is that my understanding of what was agreed to at that meeting was that the two year proviso was - would give you an automatic promotion to experienced casual, and the appointment would be if you were someone who showed exceptional ability.
PN359
So let me understand this. When the words "by appointment" first appeared in the draft documents, let's say in January, it said "by appointment"?---Mm.
PN360
You wanted to know how you are going to make that appointment in CBH, is that correct?---Mm.
**** JOHN GRAEME ROY XXN MS KRUGER
PN361
Okay, now, we are in May, the document still says "by appointment", but now that "by appointment" means exceptional circumstances, the zone manager can appoint you?---For people who have done less than two harvests, yes, is by appointment, or otherwise, automatically through - just through the fact of having completed two harvests.
PN362
Now, where in the document does it say that, Mr Roy? Where does it say: you complete two harvests, you automatically go to casual experienced?---I think clause 11(k) it is - my interpretation of clause 11(k) is, it is like an "if" or an "either/or" statement. If you have ever done any basic computer programming you have either done two harvests, or you are exceptionally skilled. If you are exceptionally skilled you can be appointed. If you have done two harvests then it is an automatic appointment.
PN363
Mr Roy, will you agree with me that this is a long way off where you started in January, where it simply just said: casual experienced by appointment, do you agree with that?---This is a long way off where we started off originally.
PN364
I am asking specifically, Mr Roy, in terms of the interpretation of how you get to that specific grade, this is very different in May from what it was in January, do you agree with that?---Yes, could I put my - could I express an opinion on that as to why this has evolved?
PN365
THE COMMISSIONER: Just speak up please, Mr Roy?---Sorry. Yes. I think to give some perspective on this whole procedure it has been a long - it was at the end of a very long and very difficult negotiation, in that, I suppose, there was quite a bit of lateral thinking involved through the whole procedure, and it was quite common for - to go into a meeting, looking at one set of parameters and walk out of that meeting looking at something completely different. That was why I made the remark about the minutes from 21 January meeting being - well, maybe a dozen dot points to cover some major changes in viewpoint - so to go into one meeting looking at one set of criteria and walk out with something completely different was not unusual.
**** JOHN GRAEME ROY XXN MS KRUGER
PN366
MS KRUGER: Thanks, Mr Roy, that was what I was asking, was it substantially different? Can I then ask you to have a look at the minutes of the meeting from 16 May please. Now, I understand your evidence to be, Mr Roy, that this was the wrap up meeting, so to speak, finalising the last bits and pieces of the agreement, is that correct?---That was where we hoped to be at the end of the meeting, yes. It wasn't a guaranteed that .....
PN367
All right, and you already had a draft document that you were working off at that meeting, that is correct?---I think so, yes.
PN368
All right, and that draft document had "casual experienced" and the words "by appointment" behind it, is that correct?---Yes, I think so.
PN369
Now, I would like to take you to the RPO Committee proposal, on the first page there that is the heading. Then, if you look towards the end of that proposal you have got eight main paragraphs there. Were there any proposals there in terms of the substantial change that you have just highlighted, Mr Roy, saying casual experienced should now automatically go on to that rate?---It's not mentioned here.
PN370
Then, if you look at CBHs counter-proposal, paragraph 8 there on casuals, it has a dot point there that says:
PN371
Will not be altered.
PN372
And then:
PN373
Remove the seasonal rate as per last agreement.
**** JOHN GRAEME ROY XXN MS KRUGER
PN374
Do you know what that refers to, Mr Roy?---One moment. I couldn't be precise about that, there was quite a few things that related to the treatment of casuals by CBH that the union, in particular, were not comfortable with, so when - from memory what happened was, we attended this meeting with - we would have had some discussions -I would have had some discussions prior to the meeting with Jim, and so we had kind of come in with a new proposal. CBH would, of course, in light of discussions we have had, or where we had moved ahead since the last negotiations, they would come in with their proposal, so what that actually relates to I couldn't be 100 per cent sure, whether it was conversations I had with Jim in the interim period, or it wouldn't have been a response to the document that was put forward by the RPOs. It was like, we would walk in the meeting and it would be: here is what we want, and they go: whatever, we are proposing, so whether they are inter-related or not - - -
PN375
So what you are saying is that when we interpret these minutes which says, "RPO Committee Proposal", that that was a document that was pre-prepared before this meeting of 16 May?---I would assume so, yes.
PN376
Well, I'm asking you, Mr Roy, was it a document that was pre-prepared?---I would - I would assume so.
PN377
Now, Mr Roy, the issues listed there, those were the things that you wanted CBH to finally consider before wrapping up this agreement, is that correct?---I'm not really sure if this was a - from memory this was a document that was generated in response to feedback from what we had been talking to RPOs about during the period of negotiations.
PN378
During that period when you were talking to the RPOs preparing for this last negotiation meeting, did you discuss with the RPO representatives the issue of how people are going to go to the casual experienced rate?---I'm sure it was raised but as to the whys and wherefores in any particular conversations, I couldn't be accurate.
**** JOHN GRAEME ROY XXN MS KRUGER
PN379
Was it discussed with Mr Ripepi?---I would assume it would have been, Dominic was the Chairman of the Committee so - - -
PN380
You see, Mr Roy, Mr Ripepi came and testified and said that: prior to this meeting on 16 May, there wasn't any specific discussions between himself and representatives of the AWU on this issue of how the casual experienced rate is going to work?---Mm.
PN381
Could he have been mistaken?---He could have been.
PN382
Did you discuss that casual experienced rate with Mr Ripepi prior to 16 May, Mr Roy?---I'm sure we discussed it with some of the Committee, whether I discussed it Dominic in particular, I couldn't be sure.
PN383
Now, Mr Roy, can we assume that these were the things that you wanted to put to CBH in your proposal under that heading that says, "RPO Committee Proposal"?---Well, yes, increase in base rate. Yes, away from home allowance increases, yes. Meal allowance increases, yes. Kilometre allowance, yes. Charge rates. See the $8, $12 and $14 in clause 6, I'm sure that was a CBH initiative. Not the actual 14, but the satellite secondary and strategic sites were in response to a CBH initiative. Termination clause, we weren't happy with the wording of the document so far on what we had the previous document or the previous proposal. Show day, yes, there was a very strong feeling that the members wanted to keep their show day. The 13 day week - 13 day fortnight, sorry - members weren't happy with that as being part of the agreement and preferred to keep it as a company policy.
PN384
Now, in that there is no proposal about two harvest automatic appointment to casual experienced rate, do you agree with me, Mr Roy?---I do.
PN385
Now, you testified earlier that this was an important matter and that you certainly would have - in your witness statement you say that: if there weren't certainty about these criteria, you would have insisted on the issue to be discussed?---Mm.
**** JOHN GRAEME ROY XXN MS KRUGER
PN386
It does not seem to form part of these final issues that you were discussing, is that correct?---No, I don't think that is correct at all. As I said, we go into these meetings with key points, I suppose, that we had all agreed on, that would be the Committee and the union.
PN387
Yes?---And there would be other issues that would raise their head during the term of the meeting, or during the procedure of the meeting.
PN388
So this casual experienced rate was one of those issues that raised its head during the 16 May meeting?---It had been raising its head in most meetings, since it was put forward.
PN389
Okay, and what was CBHs view on it?---CBHs view was fairly intractable I thought, but they had something that they wanted to run with and we had something that we were prepared to concede could be acceptable under a certain set of circumstances.
PN390
What was CBH intractable about, Mr Roy?---CBH was intractable about virtually everything.
PN391
Talking specifically about the casual experienced rate, Mr Roy?---Okay.
PN392
What would you say they were intractable on that issue?---Well, up until the start of that meeting, I suppose, there had been very little progress and although - although they wanted to put something forward as being of benefit - dubious benefit no doubt - they - as noted in the meeting from minutes from 21 January, we had had a request that there should be some sort of box around this casual experienced thing, so that people knew where they stood and that was never forthcoming.
PN393
What was CBHs position, Mr Roy?---Well, that was always what I was trying to define as what was their position.
**** JOHN GRAEME ROY XXN MS KRUGER
PN394
Mr Roy, we are going to lead evidence later that will show, and will probably have the benefit of the witness statements, that CBH was not going to remove the words "by appointment" from the agreement, is that accurate?---Yes.
PN395
Now, let me ask you, Mr Roy, if you turn to your own witness statement, I want to ask you about paragraph 3 there please. Okay, and you say that:
PN396
During this meeting the subject of the proposed experienced casual classification, clause 11(k) of the agreement was discussed.
PN397
Now, first off let me ask you, Mr Roy, when was section 11(k) put into the agreement?---Well, it would have come in after those discussions I would assume.
PN398
11(k) came about because you wanted to not have such a rigid system with the two harvests and have the ability to appoint somebody before then, is that correct?---Yes, that was a concern that was raised during the - during that meeting that it would lock - tend to lock out people who showed exceptional skills.
PN399
Okay, so you agreed to put 11(k) in there as an exception to make it possible for those people to progress quicker, is that correct?---Well, we didn't actually call it "11(k)" at that time, but we did come to an agreement that there was - should be some mechanism for allowing people who showed exceptional skills to be appointed prior to the completion of two harvests.
PN400
Okay, thank you. I take it that that was later granted by CBH and put forward in the final document for your perusal, is that correct?---Yes, that is correct.
PN401
You were happy with it, Mr Roy?---Well, I was happy with my understanding of what that meant, yes.
**** JOHN GRAEME ROY XXN MS KRUGER
PN402
Just a minute, Mr Commissioner. Now, I want to just take you back, Mr Roy, to that meeting of 16 May - to the minutes of that meeting, and want you to go to page 3 there please. It says:
PN403
RPO Committee Proposal No 2.
PN404
The heading there. Then, under paragraph 9 it says: Casuals:
PN405
1. The minimum number of hours were to be increased from four instead of 2 hours.
PN406
?---Yes.
PN407
Okay, that was another proposal put by the Committee?---Yes. Hang on, no, I think I should qualify that, I think the - it was a proposal that came forward on my initiative through the Committee.
PN408
Okay?---I don't know if that makes any difference to the answer - to your question.
PN409
So that is put forward and then, Mr Roy, the CBH Proposal No 2 is a response to those, and the "Casuals", paragraph 8 there on the next page, it says:
PN410
Will not be increased to four but remain at two, as it gives CBH flexibility.
PN411
Do you recall that being the position?---I do.
**** JOHN GRAEME ROY XXN MS KRUGER
PN412
Okay, now, is there anything in these minutes that record that casual experienced rate is going to be obtained automatically after two harvests?---Not that I can see.
PN413
So has it been your evidence, Mr Roy, because you said earlier on that there was agreement between the parties it was going to be automatic after two harvests. Is this then an omission from the minutes?---Yes, I would say that would be an omission from the minutes because, as I said, these minutes do not represent everything that was said. They are a summation of - I mean, they are not a verbatim, word-by-word document.
PN414
All right, Mr Roy, can I ask you just in terms of your knowledge of CBH and their normal practices, how do you progress from one grade to the other if you are an RPO under the current agreement?---Through sitting certain examinations - - -
PN415
Excuse me, Mr Roy?---Through doing courses such as grain management courses. I'm not 100 per cent sure on how it works.
PN416
If I say that it is through the - they call it the Receiver Point Operator and Plant Operator Development Programs, is that correct?---That would probably be what - how - what it is called, yes - what it is called.
PN417
So the understanding is to go from Grade 3 to Grade 2 to Grade 1 to Senior Op, you do a certain specified number of courses and up you go the ladder, is that correct?---I think so, yes.
PN418
I want to ask you about a specific clause in the agreement, Mr Roy, it deals with casual employees - it is clause 11(j) - I have just realised, Mr Commissioner, that I may need to give a copy of the agreement to the witness. Let me just see if I have another one lying around, my apologies?---Thank you.
**** JOHN GRAEME ROY XXN MS KRUGER
PN419
Mr Roy, if you could have a look there at clause 11(j)?---Yes.
PN420
It says there - the heading is: Casual Employees and it has got:
PN421
The minimum period of engagement is 2 hours.
PN422
?---Mm.
PN423
Then it says:
PN424
Casual and temporary employees will not be employed to the detriment of permanent employees.
PN425
Why did you agree to that specific clause in the agreement?---To casual and temporary employees not being employed at the detriment of permanent employees?
PN426
Yes?---That was something that - from the Committee - I think Dominic Ripepi was - it was something he felt very strongly about and he wanted something in there that would protect the permanent employees from, I suppose, increasing casual-isation of their work-force.
PN427
Okay, and is it fair to say, Mr Roy, that the whole issue of casual employees didn't form a fundamental part, a critical part of the negotiations leading up to this agreement?---No that would not be correct at all.
PN428
Sorry?---That would not be correct at all.
**** JOHN GRAEME ROY XXN MS KRUGER
PN429
Casuals is a major issue?---For the union, the casuals were a major issue, yes. The reason for that was that in a campaign that I ran to increase union memberships throughout the CBH at the start of this whole negotiation procedure, the feedback I got from casual employees was that they felt that they had been side-lined or marginalised in previous agreements and that I gave a commitment to a lot of people that I spoke to that I would do my best to make sure that the union would have their interests at heart as well as looking after the permanent employees.
PN430
Yes. So you had a campaign promise to deliver on, is that correct?---I wouldn't say a promise, more an undertaking.
PN431
Just a moment Commissioner. Now I would like to take you back to your witness statement please, Mr Roy?---Yes.
PN432
Now, Mr Roy, I have noticed that your representative has lodged two witness statements on your behalf. I take it that this one that you have admitted to being your witness statement this morning is the one that you consider to be your final witness statement, is that correct?---I don't know. I didn't ask Mick that question as to whether this was supposed to be supplementary to or total to replace.
PN433
Well, how do you view it, Mr Roy, it is your evidence?---I think that as both have been submitted they - I am not sure of the technicalities to be perfectly honest, whether one overrides the other or not.
PN434
I just want to know what is your evidence, Mr Roy. Is it this document that is in front of you at the moment or do I have to read the other one still?---I don't have any problems with either of them.
**** JOHN GRAEME ROY XXN MS KRUGER
PN435
Now, I want to ask you, Mr Roy, there is a number of or bits of information that you volunteered and came to our attention on Friday and that starts really at paragraph 13 and further on in your witness statement. I would like to know why, Mr Roy, this information wasn't volunteered earlier?---It probably only came back to me I think in a discussion I was having with Mr Llewellyn after we left here at our previous appearance and what brought it to my mind was, I was looking through my diary looking for something else and in my diary I spotted this list of names and so it came back to me that - why that list of names was there so I mentioned it to Mr Llewellyn and Mr Llewellyn said that was probably quite relevant and should be included in my witness statement.
PN436
So how did you go about including that in your witness statement then?---I suppose Mike was drafting the statement and I would tell him what I recalled and he would put it down.
PN437
So this was done last week?---Yes.
PN438
Now Mr Roy, in paragraphs 13 onwards, you talk about incidents and events that have happened after the certification of the agreement. I want to specifically ask you about conversation or contact with Ms Natasha Waclawik?---Yes.
PN439
And specifically paragraph 16 there?---Yes.
PN440
Now I try to understand here what exactly are you saying Ms Waclawik's interpretation was. You said that was also her understanding. Can you just expand on that? You obviously thought it important enough to include in your witness statement so - - -?---Yes, well I suppose the reason that whole conversation stuck in my mind was, I had a talk to Jim about this and Jim was pretty steadfast that he was sticking to the company line that, no, we agreed that it would be by appointment only and then - - -
**** JOHN GRAEME ROY XXN MS KRUGER
PN441
Sorry to interrupt you, Mr Roy, was this after the agreement had been certified?---Yes.
PN442
Okay, please continue?---Okay. I think Jim's parting words to me on this whole things were: "I'll see you in Commission" because he was about to go on some annual leave and I think to go and see the AFL grand final and sorry, am I speaking clearly enough for you?
PN443
Yes?---Okay. So he was due back from leave. I phoned - when he was due back I was told that Jim was hadn't made it back or he was off ill or something so I said to Natasha, well, we need some closure on this. Went through the issues with her and she seemed to feel the same way I did that the people who had done several harvests, there was no reason why they shouldn't automatically go on to the experienced rate.
PN444
Were they her exact words, Mr Roy, that they should automatically go onto the rate?---I am not even going to try and state I can recall word for word of the conversation. My memory is just not that good but the impression I got from what Natasha said to me was that she agreed with the viewpoint that I was expressing that it was all right for experienced casuals or casuals who had done more than two harvests, that it would be an automatic appointment and I actually said to her, well, that is kind of seriously dissimilar to what the opinion Jim was expressing and I said to her, well, isn't it going to be the case when Jim gets back, he is just going to override you. She didn't seem to think that was going to happen. So I was getting quite elated by this time. I was thinking that CBH had a major turnaround and actually agreed that that is how this document should be interpreted. Then of course, Jim came back and the company policy - well, sorry, not company policy - the impression I got of company policy went back to Mr Fuller's interpretation.
PN445
And that is that this is by appointment?---That is how CBH see it, yes.
**** JOHN GRAEME ROY XXN MS KRUGER
PN446
Yes, okay. Now, Mr Roy, in terms of dealing with this issue of Ms Waclawik, there was some names, they were forwarded on and so forth and I am reading your witness statement here and you say that in the end those casuals were then put on the experienced casual rate. Do you know how they got to get on that rate?---I assume they were, to use the word loosely, appointed.
PN447
Okay?---I don't think that they went through the process of being nominated by a senior RPO, seconded by a supervisor and then appointed by the zone manager. I think it just happened.
PN448
Now, Mr Roy, any other difficulties in Geraldton?---Specific to this issue?
PN449
Specific to this issue, Mr Roy?---No, I think, last time I went up there, all the casuals who had completed two harvests were to the best of my knowledge on the experienced rate.
PN450
They were appointed on that because you attached an appendix to your witness statement, JR1, that has a list of names. Is that what you are talking about?---That was what led me to that conclusion, yes.
PN451
Right, now, can we quickly have a look just at that appendix please, Mr Roy?
PN452
THE COMMISSIONER: I was going to say my appendix, Mr Llewellyn, is very difficult to read. You don't happen to have another one.
PN453
MR LLEWELLYN: Unfortunately they all are.
PN454
THE COMMISSIONER: Okay then, I will do my best.
**** JOHN GRAEME ROY XXN MS KRUGER
PN455
MR LLEWELLYN: That is the best I could make it.
PN456
THE COMMISSIONER: Okay, thank you.
PN457
MR LLEWELLYN: I'm not sure whose fax machine was terrible but somebody's was.
PN458
MS KRUGER: Now, Mr Roy, I notice here where the casual staff where it indicates position and name - I am not even going to try and read the names but I can make out that the positions there, there seems to be sort of three main positions highlighted, that of sampler and then weighbridge and then RPO, is that correct?---Yes.
PN459
So you have casuals who are samplers as well?---We have casuals who have run bins.
PN460
So if you are a sampler as opposed to an RPO, how many categories are there for you?---I think it is three.
PN461
Three and how do you go from one of those categories to the next, do you know?---Well, my understanding on this is, you have - am I allowed to refer to the agreement?
PN462
Yes, sure, the agreement clause 11?---I think it is first year, second year and third year. Yes, year one, year two and year three, which also has the infamous "by appointment" tacked onto the end of it.
PN463
And your understanding of how a casual sampler gets to year three rate, how does that happen?---Well, I had assumed up until the start of harvest when this issue came up, that it would be the same as an RPO, that you have done your three years and you would automatically go there.
**** JOHN GRAEME ROY XXN MS KRUGER
PN464
So your understanding is that you get to year three category sampler automatically?---That is my understanding. That is the way it was presented to me.
PN465
Now, Mr Roy, the words "by appointment" appear next to year three. How is that to be interpreted in the agreement?---My understanding of "by appointment" is that at the point of hire.
PN466
Well everybody needs to be hired at some stage. There is an application for a job and there is the granting of the job and in that sense I guess, we are all appointed so if that is the interpretation of the word, shouldn't it be next to each and every category there. If you only get to be a grade two, receiver point operator at CBH is somebody who appoints you?---It is a good question.
PN467
Mr Roy, I put it to you that the words "by appointment" has a specific meaning there both for the casual experienced rate and for year three, meaning that there is no automatic progression. Do you agree with that?---No, that was never my understanding.
PN468
Well, Mr Roy, if that is the case, if it is not your understanding and you had this issue come up in Geraldton and there is a whole number of casual staff involved and some are RPOs and some are samplers, why is it that the dispute in front of the Commission today, simply relates casual experienced rates. Those would be people that would be RPOs in the terms of the appendix, is that correct?---That is correct.
PN469
So why do we only have a dispute about the RPOs, the casual experienced rate?---Because to my knowledge, we haven't had a problem with the application of the experienced sampler and I suppose maybe naively I thought, that as a result of this we would come to some definition as to what - how "by appointment" actually worked.
**** JOHN GRAEME ROY XXN MS KRUGER
PN470
You would agree with me, Mr Roy, that they are both written the same way in the wage clauses in the agreement in the sense that they both have the words "by appointment" in brackets behind them. You will have to speak up for the record?---Yes.
PN471
And you agree with me that - or your interpretation then, Mr Roy, is both of those mean automatic?---That is how I understood it to work, yes.
PN472
For samplers and RPOs?---Yes.
PN473
Thank you. These people who complained or that you got a list of names of, all of them were RPOs?---I assume so. I mean, I didn't actually speak to those people. I spoke to representatives in the Geraldton district who passed those names on to me, so I couldn't say hand on heart that I knew what they were doing.
PN474
Well, Mr Roy, you just testified when I asked you did you have problems with samplers, you said, no we didn't have any problems with the samplers getting on to their year three rate, that is why it is not part of this dispute but how do you know that, Mr Roy, if you do not know what these people were doing, whose names you have put in your witness statement. Do you know they were samplers or RPOs?---I assumed they were RPOs. That was the assumption I wrote under and to this point in time as far as I know, I haven't had any complaints from somebody who is a sampler with regards to the third year sampler rate. Whether any of these people are RPOs employed as samplers, I am not sure.
PN475
Given the current dispute, would you then agree with me, Mr Roy, that there seems to be a problem then with the interpretation with the samplers as well, year three samplers?---Yes.
PN476
Okay?---Well, yes.
**** JOHN GRAEME ROY XXN MS KRUGER
PN477
Yes, okay, but that is not currently a matter before the Commission to determine?---Not at this point, no. If the Commissioner was to apply a blanket ruling over the whole "by appointment" thing I would be quite happy to see it settled within that matter.
PN478
Now, Mr Roy, the last paragraph of your witness statement?---Paragraph 23?
PN479
Yes?---Okay.
PN480
Do you agree with me, Mr Roy, that that is hearsay evidence?
PN481
MR LLEWELLYN: With respect, that is a legal question. It is not a question Mr Roy is competent to answer. If she wants to make the allegation that it is hearsay, it is an objection and it is hearsay. It is a legal question. The witness can't answer it.
PN482
THE COMMISSIONER: I'll uphold that. I think you can rephrase the question.
PN483
THE WITNESS: Would you like me to explain how I came to making that statement?
PN484
THE COMMISSIONER: Rephrase the question.
PN485
MS KRUGER: Thank you, Commissioner. Mr Roy, you make allegations there about people who have spoken to you and have contacted you who were members of the representative or the negotiation committee. Can you name the people who you are referring to?---Yes I can.
**** JOHN GRAEME ROY XXN MS KRUGER
PN486
Could you do that please?---Do I have to? Because I think some of these comments were made to me in confidence.
PN487
Mr Roy, you made your own decisions in terms of the information you include in your witness statement and you are asking the Commission to consider those statements that you are making. From the respondent's perspective, we don't know whom you are referring to and I would like to know?---Okay, now I have made a declaration that everything I have said here so far is the truth and I must say that people speak to me on these issues in confidence because they have concerns about what may happen to them if they are seen to be speaking out of turn. Now if you are going to absolutely insist that I tell you these people's names, I guess I will have to do that but I do have serious reservations about doing so because I believe that these things were said to me in confidence and these people may not be really happy about me bringing their names forward.
PN488
So what you are saying, Mr Roy, is that there is a hesitancy from people who were on the negotiating committee to partake in this dispute because of their position within the company and they are fearing some retribution or something?---Yes indeed. I mean, these whole negotiation procedures from my point of view would be a venue where people could exchange frank, forthright opinions without any fear of retribution and there are a couple of occasions during these negotiations where people were taken aside and chastised for being frank and forthright so yes, I have concerns about what may happen to people if I identify them without their permission.
PN489
So the committee members are not lining up to become involved in this dispute, are they, Mr Roy?---That would be an understatement.
PN490
Okay, thank you. Just a moment, Commissioner. Thank you, Commissioner, no further questions for this witness.
PN491
**** JOHN GRAEME ROY RXN MR LLEWELLYN
PN492
MR LLEWELLYN: Mr Roy, have you still got the agreement in front of you?---Certified agreement? I have.
PN493
I think my friend put to you that the "by appointment" included in clause 4 is the same for both the samplers and the experienced casual. Do you recall that?---Sorry, in clause 4?
PN494
Sorry, in the wages clause. That is clause 11?---Yes, okay, the "by appointment"?
PN495
Yes?---Can you?
PN496
Well, my friend asked you, in terms of the wages clause the "by appointment" was the same for both the casual experienced and the sampler year three?---That is CBHs viewpoint, yes.
PN497
Can you show me in clause 11 where it sets up any definition about a sampler year three?---I don't think there is any definition.
PN498
Show me where it says "by appointment only"?---It only says that upon the wage scale itself. We are talking about a sampler?
PN499
Yes?---Yes.
PN500
Now, have you still got all those minutes in front of you?---Minutes of the - - -
PN501
Meeting in May?---May 2003, yes.
**** JOHN GRAEME ROY RXN MR LLEWELLYN
PN502
Can you show me in there where in the final - perhaps I will just ask you to turn to the fourth page - I think it says the RPO agreement proposal final?---Yes, that is right.
PN503
Now as I understand it, this was the last meeting, wasn't it?---Yes.
PN504
And after the meeting this document went out? Is that right - to vote?---No, I think there was still a little bit of fine tuning went on after this meeting.
PN505
Right. Can you show me anywhere in those minutes where it says that the casual experienced rate is by appointment only?---No, I cannot.
PN506
Now in terms of the position for seasonals - seasonals and seasonal experienced was still in the agreement at this stage, wasn't it?---The 1997 agreement still held sway at this time.
PN507
Right. Then in terms of the responses back and forward, Mr Roy, for example if I can ask you to look at CBHs counter proposal, I think it is on page 2 of that appendix?---Yes.
PN508
Now you see, you get down to point 8 casuals, it says:
PN509
Casuals will not be altered.
PN510
and then it says:
PN511
... removal of the seasonal rate as per last agreement.
**** JOHN GRAEME ROY RXN MR LLEWELLYN
PN512
Right? So that rate has gone?---Yes. That rate would go - that whole procedure would be taken out of the agreement if it was ratified. It would not form part - - -
PN513
What procedure was that?---Well, what used to happen was, you could be employed as a casual by CBH and during the harvest period your rate of pay would be decreased - I can't remember by how much - so basically you would - all year round you would work on one rate and when they became excessively busy during the receival period, they would actually reduce the rate of pay the casuals got by calling them seasonals which - that was one of the main things the casuals were really up in arms about when I was, as I mentioned before, going round trying to increase union membership within CBH, that at the period of year when they got the most amount of work, their rate of pay was reduced.
PN514
All right, now, you went at some length with Ms Kruger about this criteria that was being developed. What was the purpose of developing that?---I wanted or I felt it was necessary to make sure that there were ground rules for this experienced casual rate and I also would have liked to have achieved a procedure if there was going to be anything other than a very simple set of criteria such as what I had assumed we had come to agreement at the end of negotiations. If there was going to be anything other than that, I wanted a box around it so that if there was a dispute over this procedure I could go into CBH, have a talk to Jim and say, look Jim, this guy had done this, he has done that, he can do this, therefore he satisfies the criteria. We couldn't get there and so the only thing I felt comfortable with was then that we agreed that two years would be the criteria and anything prior to that would be through excessive ability or excessive ability.
PN515
Now, you said that to Ms Kruger and you said that that was your recollection of what 11(k) said. Can I just ask you to look at 11(k)?---Yes.
PN516
Can you read what that says now?---I can. Do you want me to read it out?
**** JOHN GRAEME ROY RXN MR LLEWELLYN
PN517
Yes?---Unless appointed by the Zone Manager, the casual employee must complete two harvests before upgrading to the experienced rate.
PN518
Right. Now, when you said that you answered Ms Kruger, I think what you understood the clause said was that provided you had a good aptitude based into the job then the Zone Manager could appoint you, otherwise you had to do harvests?---Yes.
PN519
Is that your understanding of what that says?---Yes. As I said to Ms Kruger, I look at it as an either/or statement. You either do two harvests or you show capability.
PN520
All right. During the negotiation, Mr Roy, did you discuss that with Mr Fuller and his team, that that is what it meant?---Well, that formed part of the discussions we had on 16 May and yes, because as Mr Fuller said, this may mean that we end up paying employees who are - I think he used the word "useless" but it may have been another word - the higher rate. I said to him: well, if they're useless or whatever the word was used, if they are such a person, why would you hire them 3 years in a row and that seemed to be the end of the argument.
PN521
So at the conclusion of that 16 May meeting, did anyone say: John, don't say this when you go around to the troops because it won't be right?---No.
PN522
Now, just in terms of the - you say those minutes aren't verbatim?---These minutes of the 16th?
PN523
Yes. The appendix A, 16th?---No. They're a pretty poor summary of what went on.
PN524
Can I just have you look at the other minutes which is attached to Natasha's statement. That is the other appendix A you have got?---I don't think so.
**** JOHN GRAEME ROY RXN MR LLEWELLYN
PN525
It is the sort of dot pointed minutes from January?---The 21 January?
PN526
Yes?---Yes.
PN527
Right. Now, the seasonals were still in that, in the agreement during that meeting?---Sorry?
PN528
The seasons were still in the proposal?---Yes.
PN529
Well, I will take you to .5?---Yes. I assume it must've been.
PN530
Now, Mr Roy, have you got your witness statement in front of you?---Yes.
PN531
Can I just ask you to turn over to the appendix - sorry, the JR1, the attachment?---Okay.
PN532
All right. This is a list of people from Geraldton?---Yes.
PN533
Now, one of the people that was raised with you was Rachel Maver?---That's correct.
PN534
She is at the top of the list?---Yes.
PN535
She was actually employed as a sampler?---Okay. Yes. I assume she is.
PN536
Well, if the position title on this list is correct?---Yes.
**** JOHN GRAEME ROY RXN MR LLEWELLYN
PN537
Right. So she was given the experienced rate. Janine Gain was a weighbridge operator. Be about half-way down the list, it is under - - -?---Yes, Northampton. Yes, got it.
PN538
Is that what "NTON" means, is it?---Yes.
PN539
She was a weighbridge operator. She was given the experienced rate?---That's correct.
PN540
Jeff Debeaux, who was an RPO, two down from Ms Gain?---Yes.
PN541
He was also given the experienced rate?---Yes.
PN542
Then Paul Collins, as I understand it, who is down as an RPO. He was also given the experienced rate?---Yes. That's how I understand it.
PN543
He is at Binnu?---That's correct.
PN544
Right. Now, in terms of after the discussion you had with Natasha, how soon after that discussion were all these employees made up, do you know?---No, I'm not sure. I couldn't give you a number of days but all I can say is they were made up, I'm not sure how many days afterwards that happened.
PN545
Since that discussion you had with Natasha, has there been any issues raised from the Geraldton district about experienced casuals or experienced - or the year 3 sampler?---No.
PN546
Can I just - just to deal with this sampler question again. Could I just ask you to go to the wages clause again for me, Mr Roy, in terms of the sampler's position. Can you tell me if I've been a casual sampler for 3 years, what rate I get paid at?---$18.85.
**** JOHN GRAEME ROY RXN MR LLEWELLYN
PN547
Is it possible to be a 3 year sampler on the 2 year rate?---I suppose it's possible. Whether it be right, I don't know.
PN548
Can you just tell me what your definition or your understanding of the word "appointment" is?---Well, I think it has two meanings. When you get appointed to a job as in - say, for example, if you look in the West Australian and they have a column there called: Professional Appointments. So in that respect I'd say that means at the point of hire, you're appointed to the job, appointed to a position and then there is also when you could look at it as a promotion, I suppose, where you could say I had a job working as a union organiser for the Australian Workers Union and I was appointed to be the Assistant Secretary of the union. So in such - in that way I'd say that there's numerous ways you could define appointment.
PN549
Right. Well, apart from your last statement, it is not going to happen. No. I have nothing further, thank you.
PN550
THE COMMISSIONER: I just have one question, Mr Roy. What is your understanding of what had been agreed to in a situation? I was thinking of, say where a casual came on late in the harvest, say worked for 4 weeks at the end of the harvest, came back, worked another harvest say and then came back and started work again the third time round. What was your understanding of what had been agreed to then? Would that person come on as an experienced person automatically?---I would perceive that person as being eligible for automatic appointment as an experienced casual.
PN551
The second time around or the third time around or after the equivalent? Would they have to have - - -?---After he'd work in the CBH for more than two harvests.
PN552
Two full harvests?---Well, I suppose that never - that eventuality never really crossed my mind.
**** JOHN GRAEME ROY RXN MR LLEWELLYN
PN553
Thank you very much. If there is no further questions, I will excuse the witness.
PN554
MR LLEWELLYN: That completes our witness evidence, thank you.
PN555
PN556
THE COMMISSIONER: What do you propose now, Mr Llewellyn?
PN557
MR LLEWELLYN: Well, we have no further evidence. I should have asked the process before we started. I assumed what will happen now is my friend will lead her case and then we will close.
PN558
THE COMMISSIONER: You are happy with that process, Ms Kruger?
PN559
MS KRUGER: Yes, happy with that, Commissioner. I'm not sure when you normally take lunch breaks.
PN560
THE COMMISSIONER: Well, I'm trying to work that out too. What we will do? We can have an early lunch or we can have a 10 minute break now and go through until 1 o'clock. That is probably the better thing to do, I suppose. Let us say we have a 10 minute break now and we will start at 5 past and then we will go through until 1 o'clock and then see how we go. This Commission is adjourned.
SHORT ADJOURNMENT [11.55am]
RESUMED [12.07pm]
PN561
THE COMMISSIONER: Ms Kruger.
PN562
MS KRUGER: Thank you, Mr Commissioner. The respondent's opening submissions we have already provided you with a document containing our submissions and there is only a number of ancillary points that I would like to make and I will now take you through the whole of the submissions again. First off, Mr Commissioner, I would like to emphasise the basis on which the parties are before you today. I have noticed that the applicant's submissions did not make reference to the agreement in terms of the matter to be referred to you.
PN563
I therefore would like to reiterate the respondent's position on that. It is my understanding that there was an agreement reached during the conciliation phases of this dispute that there is an exact phrasing of the exact nature of the dispute to be referred to yourself. The referral is made under clause 12 of the agreement itself, the dispute resolution clause, and it is the respondent's position that in terms of that dispute resolution clause and in terms of the phrasing of the issue in dispute that needs to be resolved with your assistance, that the Commission is limited by those boundaries and those parameters.
PN564
The Commission's decision in this matter, or finding in this matter, should address that question specifically and I'd go either - not do less than that nor go beyond the scope of that agreement. Essentially just in summary I think the issue in dispute between the parties is really whether there is any discretion reserved for the employer in terms of appointing a person onto the casual experience rate or not. In essence, if we look at what has been referred to the Commission, does the Cooperative Bulk Handling Limited Country Operators Enterprise Partnership Agreement would require casual employees to be automatically classified as casual experienced by appointment, after having been employed for two harvests or not.
PN565
I think the crux of that issue in dispute is the question of automatically. We do operate in a system where there are some industrial instruments that allow for automatic upgrading from one category to another, so it is not an uncommon or foreign concept. However, when we look at it in this agreement, the applicant would like to convince you, Mr Commissioner, that this is indeed what the parties intended in their agreement. It is the respondent's position that it was never the common intention of the parties that there would be an automatic upgrading to the casual experienced rate.
PN566
Now, the respondent bases the argument on two broad basis. The one deals specially just with an interpretation of the agreement. The other deals with an interpretation of the agreement with the assistance of extrinsic material.
PN567
THE COMMISSIONER: Sorry, just speak up a little, please? It is a bit noisy in here at the moment.
PN568
MS KRUGER: Sorry.
PN569
THE COMMISSIONER: The first is the clear interpretation of the agreement. Yes.
PN570
MS KRUGER: The interpretation of the agreement as a whole with the assistance of the normal rules of interpretation as they imply in terms of Interpretation Act. The second deals with the interpretation of the agreement with the assistance of extrinsic material. Now, it has been the respondent's position throughout and still is that we believe no extrinsic material is called for in this current dispute as the words on their face have a very clear and ordinary meaning, which can be attached to them.
PN571
We respectfully put that we do not find an obvious ambiguity or uncertainty in the agreement as such. We have indicated certain authorities in our submissions that deal with the question as to when the Commission should have regard to extrinsic evidence. I would like to just in response to the opening position put by Mr Llewellyn in terms of case law that reverts to or refers to section 170MD6 applications, just like to bring to the Commission's attention that in terms of those applications, the Commission actually deals with its powers under the auspices of the Workplace Relations Act as such.
PN572
It is a different scenario from a section 170LW application. It is also understood that the Commission has taken quite an expansive approach towards allowing extrinsic evidence in section 170MD cases, specifically because those cases also include an application for varying of the agreement which makes the current matter before you succinctly different from section 170MD applications. Even so having regard to the case law on the matter, I think it is well settled that ambiguity or uncertainty is going to be required prior to extrinsic evidence being introduced.
PN573
We would urge the Commission prior to allowing extrinsic evidence in to consider the agreement as a whole and read it within the context. The one clause that has specifically been brought to the Commission's attention is clause 11(k) but the Commission is not only asked to interpret section 11(k). The Commission is asked to interpret the agreement as a whole. We have indicated that the agreement in terms of its own terms have to be interpreted against the background of the award and also to a number of the other elements in the agreement that we believe are relevant.
PN574
We have highlighted those in our submissions and I don't wish to take you through each of those in detail, except to give a summary list. We believe, Mr Commissioner, that you should interpret, or answer the question that the parties have put to you having regard to the terminology used in clause 11 of the agreements, specifically the indication that casual experienced, including a sampler, is by appointment. We also submit that you should have regard to the fact that section 11(j) of the agreement does not want to allow a situation where casuals are treated more favourably than permanent employees.
PN575
We would also like you to consider the fact that the normal progression from one category to the next within this agreement is determined by a training and development program and that there is nothing in the agreement other than the contentions of the applicant that points towards automatic progression from one level to the other. We have provided in paragraph 15 of our submissions a summary table in terms of a comparison between permanent and casual employees rates. My learned friend has made a big deal in terms of how the calculations are actually inaccurate.
PN576
I would like to draw the Commission's attention to the fact that the casual rates in this agreement already include the casual loading and in terms of the calculations put forward by Mr Llewellyn, those are inaccurate because he is actually adding a loading on top of an amount that already includes a loading. So when you are indeed comparing the casual experienced rate at 724 in the final wages column, that already contains a component of a casual loading and I would like to mention here, not to get bogged down in too much detail, but on that calculation the casual loading applied by the company and the union in agreement has been one of 17.5 per cent.
PN577
I would like to point out that that is actually quite generous, given the fact that casual workers during the harvest season would actually only be working for 12 weeks of the year but their entitlement has been calculated on the 17.5 per cent as if it is a full entitlement that would exist for a whole year. A more correct calculation would probably be that that loading is in the region of 4.25 per cent as a pro rata entitlement they would follow for the time period of the appointment.
PN578
THE COMMISSIONER: Could I just ask about that? Looking at paragraph 15 of your outline of submissions, the permanent rates are the normal full-time rates for which the employee is still entitled to sick leave, annual leave, etcetera, etcetera. Is that right?
PN579
MS KRUGER: That is correct. Yes.
PN580
THE COMMISSIONER: So what inference are you asking me to draw by noticing that say, for example, a casual of 664, what is your submission to me when you line that up with a grade 3 rate, which does not - which, of course, does not include any 17.5?
PN581
MS KRUGER: The conclusion we would like the Commission to draw from that is to show that in answer to the applicant's case that casuals are being treated less favourably or disadvantaged, that that is indeed not the case and that the basis of calculation for the casual rates has always been the on-commencement rate with the addition of the loading that applies to them.
PN582
THE COMMISSIONER: Yes. Okay. I will let you proceed. Thank you.
PN583
MS KRUGER: Commissioner, just on that, I don't wish the Commission to get bogged down in a calculation of the fairness or otherwise of the rates as they are contained in the agreement because my understanding is that that falls outside of the dispute. In any event, we are utilising that comparative table simply for the purposes of illustrating that if you read the agreement as a whole and the intention of the parties in terms of how casuals are to be treated, that that would indeed warrant a situation where a casual experienced rate is not going to be achieved easily or more easily than a permanent rate would.
PN584
We lead that back to clause 11, the clause that deals with the requirements for moving from one grade to the other for permanent receival point operators, which requires the development and training program to be undertaken. So it is simply in that context of reading the agreement as a whole that we wish to bring that to your attention. We believe it falls outside the scope of the dispute.
PN585
THE COMMISSIONER: Yes, I understand your submission.
PN586
MS KRUGER: Thank you. So in considering the agreement as a whole, Commissioner, those are the things that we would like to draw to your attention when you read the agreement. We also believe that when the Commission makes a finding in terms of whether the extrinsic material is going to assist in assessing the finding the true meaning and answering the question in front of you, that the background of the award, as well as the background of this agreement itself, the previous agreement, that this agreement superseded should be taken into consideration.
PN587
We will lead evidence about the collapsing of the seasonable rates into the casual rates and how that process came about and we would also like you to consider in that effort that the previous agreement that this one has superseded, 1997 agreement, does not provide for any automatic move from one grade to the other. You have heard evidence from the applicant's representative - sorry, the applicant's witness, Mr Ripepi, in terms of how that movement was possible within the previous seasonal experienced rate.
PN588
That is the background against which this agreement sits as well. The idea of an automatic qualification for a specific rate is wholly foreign to the award itself. If you were to inspect that document, the award itself makes provision for certain training and development programs to be gone through prior to upgrading to the next level. The previous agreement provides for no automatic progression from one rate to the other. This again provides for a development and training program which actually included the seasonal employees at that stage.
PN589
The current agreement itself therefore, in our submissions, should not - or you can't make a finding that it actually provides for an automatic progression, given the interpretation of the reasonable meaning of the words and the indication that we've given in terms of the history of this agreement. So really what the applicant is asking, Mr Commissioner, is for a very novel and new interpretation, a new principle of automatic progression in grades in CBH to be accepted. We believe that was this truly the intention of the respondent?
PN590
Certainly it would have been an issue that attracted far greater detail and far greater discussion and as you will hear from our evidence, the casual experienced rate and how to progress to that rate never formed part of the critical issues in the negotiation process. The issues that were raised and eventually found their way into section 11(k) were issues that were raised at the very last negotiation meeting between the parties and was raised as an exception to the general criteria developed by the company.
PN591
What I would like to make very clear in terms of the respondent's position is that the respondent does not have a problem with the two harvest criteria as a criteria for appointment. That is an acceptable process for the respondent. The respondent is merely seeking to retain the discretionary power that it has and always has reserved for itself in the agreement, and that is why the word "by appointment" are in there. That is also why you will find, Mr Commissioner, through the evidence that there has not been significant practical problems with the application of this clause, simply because it is the criteria being applied by the company.
PN592
There may be those circumstances, specifically as our evidence will show, in a big harvest coming up like the current one, where a number of employees will be doing very mundane tasks that require very little, if any, training and simply because they have pitched out for 3 years in a row, maybe not even for a full harvest, the applicant believes that CBH's intention, their joint intention was that this employee would be paid at a casual experienced rate. That is simply not the intention of the parties.
PN593
When we address you today in evidence on the issue of what the parties intended, I'm fully aware of the fact that in interpreting the agreement, you cannot be persuaded by one or the other party's understanding of the agreement or what their individual intentions were but that you are looking for the common intention amongst the parties, what they commonly understood the agreement to say. Now, you have already heard evidence that the applicant understood the company's intention always to be by appointment.
PN594
We put it that that intention has never changed and that there is no evidence to show that there is now a common intention or was a common intention reached between the employer and the union party prior to the certification of this agreement that there is now automatic appointment. The document as a whole simply does not read that way. The extrinsic evidence that we will be presenting simply refutes a claim that there is such a common intention.
PN595
In closing, I would like to direct the Commission to a number of decisions dealing specifically with how to deal with evidence of prior negotiations when interpreting an agreement and I will reserve that for a later stage. Lastly, I would like to draw the Commission's attention to a number of matters which we feel, based on the case law in this area, of factors that the Commission is not at liberty to consider when making a decision or making a finding in this matter. First of all, we believe that the Commission has not been asked to consider the fairness of the agreement.
PN596
This applies both in the context of the wage rates argument that the applicant has put forward as well as in the context of a general argument about how we treat casuals and whether casuals are being treated fairly in terms of the agreement. The fairness, the merits, the industrial relevancy or application of the agreement falls outside the scope of the Commission. In closing arguments, I will refer you to a number of authorities there as well.
PN597
As I said previously, the other factor that the Commissioner or that the Commission is not at liberty to rely on or to present weight to, is the original individual intent of each party in terms of when Mr John Roy came to the negotiations, what he would have liked to see in the agreement, what Mr Fuller and other representatives of CBH would like to see in the agreement. There is agreement in place and we are trying to find the common intention of the parties given the surrounding circumstances in the agreement as a whole.
PN598
As far as - I think that covers the points in terms of matters not in front of the Commission. We would also like to state at this stage our understanding in terms of the Commissioner's power when making a finding in this matter because the matter is not before the Commission in terms of section 170ND6 application. We would state that it is the respondent's understanding that the Commission is not at liberty to make a finding that also orders a variation of the agreement as such, but simply to answer the question that the parties have put to the Commission in terms of whether there is an automatic appointment right or automatic attaining of a grade or not.
PN599
I think, Commissioner, that for the moment brings me to the end of our opening submissions. I would like to cover a number of those issues in closing specifically in terms of referring you to relevant references but at this stage, the respondent would like to present its first witness, if you have no further questions for me.
PN600
THE COMMISSIONER: Yes. Just a couple of things. I've noticed on paragraph 24 of your outline, is there a word in there by accident? I think the word "only" seems to be there.
PN601
MS KRUGER: Did I - that is correct.
PN602
THE COMMISSIONER: 24.
PN603
MS KRUGER: Thank you very much for pointing that out. It should just be "by appointment", not the word "only."
PN604
THE COMMISSIONER: You have mentioned the relevance of the award. Perhaps you might like to address that in your final submission in a bit more detail. Also I would like to hear from - or at least get some factual information about what the increases that the persons at ..... did get through this agreement, previous rates prior to, from a sort of casual and a seasonal and what rates they have received through this agreement. I would just like that factual information.
PN605
MS KRUGER: In other words, a comparison between the grades in the '97 and the ones then in this agreement?
PN606
THE COMMISSIONER: Yes. I think if you could possibly confer with Mr Llewellyn. That shouldn't be disputed, should it? That should be just old rate, new rate.
PN607
MS KRUGER: I think you might find there are some problems with that. Since '97 there has been a number of increases that aren't reflected in the agreement, including deals that were done outside of the agreement to increase the rates at various sites. So the '97 agreement does not actually reflect the rates that were being paid immediately prior to this agreement coming into being. Some of those weren't passed on to casuals.
PN608
THE COMMISSIONER: Perhaps I could just ask you for that information you indicate, I think, so - - -
PN609
MS KRUGER: Commissioner, I will certainly attend to that and we will, hopefully by closing, have that available.
PN610
THE COMMISSIONER: Okay then. Your first witness.
PN611
PN612
MS KRUGER: Thank you. Mr Fuller, do you have a copy of your witness statement in front of you?---Yes. I do.
PN613
Mr Fuller, can you just, for the record, identify this document?---Yes, I can identify it. It's a document that I've made out as my witness statement.
PN614
Now, I would like to just take you to paragraph 19 of that witness statement, Mr Fuller. In paragraph 19, you have made a current estimate in terms of the number of casuals to be employed, doing this harvest by CBH. Is that estimation still current?---No. It will probably be in excess of 1500.
PN615
Thank you, Mr Fuller. No further questions, Commissioner.
PN616
PN617
MR LLEWELLYN: Mr Fuller, in terms of the number of casuals you hire, that is not an excessive amount, is it? I mean, that goes up and down depending on how much - how good a harvest it is?---Yes. That's correct.
PN618
I mean, it could be as low as 200 and it could be as high as 2000, depending on the harvest?---In the future we hope it's 2000. Yes.
PN619
Now, in paragraph 7 of your witness statement, you say that it was clear that the position of casual experienced and casual third year sampler was to be by appointment only?---That's correct.
PN620
Can you tell me anywhere in the agreement where it says those positions are by appointment only?---Yes. It's in each column, in brackets, behind the actual wages that we agreed to in negotiations.
**** JAMES FULLER XXN MR LLEWELLYN
PN621
Right. So in each column it says, "by appointment only"?---It says, "by appointment".
PN622
No. I asked you where it says, "by appointment only". You said that was clear. Where does it say it in the agreement?---It says, "by appointment".
PN623
Right. So it does not say "by appointment only" does it?---No.
PN624
Which means there's another way of getting there, isn't there?---No.
PN625
Why is that?---We were clear, right from the word go in January when we said it was by appointment.
PN626
Can you tell me why that does not reflect in your minutes of 16 May? I presume you took those minutes, did you?---No. I don't take the minutes.
PN627
Who took the minutes of 16 May?---Natasha Waclawik.
PN628
Right. So why isn't it in there?---Why isn't - - -
PN629
The business about that it is "appointment only" in those minutes?---Because for the simple fact that it was in there from the start, from when we started discussions in January through to September and on to May, which was a final agreement sort of, where we did come to an agreement before it went to the vote.
PN630
Do you recall, during the discussions, the issue was raised about, if somebody hadn't done two harvests, how we could get them there?---I understand the question that - where you're coming from - I'd like to answer it the way it did occur.
**** JAMES FULLER XXN MR LLEWELLYN
PN631
Well, I will just ask you if you recall that being said in the meeting?---Yes. I do recall it being said.
PN632
Do you also recall that the response to that was that the zone manager could appoint someone on whatever criteria they wanted other than two harvests?---No. The criteria for it was that it was by appointment.
PN633
What is the purpose of having two harvests in there then?---The purpose that was put in there, as Dominic said in his evidence, that he brought forward that they would like people that are of exceptional ilk to be put in. That's where we come to 11(k). That's when we inserted 11(k).
PN634
What, that unless you did two harvests, you could only be appointed by the zone manager?---If you were exceptional, you would be appointed by the zone manager.
PN635
So if you hadn't done two harvests, you had to be appointed by the zone manager. Is that right?---You had to be appointed by the zone manager in any case.
PN636
Well then what is the significance of two harvests then?---Because that's where it was brought up where we, as John Roy, that when we were in discussions on 16th, it was quite a hot topic. They wanted "by appointment" taken out and we said no.
PN637
For quite a hot topic, it didn't feature in the minutes much, did it?---It did, where we said that no alterations would be made to the casuals.
**** JAMES FULLER XXN MR LLEWELLYN
PN638
Mr Fuller, why would people want to know - if we had a person that was exceptional, you need to put something in there so you could appoint that person. Why would you have that if it was by appointment only anyway because you could do it without anything in there?---Well, the reverse goes for that. That's why we did put it in there. As Dominic said, we have people in there that were very good at their job. You know, what would happen then and we said, well, we'll put in 11 - we didn't actually call it 11(k) then. We said that we'd put it in and that was when we put that in - 11(k).
PN639
What exactly were you putting in to cover that?---We were putting in that you could be appointed earlier than two seasons.
PN640
Right, and if you'd done two seasons, how would you get the job?---If you'd completed two seasons, it was by appointment.
PN641
Right. So what happens if I had done three seasons? Do I go to that position?---No. Not necessarily.
PN642
Why is that?---Because it's by appointment.
PN643
So I could be there for 10 years, 10 seasons and never get appointed to the position?---I doubt it very much. We do appoint our people - - -
PN644
Well, that is what you are telling me?---- - - virtually straight away. As we discussed at the meeting, if there was any mundane tasks that people come back year after year for and weren't interested in picking up the mantle, I suppose, that's the reasoning behind it.
PN645
So these would be the sort of mundane tasks that somebody with absolutely no experience would be doing, would it?---Tasks that you could take on. We try to put people through to get them experienced because they're the type of people we do like to have on.
**** JAMES FULLER XXN MR LLEWELLYN
PN646
No. What I'm trying to get to, Mr Fuller - you see, your advocate made quite a lot in your respondent's submissions to this matter about how much extra these people got paid over other persons. For example, I think the table you set out, you make some allegation they are paid more than a grade 3. They even get paid basically almost as much as a grade 1?---The experienced?
PN647
Well, even the casual with no experience gets paid as much as a grade 3?---If that's the case, that's the case.
PN648
Well, that is your submissions. Don't you know what your submissions say?---You've got the submissions in front of you. I haven't go them here actually.
PN649
Right, but a person on commencement with CBH, has no skills. That is correct, isn't it?---You would have your life skills coming to CBH.
PN650
Yes, but in terms of CBH skills, the commencement rate is somebody that you have to train up to do tasks at CBH?---Correct.
PN651
Right. Now, as I understand the submissions your advocate just made, that the rates in this agreement pick up a 17-1/2 per cent loading, for example, on the commencement rate. Is that right?---It was a rate that was agreed to between the parties.
PN652
How did you come to it?---John Roy and myself sat down in a meeting. We went through all aspects of changing our casuals over from seasonals to casuals. We sat there and went through the rates together, with Natasha Waclawik - myself and John Roy. We sat down with a calculator and went through all rates and we agreed to them. John actually took the entire set of rates away and went through them again.
**** JAMES FULLER XXN MR LLEWELLYN
PN653
Do you agree with me, that in applying the 17-1/2 per cent formula, your casual position is less than the on commencement rate?---I'm not sure how it actually pans out. No.
PN654
Well I put it to you your on commencement rate - have you got a copy of the agreement there in front of you?---No. I haven't.
PN655
I was wondering if I could have the witness turn to clause 11 of the agreement? Right, the on commencement rate - someone on $14.85 an hour basically or 14.85756?---Yes.
PN656
That someone, as I understand it, would come to CBH - I mean, in the mining industry, I used to call it the K-Mart kid, so no skills at all in relation to CBH but turns up ready for work and you are going to start training him to work in your operation. That is what you'd pay him?---No. If he was on commencement that, in fact, would be a permanent position.
PN657
Yes, but a permanent position you brought in on commencement would be someone with no skills that you are about to train up in your operations. Is that correct?---Possibly. Yes.
PN658
That is $14.85 an hour, rounding it off?---Yes.
PN659
I think your advocate said the casual loading is 17-1/2 per cent?---Yes.
PN660
If I apply 17-1/2 per cent to that, I would get $17.45. Would you agree with that? I will give you a calculator if you want to check it?---No. I'll trust you on it.
PN661
Which makes the casual employee that you have got as a casual receival point operator, lower paid than a permanent employee with absolutely no skill. Is that right?---Possibly.
**** JAMES FULLER XXN MR LLEWELLYN
PN662
Even when I take the experienced casual rate, that is lower than your grade 3 operator's rate - applying the same 17-1/2 per cent?---If that's the way it works. Yes. But we did go through every rate with the union.
PN663
I'm not disputing that. The issue I have is that your submissions seem to indicate that to allow everyone to get there, it means that people would be paid more than other persons in the agreement, supposedly with more skills?---I think what quality was alluding to was that the rates themselves are higher than the rates there, as in the 17 - the 16.60 is higher than the 14, the 18.10 size and the 16. I think that's - - -
PN664
Well it should be. They don't get annual leave, they don't get sick leave, they don't get public holidays. All those sorts of things. That is right?---Exactly. That's by nature of the casual. Yes.
PN665
Over the harvest period, in excess of a third of the public holidays in the year occur?---I guess. Yes.
PN666
In terms of - there's another submission I just want to try and get some sense out of, Mr Fuller. I understand Ms Kruger said that the casual loading is 17-1/2 per cent on the basis these people are only working 6 to 8 weeks and that only works out to about 4-1/2 per cent they should get as a loading. Can you explain that one to me? I'm -?---Well, we actually pay the 17-1/2 per cent all year round anyway, so.
PN667
Well if I come and work for you for one day, I get a 17-1/2 per cent loading on the rates, don't I?---Correct. Yes.
PN668
It is not a proportional loading spread over a year?---No. We don't proportion it.
**** JAMES FULLER XXN MR LLEWELLYN
PN669
Neither does the award. It never, ever has, has it?---No.
PN670
The idea of paying me casual is because I've got not security of employment, I don't get public holidays, don't get annual leave and I don't get sick leave. That is right, isn't it?---Correct.
PN671
Now, in terms of - if I can just take you back to the seasonals - as I understand it, the e-mail that was sent out that is attached to Mr Ripepi's statement, is the exact method you put in place on how to promote seasonal employees from seasonal to experienced seasonal, is it not?---Are we talking about the 1997 agreement?
PN672
Yes?---The 1997 agreement - the supervisor put onto the manager and the manager okayed it if it needed to go up a rate.
PN673
Then it went down to head office for approval and - - - ?---No. It doesn't go to head office for approval. That was able to be done out there.
PN674
All right. So you are saying that you made that more restrictive under this agreement?---We put in the stages of casual and casual experienced with the stepping stones to go on to on commencement and up the grades. Yes.
PN675
Right. Mr Fuller, would you agree with me that it has been a fairly hot topic around CBH for two reasons with the seasonals? The first one is that you have casuals that work for you regularly and in CBH terms that has been - you have had casual employees who have been with you anything up to 7 years?---On and off. Some people could possibly come back longer than that over the seasons.
PN676
Well, I mean, even in terms of permanent employees, it wasn't that long ago where you laid off employees that had 7 years casual experience. Seven continuous years?---I don't think it was continuous.
**** JAMES FULLER XXN MR LLEWELLYN
PN677
Well, the long service records tell different but anyway. One of the issues those people always had was that when you went into the season, they copped a pay cut. That is right, isn't it?---Yes. By agreement with the union.
PN678
No. It is in the agreement. I've got no doubt about that?---Yes. Yes.
PN679
But one of the issues the permanent casuals had is that for all the experience they had, when it came to the season, you would reclassify them from casuals to seasonals, subsequently reducing their pay?---Quite a few of the experienced ones were put onto temporary.
PN680
All right. So they kept their pay or they still lost because the were on temporary now?---Not lost - they actually gained because they went up to the temporary which - that took all their entitlements with them.
PN681
They didn't have any entitlements as a casual, did they?---As per a permanent.
PN682
Yes. They picked up annual leave and all that sort of stuff?---Yes.
PN683
THE COMMISSIONER: Sorry. Can I understand that? You are saying that the seasonal person did get the pro rata annual leave?
PN684
MR LLEWELLYN: No. No. Seasonal didn't get anything. They - the seasonals are casual. They don't accrue leave either.
PN685
THE COMMISSIONER: This is under their former agreement?
PN686
MR LLEWELLYN: Yes.
**** JAMES FULLER XXN MR LLEWELLYN
PN687
THE COMMISSIONER: Thank you.
PN688
MR LLEWELLYN: All right. Now, one of the other issues the seasonal people had or your casual had, was that it was left up to the manager's discretion about whether they became experienced or not. That is right, isn't it?---Yes.
PN689
Because, I mean, they are - as I understand it and I don't know which town it is so you may but I understand that one of your manager's is a supporter of Port, whichever football team that is, and everyone in Port is an experienced person and everyone that play - a number of people that play for the other side, despite the fact they have got the same qualifications, weren't getting made up?---I actually find that very difficult to believe. I think someone would be in a lot of trouble if that was reported to our CEO or our general manager of operations.
PN690
But you don't deny that that was an issue for these people, was it? That sort of thing?---One person on the committee brought it up and said it was a possibility that this could happen and our response to that was it won't happen or it shouldn't happen. If it does happen, bring it to our attention and we'll have it fixed.
PN691
They also wanted some criteria that guaranteed people getting up there, isn't it? So it was nice and equitable?---We did speak about criteria a lot but our criteria, right from the start, that it was by appointment.
PN692
All right. Now, the Workplace Relations Act sets out fairly significantly how an agreement must be presented to the employees, Mr Fuller, does it not?---Yes.
PN693
Are you familiar with all that?---Yes.
**** JAMES FULLER XXN MR LLEWELLYN
PN694
One of those particular parts of the Act require that you have made explanations to persons about what the agreement means?---Correct.
PN695
With particular reference to people such as casual employees?---Correct.
PN696
Can you tell me who in your organisation did that?---Made it clear?
PN697
Yes. To the casual employees. Who went out and told all the employees, prior to being balloted, on what the agreement meant?---Well, everyone that was eligible to vote, had an enterprise agreement sent out to them. We, in our own mind, have made it as clear as possible to the union, from January that year right through and also to the committee. We're not about trying to pull the wool over people's eyes. As far as we were concerned - - -
PN698
That is not what I asked you, Mr Fuller. What I asked you was, who in your company, went out and made sure the explanation was delivered to the employees on what the terms of the agreement meant?---Our general manager has zone meetings and all meetings. Anything prior to the agreement going out, if there was anything in there that was - that the casuals or permanents weren't happy with, that would have been brought up at any meeting that Rhys Ainsworth would have went to.
PN699
Isn't the answer to the question that you were happy for Mr Roy to go out and conduct those meetings and give those explanations?---I was very happy with John Roy to go out and give the explanations because we'd had an agreement that we would keep away. It had been to the ballot once. Everyone should have been happy with this new agreement and 100 per cent happy. John and I did discuss him going out and we agreed that we wouldn't take any part in it for the simple reason of being them and us type thing an the union were putting their sway onto the agreement. It was a long and hard agreement and you know, we got to our final point.
**** JAMES FULLER XXN MR LLEWELLYN
PN700
I also understand that Mr Roy's position all through it - the negotiation included the meeting on 16 May - was that it would be automatic progression if you'd done the two harvests and if you wanted to appoint - - - ?---No, I disagree wholeheartedly.
PN701
If you wanted to appoint somebody else, that was up to the zone manager?---No. I disagree.
PN702
So Mr Roy never, ever put that to you?---Mr Roy actually put it at the meeting on 16th. I will retract that. Mr Roy mightn't have but the committee - someone on the committee put it up that we wanted "by appointment" taken out and it was a steadfast no. No, it will not be coming out. We fully understand that "by appointment" would be staying and that's where it was brought up that if someone was exceptional, we could appoint them earlier and that's where we put 11(k) in.
PN703
So if someone was exceptional, you could appoint them earlier?---Yes. Correct.
PN704
If they weren't exceptional, they did two harvests?---They could do two or three harvests.
PN705
Well, why didn't you say that in the agreement?---Because we put in 11(k), to keep the committee happy with the way we went through the meeting on May 16.
PN706
All right, but 11(k) says:
PN707
Unless appointed by the zone manager, a casual employee must complete two harvests before upgrading to the experienced rate.
**** JAMES FULLER XXN MR LLEWELLYN
PN708
?---Yes, with "by appointment" being the word.
PN709
No. Well, it says: "Unless appointed by the zone manager" - - - ?---Mm.
PN710
- - - "a casual employee must complete two harvests before upgrading to the experienced rate"?---Correct.
PN711
It does not say before being appointed to the experienced rate?---Correct.
PN712
It says, "before upgrading"?---Correct.
PN713
Your answer is, you put that in to satisfy the committee?---Yes.
PN714
The "by appointment" was put in - your position is that you made it clear that if somebody was exceptional, you wanted to be able to appoint that person?---No. That was actually come from the union's side and we said well, if that's the way you feel, we'll put this into the agreement. Yes.
PN715
In terms of Mr Roy's evidence or Mr Ripepi's evidence about what the employees were told in order to get the vote on this agreement, do you agree with me that they were given the explanation you heard from Mr Ripepi today?---Could you repeat the question, please?
PN716
All right. You heard Mr Ripepi's evidence as to what the explanation was that was given to the employees about what this meant in the agreement?---Well, what Mr Ripepi said at that meeting was, in fact, where we got to 11(k).
PN717
Well, I will try asking the question again - - - ?---Can I just finish that, Mike, please? Just to get my point across?
**** JAMES FULLER XXN MR LLEWELLYN
PN718
Well, no, you are not answering the question I asked you?---I'm sorry.
PN719
I asked you - you heard Mr Ripepi's evidence about what was said at the meetings to vote on the agreement?---Yes.
PN720
Do you agree that is what was said to the employees?---
PN721
MS KRUGER: Mr Commissioner. I'm sorry but I think Mr Ripepi gave a long explanation in terms of what he said to the employees. Maybe if my friend could just paraphrase what he wants Mr Fuller to answer?
PN722
MR LLEWELLYN: I'm happy to - - -
PN723
THE COMMISSIONER: Certainly.
PN724
MR LLEWELLYN: Maybe to - right. What I put to you, Mr Fuller, is that the employees, prior to balloting for this agreement, were told that if they completed two harvests, they would be automatically upgraded to experienced, otherwise they could be appointed by - - -
PN725
MS KRUGER: Commissioner? Sorry to interrupt, Mr Llewellyn, but I think the evidence of Mr Ripepi was not that he told employees that they would automatically be upgrade. I think his version of his evidence was that he told employees that you have to do two harvests to get to the experienced rate and he specifically did not use the word "automatically".
PN726
THE COMMISSIONER: Well, we can't get to the transcript so you will have to do the best you can.
**** JAMES FULLER XXN MR LLEWELLYN
PN727
MR LLEWELLYN: Thank you, sir. Mr Ripepi's position is that, if you - to get to the experienced rate, you do two harvests and then you become experienced or you can be appointed - if you are exceptional you can be appointed by the zone manager?---If that's the way Mr Ripepi thought that it was, I'm amazed really because of what we said at the meeting on 16th.
PN728
But that is - I mean, if you read the clause on its face, that is what it says?---No.
PN729
If I've done two harvests, I get upgraded, otherwise I've got to be appointed by the zone manager?---The intention from day one, was it was by appointment.
PN730
Well then, why does not that - why isn't that reflected in the minutes of 16 May?---The same as it wasn't reflected in the minutes where we spoke of - when we said that we were getting down to the nitty gritty of the agreement. Any problems with it, we brought John Roy in, in September to go through it and there was no problems with it because we had already discussed it at the meeting. It was by appointment.
PN731
See, the thing I have difficulty with this is that up until 16 May, you wouldn't have been appointing anyone for the harvest because you still had seasonals in there?---We did have, sir. No, not at the 16th of May didn't have seasonals, no.
PN732
Well, 16 of May, I mean, Ms Kruger took us through it in detail, weren't' you listening, Mr Fuller?---I was listening, Mike. Ms Kruger may have got it wrong. We had seasonals in the 1997 agreement but seasonals as you know or should know that only come in over the harvest period.
PN733
Yes. Well, can I just ask you, have you got your witness statement there in front of you?---Yes.
**** JAMES FULLER XXN MR LLEWELLYN
PN734
Can I just ask you to turn to the minutes, appendix A?---I haven't got the appendix on the minutes.
PN735
16 of May meeting?---Thanks.
PN736
Right. Can I just ask you to turn to the second page, take you down to CVH's counter-proposal at 8 the second dot point:
PN737
Remove the seasonal rate as per last agreement.
PN738
?---Yes, correct.
PN739
So at the time this meeting was going on you wouldn't have appointed any casuals for the season because the seasonal rate was still there. It was this meeting that agreed to take it out?---Yes. The seasonal rate was still in the 1997 agreement, yes.
PN740
Well, it was in these discussions up until this meeting?---No. In there that was apart of it, we will take them out, yes, but it was well known all the way through that we were going to take the seasonals out.
PN741
Mr Fuller, if the seasonals weren't taken out you would still be appointing seasonals for the harvest not experienced casuals?---No. We would have put on some - we would have put on casuals by agreement with the union, we were taking the seasonals out all the way through.
PN742
I understand that?---Yes.
**** JAMES FULLER XXN MR LLEWELLYN
PN743
But you are saying, it was well known and truly before all this, that it was going to be by appointment only, yet up until 16 May you would have still been appointing seasonals until the finalisation of that meeting, wouldn't you?---If we would have gone into the next harvest - if we hadn't got the agreement over the line there may have - we may have had to revert back to seasonals.
PN744
Well, you wouldn't have had any choice. I mean, you were still talking about seasonals on 16 May?---Yes, but we had - we did have options we could have had casuals or temporaries.
PN745
You agree with me that nowhere in those minutes does it say anything about we are taking the seasonals out but you can only become an experienced casual by appointment?---No, it does not say that.
PN746
Matter of fact, with the exception of the minutes or the notes taken back on 21 January, which as I understand it was basically preliminary talks with Mr Roy prior to starting the negotiations again, you have produced any minutes at all that suggest that in anyway, shape or form, have you?---I haven't produced any, no, but by appointment was in from the 1 January meeting.
PN747
Well, the January meeting was a pre-negotiation meeting with Mr Roy, was with the negotiating committee?---Correct.
PN748
You can't produce any minutes from any of the negotiating committees or in fact any drafts of any documents that show what was there before, can you?---At present, no.
PN749
Because the outright ability to appoint was an issue the committee were not happy about?---The committee were not happy with that, from word go, in January, yes.
**** JAMES FULLER XXN MR LLEWELLYN
PN750
An outright ability to appoint?---As I said and as others said in their evidence, that they didn't really want it in there, no.
PN751
Right. So in terms of, again I ask you, Mr Fuller, if it was totally discretionary, right, why would you need to put anything in there other than the positions, an appointed as such position?---Because as I said, we stuck on our digs from the word go, that it was by appointment.
PN752
All right, so can you describe how a year 3 sampler becomes by appointment?---It might be wrong verbiage used there, it wasn't picked up in any of our meetings but it also is in fact by appointment.
PN753
Well, how can a year 3 sampler be paid a year 2 rate?---As John Roy said, it is possible.
PN754
No. I want to know how?---How?
PN755
I've been there for 3 years how can I get a 2 year rate?---What actually happens is if you go through as your sampler, you go though the year 1, year 2 and on to year 3 and you are not actually up to the top standard, you will be paid year 2 because year 3 is by appointment.
PN756
So where can I find that definition in the agreement?---There's no definition by such in there but it is bracketed in there as in year 3 sampler by appointment.
PN757
Well, I've done 3 years, where do I look on the pay scale for my position?---In the wages, 11.
PN758
Yes, where do I find 3 year experienced sampler, a sampler that has been there for 3 years, show me where my pay rate is?---The increase is from 1 May and it is 2003, year 3 by appointment, $18.85.
**** JAMES FULLER XXN MR LLEWELLYN
PN759
Yes, I want to show - so if I've done 3 years that is where I am?---No, not necessarily.
PN760
Well, if I'm not appointed - - -?---Because it is by appointment.
PN761
Well, if I'm not appointed show me where you have got a classification for a wage rate for a year 3 sampler?---There is no classification in there but you would still be on year 2.
PN762
Well, a year 2 is a year 2. I mean, you can't have a 3 year, year 2 person?---You can.
PN763
How? So you can have a 3 year old 2 year old?---It is actually under the heading, the rates, so it is an actual rate.
PN764
Mr Fuller, you mean, that you can actually have a 3 year old that is really only 2 years old?---No, that is not in this case. We are talking about 11, under this agreement you can.
PN765
Where does it tell me that?---It says: "Year 3 (by appointment)."
PN766
So if I'm not appointed then I can't do 3 years as a sampler then?---No. I didn't say that. You can do 3 years but you would be on the year 2 rate.
PN767
So I can be 3 year old, 2 year old?---No.
PN768
Why is that, that is what you just told me?---No. I didn't tell you that. I said, that you can be under this agreement, a 3 year sampler on year 2 rates, unless you are appointed to that position.
**** JAMES FULLER XXN MR LLEWELLYN
PN769
So once I get to 2 I just don't get any older in terms of service for CVH?---You would have another season, yes, that is if you choose to come back, yes.
PN770
What you are telling me is I could be 4 or 5 years as a sampler and still be there for 2?---You could possibly sample for 3 years, 4 years and not get to the year 3 rate.
PN771
So does it tell me that anywhere in here?---No, it does not.
PN772
So why didn't define that?---How do I define that?
PN773
No, why didn't you?---Because we were always under the agreed position that it was by appointment, otherwise we wouldn't have put by appointment in the agreement.
PN774
So you took lengths to explain that - that position has never been in a previous agreement, has it?---Not this classification, no.
PN775
So how do you explain that to the casual employees?---We explained it to everyone on the committee, the union itself and they were quite clear, otherwise we would have had by appointment taken out as you wished.
PN776
Right. Mr Fuller, how many other people on the committee did you approach to give evidence in these proceedings?---On our committee or your committee?
PN777
Well, on the negotiating committee?---I talked to one person and asked him if he would come forward to give evidence for us.
PN778
And he wouldn't?---He said he would. I didn't want to put him under any pressure. I said, if you want to come forward you can come forward and he said it would be very difficult because of the position he was in, the AWU committee, so we didn't go on with it.
**** JAMES FULLER XXN MR LLEWELLYN
PN779
Right, so just one person that is the only - you have only approached one person?---Yes.
PN780
Your evidence, he was going to support your position, was he?---He was going to support it, yes. In a certain aspect, he wouldn't support - - -
PN781
What is the certain aspect?---Of a certain aspect that it was by appointment.
PN782
There was no other way to get there?---To the - to casual experienced, no, except by appointment.
PN783
Except by appointment, there was no other way to get there?---No.
PN784
So you accept says there is another way to get there, that is the meaning of the word accept - - -?---You can take it - - -
PN785
- - - unless there is another way, this is how it happens? So what is the other way, if there is an exception?---There's no exception it is by appointment.
PN786
So it is by appointment only?---Yes.
PN787
That is what you really meant to put in the agreement and didn't?---We put by appointment and we thought that was quite clear.
PN788
But you didn't take any steps to explain it prior to the ballot?---Yes, we did.
PN789
To the employees, which employees did you meet with?---We met with the committee on - - -
**** JAMES FULLER XXN MR LLEWELLYN
PN790
No. Which employees did you meet with prior to the ballot?---Did I meet with?
PN791
Yes?---Probably 15, 20.
PN792
Where?---Out and about.
PN793
You explained this position to those casuals that the only way you get these is by appointment?---No. I didn't explain that.
PN794
Did you explain anything in the agreement?---If they asked me, yes. I had plenty of phone calls.
PN795
So how many of those did you explain that the only way you can become an experienced casual is by appointment only?---I can only answer the questions that I - if someone rings me up on the phone in the department I will answer the questions they put forward and it was quite clear that that was asked to me a few times and that was the answer I gave.
PN796
All right, so in terms of the Geraldton people, can you explain to me how all those people got made up immediately after the phone call between Natasha and Mr Roy?---They would have been by appointment.
PN797
Under whose authority?---I couldn't say, I was not there at the time, as you know.
PN798
Now, this is your mundane tasks keep coming up. Mr Fuller, who does mundane tasks in CVH?---Who does mundane tasks? I suppose a few people do it now and again.
**** JAMES FULLER XXN MR LLEWELLYN
PN799
What whoever is there and whatever job needs to be done, isn't it, that is why you multi-skill your work-force?---Yes. We try to skill our work-force up.
PN800
I mean, I could be loading trains today and sweeping grain off the floor tomorrow?---You could be, yes.
PN801
There's no set classification for a person that does that, is there?---There would be a classification with someone who is eligible to load trains, yes.
PN802
Yes, in terms of whether I could be doing that job today and another job tomorrow, it is just whatever I am capable of doing?---Correct.
PN803
RPO3s for example get paid to sweep floors?---Correct.
PN804
As do RPO1s?---Correct.
PN805
As do people on commencement?---Correct.
PN806
Right. I mean, there is a certain degree of mundane tasks in terms of CVH's operation, there is spillage clean-up and all that sort of thing?---Yes, there is quite a bit of sweeping and cleaning, yes.
PN807
Because that is integral to your business, isn't it?---Yes.
PN808
I mean, it is one of your, as I understand, one of your key assessment methods in terms of hygiene, how the place is kept clean and all that sort of thing, isn't it?---Yes.
**** JAMES FULLER XXN MR LLEWELLYN
PN809
To stop contamination, make sure people don't sweep the wrong grain into the wrong pile?---Yes.
PN810
That is fairly critical to your operation, isn't it?---We don't sweep grain into piles, we clean around the piles.
PN811
Make sure it is clean and the grain does not get contaminated?---Yes.
PN812
That is what you class as a mundane task?---Mundane task would be sweeping, yes.
PN813
Now, in terms of clause 17 of your witness statement, the words "by appointment" are stated in the Country Operators Agreement, didn't they? CVH was never going to change its position on the issue, by appointment would always be in and still is in?---Yes. Yes.
PN814
And it still there?---Yes.
PN815
With the exception there is now an "unless" put in front of it, that is right isn't it?---What do you mean by an "unless"?
PN816
Well, tell me in the 1997 agreement - - -?---Yes.
PN817
- - - was there anything put in that in relation to the appointment situation that unless they were appointed by this person some other criteria applied?---Not that I recall.
PN818
Right. In terms of the '97 agreement there is nothing at all in there about a criteria about how you become an experienced seasonal, is there?---No, I don't think so.
**** JAMES FULLER XXN MR LLEWELLYN
PN819
The agreement is simply silent on it and the method that you developed was that the RPO nominates, the supervisor approves, the manager approves, then goes to the district manager and get sent down to Perth and signed off on and the people get paid the rate?---No, it does not go through - wouldn't go through that rigorous. It would - the person himself would - if he was up to scratch the supervisor would tell the manager and the manager would just upgrade him and send the paperwork through to Perth, it does not have to go all the way to head office.
PN820
So Mr Ripepi gave me the description that it basically goes through - that process, that the final sign off actually occurs in Perth office?---No, it does not necessarily go to Perth office to get signed off, no.
PN821
Because that is the approval to alter the wages?---No. It would go through the criteria of the supervisor/manager and then paperwork would get filled out, no one else has to tick it off bar - it would go to payroll, payroll would take it on hand from there.
PN822
All right, but in terms of the training courses and what have you that CVH have for their RPOs, as soon as I've completed a training course and have been tested on the competencies I automatically move up to the next level?---Yes, there's a certain criteria that you go through, yes.
PN823
The criteria is matched to the competencies?---Yes.
PN824
I mean, I don't have to complete the competencies and then get appointed to the position, do I?---No.
PN825
But the process is a process of appointment, is it not?---There is a process, yes.
PN826
The process is a process of appointment?---There is a process there, you are already been appointed when you - - -
**** JAMES FULLER XXN MR LLEWELLYN
PN827
Appointed to what?---The position.
PN828
So I'm appointed to a position as a RPO3, I then complete all the criteria - - -?---No, no, no. You misread me. You go through the steps, you go through your levels and then you obtain your level.
PN829
Yes, they obtain the level by the manager filling out a form appointing me to the new level?---Not appointing you - - -
PN830
What upgrading me to the new level?---Upgrading.
PN831
So as soon as I've finished the criteria I get automatic upgrade?---As soon as you finish the criteria and pass it, you are upgraded.
PN832
That is a term that is familiar in CVH, the upgrading from one to the next?---Yes, people go through that career path.
PN833
Right, so as soon as I - in terms of the career path that applies to operators, that is a process that is understood and I do my training, I sit my assessment, as soon as I've done that I get upgraded to the next level, I start training again - - -?---Yes.
PN834
- - - sit my assessment, get upgraded again?---Yes.
PN835
I do that all the way up until I get basically to whatever the top, senior RPO, I think it is, isn't it, from memory?---Yes.
PN836
Since I haven't done one of these amendments for a while, yes, senior RPO, that is right isn't it?---Yes.
**** JAMES FULLER XXN MR LLEWELLYN
PN837
In terms of casuals attending training courses, can you tell me what training your casuals are sent on?---Are sent on?
PN838
Yes?---Unless they have been there a while which would be the next step to move up to permanency.
PN839
How long is a while?---How long is a piece of string? You would go through your season and the way it happens in the season, you go through your season, if it is 8 to 10 weeks then the casuals start to drop off, there's possibly new positions available for temporaries or permanents and they would move into the next people ready to do courses, I suppose.
PN840
So how often do you actually put casuals on training courses?---I'm not into that section it is more for training section.
PN841
I mean, it is the idea of you employing a casual, isn't it, Mr Fuller, is that when there is no work for them you lay them off?---That is by nature of casual itself.
PN842
You don't go and send them on a training course so you keep paying them as casuals generally?---We have done. We have sent casuals on training courses.
PN843
I mean, the only real casuals that do training courses coming up to season are your sampling courses, aren't they?---There is quite a few courses run, yes.
PN844
Well, you have to put your casuals through that so they can sample the harvest?---Correct.
PN845
Because you haven't got sufficient to do otherwise, have you?---That is right.
**** JAMES FULLER XXN MR LLEWELLYN
PN846
Once they have completed - now, as I understand it in terms of the people that do sampling traditionally, once they have gone through all their sampling courses they get upgraded as well, don't they?---They do their sampling courses if they are on the job, they do go up, yes.
PN847
For example, a senior RPO that is in sampling would be expected to be running sampling courses and training others, as I understand it?---If he was up with all the new courses and the new grains and segregations which he would probably have to go through on an annual basis because of the segregation changes, yes, he could be teaching the casuals.
PN848
The number of your bins, I mean as I understand it, you have got various depots or I think you call them, some of them are called strategic receival points?---Yes.
PN849
Those places traditionally have people who are permanently sampling?---Yes.
PN850
They are generally senior RPO-type positions?---It is in their job description that they obtain a certificate.
PN851
Those people generally run your courses for when your casuals come on?---I'm pretty sure that we have designated trainers from them positions. We couldn't just take someone who has a sampling ticket to do it, you would have to be upgraded.
PN852
Yes, and I understand that but in the process of upgrading through to sampling once I've done my tickets, I also get upgraded, don't I?---Once you go from a casual and you have done your ticket and you are on the job - - -
PN853
Well, let us deal with a permanent to start off with?---Right. Sorry.
**** JAMES FULLER XXN MR LLEWELLYN
PN854
If I'm a permanent RPO and I do my casual - I do my training for the various sampling tickets then I move up through the RPO levels, correct?---There would be more criteria to it but you would move up, yes.
PN855
Now, when I come on as a casual sampler I also do those training courses?---Yes.
PN856
But you are saying I don't move up, not necessarily anyway?---If you were a casual, you complete your training courses and whatever criteria there is and then you get put on as a casual sampler during the season. If it was your first year it would be, then yes.
PN857
I've nothing further thank you.
PN858
PN859
MS KRUGER: Thank you, Commissioner. Mr Fuller, you just said that if you were sampler moving up you have to meet certain criteria in order to go to up to the next level, what sort of criteria are you talking about?---Well, there's every year our segregations change, our classifications with the grading of the grain, whether you have got - just to make it easier, to say it is wheat, you have got more husk or more light weight grain, you have got to learn all these classifications and go through.
PN860
So they are certain levels of competencies or skills to be acquired prior to moving up, is that accurate?---Yes.
PN861
In terms of the receival point operators, they have to go through a training program?---Correct, yes.
**** JAMES FULLER RXN MS KRUGER
PN862
That training program tests specific skills and competencies and only when they complete those successfully they then go up to the next level?---That is right.
PN863
Mr Fuller, you were asked by Mr Llewellyn about the "by appointment" terminology used in the agreement. I want to just ask you from January onwards the words "by appointment" did they feature in draft documentation during this negotiations?---In all draft documentation, yes.
PN864
Can I maybe ask you to have a look just at this one document, if you could please? Mr Commissioner, my apologies I don't anticipate argument to go into this area, I understood that there was an agreement between the parties, so I don't have copies of the document to hand up, that is just part of the backup documentation that I had available.
PN865
MR LLEWELLYN: Perhaps I can see what the document is prior to the witness examining it?
PN866
THE COMMISSIONER: Perhaps you could show him, yes, please.
PN867
MS KRUGER: Thank you, Commissioner.
PN868
MR LLEWELLYN: I have no problems of it going in but as a result of that document I now have a number of other questions that I would like ask if it is going in. It is a significant change in the wording. Just for the reference, it is down near the bottom of the page there seems to be a change, the wording is in that document - - -
PN869
THE COMMISSIONER: I have no idea what this document is.
**** JAMES FULLER RXN MS KRUGER
PN870
MR LLEWELLYN: It appears to be some minutes but that says that the classification is by appointment only.
PN871
THE COMMISSIONER: What do you wish to do with this, do you wish to tender this document
PN872
MS KRUGER: Only wish to establish the fact the words "by appointment" feature throughout the negotiation process and was consistently part of the documentation that the parties discussed. My apologies for the inconvenience, Commissioner.
PN873
THE COMMISSIONER: I think we should get a copy of the documents. Do you wish to tender the document, Ms Kruger?
PN874
MS KRUGER: Probably, yes, Commissioner. I would like to tender.
PN875
PN876
MR LLEWELLYN: I would appreciate some copies. I'm wondering if and I don't want to interrupt my friend if she is in flight but if it might not be convenient to have the luncheon adjournment, get some copies of the document and come back after lunch. I'm quite happy to keep going if Ms Kruger would like to keep going but I would like a copy of the document, yes.
PN877
THE COMMISSIONER: It depends on the timing I guess.
**** JAMES FULLER RXN MS KRUGER
PN878
MS KRUGER: I'm happy for us to break now, Commissioner. My apologies for the delay in the proceedings but I'm happy for us to adjourn for lunch and then have copies available after lunch.
PN879
THE COMMISSIONER: I think that is what we will do. Get the document back to Ms Kruger and we will adjourn for lunch. The usual restrictions will apply in respect of the witness. How are we going for time shall we start again at what - what would the parties like to do? I'm not sure whether the parties preference - perhaps we could talk about that now, are we having oral submissions at the end or is this a case where the parties feel that it is time for reflection in the light of the evidence and put in written submissions at the end, what are you proposing, Mr Llewellyn?
PN880
MR LLEWELLYN: I would propose oral submissions because have a pathological hate for written final submissions but my view is that I would finalise the case today.
PN881
MS KRUGER: I would prefer to finalise today as well, Commissioner, but if you think they would be handy.
PN882
THE COMMISSIONER: Well, look, let us adjourn now and we will start at 10 past 2, so we will adjourn until that time.
LUNCHEON ADJOURNMENT [1.19pm]
RESUMED [2.13pm]
PN883
THE COMMISSIONER: Ms Kruger, I'm just wondering if there has been any discussion between the applicants in the adjournment about this document. As I recall, just immediately prior to the adjournment, Ms Kruger, you were wanting to show the witness, in the process of re-examination, a new document. Are you still proceeding with that, and do you want to - is the whole document relevant, or is there an objection to this document I ask?
**** JAMES FULLER RXN MS KRUGER
PN884
MR LLEWELLYN: Well, there is no objection, other than if the document is going to go to the witness, depending on what he says to Ms Kruger, obviously, I may have some questions that arise out of that, that is all.
PN885
THE COMMISSIONER: You might have some questions. Okay, then, we will proceed on that basis. Thank you, Ms Kruger.
PN886
MS KRUGER: Thank you, Commissioner.
PN887
Mr Fuller, if I could have you just look at this document please. Now, just to set the scene, Mr Fuller, prior to your negotiation meetings with the union and with the Receiver Point Operator Negotiating Committee, was it the company's practice to draft documentation for purposes of those negotiations?---Yes, we would do a draft when we had a meeting, there were changes.
PN888
When you look at this document are you familiar with it, Mr Fuller?---Yes, I've seen this document before.
PN889
Can you tell me what the document is about?---It's from a meeting in January where we have made a few changes and it is a draft document.
PN890
The purpose of this was for discussion during the negotiation meetings, is that correct?---That is correct, yes.
PN891
Can I just ask you to turn to the second page there. I take it these were initial calculations in terms of the wages clauses to be going into the new agreement, is that correct?---Yes, that is correct.
PN892
In terms of the category, casual experienced and casual sampler year 3, can you just note the wording there?---Yes, casual experienced by appointment and also the sampling by appointment.
**** JAMES FULLER RXN MS KRUGER
PN893
That is true for issuing the increases that were forthcoming after 2003, is that correct?---That is correct, yes.
PN894
Thank you, Mr Fuller, just one last question that I have.
PN895
THE COMMISSIONER: I'm sorry, I'm not sure I established, what is this document? This document was a document prepared internally by Mr Fuller, is that what was said?
PN896
MS KRUGER: It is part of the negotiation documents, the drafts of negotiation documents that were put to the Negotiating Committee and the AWU, this one specifically in January of 2003.
PN897
THE COMMISSIONER: This document was put - was that the evidence, Mr Fuller, that this document - Mr Fuller, is this the document - - - ?---Yes.
PN898
- - - that was subsequently put to - - - ?---Yes, when we had a draft position we would forward it on to the union.
PN899
I see. Thank you.
PN900
MS KRUGER: Okay, thank you.
PN901
Mr Fuller, just one last question I had. On the meeting of 16 May, if you could briefly just refer to those minutes please. Did you have a copy of 16 May minutes?---Yes.
**** JAMES FULLER RXN MS KRUGER
PN902
On the second page of those minutes, Mr Fuller, under the heading: CBHs Counter Proposal, and at paragraph 8 there where it says, "Casuals". Could you just explain what that short two dot points there refer to during those negotiation meetings?---Well, the first one, "Casuals will not be altered", refers to the fact that all the way through, talk of taking "by appointment" out was there with the union and we just steadfastly refused. We said: no, that is - we have got a full understanding of where we are, it is by appointment and the removal of the senior rate as per last agreement will - that means that we both agreed that we were taking the seasonal rate out and replacing it with the casual rate. The casual rate would be the only one, there would be no seasonals in the future.
PN903
Thank you, Mr Fuller. No further questions, Commissioner.
PN904
THE COMMISSIONER: Could I just ask a question of the witness, Mr Llewellyn. I'm a little unclear as to what happened after the meeting of 16 May. These are minutes of that meeting and they would have been referred to members of the Committee, is that what is being said?---Yes.
PN905
As a result of this meeting then a further draft was prepared by whom, by the union, by the - - - ?---This was the final one to come out. This is the final meeting before the final draft came out. Then the final draft was the one that went to the vote.
PN906
Who prepared that final draft?---CBH.
PN907
What did you do with that final draft?---Well, that is the one that went to the vote - - -
PN908
It went to the union - - - ?---- - - that is the current enterprise agreement.
**** JAMES FULLER RXN MS KRUGER
PN909
Yes, but what happened, who signed off, who - CBH prepared this final draft - - - ?---Yes.
PN910
- - - which incorporated some of the things which were discussed at this meeting?---Yes.
PN911
What happened to that before it went to the vote, what happened?---It was signed off by the union and CBH.
PN912
PN913
MR LLEWELLYN: Mr Fuller, have you still got the document, the RPO agreement proposal 23 January in front of you?---Yes.
PN914
I'm just wondering, was my friend seeking to have this tendered as an exhibit or - - -
PN915
MS KRUGER: Sorry, Commissioner, I neglected to finish that off with the confusion of the copying. Yes, please, we would like to tender it.
PN916
THE COMMISSIONER: Sorry, is this the one we numbered before?
PN917
MS KRUGER: Did we number it last time?
PN918
MR LLEWELLYN: No, we didn't put an exhibit number to it before lunch.
**** JAMES FULLER FXXN MR LLEWELLYN
PN919
MS KRUGER: I don't think we did.
PN920
MR LLEWELLYN: L2 is actually Mr Roy's witness statement.
PN921
THE COMMISSIONER: I will call it L3, thank you very much.
PN922
MR LLEWELLYN: Sorry, it is not one of mine.
PN923
THE COMMISSIONER: Sorry, it is not yours, no, of course not.
PN924
MS KRUGER: I think maybe the confusion is, Commissioner, is from not yet numbering Mr Fuller's witness statement.
PN925
PN926
MS KRUGER: Thank you, Commissioner.
PN927
THE COMMISSIONER: You are just confining your comments now to - - -
PN928
MR LLEWELLYN: Just to K2.
**** JAMES FULLER FXXN MR LLEWELLYN
PN929
THE COMMISSIONER: Just to K2, thank you.
PN930
MR LLEWELLYN: Mr Fuller, I understand what you have said to Ms Kruger is, this was the draft proposal reflective of the meeting you had immediately prior?---This came out of the meeting from January, yes.
PN931
All right. Do I understand you to say that nothing changed between this and the final document?---I take there is one change there only as in this one.
PN932
It is a fairly significant change, isn't it, you have removed the words:
PN933
RPO Casual Experienced by appointment only.
PN934
And:
PN935
Third Year Casual Sampler by appointment only.
PN936
That is a fairly significant change, isn't it?---I don't see it as a significant change.
PN937
I mean, this document got rejected by your employees, didn't it?---No.
PN938
Wasn't there a ballot on 21 March 2003 that rejected this on a vote of 92 to 63, run by the Electoral Commission?---On what date was that one?
PN939
21 March?---I couldn't be sure of the date.
PN940
Was there a ballot taken after this?---There was a ballot taken, yes, and - - -
**** JAMES FULLER FXXN MR LLEWELLYN
PN941
It was defeated?---Yes.
PN942
I put it to you, that ballot occurred on 21 March by a vote of 92 votes to 63 votes?---If that was the date - if that was the date, I'm not sure.
PN943
As a result of that there were some changes made like, for example, the word "only" was taken out and there was a criteria put in for how you get from a casual to an experienced casual?---No, there was no criteria.
PN944
Well, there is no criteria in this document, is there?---No.
PN945
That is a change to the new document?---The only change there - and it wasn't because of the way it was voted upon, "only" was never brought up.
PN946
"Only" was removed and there was another criteria attached?---"Only" was removed by the simple fact, I think it was a typo.
PN947
What, on how many occasions - so it was a typo, was it. So let's see, that makes it one, two, three, four, five, six typo errors all in one document all on the same thing?---No, as I said, it was left out of the next agreements because it was never brought up.
PN948
Neither was the issue about two harvests, was it? It is not in here either?---Two harvests is not in there, no.
PN949
So that was another change?---No, that was never - in January that was never even spoken about. The two harvests - - -
PN950
No, it is in the final agreement. The only change - concede for me this, the only change is that the document you have just produced in January had "by appointment only", and the document that was finally voted on, the "only" was taken out and a second criteria put in?---"Only" was taken out.
**** JAMES FULLER FXXN MR LLEWELLYN
PN951
And the second criteria was put in?---The second criteria being 11(k)?
PN952
Well, the second criteria being two harvests?---Yes, which was brought up on 16 May.
PN953
That is right - - - ?---But it was only - - -
PN954
- - - so that is a change from this position - - - ?---- - - but what I'm saying, right, the position is here, it was never brought up in January - - -
PN955
Well, why did you drop the word - - - ?---- - - in May it was only brought up when Dominic Ripepi said: we should move to make someone be eligible before any criteria, so by appointment before.
PN956
That is right, but by appointment before he achieves the criteria, that is what Mr Ripepi wanted, wasn't it?---By appointment, yes.
PN957
Before he achieved the criteria?---No set criteria there, it is all by appointment.
PN958
Except that you have criteria there, two harvests?---That was what was required to go in when we spoke at that meeting that day, for the simple reason of someone who was there that was very willing and able to do the job properly.
PN959
So is your evidence, the intent of the document changed because you typographically forgot to put the words "only" in?---No, I didn't do it.
PN960
Who did this?---Natasha I would say.
**** JAMES FULLER FXXN MR LLEWELLYN
PN961
Did Natasha also draft up the final agreement?---Yes.
PN962
So it was Natasha, six times, so if I put to her that six times she forgot to type the word "only" in - - - ?---No, I think it is opposite to that, Mike, I think that she had left "only" out of the subsequent agreements.
PN963
Well, that is what I said, six times she forgot to type it in?---It is the same thing, it is by appointment with "only" in or out.
PN964
So that is your evidence. You left the word "only" out but we still made it by appointment, but we put a criteria in?---There was no criteria in there. We had reached our agreement.
PN965
I have nothing further.
PN966
PN967
THE COMMISSIONER: Ms Kruger.
PN968
PN969
PN970
MS KRUGER: Thank you, Mr Ainsworth, do you have a copy of your witness statement available?---Yes, I do, yes.
PN971
Okay, could you just identify this document for us please?---Yes, this is my witness statement.
PN972
Okay, and it has three appendices attached to it?---That is correct, yes.
PN973
A, B and C, okay. Thank you.
PN974
THE COMMISSIONER: Are you asking for this to be tendered?
PN975
PN976
MS KRUGER: Mr Ainsworth, the witness statement that you have prepared refers to those appendices. Could I ask you to, just for the benefit of the Commissioner, very briefly just explain what appendix A is about?---Certainly, appendix A just gives a map of the CBH receival network, detailing as to where the sites are located. It also sort of locates the - our port facilities and also sort of in very brief terms, just articulates where our various districts and zones are as well.
**** RHYS WILLIAM AINSWORTH XN MS KRUGER
PN977
Could you maybe just explain for the benefit of the Commissioner, the harvest season as such, when does it start, when does it finish, how does that work?---It tends to vary year by year but, invariably, it starts sort of around about the first or second week of October. Generally, in the northern part of the State, north of Geraldton, Bindoon, Yuna, etcetera and then in very general terms it sort of proceeds sort of south-easterly, sort of from Geraldton, through Kwinana and the Albany zones and around about through to the Esperance zones and we normally like to hope that the receival season finishes sort of around about the end of January to about the first or the second week of February, but it is very much dependent upon seasonal conditions, rain - the amount of rain, etcetera.
PN978
Mr Ainsworth, in terms of your witness statement we say this is the approximate time of the harvest. If you look at one specific receival point, let's say Merredin, just for example, the harvest period wouldn't last for that complete time period?---Not generally. It - sort of 95 per cent of the grain would come to within a 10-week period, perhaps a little bit further and then there is sort of a dribbling effect, sort of slightly before and slightly after that main burst.
PN979
The season starts in the north, ends in the south?---To an extent, depending on the weather, but as a very rough guide that is generally how it happens, yes.
PN980
Now, I would like you to just have a quick look at appendix B as well. For the benefit of the Commission, could you just explain what this appendix is about?---Yes, appendix B is a position description of the receival point operator. In very broad terms, once again, it talks about the duties of the receival point operator which, you know, is a summary, their role is to receive - ensure that the grain is stored appropriately and then ensure that grain is out turned in an appropriate fashion throughout the year. It just articulates in a little bit further detail, the specific duties and the physical and environmental requirements of the role as well.
**** RHYS WILLIAM AINSWORTH XN MS KRUGER
PN981
Just in terms of the organisational structure and the different types of positions that you have within CBH, could you just give a brief outline to the Commissioner of those, in the context of your receival point operations, I know you have harbour operations as well, but just the receival point operation?---Yes, there are - once again it varies. We have generally 154 permanent receival point operators, that number depends on sometimes receival point operators coming and going throughout their own requirements. They invariably work based on a district basis - invariably work in groups of 15 or so per district. They report to a country supervisor, who in turn reports to a district manager, who in turn reports through to a zone manager and, as I said, their roles are primarily as articulated in appendix B.
PN982
Your position in relation to that organisational chart, where do you fit in?---As operations manager, the four zone managers report through to me.
PN983
Mr Ainsworth, can I ask you to just look at appendix C as well please?---Yes.
PN984
Would you just explain to the Commissioner what this document is about?---Commissioner, appendix C is primarily - well, it is a summary of the receival point operator development program. There is the on commencement, or the receival point operator commencing with the organisation and it articulates what a receival point operator needs to - which courses a receival point operator needs to attend and complete in order to proceed through the grades from 3, 2 and 1 and then what they need to actually complete as far as training goes to become a senior receival point operator, and those training programs are generally made available to receival point staff throughout the year and depending on demand and availability, and generally they are designed to ensure that a receival point operator receives training to ensure that they can improve their skills and competencies in the context of their role.
**** RHYS WILLIAM AINSWORTH XN MS KRUGER
PN985
As a general estimate, Mr Ainsworth, how long would it take for a receival point operator who has just been appointed on the commencement rate, how long would it take that person to progress through the different levels up to the senior receival point operator?---There is no fixed time for a receival point operator to proceed through the grades, as indeed, there is no requirement for them in particular to do any of the training. If a receival point operator wants to stay as a Grade 3, then that is what they can do if they choose to. Obviously, from a company perspective, we would encourage them to receive and to get involved with as much training as they can because it improves their skills and competencies and so, where possible, we encourage staff to improve and to take part in training as much as possible.
PN986
Just as a rough estimate, just a generalisation in terms of how long it would go - take from Grade 3 up to senior receival point operator?---This is a really difficult question to ask - I'm not even quite sure I could give a specific answer to be honest with you but, you know, a few years I would have thought. Perhaps three to five, something along those lines, but that would be a real guess, I'm afraid to say.
PN987
Okay, thank you, Mr Ainsworth. I would like to just turn your attention to paragraph 13 in your witness statement please?---Yes.
PN988
You have made some estimates there in term of the currencies and of how many casuals you anticipate. Do you have any updated information on that estimate?---Yes, as at 1 November, we had 353 harvest casuals. My understanding, and once again it is an approximate, but that figure is actually close to around about 1500 casual staff that is currently employed throughout the country.
PN989
Now, as the operations manager, are you aware of any person in CBH who progresses from one wage rate classification on to the next, simply by spending a specific number of years or weeks doing that specific job?---Are you talking about permanent, or casual staff?
**** RHYS WILLIAM AINSWORTH XN MS KRUGER
PN990
Anybody in CBH?---I'm not aware of a particular individual at all, however, we have situations for casual staff for instance, if in fact there are instances where a casual staff member shows skills and competencies that would suggest that they are going to provide some value to the organisation, the zone manager has the opportunity of appointing that particular individual to the experienced casual rate, and my understanding is, I don't authorise that but I'm led to believe that zone managers aren't adverse to doing it.
PN991
Thank you, Mr Ainsworth. No further questions, Commissioner.
PN992
THE COMMISSIONER: Just before you do, Mr Llewellyn, just before you sit down, Ms Kruger, I'm a little confused as to the endorsement process, this is paragraph 9 and 12 and 13. I mean, I can ask the witness if you like but I heard the witness just talk about skills and competencies, other times I hear the word performance. I just wonder, can you please help and inform the Commission exactly what is applied by the zone or district manager.
PN993
MS KRUGER: Mr Ainsworth, when a casual employee wants to progress just from the normal casual rate up to the casual experienced rate, how is that to be done? How does that happen?---Invariably, once again, there are a number of avenues. Invariably a number of the permanent staff might speak to the supervisor who is charge of a particular district and suggest that a particular casual staff member may be exhibiting qualities that warrants them to move to the experienced casual rate and that request is made to the supervisor who invariably then makes a similar request to the district manager and then the zone manager endorses that accordingly. That may be one avenue. It may also be a situation where the supervisor and/or the district manager sees some performance that warrants that staff member to move to the experienced casual rate. I think the thing to remember in this context is that we do have problems finding country staff as casuals. We compete quite actively with other organisations in the country and so if we find someone who exhibits some good performance, then we try to put them on the higher rate in order to retain them, not just for that season but possibly for future seasons.
**** RHYS WILLIAM AINSWORTH XN MS KRUGER
PN994
Mr Ainsworth, in terms of that criteria to be applied, how does the number of harvest that an employee has completed, how does that factor into the criteria?---Well, in that context the number of harvests isn't necessarily relevant. It is just that the skills and competency that are exhibited by that individual. Invariably extra years can often assist a casual employee in terms of adding to their experience or skills or what have you. So that might make it easier but it doesn't necessarily come into the consideration by a district manager. It is the skills and the performance that they exhibit.
PN995
Now, in terms of that, you have indicated that the two harvest is not an overriding consideration. What is the relevance of the two harvests in terms of the country operators agreement?---I'm not quite sure I know exactly - in terms of relevancy, in terms of moving up to the experienced rate, is that what you mean?
PN996
Do you know why the two harvest is an issue in terms of this agreement?---Well, I guess from my perspective, the key is that it is about the by appointment. I mean, once again I'm not quite sure why the two seasons is necessarily relevant. As I said, from my perspective, there are a range of avenues that a casual staff member can move up to the experience rate. At the end of the day it is all about the zone manager on recommendation by a district manager, a supervisor or even a receival point operator, it is in the context of them making an endorsement for a particular casual staff member.
PN997
Thank you, Mr Ainsworth. Thank you, Commissioner.
PN998
PN999
MR LLEWELLYN: I'm wondering if Mr Ainsworth can be shown a copy of the certified agreement please.
**** RHYS WILLIAM AINSWORTH XXN MR LLEWELLYN
PN1000
Mr Ainsworth, can I just ask you to turn to 11(k). It is on page 8, if that helps?---Yes, thank you.
PN1001
Do I understand your evidence to be that the completion of two harvests is completely irrelevant?---What do you mean irrelevant?
PN1002
Well, can I just have you read 11(k). Have you read that?---Yes.
PN1003
Are you saying to me your evidence is that a casual employee must complete two harvests before upgrading to the experienced rate? Are you telling me your evidence in-chief is the two harvests are irrelevant?---I guess my evidence is that after two harvests, that - and certainly the intent of the agreement from my perspective is that following two harvests, the zone manager will need to endorse whether that casual employee would move to the experienced rate.
PN1004
Well, show me where it says that there?---In 11(k), no, it doesn't but the by appointment - page 7, I understand that it is - sorry, page 6, "casual receival point operator, casual experienced by appointment".
PN1005
Where does it tell me the district manager is the one that appoints him?---Well, it doesn't, it says zone manager here.
PN1006
Well, what it says in K is:
PN1007
Unless appointed by the zone manager, a casual must have completed two harvests before upgrading.
PN1008
?---There are incidents, say for instance in Geraldton where we don't actually have district managers, just the zone manager would make that decision but the relationship that district managers and zone managers have are fairly close.
**** RHYS WILLIAM AINSWORTH XXN MR LLEWELLYN
PN1009
I'm not interested in that. I'm interested in the wording here?---Well, it says zone manager.
PN1010
It says:
PN1011
Unless appointed by the zone manager ...
PN1012
So unless the zone manager appoints the casual, the casual must have done two harvests. It does not say anything else, does it?---No, it says as you've said, by the zone manager.
PN1013
If he has done two harvests, he upgrades to the experienced rate?---No, by appointment only. If you move back to page 6.
PN1014
Well, go back and read the clause?---Yes, certainly.
PN1015
Unless appointed by the zone manager ...
PN1016
So we agree that the zone manager can appoint whoever he likes, whenever he likes, that is right, isn't it?---Well, not specifically, no.
PN1017
Well, it is his discretion to appoint, isn't it?---To the experienced rate, yes.
PN1018
So if someone has been there for 2 weeks, he can appoint them experienced if he wants to, can't he?---Yes, if that particular casual exhibits qualities that are appropriate for the company, certainly.
PN1019
So unless it is that situation, the other situation is a casual employee must have completed two harvests before upgrading to the experienced rate. That is what it says, isn't it?---If in fact the casual staff member exhibits the qualities after those two years.
**** RHYS WILLIAM AINSWORTH XXN MR LLEWELLYN
PN1020
Well, can I just ask you to read what it says there?---Yes, right.
PN1021
A casual employee must complete two harvests before upgrading to the experienced rate.
PN1022
That is what it says, isn't it?---That's by appointment by the zone manager.
PN1023
Unless he is appointed by the zone manager, that is right. Where does it say in there that a casual employee must complete two harvests before being appointed?---If you are talking about 11(k)?
PN1024
Yes?---Well, clearly it is not there.
PN1025
It is not there, okay. You didn't sit through all of the discussions on the 16 May, did you?---My understanding was I was in attendance at that meeting certainly.
PN1026
For the whole of the meeting?---My diary indicates that I attended the meeting but whether I was there for the entire period, I couldn't honestly tell you, I'm afraid.
PN1027
We asked Mr Roy and Mr Ripepi and I understand Mr Ripepi was the chairman of that committee, is that right?---I honestly don't know if Mr Ripepi was the chairman or not.
PN1028
Well, you were at the meeting?---But I don't know necessarily if he was the chairman of that particular group.
PN1029
Well, both of them have told me that you came and went during the course of that meeting?---Quite possibly, yes.
**** RHYS WILLIAM AINSWORTH XXN MR LLEWELLYN
PN1030
So you weren't there for the whole meeting?---Quite possibly. I'm not in a position to say whether I was there for the entire meeting or not.
PN1031
All right. In terms of - Mr Ainsworth, you know the requirements of the Workplace Relations Act in terms of getting agreements certified?---I'm not aware of the specifics of that, no, I'm not.
PN1032
So one of the obligations is your company has filled out a statutory declaration stating what methods you undertook to ensure that employees were explained the contents of the agreement, paying particular relevant to people like casuals, women, people under 21, people of Aboriginal or Torrens Strait island descent, people whose first language isn't English. Are you aware of that?---Once again, I'm not in a position to comment on the specifics of that, no.
PN1033
You are the operations manager, aren't you?---Certainly, yes, yes.
PN1034
I mean, Mr Fuller gave evidence that you went out and spoke to people about the agreement and told them what it meant?---Yes, there was instances where I spoke to receival point operators, certainly.
PN1035
What explanation did you give them of the agreement?---The entire agreement or parts thereof?
PN1036
Well, just what explanations did you give them in terms of the agreement?---Once again, if you want me to be specific, I certainly can't be specific if there were questions of individual receival point operators had about the agreement, I would answer those to the best of my ability.
PN1037
So what answers did you give in relation to how you get to an experienced casual rate?---I don't recall a specific instance where I was asked that question.
**** RHYS WILLIAM AINSWORTH XXN MR LLEWELLYN
PN1038
Were there meetings held of employees where the document was explained?---My understanding was that the agreement, where possible, was forwarded out to employees. I think the AWU held a number of meetings where discussions were held about what the agreement meant and the interpretation thereof.
PN1039
Well, that was the agreed process that came out of 16 May meeting, wasn't it, that Mr Roy would go round and give the explanation on behalf of both the company and the union?---Once again, I'm not in a position to comment about the specifics of the outcomes from that particular meeting.
PN1040
Well, you were at the meeting, you told me you were?---Yes, I mentioned that I was at the meeting, certainly.
PN1041
So you don't remember that coming out of the meeting?---Once again, I don't have a specific recollection of that particular - - -
PN1042
Do you know if Mr Roy went round to all the CBH terminals and conducted meetings?---I understand that Mr Roy attended and met with staff in the country, certainly.
PN1043
Those meetings were arranged by CBH to explain the contents of the agreement?---Once again, I couldn't tell you sort of who organised the meetings and I spoke to Mr Roy on a number of occasions while he was out and about in the country talking to our staff.
PN1044
You understand that the explanation that employees were given is the same explanation that Mr Ripepi and Mr Roy have given today and that is that as long as you have completed two harvests, you are an experienced casual but if you don't do two harvests, you can be appointed by the zone manager?---Can you repeat the question? I wasn't sure what you meant there.
**** RHYS WILLIAM AINSWORTH XXN MR LLEWELLYN
PN1045
Yes. Both Mr Ripepi and Mr Roy have given evidence today that you get to an experienced casual rate by either doing two harvests or being appointed by the zone manager. You would agree with that?---I wasn't here to hear Mr Roy or Mr Ripepi's evidence. So I don't know what they said.
PN1046
Well, that was said to the employees. You can't dispute that. Is that what you are telling me? You don't know what was said to the employees in terms of the explanation?---Not in terms of the explanation. I guess what I can be very clear about is that page 6 has, "by appointment" only.
PN1047
All right, but in your witness statement at point 9, you say that basically you have got the opportunity to move into an experienced rate in the event of having completed two harvests and that move to the higher rate is endorsed by the district and zone manager?---That's correct, yes.
PN1048
Can you show me where it says that in the agreement?---Well, in the agreement is says zone manager. I notice in my witness statement, it says district and/or zone manager - and zone manager.
PN1049
Right, but you are saying that is one part, to complete two harvests is one path to get there?---No, I'm saying that if a casual employee completes two harvests, they can move to the casual experienced rate if that is endorsed by the zone manager.
PN1050
But it does not say that in the agreement, does it?---Well, it does on page 6, it says, "by appointment".
PN1051
By appointment by who?---By the zone manager.
PN1052
Where does it say that on page 6, show me?---Well, it just says, "by appointment".
**** RHYS WILLIAM AINSWORTH XXN MR LLEWELLYN
PN1053
No, you said it said by appointment by the zone manager. Show me where it says it?---Well, obviously I was incorrect but it says, "by appointment" on page 6.
PN1054
Can you explain to me why CBH's position changed from January through to May where in January you were saying those positions were by appointment only and then in May it changed to what it is now in 11(k)?---Once again, could you repeat the question? What would you like me to answer there?
PN1055
Well, in January, CBH's position, this was the agreement that went to ballot in March, you know the agreement went to ballot in March?---Yes, yes.
PN1056
That got rejected, correct?---I believe so, yes.
PN1057
Right. In that draft you had for the experienced casual rate and for the sampling rate, for the third year sampler, that it was by appointment only and they were the words, "by appointment only". From that document to the one that is now registered, the "only" was removed and there was a second criteria put in. Can you tell me why that occurred?---I'm not in a position to comment on that, to be perfectly honest with you. I guess from my perspective, the agreement in question is the agreement that has been endorsed and signed.
PN1058
Do you see a difference in the two wordings?---To be honest with you, I don't. I don't have any recollection of the first document, to be honest with you.
PN1059
Can I have the witness shown exhibit K2? If I can just take you through that document. You will see down at the bottom of the page there, it has got RPO casual, RPO casual experienced?---Yes, I can see that.
PN1060
Then it has got a comment under that:
**** RHYS WILLIAM AINSWORTH XXN MR LLEWELLYN
PN1061
RPO casual experience by appointment only.
PN1062
Can you see that?---Right, yes, I can see that, yes.
PN1063
I will turn over the page. It has got the wages schedule which is what you keep referring to me on page 6?---Yes.
PN1064
It has got, "casual experience by appointment"?---Yes.
PN1065
Then under the casual sampler, it has got written under that, "third year casual sampler by appointment only". Do you see that?---Yes, I can, at the bottom of the page.
PN1066
So can you tell me why the words only were removed?---Absolutely no idea.
PN1067
Can you tell me why a second criteria was put in?---Absolutely no idea.
PN1068
But you attended the meetings?---Yes, I was there on the 16th, certainly.
PN1069
Now, the attachment you have got to your witness statement in relation to the duties of RPO's. You have got a position description attached?---Yes.
PN1070
Can you tell me what the difference between that position description for an RPO permanent and a casual RPO is?---Specifically, no, I couldn't, no.
PN1071
Are there any differences?---Once again, I'm not in a position to comment.
**** RHYS WILLIAM AINSWORTH XXN MR LLEWELLYN
PN1072
Well, does a casual RPO required for preparing grain storage for filling?---Some of them may be, some of them may not necessarily be involved with it. It depends on the duties and requirements that the casual employee has been engaged to perform.
PN1073
Filling grain storage either by monitoring gain flows on to a grid or usage of portable or fixed machinery?---Sorry, I'm not sure of your question.
PN1074
Well, are they the sorts of things that both casual RPO's and RPO's do?---Once again, it depends on the instance in question.
PN1075
Well, in terms of these list of duties, Mr Ainsworth, they are exactly the same, whether you are a casual RPO or a permanent RPO, aren't they?---Well, once again, some casuals are employed to sweep up at a grid. Not all casual employees are employed to do everything within the roles and responsibilities of a permanent receival point operator which is, you know, a 12 month requirement.
PN1076
Are you telling me that CBH's practice is to go out and employ a casual and say: your job for the next 10 weeks is to stand on that grid and sleep?---Well, it just depends on the requirements at the time.
PN1077
That is time, he could be sweeping the grid today, he could be loading a train tomorrow, could be operating a front-end loader this afternoon, that is right, isn't it?---Well, I'm not sure about operating a front-end loader but there may be a requirement that they would get involved with the loading of a train or sweeping a grid, certainly.
PN1078
Well, some of your casuals operate front-end loaders?---If they are appropriately trained, certainly.
**** RHYS WILLIAM AINSWORTH XXN MR LLEWELLYN
PN1079
That is right but you expect the casuals to do whatever is necessary to run the bin?---They are part of a larger team and it depends on the other permanent employees or other casual employees that they are working with.
PN1080
That is right, but Mr Ainsworth, your intention or your expectation of your employees is to do whatever they are asked, provided they are competent, to run the bin?---Well, once again, not even necessarily run the bin. They may be part of a larger team that is running the bin.
PN1081
Well, perhaps run the bin is a bad expression for you. You require your casual employees to perform whatever task they are competent to perform in order to enable your company to manage the operations of a bin?---Once again, depending on what the requirements are for that particular operation, they are part of a team that performs that task, be it receivals, be it out-loading or be it hygiene, a cleaning up function.
PN1082
Whatever they are competent to do and they are asked to do and you expect them to do it?---Once again, if there's a specific requirement. It is very hard to be broad about this. We have a - - -
PN1083
I'm not being broad. I'm being very specific. If a casual has skills, is it your position that your company, if required, you will have them exercise those skills?---If in fact that is what the job requires, then certainly.
PN1084
Isn't that what you do to all your employees? That is why they are multi-skilled?---Not all our staff are necessarily multi-skilled. I mean, you know, we have in excess of 150 receival point operators, permanent employees, not all of them have the same set of skills.
PN1085
No, but they all have a variety of skills?---Certainly.
**** RHYS WILLIAM AINSWORTH XXN MR LLEWELLYN
PN1086
Because those people that didn't, you made redundant about 2 years ago when you did a skills assessment on them. I've been around CBH for some time, Mr Ainsworth, as you probably know?---No, I wasn't aware of that, no.
PN1087
Well, you had a redundancy a couple of years ago where you took out everyone that only had single skills, basically. It was part of your assessment criteria?---Once again, I'm not in a position to comment about that.
PN1088
I mean, people came in, Mr Fuller came here and gave evidence.
PN1089
MS KRUGER: Mr Commissioner, I'm not quite sure what the purpose is of this line of questioning. It seems well outside the scope of our dispute.
PN1090
MR LLEWELLYN: Well, with respect, it does not. We are trying to find out what criteria he used. The witness is sitting here trying to be obtuse about his evidence, in my view.
PN1091
THE COMMISSIONER: You are seeking to obtain from the witness the relevance of the duties of a casual receival point operator relative to the appendix B of his witness statement.
PN1092
MR LLEWELLYN: That is correct.
PN1093
THE COMMISSIONER: We understand where you are at.
PN1094
MR LLEWELLYN: That is correct.
PN1095
THE COMMISSIONER: You have probably asked that question a number of times. Are you going to continue, but continue in that context please?
**** RHYS WILLIAM AINSWORTH XXN MR LLEWELLYN
PN1096
MR LLEWELLYN: Right. Mr Ainsworth, a number of people in your company all the way up to very senior management, I'm just trying to think of the gentleman's name but it escapes me at the moment but I know he is your boss or he was, at least he was Mr McLevie's boss who I understood you took over from, came before the Commission and gave evidence that it was imperative that CBH's operation be multi-skilled and could use employees wherever they were competent. CBH couldn't run efficiently if you couldn't do that. Do you agree with that?---Yes, I think part of the reason for our training regime for permanent employees is to try and skill them up as much as we possibly can.
PN1097
The same would apply when you use casuals throughout this season, isn't it?---Once again, I mean, there are times when we only engage casuals for a very short sort of amount of time so it is not necessarily realistic to be - to have - to be able to train them across every facet of the business.
PN1098
I never asked you that but you have casuals that come in and run an entire bin?---Yes, certainly.
PN1099
You have complete receival points run totally by casual employees?---Yes, most certainly.
PN1100
Doing all the tasks including operate front-end loaders, erecting and dismantling temporary storage, carting grain in open and unsealed storage, completion of basic admin, they do all those tasks, don't they?---Yes, some of them certainly do, they are terrific staff to have.
PN1101
In terms of how - can I deal with your appendix C - in terms of how an RPO moves from one level to the next, as I understand the system, once I complete my training and I pass the correct competency, I upgrade - get upgraded to the next level. Is that right?---Yes, I'm not super close to the specifics of it but that's certainly my understanding.
**** RHYS WILLIAM AINSWORTH XXN MR LLEWELLYN
PN1102
Well, if you are not close to it, why put it in your witness statement? Who agreed to attach this?---It was my decision.
PN1103
So do you know what all this is about or did you just put it there because it looks good?---No, no, I'm fairly across it, yes.
PN1104
So when I complete the column under level 3, grade 3, once I'm passed as competent I upgrade to a level 2?---Well, once again that is the specifics of that sort of works through our training area.
PN1105
So how do I get from level 3 to level 2 then?---Well, from level 3 to level 2, you need to complete the training programs.
PN1106
And pass the competencies?---And pass the competencies.
PN1107
Then I upgrade to 2 and start training on them?---If that is the choice that a particular staff member wants to go down, that's my understanding, yes.
PN1108
So I don't have to be appointed, I simply upgrade to the next one when I've completed it?---If you successfully pass the criteria.
PN1109
The same when I go from 2 to 1?---Yes.
PN1110
And 1 to RPO?---Senior RPO.
PN1111
Senior RPO, sorry?---That's right, yes.
PN1112
Now, in terms of grain sampling, can you tell me how many of your casual employees have a certificate of proficiency in grain sampling?---No, I couldn't tell you that. I wouldn't have a clue.
**** RHYS WILLIAM AINSWORTH XXN MR LLEWELLYN
PN1113
A number of them though, isn't it?---Once again I really couldn't tell you. I'm assuming there would be a number certainly.
PN1114
Well, all of them would have done the basic pre-harvest course?---Yes, the sampling area doesn't sort of come under the operations area that I'm involved with. I guess what I'm saying is, I don't know the specifics of the sampling training.
PN1115
Can you then explain to me this then, if I'm a year 3 sampler, what classification do I fall under in the agreement?---Are you talking about permanent?
PN1116
No, let us deal with the casual. I'm a casual year 3 sampler, where do I fall in that agreement?---It depends on how you are appointed.
PN1117
Well, I've come back for my third year, have a look in the agreement and tell me as a third year sampler where you appoint me to?---Well, if you are a year 3, it would be by appointment.
PN1118
So are you telling me if I came back as a year 3 sampler, I would be appointed to that level?---If in fact that was - if in fact that the sampler met the requirements of that role. Once again, it is not my area. I'm not aware of the specifics of how the samplers are appointed or otherwise. The grain quality areas are different.
PN1119
Well, assuming I'm a year 3 sampler and I don't get appointed, where do I fit in the agreement?---As I said, I'm not that close to the sampling area in terms of the specifics on how people are appointed.
PN1120
But sampling is done in operations, it is part of the operation of the bin?---Yes, it's part thereof but it's a fairly specialised area and we have a particular grain quality area that looks after the appointment and the training and the overall management of samplers, whether casual or otherwise.
**** RHYS WILLIAM AINSWORTH XXN MR LLEWELLYN
PN1121
So who appoints the casual samplers then?---Who appoints them?
PN1122
Yes?---It's managed by the grain quality area. Once again, are you asking me a particular individual or a position?
PN1123
Well, does the zone manager do it?---No, the zone manager doesn't necessarily get involved with the appointment of casuals. Once again, I'm not that close to it but the zone manager, sort of - as I said, I don't know.
PN1124
But some of these people that are appointed at the start of the season are in fact samplers, aren't they?---Are you talking about casual samplers here?
PN1125
Yes?---The could be, yes.
PN1126
So are you saying the zone manager does not appoint them?---Are you talking about casuals here?
PN1127
Yes?---Once again, as I've mentioned before, I'm not in a position to comment about how casual samplers are appointed to the organisation. It is not something I get involved with.
PN1128
How about RPO's then?---Directly about how they get appointed. Once again, no, as operations manager I didn't get involved with their direct appointment.
PN1129
All right. So your involvement in this was that you attended parts of the meeting on the 16th and your understanding is that it would all be by appointment?---Are you talking about casuals now or are you talking about receivals.
**** RHYS WILLIAM AINSWORTH XXN MR LLEWELLYN
PN1130
Casuals?---Casual receival point operators.
PN1131
Yes?---The intent of the agreement, from my perspective, has always been it would be by appointment.
PN1132
That is the intent. It is not the wording that is in there, is it?---Well, we've spoken about that but from my perspective, the intent of the agreement has always been by appointment.
PN1133
How do you draw that?---Because that was my understanding of the intent from then right up until now.
PN1134
Who explained that to you?---Well, being involved with the discussions, it was once again no one has sat down and explained it to me. That has been my understanding of the intent.
PN1135
Somebody must have said something to you because you split it up in paragraph 9 of your statement to two criterias. Who said something to you?---Once again, I'm not quite sure who said to me something about - my witness statement or my understanding of the agreement?
PN1136
Well, you have written in paragraph 9:
PN1137
I can get there by doing two harvests.
PN1138
You say by the district or zone manager appointing me or I can get there by another method provided I'm nominated by permanent RPO colleagues. Where did you get that information from in relation to the agreement?---Well, once again, that is just my understanding. If you are wanting to know specifically how I acquired that knowledge.
**** RHYS WILLIAM AINSWORTH XXN MR LLEWELLYN
PN1139
Yes?---I couldn't tell you. That's just my understanding of the intent of the agreement. Are you asking me who told me?
PN1140
Yes?---I couldn't tell you, couldn't tell you.
PN1141
Couldn't tell me. I'm just wondering if I can have the witness shown DR1 please, the attachment to exhibit L1. Mr Ainsworth, ignore the addresses up the top. If I just take you to the e-mail under Natasha's note there, you see her name written there?---Yes, I can see that.
PN1142
I take you down to the bottom, Ainsworth per CBH, CBH is you?---Yes, that's right.
PN1143
Is it correct that the information you got for your witness statement is contained in that e-mail?---Are you asking me, did I compile my witness statement on the basis of this e-mail?
PN1144
Well, have you seen this email?---Well, it was sent to me but I get probably 100 e-mails a day.
PN1145
Right, but you would have read this before you did your witness statement, didn't you?---No, I don't necessarily recall reading this specifically.
PN1146
This was sent to you on 20 October?---Yes, once again - - -
PN1147
THE COMMISSIONER: 20 October or 23 November/
PN1148
MR LLEWELLYN: 20 October. It was forwarded to me on 23rd, actually I think it was forwarded by Dominic on 23rd of the 11th. The dates are immediately under Natasha's name there, 20th of the 10th at 9.42 am.
**** RHYS WILLIAM AINSWORTH XXN MR LLEWELLYN
PN1149
THE COMMISSIONER: I see, thank you.
PN1150
MR LLEWELLYN: Can you tell me in the agreement where it says that a casual may be, or in exceptional circumstances, a casual may be upgraded to casual experienced before two harvests having been completed, one, placed in charge of a bin and, two, performance, willingness to learn leadership, potential, stand out and exceptional?---So you are asking me where that is specifically in the agreement?
PN1151
Yes?---No, I can't do that.
PN1152
Right, and you can't explain to me why the words "appointment only" weren't left in the agreement either, can you?---No, that was a question you asked earlier. No, I'm not in a position to do that either, I'm afraid.
PN1153
Can you tell me - I think you said in an answer to Ms Kruger that you currently have about 1500 casual employed?---Yes, that's certainly an estimate.
PN1154
Can you tell me how many of those were appointed to the experienced position?---Not at this point, no.
PN1155
Can you tell me how many without - can you tell me how many that didn't have 2 years - sorry, I will rephrase that, I withdraw that. Can you tell me if there are any that don't have 2 years experience - no, I will rephrase that. Can you tell me if there are any with 2 years experience that weren't appointed to experienced casual?---No, once again, I don't get involved specifically in that decision.
PN1156
I have nothing further, thanks.
**** RHYS WILLIAM AINSWORTH XXN MR LLEWELLYN
PN1157
MS KRUGER: Just a moment, Commissioner.
PN1158
THE COMMISSIONER: Mr Ainsworth, just before you finish could I ask - I'm looking at appendix C of your statement and I'm looking at the - I presume I'm looking at this Grade 3, 2, 1?---Yes.
PN1159
Are you saying that there is examinations, internal examinations, and if you pass you become - you move from, say, a - if a person is a Grade 3 and they pass, they become a Grade 2, do they?---Commissioner, in terms of the exact mechanics I'm not aware of the specifics, other than certainly part of the criteria is to complete those training programs.
PN1160
Thank you.
PN1161
MS KRUGER: Thank you, Commissioner, I have nothing further for the witness.
PN1162
PN1163
THE COMMISSIONER: Ms Kruger.
PN1164
PN1165
PN1166
MS KRUGER: Thank you, Ms Waclawik, do you have a copy of your witness statement there?---No, I don't.
PN1167
Did you leave it outside?---I've just got it wrapped up in ..... - thank you.
PN1168
PN1169
MS KRUGER: Could I ask you, Ms Waclawik, just to explain and expand on a number of points in your witness statement. I would first like you to just look at paragraph 7 there.
PN1170
Could you just please explain the background there to the seasonal classification and then the casual experienced rates, as you recall how that occurred?---In the 1997 agreement there was actually two classifications. There was one for the seasonals and one for the casuals. Now, during that meeting a lot of the Committee and management decided that the two systems weren't working, so they decided to abolish the seasonal rate and replace that with the casual rates, which there was two rates incorporated into that, a casual experienced and a casual rate.
PN1171
Now, I would like to just ask you in terms of paragraph 3 there, you have indicated your main duties, and then during the negotiations themselves, you were involved with the negotiation meetings?---That is correct.
PN1172
Did you attend all of them?---I attended most meetings. There was a few meetings which I didn't attend due to other reasons.
**** NATASHA SOPHIA WACLAWIK XN MS KRUGER
PN1173
Part of your duties during those meetings, was that to compile minutes of the meetings?---That is correct.
PN1174
How would you compile these minutes, Ms Waclawik?---I would actually take notes down during the meetings and then at the conclusion of the meetings I will actually type up the meetings and distribute those to all the Committee members and management as well.
PN1175
Okay, and that includes the union representatives on the meetings?---that is correct.
PN1176
Thank you. Can I just ask you to have a quick look at appendix A of your witness statement, which is the minutes of the meeting of 16 May. Sorry, Commissioner. If you are looking at the minutes of the meeting of 16 May, is that correct?---That is correct.
PN1177
Right, are these minutes that you typed up?---Yes.
PN1178
I would like to ask you specifically about the second page of those meeting minutes under the heading: CBH Counter-Proposal, where it says in paragraph 8, "Casuals", and then the first dot point you see:
PN1179
Will not be altered.
PN1180
Can you recall what that was about?---On that meeting, I remember, there was some discussions about changing the minimum hours required to work for casuals and I remember from that meeting the unions actually wanted to increase that to a minimum of four hours per shift, and CBH decided, no, they will actually remain at the same two hours minimum call out, so that specific clause was not going to be altered.
**** NATASHA SOPHIA WACLAWIK XN MS KRUGER
PN1181
Do you recall the discussions during that meeting about the words "by appointment" in the agreement?---Vaguely. I don't remember all the information. It was a bit difficult listening and writing down word-for-word what was being said, but I do remember a bit of information about that.
PN1182
Now, if I ask you to just have a look at your witness statement please, paragraph 10 there. Could you just explain, you have said there that:
PN1183
It was agreed that the casual experienced and the third year sampler would be by appointment, or only in order to reward those casual employees.
PN1184
What do you mean by that, Ms Waclawik?---Okay. There was discussions before about there would be some casuals who would be appointed at the higher rate who shouldn't deserve to be the higher rate, obviously, because of the duties they were doing, and what was actually decided was, people who should be rewarded would actually go on to the higher rate. Obviously, this is once they have been assessed, and they were appointed by the district manager, so that is what was meant by that statement.
PN1185
Ms Waclawik, then there was a clause 11(k) inserted into the final agreement. Were you responsible for drafting that clause?---I honestly don't remember about that.
PN1186
Can I ask you to just have a quick look at the clause in the agreement itself please. If you go to page 8, you will find clause 11(k) there. Okay, now, do you recall when this clause was inserted into the agreement?---No, I don't.
PN1187
Do you recall if it was part of the agreement prior to the voting?---No, unfortunately, no, I don't remember.
**** NATASHA SOPHIA WACLAWIK XN MS KRUGER
PN1188
You were not responsible for drafting it?---No. I might have done a few bits and pieces, but I wasn't responsible for the drafting of the whole agreement, no.
PN1189
Can I then ask you to just turn your attention to minutes of the meeting held on 21 January 2003. Did you draft these minutes?---Yes.
PN1190
Could I ask you just there on dot point 3, where you wrote:
PN1191
AWU wants clear documentation how the RPO experienced and casual sampler will be appointed on appointment from district manager only.
PN1192
What did you mean by that summary of the discussion?---They wanted a - let me see, information on how a person will actually be appointed to the casual by appointment - casual experienced by appointment rate. They wanted a clear definition on how the person will be appointed and obviously the processes involved.
PN1193
Can you recall what CBHs response to that was?---That any person was under the direction of the district manager to be appointed to the only - higher rate only - only the authority of the district manager was entitled to do that.
PN1194
Can I then ask you, Ms Waclawik, if you can just turn to an appendix to the witness statement of Mr Ripepi, I think it is document L1. It is marked as DR1 as an appendix. Do you recognise this email?---Yes, I do.
PN1195
Okay, and is it correct that this email originated from you?---Yes, it was between myself and Jim Fuller.
PN1196
In terms of the explanation that was given in this email is that your interpretation of the agreement?---Yes.
**** NATASHA SOPHIA WACLAWIK XN MS KRUGER
PN1197
Okay, and that interpretation as it is expressed in the email, is that your understanding of what the agreement was between the parties at the meeting of 16 May?---That it was by appointment, that is correct.
PN1198
Thank you, Commissioner, no further questions for this witness.
PN1199
PN1200
MR LLEWELLYN: Ms Waclawik, in terms of the meeting of 16 May, have you got those minutes still there?---Yes.
PN1201
Can you show me in there where it said that the casual experienced was by appointment only?---It is not included in the minutes.
PN1202
Mr Ripepi's evidence was that it was two ways you could get to be a casual experienced, one was to have completed two harvests and the second was to be appointed by the zone manager, do you agree with that?---I honestly don't remember where the two harvests came from, but I do clearly remember it was by appointment by the district manager.
PN1203
Only?---That is the part that sticks in my mind, yes.
PN1204
So the only way to get there was by appointment with the district manager?---He had the authority to appoint someone to the higher rate and it was only him who was allowed to do that.
PN1205
What does not it say that in the agreement?---I honestly don't know.
**** NATASHA SOPHIA WACLAWIK XXN MR LLEWELLYN
PN1206
Can you tell me who drafted the agreement up?---My - Jim Fuller and myself.
PN1207
So Mr Fuller helped you draft it, did he?---That is correct.
PN1208
Who put those words in, you or Mr Fuller?---I honestly don't remember. It wasn't my - they weren't my words, so I didn't include those in.
PN1209
Right. Have you got 11(k) there in front of you?---Yes.
PN1210
That says:
PN1211
Unless the zone manager appoints you, you must complete two harvests.
PN1212
Does not it?---It states that in the clause, yes.
PN1213
So if you want to get there without appointment from the zone manager, you have to do two harvests?---But it clearly states in the rates that it is by appointment only on the previous page.
PN1214
It clearly says "by appointment only" on the rates, does it?---On the rates, it does.
PN1215
Turn back two pages then. See the table at clause 6. Find the words "by appointment only" on that page?---On page 6, you have got:
PN1216
Casual receival point operator.
**** NATASHA SOPHIA WACLAWIK XXN MR LLEWELLYN
PN1217
You have:
PN1218
Casual and casual experienced.
PN1219
But it says:
PN1220
By appointment.
PN1221
No, you said it said:
PN1222
By appointment only.
PN1223
Find that for me?---Well, I must have missed out the word "only".
PN1224
What, six times, seven times counting 11(k)?---Well, if you do things by Excel Spreadsheet then you do cut and copy - - -
PN1225
Well, that is not Excel Spreadsheet, it is typed out?---What, the 3 per cent increases on the base rate, that was actually done on a spreadsheet and actually just - - -
PN1226
Copied - - - ?---- - - copied into the agreement.
PN1227
What about at (k) then, why does not it say:
PN1228
By appointment only.
**** NATASHA SOPHIA WACLAWIK XXN MR LLEWELLYN
PN1229
There?---I honestly don't know.
PN1230
I mean, that position changed from January until this time, didn't it?---For the person to be appointed after two harvests?
PN1231
Yes?---I honestly don't remember where that came from so - - -
PN1232
Wasn't the position in January - and this was the document that went out to vote in March - was that the casual experienced - it specifically said:
PN1233
By appointment only.
PN1234
?---That is correct.
PN1235
That was an issue at the negotiations in May, wasn't it?---I vaguely remember it, yes.
PN1236
Well, I mean, there was all sorts of allegations and nepotism and, you know, if you play for the right footy team you will get up to be experienced, and if you don't play for the right footy team you won't make experienced. These things were all raised in May, weren't they?---I remember by the experienced casual - by experienced appointment by experienced rate, but in regards to the two harvests I honestly don't know.
PN1237
No, what I'm asking you, Ms Waclawik, is in the meeting you have had in May, there were issues raised about the "by appointment only", that there was nepotism involved in that around the CBH operations, that people with the same levels of skills weren't appointed to the same positions in terms of the seasonal, that was a problem, wasn't it?---But we actually abolished the seasonal rate by that time.
**** NATASHA SOPHIA WACLAWIK XXN MR LLEWELLYN
PN1238
I understand that, but you have now introduced an experienced casual rate as - in lieu of an experienced seasonal rate effectively, that is right, isn't it?---True, to some degree.
PN1239
Well, before that you only had one level of casual?---That is correct. Actually, no, it was two levels I think from my memory. You had a casual and casual on commencement.
PN1240
All right, so how did you get from a casual on commencement to a casual?---Well, what they decided, instead of doing the seasonal which obviously meant there was a few people moving over to the seasonal rate there - the rate would have dropped - so to make sure the process was fair and the employees weren't being disadvantaged it was decided that the casual seasonal rate will actually be dropped and it was actually replaced by the casual and casual experienced rate.
PN1241
Right?---We will actually reward those employees.
PN1242
I am going to run you through - in terms of some of the problems that were raised in relation to the seasonal - and see if you can remember this - one of the issues that your casual - long term casual employees had is that to change from casual to seasonal, they actually lost money?---That was correct.
PN1243
That was an issue for them?---Well, there wasn't - during the meeting that we had there wasn't any casual representation - anyone representing the casuals, but someone from the Committee did raise that point.
PN1244
Don't you hate it when you can't your mouth around the word?---I know, it is terrible.
PN1245
All right, and under the 1997 agreement there was only one level of casual employee?---I don't have that agreement in front of me but - - -
**** NATASHA SOPHIA WACLAWIK XXN MR LLEWELLYN
PN1246
I wonder if I could have the witness shown this thanks?---Thank you. Yes, that is correct, there is only one casual.
PN1247
There is two seasonals?---There is two seasonals. I must have got those two mixed up.
PN1248
That is okay. There is no criteria around the two seasonals either, is there?---I actually wasn't around in CBH where there were any set criterias set out for those but - - -
PN1249
No, in terms of that document?---On that document. Well, it says on the previous page:
PN1250
Payment to seasonal employees should be made subject to the established criteria of the company which relates to these appointments.
PN1251
There is no criteria in the document?---No, not what I can see.
PN1252
See, one of the issues that Mr Ripepi says that was raised at that meeting of the 16th, was that there were issues raised for example where you had the bosses giving favouritism to employees, in other words, two blokes with a similar ability getting different rates and getting different treatment and the Committee were keen to stop that sort of thing happening. Do you recall that?---No, I don't.
PN1253
All right. All you recall is that it was by appointment, that is it?---Like I said, I don't remember that statement made by Mr Ripepi.
PN1254
Right. Do you recall a conversation you had with Mr Roy on 3 October?---Vaguely, yes.
**** NATASHA SOPHIA WACLAWIK XXN MR LLEWELLYN
PN1255
That is where you rang him chasing some names for the Geraldton area?---That is correct.
PN1256
Because they were people that had said that: I've had my two harvests, I want to be made up?---I actually first heard from John Roy saying: there was an issue up in Geraldton, there were some people who weren't appointed to the higher rate and I actually wanted to get the names of the employees so I can actually do my own background research.
PN1257
Right. Mr Roy says that when he spoke to you, you had a similar view to him about how people got there?---The view that I had was that if people were doing increased responsibility then they should be rewarded and should go on to the higher rate, but I also quite clearly stated to him that it was by appointment and I had no authority to do that, it was actually the district manager who could only appoint those, but I actually told him that I will actually find out the background information into why the district manager has in appointing them.
PN1258
All right, you keep saying "the district manager", can you show me anywhere in any of the agreements where it says: the appointment is by the district manager?---It is actually not stated in the agreement, but it was stated in every other correspondence that we had.
PN1259
It was stated in all the other correspondence, was it?---Such as the email that I sent out.
PN1260
That is after the agreement was registered?---That is correct.
PN1261
What about something before the agreement was registered?---It was actually minuted and obviously on the draft versions of the agreement that were sent out throughout the year during our discussions for the new agreement.
**** NATASHA SOPHIA WACLAWIK XXN MR LLEWELLYN
PN1262
Because the only ones that you have produced so far is a meeting and a draft from January, which we both agree got knocked back by the employees in March, that is right, isn't it?---Yes.
PN1263
Right. In the draft that went out in January the wording in it was that:
PN1264
RPO casual experienced by appointment only.
PN1265
?---That is - well, it might not have had the word "only" in it as - but it did say "by appointment".
PN1266
It did have the word "only" in it?---Did it?
PN1267
As a matter of fact your Excel Spreadsheet had it in there as well?---On the draft that went out, on which date?
PN1268
I'm just wondering if I could have the witness shown K2 thanks. See the bottom of the page?---It says:
PN1269
RPO casual experienced by appointment only.
PN1270
And over the page your Excel?---It just says:
PN1271
By appointment.
PN1272
No, no, go down to the sampler?---Yes, at the very bottom of the page it says:
**** NATASHA SOPHIA WACLAWIK XXN MR LLEWELLYN
PN1273
By appointment only.
PN1274
Actually, just above the 2 per cent increase it says:
PN1275
By appointment only.
PN1276
?---Yes.
PN1277
As a matter of fact on this Excel Spreadsheet it says - for the casual sampler it is:
PN1278
By appointment only.
PN1279
For everywhere that the casual sampler is mentioned. You accept that?---Can you repeat that again, sorry?
PN1280
Well, if I take you through this document, everywhere the third year or below the casual sampler box, it has:
PN1281
Third year casual sampler by appointment only.
PN1282
?---That is correct, that is what is stated in there.
PN1283
Because this is an Excel Spreadsheet where you just simply cut and paste?---That is true.
PN1284
It is all right, I do know how to cheat with Excel. All right, but somehow or other between this set of plagiarism and the next agreement, the "only" disappeared?---Indeed, it did.
**** NATASHA SOPHIA WACLAWIK XXN MR LLEWELLYN
PN1285
The "only" disappeared out of everything, including the definition of RPO casual, didn't it?---That actually wasn't included.
PN1286
Sorry?---The definition of RPO - - -
PN1287
Well, it is on the front page, RPO casual says:
PN1288
By appointment only.
PN1289
?---By - which - that information - it says at the bottom of the page, yes, that is right.
PN1290
Because above it, it has:
PN1291
RPO casual, RPO casual experienced.
PN1292
The rates?---Mm.
PN1293
Then, it says underneath there:
PN1294
RPO casual experienced by appointment only.
PN1295
?---That is correct.
PN1296
So everywhere the "by appointment only" got changed to simply "by appointment"?---Mm.
**** NATASHA SOPHIA WACLAWIK XXN MR LLEWELLYN
PN1297
And in terms of the RPO casual, it got changed to:
PN1298
Unless you are appointed by the zone manager you have to do two harvests.
PN1299
?---I - like I said, I don't remember about the two harvests, but I remember from earlier discussions in January this year, it was by appointment.
PN1300
But you know the two harvests are now in the document?---That clause actually is included in the document, yes, it is.
PN1301
Right, and this document in accordance with the Workplace Relations Act was explained to all the employees, wasn't it?---That is correct.
PN1302
You did a stat dec to that effect?---Yes, I did.
PN1303
I am just wondering if I can have the witness shown this, thanks.
PN1304
THE COMMISSIONER: Mr Llewellyn, what are we looking at now?
PN1305
MR LLEWELLYN: It is a statutory declaration for the registration of the certified agreement.
PN1306
THE COMMISSIONER: I see, thank you.
PN1307
MR LLEWELLYN: It actually forms part of the Commission record as I understand it.
**** NATASHA SOPHIA WACLAWIK XXN MR LLEWELLYN
PN1308
THE COMMISSIONER: Yes.
PN1309
MR LLEWELLYN: Now, Ms Waclawik, that is your statutory declaration, is it not?---I will just read it for a moment please. That is correct, it is.
PN1310
Can I just take you to 6.4?---Mm.
PN1311
6.4 asks you to:
PN1312
Specify the steps that the employer took at least 14 days before any approval was given to ensure that every person employed at the time whose employment will be subject to the agreement, either had or had ready access to the proposed agreement in writing.
PN1313
?---That is correct.
PN1314
The next one is:
PN1315
Explain the steps taken by the steps taken by the employer to explain the terms of the agreement.
PN1316
?---Mm.
PN1317
Do you accept that out of 16 May meeting, the agreement was that Mr Roy would go around and explain the agreement to all the employees?---Let me just have a read. That is correct.
PN1318
Mr Roy did that, together with people from the Committee, as I understand it?---Yes.
**** NATASHA SOPHIA WACLAWIK XXN MR LLEWELLYN
PN1319
So at each of the locations, for example, in the Merredin depot and district you had Mr Ripepi?---I don't know who was with him, but I do remember he sent me an email through to Jim, who Jim Fuller sent through to me. He explained that he will be at these locations on these particular days.
PN1320
Right, do you know if people from the Committee attended those meetings and gave explanations?---No, no, I don't know.
PN1321
Did anyone from CBH attend and give an explanation?---I wasn't made aware of who attended at those meetings.
PN1322
Do you remember on 3 October, or actually earlier that week when you had the conversation with Mr Roy originally, that he pointed out to you that he believed Mr Fuller had a different interpretation of how people got the casual experienced rate than you and he had?---He briefly mentioned that Mr Fuller had a different opinion.
PN1323
To what both you and he had?---To an opinion that I had.
PN1324
Your opinion has now changed to that of Mr Fuller's?---No, my opinion was that I believe that people should have been rewarded for the increase of their responsibilities and - - -
PN1325
Irrespective of the years they had spent with CBH?---We actually didn't discuss the years. I don't remember discussing years. I was just purely based on the duties of the employees.
PN1326
See, Mr Roy gave evidence that he rang him because these people had done the two years and weren't made up?---Mm.
**** NATASHA SOPHIA WACLAWIK XXN MR LLEWELLYN
PN1327
These weren't just RPOs were they, some were samplers?---I didn't look specifically what position they had, I just looked to see whether or not they were employed for CBH and what location they were.
PN1328
And how long they had been there for?---I don't remember, but it would have been - they would all vary, some were a few years and, like I said, I don't remember the specific details of how long they were with the company for.
PN1329
All those employees subsequently got made up, didn't they?---After I had discussions with the district manager, yes.
PN1330
Who made them up?---The district manager.
PN1331
How did he have the authority to do it when it says in here, it is the zone manager that appoints, unless you have done two years?---Sometimes, if a district manager is not available, then the zone manager, but a lot of those - a lot of people get the two different positions interchanged - the zone manager and the district manager.
PN1332
All right, but if I haven't done two years, is it true the only person that can appoint me is the zone manager?---The district manager, or the zone manager.
PN1333
The district manager or the zone manager?---Mm.
PN1334
Why didn't you put that in the agreement?---I suppose, looking at the agreement so many times you don't pick up these bits and pieces.
PN1335
Well, this was a fairly hot topic wasn't it, CBH wanted to have the authority to appoint only?---That is correct.
**** NATASHA SOPHIA WACLAWIK XXN MR LLEWELLYN
PN1336
You didn't want people just to be able to progress normally, you wanted to have the ability to stop people whenever you liked?---It is not the ability to stop people, but to actually assess their abilities.
PN1337
All right, but what you were aiming for was - I mean, from what I understand the evidence so far, it was fairly important to CBH that it be totally a discretionary judgment of the zone manager?---It wasn't just the manager, it was everyone. Everybody wanted a fair and equitable system.
PN1338
Well, how do you do that if it is totally discretionary?---Well, I suppose, like I said, from us at head office we can't really - we don't know whether or not how a person is working out in the country. Obviously, the supervisors and the district managers are actually working closely with these employees so they are able to assess their work more closely than we are.
PN1339
All right, do you recall an issue being raised at the meeting in May of you didn't want anyone being appointed that was useless?---I don't remember the word "useless" being used, but I remember there was a bit of issue about people who weren't given the responsibility - the extra responsibility.
PN1340
Somebody that had come back for the third year and wasn't that good a casual, you didn't want to have to make them up?---That I don't remember.
PN1341
All right, do you recall comments being made about that sort of thing where if the person wasn't able to do the job, you just wouldn't employ him?---No, I don't remember that.
PN1342
Did you want to know whether the casual is capable of doing the job or not?---That depends, because they - even though they might be employed for two seasons, they might have only worked one or two weeks out of those two whole seasons.
**** NATASHA SOPHIA WACLAWIK XXN MR LLEWELLYN
PN1343
They could have worked three months?---They could have worked an X amount of time.
PN1344
So you can't explain to me why the wording is there, you don't know where it came from, you don't know who drafted it, is that right?---I didn't say I didn't know who drafted it. I only drafted specific components of the agreement.
PN1345
See, Mr Fuller gave evidence that you did all this, you did this agreement up. Are you saying he is wrong?---No, I'm not saying he is wrong, but I'm just saying, I didn't do the full agreement.
PN1346
So Mr Fuller drafted bits and you just got the job of typing it?---Most of it, yes. Well, if you see at the bottom it says the author ID does come under Mr Fuller's name.
PN1347
Okay, how that works to me then?
PN1348
THE COMMISSIONER: Sorry, which is this reference that has just been mentioned?
PN1349
MR LLEWELLYN: I think if you look at the bottom of page 8 where it says, "Library, document name, Document, Version, Country", and it has got "Author ID, Fuller J." - sorry, it is the certified agreement 2003, it is the actual agreement itself that is certified.
PN1350
THE COMMISSIONER: I have got the agreement.
PN1351
MR LLEWELLYN: Yes, it is print PR935766. It is the Co-operative Bulk - it is the actual agreement we are talking about.
**** NATASHA SOPHIA WACLAWIK XXN MR LLEWELLYN
PN1352
THE COMMISSIONER: I have that agreement.
PN1353
MR LLEWELLYN: At the bottom of the page - - -
PN1354
THE COMMISSIONER: Which page?
PN1355
MR LLEWELLYN: Well, I think it is on every page by the look of it. Yes, it is.
PN1356
THE COMMISSIONER: Certainly not on mine.
PN1357
MR LLEWELLYN: You obviously didn't keep one that got the front page attached to it.
PN1358
MS KRUGER: But we didn't certify this copy.
PN1359
MR LLEWELLYN: Okay, you have got the Commission copy, sorry. Perhaps if I hand that up - sorry, sir - that is the only copy I have got left but you are welcome to it. As I understand it, that is how we received the agreement back from the Commission after it was registered and I think what Ms Waclawik is talking about is the notation at the bottom of the page which indicates the author. Can you tell me what that indication means, Ms Waclawik?---That is just our internal filing system and what the author ID usually represents is, when a copy of the original document is made, the person who has actually saved the document, that is user ID. They are usually the person who made the first initial change.
PN1360
First initial change or the last one?---The first one.
**** NATASHA SOPHIA WACLAWIK XXN MR LLEWELLYN
PN1361
So the original document typed up?---Yes.
PN1362
Goes to the author?---That is correct.
PN1363
And anyone who alters the agreement after that or alters the document after that, it still remains under that author's name?---That is correct.
PN1364
So if Mr Fuller typed the title and handed the rest to you, the rest is all yours?---Well, I remember doing specific components of this but most of the agreement was actually left from the previous 1997 agreement.
PN1365
Right. In terms of the employees that Mr Roy rang you about, can you remember who they were?---I remember there was four employees.
PN1366
Yes?---And I think I wrote down their names somewhere.
PN1367
That would be Rachel Maver?---That is correct.
PN1368
Janine Gain - or Gain rather, sorry. Jeff Debeaux?---Yes.
PN1369
And Paul Collins?---Paul Collins I am not a hundred per cent sure but I do remember the other three names.
PN1370
One of those was a sampler that is now an experienced sampler?---At that point in time I didn't check on what classifications they were. I just look at what day they actually started with CBH.
PN1371
Then had a discussion with the district manager?---Mm.
**** NATASHA SOPHIA WACLAWIK XXN MR LLEWELLYN
PN1372
What was that discussion?---I just asked him a bit of background information about these four employees or three or four employees that I remember and I tried to get information from him and I would see the supervisor and the administrator as well.
PN1373
And subsequently the employees were made up. Do you know why?---What originally happened was, there was a few out of that list of employees who weren't pulling their weight, who - how do I put this all in a nice way - they weren't undertaking the job fully. They were playing around and obviously weren't taking responsibility and they would have said look, before we actually - we were in the process of assessing them - they want to give them the opportunity to prove themselves as well that they are capable of doing increased duties and they said once the harvest started, they say if their work performance increased then they would go onto the higher rate.
PN1374
So when was that?---That was discussions in October, the exact date I do not remember.
PN1375
So you are saying they never got made up until the harvest started?---That is correct. Well, that is what the district manager told me.
PN1376
Do you know when the harvest started in Geraldton?---Specifically, no. I knew it was probably about October, possibly even earlier.
PN1377
About the first week in October?---I honest don't know specifically when the harvest season started. It was around about that time somewhere.
PN1378
At the same time Mr Roy rang you?---No, it was actually after.
PN1379
You see Mr Roy's evidence was and his diary indicates that he rang you on 3 October, which would be the first week in October?---Mm.
**** NATASHA SOPHIA WACLAWIK XXN MR LLEWELLYN
PN1380
And that is the time he gave you all the names?---We originally first had a discussion where he told me there was an issue up in Geraldton and then he actually phoned me later. I don't know if it was the same day or it was the following week so I could actually get the names off him.
PN1381
Well, he rang you on 29th, you rang him back on 3rd at which time he pulled up and rang the Geraldton depot to find out the names of the employees?---I don't know what he did but I do remember receiving a list of names from John Roy.
PN1382
And subsequently all those employees were made up to experienced, as are all the employees in Geraldton now with more than two years?---That as I - I don't know exactly which employees are actually employed at the higher rate because obviously it doesn't go through me, it goes straight through to payroll but in regards to those four employees that John Roy gave me, the district manager said he will appoint them, once they are actually - - -
PN1383
I am just wondering if I can have the witness shown exhibit L2 or JR1 that is attached to L2 thanks. Now I accept the standard of the copies are not flash. You see, Ms Waclawik, my understanding is that there are now no employees in Geraldton with less than two years' experience who are not appointed to the experienced casual rate?---No, sir, I don't specifically know which casuals we have up in Geraldton or how long they have been with us. There is quite a few casuals up there.
PN1384
I understand that but the four employees you are talking about are all experienced casuals and are all appointed to that immediately after your conversation?---The district manager has said that he will actually appoint them on harvest, during the harvest season.
PN1385
To the experienced casual rate?---If they actually prove themselves and as I said they actually had increased responsibility as well.
**** NATASHA SOPHIA WACLAWIK XXN MR LLEWELLYN
PN1386
Right, so do you know when they were appointed?---Specifically on which date, no, because like I said, the district manager would have had to send an email through to the payroll supervisor directly.
PN1387
Do you remember telling Mr Roy it was fixed or you would fix it?---I remember something. My specific words I don't remember but I as I said I was acting on - I was telling him what I was told by the district manager that they would be appointed.
PN1388
Do you remember Mr Roy expressing concern that when Mr Fuller returned from his jaunt at the footy match that he might change the position?---I vaguely remember him saying something about that.
PN1389
And you told him not to be concerned, that it was all okay?---Well, like I said, if the district manager thought that these people - they say, if they prove themselves then he said he had no trouble appointing them to the higher rate.
PN1390
And all the people Mr Roy raised with you, all got appointed so the problem was fixed?---As far as I was concerned, yes.
PN1391
That is what you reported back to Mr Roy?---That is correct.
PN1392
**** NATASHA SOPHIA WACLAWIK RXN MS KRUGER
PN1393
MS KRUGER: Ms Waclawik, could you just expand on - in your discussion with Mr John Roy, you testified about a difference of interpretation or opinion between yourself and Mr Fuller about how the agreement should be applied. Can you just expand on - you said that you were looking at it from the perspective of employees skills. What exactly was the nature of the difference in your interpretation?---Well, from, like I said, when I was trying to get my background information and I was asking the district manager on what the situation was behind these casuals, they said that they were doing mundane duties such as sweeping and cleaning and because they weren't performing to the full capacity, he said he shouldn't really - not shouldn't really but he said something like that, once they get the increased responsibility then he had no issues in putting them onto the higher rate. Now what I meant with Mr John Roy was that if people have increased responsibilities, for example, if they could be a receival point operator in charge of a bin then, yes, they should be rewarded and get the higher rate.
PN1394
Can I - just to clarify something for the sake of the Commissioner - these were people who were casuals prior to the harvest season starting?---Yes.
PN1395
So you can be a casual - because you have collapsed the seasonal and the casual, you can then be a casual outside of harvest season or a casual during harvest season?---You can be a casual outside the harvest season as well.
PN1396
Now your understanding was, these were employees who were casuals before the harvest started in Geraldton?---That is correct.
PN1397
Once the harvest was started were they going to do exactly what they had been doing before harvest?---No, they were actually doing increased responsibilities and duties.
PN1398
How do you know this?---It was just on what the district manager told me verbally over the phone.
**** NATASHA SOPHIA WACLAWIK RXN MS KRUGER
PN1399
It is for that reason that the district manager then decided to appoint to the experienced rate once harvest started?---Yes because they had the extra responsibility.
PN1400
So your understanding is, they went onto the higher rate at the beginning of the harvest?---That is correct.
PN1401
In your opinion did the district manager do the right thing in terms of the agreement?---Well, I believe so because the district manager has the authority to appoint people to the higher rate.
PN1402
So when you said to Mr John Roy that you were going to fix it, what did you mean by that?---That I was going to get the background information and find out exactly, you know, what was the situation behind for them being appointed to the higher rate because the district manager and the supervisor had a few issues beforehand.
PN1403
And in terms of fixing it, what can you do to fix it?---Well, it is not really I can fix it. I can't direct the district manager to appoint someone to a higher rate. It is under their discretion to do that.
PN1404
Thank you. No further questions, Commissioner.
PN1405
PN1406
THE COMMISSIONER: I take it from the parties that we are now in a position to file submissions? I am proposed to have a 5 minute - I know it is getting long but I propose to have a short adjournment now before that starts. Is it intended, Ms Kruger, that you go first? Has there been discussion between the parties because there has been variations and being new to Perth I would like to get the protocol right here but obviously Mr Llewellyn would go last usually. So if that is the case, will you go first Ms Kruger and then followed by Mr Llewellyn.
PN1407
MS KRUGER: Happy to do so, Commissioner.
PN1408
THE COMMISSIONER: Okay then let us adjourn for 10 minutes and then we will start at 4 o'clock. Thank you.
SHORT ADJOURNMENT [3.48pm]
RESUMED [4.00pm]
PN1409
THE COMMISSIONER: Ms Kruger?
PN1410
MS KRUGER: Thank you, Commissioner. Does the Co-operative Bulk Handling Limited Country Operators Enterprise Partnership Agreement require casual employees to be automatically classified as casual experienced by appointment after having been employed for two harvests or not. It is the question before the Commission today and the parties have jointly requested the Commission in their agreement to resolve any disputes that they may have.
PN1411
Obviously the parties are in disagreement about the interpretation of the agreement and first off, I would like to respond to some statements made by Mr Llewellyn in opening and during the course of the examination of evidence that relates to the process that followed after the agreement had been finalised and the agreement was explained to employees.
PN1412
Mr Llewellyn seems to infer that there is somehow untoward conduct on the part of the employer in terms of the explanation on the agreement and the way it was put forward to employees and some insinuation that there may have been a defrauding of employees when they were voting on this agreement to the extent that the employer knew full well that they did not understand the agreement appropriately and that to that extent Mr Llewellyn went back to statutory declarations made by representatives of the company and so forth.
PN1413
We would like to respond to this, Mr Commissioner, because I think it is a really important point in terms of the context of the dispute resolution procedure in the agreement. There is a specific reason why we put dispute resolution clauses into agreements and that is so that the parties will see that in future there may be some disagreements and misunderstandings in terms of how their agreement should be interpreted. To this very effect a meeting was held between management, staff and the AWU, Mr John Roy specifically, in September.
PN1414
From part of the witness statement of Mr James Fuller, the parties sat down after certification of the agreement and said, okay, let us just go over this once more. How do we interpret our agreement? What is our common understanding? At no point in time during the whole of this process and during the dispute that arose over this specific clause, can it be alleged that the respondent intentionally or negligently misled the other party to the agreement, specifically the AWU, but also the employees were also party to this agreement.
PN1415
I think it is imperative that in the nature of 170LJ agreements, the parties both accept responsibility for the agreement that has been drafted and the deals that have been made and the agreements that have been reached. It does not fall solely within the responsibility of the employer to ensure that agreements are properly interpreted and properly explained to employees. Section 170LJ agreements have union as a very important stake-holder and party to that process specifically.
PN1416
If Mr Llewellyn is alleging that every time there is a dispute between the parties as to the interpretation of the agreement that somehow places a question mark over the whole of the certification process, then that is an incorrect assumption. That would mean that every single application before this Commission in terms of section 170MD(6) should be an application where the validity of the certification process should also come into play. But that is simply not the case. The reason why we understand this to be is that the certification process has a number of pro forma requirements that have been duly met and that this Commission has considered to have been duly met.
PN1417
Inevitably in an agreement such as this which is by any account and we are happy to admit inexpertly drafted and does contain certain difficulties in terms of its interpretation, like all agreements do at some stage but that by no means opens up the whole debate about whether the agreement was validly certified or not. If that had to be the case, then there would be no need for dispute resolution processes because the moment the parties have a dispute about how the agreement is to be interpreted, they could simply apply to the Commission to deregister the agreement because we now don't agree on what is contained in the agreement.
PN1418
So I would like to deal with that issue under those auspices. In terms of the company's obligations in the certification process, I do believe and you have heard from the company's witnesses, that they felt that they had done everything in their power in terms of providing all the information to employees. There was agreement between the parties that the AWU would address their own members and put the agreement to them and explain the agreement to them. The words "by appointment" appears in the agreement.
PN1419
Section 11(k) also appears in the agreement. The union prefers to read section 11(k) in - - -
PN1420
THE COMMISSIONER: Sorry, did you say employees or members. You said there was agreement that the union would - I don't know whether you used the word members or used the word employees. I am just asking a question.
PN1421
MS KRUGER: The agreement or the meetings that took place I take it, was presented mostly to members but I would understand that some employees were also involved who were not necessarily members of the union as such. Our understanding is, Mr Commissioner, that on the union's interpretation of the agreement, they would like you to read section 11(k) in isolation and forget about the words "by appointment".
PN1422
The respondent is not asking you to read the words "by appointment" in isolation and forget about section 11(k) but it is asking you when you read the document as a whole to understand that section 11(k) has been added as an exception to the principle that appointment to the level of both the level of sampler and the level of casual experienced is not going to be an automatic process but that it is discretionary.
PN1423
Now, in terms of the powers of the Commission under section 170LW, there has in a previous case in this Commission, the issue has been raised about the Commission exercising a judicial function under the dispute resolution provisions in section 170LW and whether that was indeed appropriate for the Commission to do so, that was a preliminary jurisdictional point. If the Commission is interested, I could provide the reference to that though I think it is established at this stage that the Commission has the authority to entertain this question though it be judicial in nature.
PN1424
The reference that I am referring to, Commissioner, if you should be interested is the Australian Workers Union v Alcoa Australia Limited. It is a decision by Commissioner Laing in 2047 ALR print number 9386. Only I don't want you to dwell on that because I think it is accepted among the parties that the Commission does indeed have the authority to exercise this judicial function within the scope of the dispute resolution clause in clause 12 of the agreement. In exercising such a judicial function the next question of course is what are the rules to be applied when interpreting agreements.
PN1425
I would like to specifically refer to the authority of Robe River Iron and Associates v AMWU. It is a Full Bench Industrial Appeal Court decision from WA and specifically to the decision of Brinsden J in that matter. At 298 - and we have already provided the Commission with copies of that decision - but at 298 of the decision Brinsden J very clearly says that:
PN1426
The meaning of a provision in the agreement is to be obtained by considering the terms of the agreement as a whole. If the terms are clear and unambiguous ...(reads)... the parties before the time or at the time of the contract except insofar as they are expressed in the contract.
PN1427
and so forth. What is important here, Commissioner, is the respondent's view that on a proper reading of the authorities, if there are two possible meanings in front of the Commission, that in itself is not enough to qualify the Commission to then go to the extrinsic material. Now Mr Llewellyn would like for you to take a different view on that and would like for you to follow a decision that he had handed up previously in which he argues that following on from earlier decisions in the Printed and Kindred Industries Union decision, it is merely enough to establish that the parties are in disagreement with each other as to the proper interpretation and that that establishes a flaw or a base on which a Commission can find that there is an ambiguity and that extrinsic material should be allowed.
PN1428
We respectfully disagree with Mr Llewellyn's interpretation of the Printed and Kindred Industries Union decision as we have indicated as a reference in our submissions as while the proper interpretation of a decision if you actually go back to the Printed and Kindred Industries Union's decision, clearly places the onus on the Commissioner not to simply accept the two interpretations from the bar table as evidence of ambiguity but for the Commission to make up their own mind as to whether there is an ambiguity.
PN1429
So the task in front of you is to look at the agreement as a whole and ask yourself is there indeed a disagreement or - sorry, not a disagreement - is there an ambiguity or an uncertainty when the agreement as a whole is interpreted. I would also like to point out to the Commission that there is authority that when construing an agreement between parties, some special considerations have to be made due to the nature of the agreement and here specifically I would like to refer the Commission to the Aitco decision, A-i-t-c-o Pty Limited v the FLAIEU South Australian Branch.
PN1430
It is a Full Bench decision from the Industrial Court of South Australia and specifically at paragraph 336 where the following was held:
PN1431
It should be remembered that we are here construing not an award of the Commission but and industrial agreement which results from consensus between ...(reads)... the general intention of the parties to be gleaned from the document as a whole.
PN1432
THE COMMISSIONER: Is that one, that reference is amongst the documents that you have attached?
PN1433
MS KRUGER: Yes, I think that may be the one decision that I have not handed up but is referred to in the decisions that we have provided to you. So the full reference and that exact paragraph is actually contained in the Robe River Iron Associates decision.
PN1434
THE COMMISSIONER: Thank you.
PN1435
MS KRUGER: So what we are saying, Commissioner, in terms of interpreting this agreement is for the Commission to have a look at the agreement as a whole and in that sense, as we reiterated earlier on in our opening, there are a number of clauses that we would like the Commission to pay attention to, specifically the wage clause, obviously clause 11 at 11(6) which deals with the actual wage rates, that provides for the word "by appointment." We would like the Commission to have - or have regard to 11(b) of the wages clause that indicates that attainment of grades will be in accordance with the company's receiver/operator and plant operator development programs.
PN1436
We would also like the Commission to have regard to 11(j) which deals with casual employees and that they will not be employed to the detriment of permanent employees. Then obviously section 11(k). Another important part of interpreting this agreement, Commissioner, has to do with the award against which this agreement has been drafted and here specifically we would like to draw your attention to clause 6 in the agreement which says:
PN1437
This agreement shall be read and interpreted wholly in conjunction with the Western Australian Grain Industry Award 2000. In the event of any inconsistency between the award and this agreement, the agreement shall prevail to the extent of any inconsistency.
PN1438
Now, you had asked me earlier to address you on the relevance of the award provisions and how we would like you to consider those. If we turn to the award itself, Commissioner, the award number is AW802330. I take it that you have a copy available. Clause 9 deals specifically with the different types of employment categories, permanent employees. Then in 9(ii) casual employees and in 9(iii) seasonal employees and in 9(iv) temporary employees. You have heard the evidence in terms of the collapsing of the casual employees and the seasonal employees in this agreement into one single category.
PN1439
It is also indicated here in terms of the casual employees in 9.2.3 the wage rate of casuals would be at the seasonal operator classifications but it will not occur outside the designated grain receivable season and that gives you a bit of a history as to why the scenario developed where employees or casuals actually incurred a pay drop when they went into the seasonal period or in the harvest period. So that is part of that history. Seasonal employees has been defined in 9.3.1 as employees by continually engaged during the season.
PN1440
Employment may be terminated by either party on one day's notice and then if they work in excess of 3 months, that is up to a week's notice. Now, the interesting thing about the award background, Commissioner, is that if you look at clause 14, the wages provisions, they don't actually provide separate wage rates for casual employees as such. What the award does provide for is seasonal, the seasonal category and then it provides for on-commencement grade 2, grade 1 and senior plant operator. As you can see, there has been a change to the different categories available to - or plant operators or receival point operators.
PN1441
The seasonal rate is set at the same rate as the on-commencement rate for receival point operators. If you go through the whole of the award, Commissioner, you will not find any reference as to how employees go from one grade to the other, except for a clause in clause 14 at south, which actually preserves the integrity of the different categories. If you look at clause 14.4.1 and onwards, you will notice that the award goes to great lengths to try and maintain the different categories and make sure that one grade does not encroach upon the rate of another grade.
PN1442
Clause 14.5 in the award provides the calculation of how casual employees' pay is to be calculated. It is the relevant classification that is applicable to the permanent employee with the addition of a 17.5 per cent loading, and that that is normally divided through 38, except for when it is the grain receival season, the harvest season, when that is divided by 40 and once again, that gives you an indication as to why casuals experienced a pay rate drop during the harvest season. There is nothing in the award that supports automatic progression from one grade to the next.
PN1443
Against the background of this award, there is also the background of the previous agreement, the 1997 agreement, and I would like to address you on that agreement. The 1997 agreement also preserved the award to be read in conjunction with the agreement save when any inconsistency in clause 4 of that agreement. Indeed, Commissioner, when you read through this agreement, you will find remarkable consistencies with the current agreement and I think as one of our witnesses indicated, the new agreement was drafted based on this old agreement.
PN1444
If I can turn your attention to clause 9 in the 1997 agreement that deals with wages, you will notice that the same classifications for receival point operators is maintained. The three grades and the senior level. Then an additional section has been introduced into this agreement which is different from the award that deals specifically with seasonal and casual employee rates and you will find that in clause 9(j) and onwards. Now, it preserves the allowances and other provisions that apply to seasonal employees.
PN1445
Then it goes on to say that payment to seasonal employees shall be made subject to the established criteria of the company, which relates to these appointments. The 1997 agreement does not provide any indication of how these appointments are made. It does not provide the criteria that the company uses. We have heard evidence today from the applicant's witnesses that indeed the way it was done was through a process of an employee being nominated by permanent staff or by a supervisor and that recommendation made to District Manager for increases in the rate that the employee is on.
PN1446
Now, the 1997 agreement has two rates for seasonal. There is a seasonal employee and then there is an experienced seasonal. They are not defined in this agreement. Then there is sub-clause (k) which deals with casual employees and sets out a different rate for casual employees. I think you will notice, Mr Commissioner, that the casual employee rates are higher than the seasonal rates and that in this agreement, a deviser of 40 hours have been agreed on to calculate the hourly rate.
PN1447
Now, the evidence shows that when this agreement was renegotiated, starting in 2002 and going through to May 2003 and finally voted on, that the 1997 agreement was used as a basis and some changes were made. The most significant change made for purposes of the dispute in front of you today is the collapsing of the seasonal and casual employees into a single category. Part of the flow on of that collapsing was that two grades have been retained. The seasonal employee and the experienced seasonal and that is where the wording "casual experienced", I suggest, comes from.
PN1448
Under the old system, everybody understood what the company's criteria and way was of appointing staff to the experienced seasonal. There was a process in place whereby the District Manager took the responsibility for that. In the new agreement, you will find that the parties have included the words "by appointment" behind the casual experienced rate. It is not wording that you find in the 1997 agreement. Now, according to the normal rules of interpretation, if specific words have been included in an agreement, they are to be given an effect.
PN1449
The applicant would like you to simply ignore the words "by appointment" or somehow diminish their relevance and standing because they used to be "by appointment only" and it now been graced down to "by appointment." We don't think the Commission should place any specific evidence - sorry, any specific weight to the changing in the words "by appointment" or "by appointment only." It is clear from the drafters of the agreement that they understood that to mean one and the same thing and that is by appointment.
PN1450
The intentions of the parties were from the start that that rate is going to be attained by appointment. This has been part of the negotiation documentation and the discussions between the parties, the earliest from August 2002 when there was discussion about collapsing of the casuals into the seasonals - or the seasonals into the casual then rather. Specific evidence of this have been presented to you in the form of documentation and minutes of the meeting of 21 January. Further documentation that were draft negotiation documents on 23 January.
PN1451
Evidence from the respondent's witnesses that by appointment, it was always featuring in the draft agreement. The words "by appointment" was also in the agreement on 16 May. Now, in terms of interpretation then, if the Commissioner should decide - if you should decide that you are going to look at extrinsic material in this matter and find an ambiguity to exist in the drafting of the agreement, I think it is important for the Commission to attach the correct weight and relevance to the extrinsic material that has been provided in evidence.
PN1452
As I've said before, the individual intent of each party during the negotiation process is not a factor that can be relied on in terms of reaching a decision of what the common intent was. On this matter, I would like to refer you to the decision that the Robe River Full Bench decision actually heavily relies on and that is the decision in Codelfa Construction versus The State Rail Authority. I have copies of that decision available for you.
PN1453
Now, in this decision, Commissioner, in paragraph 23 and 24 and further, Judge Brinsden deals specifically with the issue of what weight is supposed to be given to evidence of the prior negotiations leading up to an agreement and deals with it quite extensively. Now, the Codelfa decision, as I said, it is a Full Bench decision in front of five judges of the High Court of Australia and it has been referred to consistently also in this jurisdiction in terms of the appropriate way to interpret agreements.
PN1454
In paragraph 23, it specifically says the following:
PN1455
It is here that a difficulty arises with respect to the evidence of prior negotiations. Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract ...(reads)... merged into the contract itself.
PN1456
Then in paragraph 24, you will find the reference there that has also been repeated in the Robe River Iron Associates decision that we handed up earlier where the appropriate weight is given to the actual intentions or aspirations or expectations of the parties. Now, we have heard from Mr Roy that in his campaign during this agreement, it was one of the issues that he liked to deliver on to casuals, wanted to show some improvement in their position. I understand from the agreement that there was, in any event, an improvement since the seasonal rates that used to be lower than the casual rates, been adjusted up to the casual rates.
PN1457
So this discrimination between casuals and seasonal employees had fallen away and there was a concern that the company's representatives, or the respondent's witnesses today, have testified on something that they wanted to have corrected. You have also heard that background information from the applicant's witnesses. So there is a problem here with casuals and seasonals and the parties have agreed that they are going on to one single system, no longer a discrimination between seasonal and casual employees.
PN1458
Having said all of that, what the applicant would have liked probably from this agreement was a clear indication as to how this by appointment is going to work. I say that based on the evidence of Mr Roy that in January they have asked the company how is this by appointment going to work? I also say that based on the fact that Mr Roy, under cross-examination, admitted to the fact that they wanted the words "by appointment" removed from the agreement.
PN1459
His intention always was that there would be some form of automatic non-discretionary power that would be beyond any reproach and they would eliminate this difficulty of favouritism. That may be what the AWU wanted but the agreement that they have signed off on and agreed to in the end still had the words "by appointment" in them. Now, the only logical interpretation as to why Mr John Roy would like the words "by appointment" to be removed is because of the understanding to carry a discretionary power by the employer, which the union had difficulties with.
PN1460
The mere fact that he has acknowledged the fact that that was the intention of the union to have those words removed must mean that they mean something. In the discussions in January, on the 21st, Mr John Roy clearly admitted that he understood them to mean some discretionary power and wanted further guidance. Now, during Mr John Roy's cross-examination, he admitted to the fact, or initially during cross-examination said that they were discussing criteria. They wanted to know how the company is going to exercise this discretion.
PN1461
He spoke about the two harvests in the context of criteria. That is what he said. Some other criteria was bandied around in terms of skills and competencies and attitude and the two harvests. What Mr John Roy would like you to do today is then take that original intention of the AWU, which is not reflected in their final agreement, but elevate that now to the position where the company has agreed to abandon that discretionary right. You have heard very clear evidence from all of the witnesses from the company's side that their driving concern here has been competency and skills.
PN1462
You even heard Mr Llewellyn on the matter saying that this was the main business focus of the respondent in terms of how it treated its employees. Now, the whole history speaks of a company who allows employees to progress on the basis of skills and competence. If you want to go up one level, if you are an RPO, you do some training, you get assessed. If you show the necessary skill and competence through that assessment, you proceed on to the next level. This is not a company, it is not an award and there hasn't been an agreement in the past where you simply just do the time and go up one level.
PN1463
That does not exist in CBH. Nobody in CBH simply turns up for work for 12 weeks in a row or maybe just for 3 weeks in a harvest and another 3 weeks the next year and therefore progresses to a further classification. The history speaks against it. The intention of the parties speak against it. I want you to also give careful consideration to Mr Ripepi's evidence. Under cross-examination when asked, Mr Ripepi never once testified that this was the agreement with the company.
PN1464
When pressed on the matter, Mr Ripepi said: look, this was a proposal that I put forward. Mr Fuller had other issues to say about it and he was talking about what if you have got a useless employee and then Mr John Roy talked about well then, why would you be appointing him for a third year in a row, but Mr Ripepi never once said the agreement with the company was that you will automatically go after two harvests to the casual experienced rate. If you examine his witness statement, he never says it there either.
PN1465
So in terms of the evidence being presented by the applicant, had they presented evidence that shows the common intention of the parties were that there would be this automatic progression. We believe very strongly that they have not. By what evidence has the respondent presented to show a common intention between the parties that there will not be an automatic progression? The respondent has presented evidence that says from the very start, the understanding between the parties were that there is a by appointment criteria.
PN1466
The evidence from both sides support that the parties did not necessarily like each other's intentions, wasn't necessarily the desired outcome but the bottom line is Mr John Roy received the last of the agreement, the last version. It had the words "by appointment" in there and he signed off on the agreement. Which brings us to the question of well, what about section 11(k), what are we to do with that section? Mr Commissioner, you have heard evidence today that that section came about because of discussions at 16 May meeting.
PN1467
This is the very last negotiation meeting between the parties. They are crossing the Ts and dotting the Is. There has been formal proposals put and there has been counter-proposals put. Mr John Roy's evidence in terms of what proposals were put at that stage conflicted with Mr Ripepi's. Under cross-examination, Mr John Roy eventually conceded that it is possible that the issue of two harvests was only raised at the May meeting and we put it - or we contend, Mr Commissioner, that indeed it was only raised there for the first time.
PN1468
It wasn't raised as an AWU position. It was raised as a concern coming from one of the operators that wanted to make sure the people are treated equitably when this discretionary power is going to be executed and the understanding between the parties, up until that stage, it was going to be discretionary. Then the argument changed and shifted towards well, what if you have employees who do less than two harvests but are exceptional?
PN1469
Now, why would they be talking about two harvests because that has been put forward as a proposal of how this criteria should be applied. It wasn't put forward as a proposal that there is going to be an automatic progression. Mr Ripepi didn't say that. His evidence does not say that. His evidence says two harvests was the criteria. That is how he phrased it and Mr John Roy, up until about three-quarters through his cross-examination, said that was the criteria and then decided no, maybe that should rather be - no, not the criteria that was - the complete method was going to be automatic.
PN1470
Now, it is the respondent's position that 11(k) came about as a compromise like so very often happens in these negotiations. Company representatives, Mr Jim Fuller specifically, led evidence that the company was not going to compromise on this. Mr John Roy described the company's position on this by appointment as intractable, which it was. They accepted that because they accepted the final agreement with the words "by appointment" in it. However, the company in the spirit of cooperation and in the spirit of compromise said: okay. So if we use criteria such as two harvests but then there may be an automatic disqualification for well trained or well skilled and eager employees.
PN1471
Mr Commissioner, maybe just to interrupt myself for a minute but I think it is important to interpret all of these going ons against the background of a scenario where the company competes to find employees on a casual basis during the harvest season. You have heard the witness, or read the witness statement of Mr Rhys Ainsworth, also heard him explain to you that it is a difficult thing to get competent people out there. It is an encouragement to try and get people to come and work for CBH and people who are skilled and eager and want to learn.
PN1472
So against that background, the company says: look, we can look at 2 years as a benchmark for when we do this appointment but at the same time, if you have got an exceptional employee, why disadvantage them if you really want to attract him and get the best possible people on board? Therefore this exception was negotiated and it was agreed upon and what the parties agreed was that where normally the criteria would be 2 years or two harvests, in exceptional circumstances they will allow the Zone Manager, and the Zone Manager only, who is a very senior level manager, to appoint a person prior to doing two harvests.
PN1473
That agreement was then included in the final agreement. It finds its life in clause 11(k). What the applicant would like you to do, Mr Commissioner, is now look at clause 11(k), read it in isolation and lift up that exception to a rule that was part of a compromise agreement from the company's perspective and interpret 11(k) to mean the company has now departed from its long held intention and belief that casual experienced rate should be by appointment and has now abandoned all of that by virtue of clause 11(k).
PN1474
Clause 11(k) was inserted right at the end, Mr Commissioner. It wasn't subsequently discussed between the parties. It was drafted and the draft was distributed to Mr John Roy and as he testified, had a look at the document and then it went on to the information meetings held with employees. If the company was going to abandon such a strongly held position, if it was a position that the union viewed as an intractable position, then certainly this was a big victory for the union. You would expect in those circumstances logic dictates that it would be properly documented as a proper proposal, proper acceptance and so forth.
PN1475
We find in the minutes of 16 May scant reference to it. Why? Because it wasn't a major point put forward and conceded by the company. You would also expect that if it was such a major concession, such a huge diversion from the normal way CBH does its business and how people proceed from one grade to the next, that this would be widely publicised that it would be a matter that gave raise to lots of questions and queries by people because it changes the rules of the game for all seasonal or previous seasonal employees or casual employees.
PN1476
It wasn't the case because simply that did not occur. That agreement was not there. There was an agreement for the exception to allow two harvests of general criteria but even in exceptional cases we can divert from that. There is a difference between a criteria for making a decision and just having the outright right to make a decision. The agreement between the parties that is the respondent's case, was that there was agreement that it would always be the company's decision to appoint a person on that level.
PN1477
That is why the words "by appointment" were put in there for a very specific reason. It wasn't a last minute adjustment, like section 11(k). It wasn't an afterthought. It was essentially part and parcel of the whole negotiation process. The logical interpretation of everything that took place on 16 May meeting indicates that 11(k) was an afterthought, a compromised position, to make it even more possible for casuals to advance through the ranks. That is the intention behind it.
PN1478
That was the intention both from the RPO committee and from the employer: let us make it possible for these people to proceed quicker through the ranks if they really show the skills or have that level of authority or responsibility. There is nothing sinister about it. The company never abandoned the by appointment criteria. As I said, the applicant would like you to read the agreement backwards but the normal rules of interpretation say that agreement should be read in the sequence in which they are drafted.
PN1479
If there is a general rule and something comes after that, that is an exception to the general rule. That the way 11(k) has been drafted. I want to now shortly address the Commission just on the issue of the fairness of the agreement, the fairness of the casual rates and the fairness of this progression system that the company has in place. First off, I would like to say that the respondent's position is the current system is fair. It is much fairer certainly than the previous position under the '97 agreement considering the position of seasonals and casuals.
PN1480
It is also much fairer than the award provisions which I highlighted earlier. At the same time I would like to reiterate our position previously and that is that the industrial merits or demerits of a clause in the agreement is not at issue here today and the Commission is not being called upon to make a finding as to whether this is fair, whether they should be automatically appointed or shouldn't be automatically appointed. It falls outside the scope of an interpretation function such as the one presently in front of the Commission and here specifically I would like to refer once again to the AITCO Pty Limited case.
PN1481
That is a Full Bench of the Industrial Court of South Australia. The relevant section there is also highlighted and referred to in the Robe River Iron Associates matter. Specifically there at paragraph 387 the same one, Re Trator v Robe River. Is says:
PN1482
We emphasise that we are not here concerned with the merits of whether the provision of the nature set forth in the agreement is industrially desirable or whether it is within the Commission's weight fixing principles relevant to that dispute, but simply the correct interpretation of a particular clause.
PN1483
I understand that Mr Llewellyn has gone to great lengths in terms of addressing our issue about whether casuals were being disadvantaged or advantaged as opposed to permanent employees. As I've explained previously, the only context within which we would like to put them is within the context of interpreting the agreement as a whole. There's a clause in the agreement that says we can't treat casuals more favourably than permanent staff. Mr John Roy has explained in his evidence that there was concern from permanent staff that casuals shouldn't be treated better.
PN1484
Mr Ripepi in his evidence confirmed that and said: look, some people thought they were being treated better, and other people thought: no, it was fair because they don't get annual leave and so forth. So this was a real issue in terms of the fairness between casuals and permanents. Be that as it may, the respondent's position still holds and that is that the merits of how casuals get appointed to the casual experience rate is not in front of the Commission to be decided.
PN1485
Even though it may sway the Commission one way or the other in terms of the logical interpretation of the agreement as a whole, clearly if there was some manifest unfairness with one interpretation and the other holds no such unfairness the rules of interpretation would dictate that the fairer interpretation be afforded. We would like to say that there is no such manifest unfairness that comes with the criteria of "by appointment." It is consistent with a history of how the employer has done it in the past.
PN1486
The previous agreement of '97 was also reiterated by the union. There wasn't considered manifestly unfair at that stage so that appointment process, as Mr Ripepi in his evidence explained it. It wasn't considered manifestly unfair. I will leave that matter there for the moment. I would like to just address the Commission now on a couple of points arising out of the evidence led today. I won't be much longer, Mr Llewellyn.
PN1487
THE COMMISSIONER: I don't wish these proceedings to be hurried because of the time. If we can't do it today we will sit again tomorrow. So please take your time.
PN1488
MS KRUGER: Thank you, Mr Commissioner. From Mr Ripepi's evidence I would like, Mr Commissioner, for you to take the following evidence into consideration. He testified that the words, "by appointment" was already in the agreement that they were finalising on 16 May. He testified that they discussed that by appointment in the context of favouritism that this is how the two harvest came about as some object criteria to be used. It is also how it came about that the exception of clause 11(k) came about.
PN1489
I'd like you to also consider the fact that Mr Ripepi was quite clear in his evidence that nobody form the AWU discussed this casual experience rate "by appointment" - discussed that issue with him prior to the meeting of 16 May. I suspect to some extent there was usual balancing of interest of both the permanent staff and the casual staff and the union is tasked with the job of balancing those interests against each other. That predominantly my understanding is that the RPO committee was made up predominantly of permanent employees.
PN1490
Be that as it may, come the 16 May when they walked into that negotiation meeting, there was no firm proposal from the AWU that says: we want to change this. This was an idea that came up through a discussion at the meeting and the context of it was the favouritism. That is how it came about. Now, in terms of the minutes of that meeting, there's no proposal there saying it should be automatic and the company replying: no. It is not going to be automatic. Though the evidence from both the respondent and the applicant shows that the issue was indeed discussed, but the minutes aren't clear on it being a firm proposal and whether that proposal was accepted or not.
PN1491
From Mr Ripepi's evidence, we would also like you to consider the fact that he understands that there's nothing in the agreement about this process of the district manager appointing, but Mr Ripepi's honest interpretation, in our submission, would be that that is the criteria to be taken into consideration. Mr Ripepi believes that these criteria are automatic qualifications and that the "by appointment" doesn't feature in it. He reckons that if you can show that you've done this then surely you should be appointed.
PN1492
Interestingly enough, that is the respondent's position. If you can meet those criteria, you will be appointed and that's been consistently the evidence through Mr Ripepi, Mr John Roy and respondent's witnesses. That in cases where the criteria were met, such appointment was made. Mr Ripepi said he didn't really know about any other issues out there and we are seriously in doubt as to whether there really is a factual dispute before the Commission and whether this is not just an academic dispute at this stage.
PN1493
Now, Mr Llewellyn has referred to this previously in his opening statement saying while his instructions were that there weren't any issues of the moment, but I think because both parties will see that until Fuller's matter is resolved there is a potential for further disagreement between them. The dispute has proceeded. Whether that actually satisfies the requirement for a dispute to be referred in terms of clause 12, we would leave that in your discretion, but the respondent's position certainly is that we would like some certainty on the matter and do not really want to be bogged down in technicalities in terms of do we actually have an actual dispute?
PN1494
Since the Commission is sitting in its role as a private arbitrator in this matter where an industrial dispute as defined in the Act is not required for matters to be heard we are comfortable to proceed on the basis that we would like this dispute to be finalised. I think it is important in the context to understand that there's not a thousand casuals out there saying the company refuses to put me on the experienced rate and I've been here for longer than two years and all of this is very unfair and contrary to the agreement that I've signed.
PN1495
Mr Llewellyn has not been able to produce one witness who can attest to that. He has also not been able to produce one witness who can attest to the union's interpretation of what section 11(k) actually means. He kept on saying or kept on in his leading of evidence emphasised the point that this is what the union reps explained to people to the casuals. This is how it is going to work. It is going to be automatic. We simply don't have any evidence from the employees saying that this is how they understood it.
PN1496
Now, in the evidence of Mr John Roy if I can move on to him. From the cross-examination, Mr John Roy said: why did he ask the question on 21 January about how the - these appointments are going to be made. He said he wanted the ground rules to be known. He wanted this thing boxed in so that everybody knew what their rights were and how this was going to work. I understand that Mr Roy could have left the negotiation meeting on 16 May thinking it is now boxed in because it will be 2 years.
PN1497
I believe his honest interpretation was that that criteria had been established. That was still the criteria for the appointment. He mentioned that there were other criteria mentioned but he didn't say that those criteria were actually agreed upon or not. Now, Mr John Roy's evidence in terms of when this two harvest criteria was introduced was very confusing. He was originally very certain that this was an AWU idea that was canvassed early in January of 2003. Later he retracted came out and said: well, maybe it was actually one of the employees ideas coming from the meeting of the 16 May.
PN1498
I would like to content, Mr Commissioner, that Mr John Roy's evidence on that specific issue is not convincing at all. If this was such an important point that he was pushing, if this was such an important concession achieved by the union given the intractable approach of the employer on this issue, then surely he would have been very certain about when this proposal was put, who put this proposal and when it was accepted. He can't answer those basic questions. He is not sure who put the proposal.
PN1499
He is not sure when it was put and he is not sure about whether it was accepted or not, save that he reckons the way clause 11(k) could be read indicates that intent of that agreement. Mr John Roy never once in evidence said that Mr Fuller agreed with him, that he said: okay, automatic after two harvests. He never once said that. In the absence of evidence that shows this changed intention of the parties, the intention that the Commission is left with. The common intention that the Commission is left with is the intention that has been there all along, "by appointment."
PN1500
The union doesn't like it. It is still in there. The union doesn't like it. It is still in there. It is in the final agreement. That is the common intention of the parties. There simply isn't evidence to show that there was a common intention for an automatic appointment after two harvests. Now, Mr John Roy admitted during cross-examination that he didn't have a detailed understanding as to how seasonal experienced staff or employees were appointed under the 1997 agreement. He wasn't sure at all how that worked. Yet he is very certain that this is a change.
PN1501
This new agreement brought about a change from the old system to the new system. I find that very difficult to understand and comprehend. If this was a clear shift away from how we used to do it to this new system of automatic upgrading surely there must have been an understanding of the previous system and how that used to work, but he is not aware of that. In terms of this sampler position three. In our submissions originally to the Commission, we have stated that if you read the agreement as a whole it appears that year three samplers and casual experience have the same qualification words in brackets behind them.
PN1502
Mr John Roy said he doesn't know why the sampler is not an issue. First said he doesn't think there are any problems and then admitted to not being sure if there are any problems or not and whether these employees who were involved in the previous dispute that I can settle in Geraldton whether they were samplers or not. What strikes us as very odd, Mr Commissioner, is if Mr John Roy's interpretation was that the words, "by appointment" indicates discretionary power. Which did he testify to?
PN1503
Then why is it that year three samplers by appointment, that is okay. Casual experience by appointment, well, that is a problem. That is an incorrect interpretation of the agreement. In testify the issue of favouritism was behind this whole push to change things and that that change brought about this automatic progression. He is happy for a year three sampler not to be automatic. The words, "by appointment" can be behind that. I mean, I ask what does that mean in practice: just that the person gets the job. It is not a very likely interpretation. Everybody is going to get a job on one of those grades when they start.
PN1504
So I fail to see how if there was a consistent argument from the applicant's side in terms of the words, "by appointment" should just be ignored. Should not be read. Should be read in a different manner. How those two issues cannot be linked. The applicant's submissions does not address that issue at all, but certainly, if we are interpreting an agreement as a whole to look for the common intention of the parties, we can't just divorce certain sections and say: this - exactly the same words are used but we are not concerned with that part. We don't have a dispute about it.
PN1505
Our contention is, Mr Commissioner, the reason why the year three sample is by appointment has not been put forward to you as a difficulty of interpretation in the agreement by the applicant's. It is because they understand that that means, "by appointment" and they didn't have some exception clause like 11(k) that refers to year three samplers that they could try and interpret in such a fashion as to get rid of the words, "by appointment." For the RPOs there's 11(k), so that looks like fertile ground to put an alternative interpretation on that.
PN1506
To nullify the effect of the words, "by appointment" after casual experience. That is a fundamental flaw in terms of the logic of the argument. The applicant has not addressed you yet on the question of what "by appointment" means. The only evidence on that from the applicant's witnesses was that of Mr John Roy that says: that just means you get the job. Mr Ripepi wasn't at all sure where the words, "by appointment" appear in the agreement and their effect in the agreement. One of the questions you put to the applicant's representatives dealt with the issue of this criteria: two harvesters are required to full harvest.
PN1507
Now, if you go all the way back to the interpretation of this agreement and you go back to the definition of seasonal employees in the award, a seasonal employee is a person who is continuously employed for the harvest season or words to that effect. I'm paraphrasing the award now, Mr Commissioner. I referred to those relevant clauses in the award before. Now, if the parties agree and I don't think that is in dispute, that the seasonal guise were collapsing into the casual guise then a proper interpretation would mean that a casual then would have to be a casual that is engaged for the full harvest.
PN1508
It is one of those other things in the agreement that weren't particularly properly drafted. There's a host of them, Commissioner, as I said before. There's a lot of implicised language in the agreement. If you just look at clause 11(b) that deals with how you proceed from one grade to the other. 11(b) says:
PN1509
Attainment of grades will be in accordance with the company receival point operator and plant operator development programs.
PN1510
It doesn't distinguish between permanent grades and casual grades. A strict interpretation of clause 11(b) would be for a casual to go from one grade to the other. They have to comply where the company's receival point operator and plant operator development programs. So what we are saying is having in mind the approach as reiterated in the AITCO case that these agreements are documents of consensus when we interpret something like clause 11(k) the applicant would like to place specific emphasis on the words, "upgrading."
PN1511
We would like the Commission to consider that the exact choice of words whether it was "upgrading" or just "progressing" or "appointment to," but an extraordinary amount of weight should be placed on that because the agreement is rife with inaccurate references. This is true of both the 2002 agreement but also of the 1997 agreement and you will find that a lot of the inaccuracies have been simply copied into the 2002 agreement. The bottom line is what did the parties really understand themselves to be agreeing on.
PN1512
What we say is there could have been no misunderstanding in the ranks of the AWU and the employees. That when they agree to the rate of casual experience, that that was going to be by appointment because that is what the words say. Now, the interpretation that the applicant is placing on clause 11(k) is actually an interpretation that was never tested between the parties prior to certification of the agreement. I suspect that that is where part of our difficulties arise from. It was drafted, put in and no further discussion was held on it.
PN1513
So hence we are here today and we are arguing about what does "by appointment" mean. A simple interpretation of "by appointment" is it means you have got to be appointed to that level to get to it. In the absence of anything in the agreement saying you automatically go from one level to the next after you've completed two harvests. There is no other way to interpret it but to mean "by appointment." Should you follow the interpretation put forward by the applicant that would mean that you have to make a decision to disregard those words in the agreement to say that they have no meaning or effect.
PN1514
I'm talking now about the words "by appointment," and you would also have to make a finding in terms of the extensive evidence if you are relying on that for the interpretation, Mr Commissioner. You would have to make a finding on the extensive evidence that there was a common intention on a balance of probabilities, a common intention between the parties that there would be automatic progression to that rate. We say simply on the evidence in front of you and on a proper construction of the agreement, having regard to the rules of interpretation, that is not possible.
PN1515
If you could allow me just a second to make sure that I've covered all the points? Thank you, Commissioner. Just one matter on procedure, Mr Commissioner, that I would like your guidance on. In terms of the witness statements by the respondent's three witnesses. There were appendices attached to all three of those witness statements. I take it that they are also entered into evidence being part and parcel of the witness statement as such.
PN1516
THE COMMISSIONER: That is correct.
PN1517
MS KRUGER: Thank you, Commissioner.
PN1518
THE COMMISSIONER: There was some confusion as to whether - which was the attachment to which, but I think I've now got that worked out, thank you.
PN1519
MS KRUGER: Thank you, Commissioner. I think, it springs from the fact that I've managed to both label them appendix A. They are two different statements but then got myself mixed up in terms of which goes where, but you will find in the witness statement reference to the actual dates of the minutes - - -
PN1520
THE COMMISSIONER: Yes, I've seen that.
PN1521
MS KRUGER: That should assist. Thank you, Commissioner, that is all from me unless you have any specific questions?
PN1522
THE COMMISSIONER: No.
PN1523
MS KRUGER: Thank you.
PN1524
MR LLEWELLYN: Thank you, sir. One of the useful later submissions by my friend is that the agreement in its terms was clear and should have been clear to the AWU and Mr Ripepi didn't lead any evidence in relation to whether he thought the position was agreed. That is factually incorrect. Paragraph 12 of his witness statement puts exactly what he saw as the position and the position about why that position was agreed. In that he went on to:
PN1525
This on a number of occasions resulted in complaints from seasonal employees that they were not made up or that other employees were made up with less experience ...(reads)... employee progresses once they have completed the requirements of the position.
PN1526
Now, that was Mr Ripepi's evidence. That was the way in which he explained it to the employees. Now, both Mr Ripepi and Mr Roy were clear on the way in which they explained it to the employees. Now, my friend raises an issue that we haven't produced any other employees to testify to that effect. Now, while I wasn't present at the conference, Mr Roy was and he tells me there was agreement at the conference that we would only introduce one RPO witness. Now, I notice my friend hasn't produced any.
PN1527
Now, if that is a criticism, if there's an agreed method of progressing these matters at a conference, then I suggest that is the method by which it gets progressed. If my friend wants to agree on something and then raise a criticism because we haven't called a whole heap of RPOs as to the meaning of the agreement, then don't make arrangements in conferences about how matters progress in the Commission. Leave it to the parties to determine on their own volition.
PN1528
Now, the issue is, both Mr Ripepi and Mr Roy gave evidence. Mr Roy's evidence is unchallenged in the terms that he was to explain the agreement on behalf of both CBH and the union. Now, what my friend says is that all through the discussions, right back as far as January, CBH's position never changed. Well, belatedly we have produced - and this is the only other document we've got between January and May that says what the position was and that is Exhibit K2. Exhibit K2 says: CBH's position was, it was by appointment only".
PN1529
No other criteria, simply by appointment only. Completely discretionary. However, when pressed on that, Mr Fuller had to agree that that position went to ballot in March 2002 and got rejected. Surprisingly after that, what is actually appearing in the agreement, as it is registered currently, is different. Now, not only different in that area but if you go to why the difference has dropped out and we look at the excel spreadsheet, surprisingly the "by appointment only" dropped out from the excel spreadsheet as well.
PN1530
Now it is not a typo - that is a change in position and a change in position, we put, because the agreement got knocked back by the employees. Now that is the position. When the agreement actually went out in August - or was voted on, sorry - when it went out after May, I think the Commission will have worked out by now that during May, there is very few casuals employed because it is not the harvest season. The harvest season starts in October and goes through to January or February, depending on where you are in the state at what point of time in the state.
PN1531
Now, that is the evidence that has been led before the Commission so when this agreement went out by way of explanation there weren't that many - there may have been some casuals employed but there certainly wasn't the number that Mr Fuller was speaking about that are on the books now - some 1500 casuals - because quite simply, the agreements aren't done during the harvest season because that is when CBH is at its greatest exposure, not only for having meetings but also for having anything else that may occur.
PN1532
Now that is what is before the Commission. What is before the Commission, when you examine the agreement, and my friend has gone to great lengths in pointing out what the rules of interpretation are in every jurisdiction other than the one we are in. There's the Full Bench industrial appeal case in Robe River, where the quote she made from Brinsden J actually relates to the north-west beef case which is the authority that is used in the State Commission for interpretation and that is the quote that was taken from 1098 where it goes through the meaning of the provision.
PN1533
Also, the South Australian cases that my friend has taken us to, but as I alluded when we first commenced these proceedings, in terms of this jurisdiction, it is set out fairly succinctly in the decision of Senior Deputy President Lacy, in relation to the ACM Officer's Agreement 1999. Now, while that was under section 170MD(6), from what I understand of the question that is being put to the Commission currently, or as currently constituted, essentially what is being asked is to interpret the agreement.
PN1534
Now - and the question as I understand it, that we are here to determine is - does the Co-operative Bulk Handling Limited Country Operators Employment Partnership Agreement require casual employees to be automatically classified as casual experienced (by appointment) after having been employed for two harvests or not? Now, as I understand it, that was the question that was agreed to be referred under section 170LW. Now, I raised an issue last week that no one has really identified with me, with the exception of Mr Ripepi, that there were any employees that may be affected by this and I understand there are a couple in the Merredin district.
PN1535
In any event, there was an agreement between the parties to progress it through this procedure. I think I raised at that time, another way would be through 170MD(6) but in any event, I don't see there being a great difference between the two procedures. One is simply allowing the Commission to arbitrate privately and one is utilising the sections of the Act. In any event, the Commission must then look at the agreement and decide, one, whether there is any ambiguity and then secondly, if there is, you look at other material or intrinsic material about how that should be determined.
PN1536
Now, I guess if I wanted to be a little bit cheeky about what I'm doing, you would simply say well, I agree with my friend. There is no ambiguity whatsoever in the agreement. 11(k) makes it clear on what the criteria would be and 11(k) makes it clear on its plain English reading and that is, unless appointed by the zone manager, a casual employee must complete two harvests before upgrading to the experienced rate. Now "appointed" has a variety of meanings as Mr Roy pointed out.
PN1537
I mean, even in the interpretation my friend gave earlier, Mr Roy's interpretation of it is, once you have done two seasons, when you come back for your third, you get appointed as an experienced casual. My friend's interpretation is you must be appointed into the position. Now, if I take that to its nth degree, then every time an employee has completed their training packages they are appointed from an RPO3 to an RPO2. Likewise, when they complete the package as an RPO2, they get appointed to an RPO1. It is a matter of how that appointment occurs.
PN1538
Now, if it is an automatic appointment or whether it is simply an upgrading or - that is why, to some extent, it is a play on semantics and a play on words, as are all agreements. We all acknowledge that the people that put these agreements together don't have the experience of the Hansard drafters and what have you that put parliamentary verbiage together but given the amount of court cases we have over what that really means, I guess it is not surprising that the amateurs can't get it right.
PN1539
In any event, when we look at that - and I mean, I just refer to the dictionary definition of "unless". "Unless" is defined as: "except on condition that". When you look at that in plain English, what Kay says, except when the zone manager appoints you, then you will upgraded to an experienced rate on the completion of two harvests. As Ms Kruger has pointed out, this wasn't wording the union put in there. It is debatable whether it was wording Ms Waclawik put in there or Mr Fuller put in there, depending on the author i.d. and at what level Mr Fuller handed it over to Ms Waclawik to complete.
PN1540
This is CBH's wording. This is CBH's wording, after the agreement got knocked back after the May 16 meeting, where there is nothing in the minutes about how this works, from either party, even though those minutes are authorised by CBH - but the wording they put in the agreement after that wasn't:
PN1541
Unless appointed by the zone manager a casual must complete two harvests before being appointed to the experienced rate.
PN1542
It is an upgrade, not an appointment. It is an upgrade. The same as occurs with full time employees. I mean, my friend made some attempt, I think in saying that the agreement was better than the award. Well, if that is her position then you need to go back to the award and see that under the award, casuals get paid the loading in accordance with the level they are on. There is no appointment. If I'm at an RPO level 3, in other words I've done my commencement, I'm now in training, I'm doing the RPO level 3 rate, I get the casual of an RPO 3 rate.
PN1543
If I get through that training and get to an RPO level 2 rate, I get paid that rate. Now, quite clearly, if I'm now limited to something that is around the commencement level with the loading, then how can it be better off? You are talking employees in some instances, who have been with CBH 6 and 7 years. There are some employees that left and came back - left as senior RPOs and came back as a casual. Those people that are under the award would come in and get paid at the level at the rate they are on.
PN1544
In other words, 17-1/2 per cent of a senior RPOs rate, not 17-1/2 per cent of a commencement rate and in the case of a casual that is not experienced, 17-1/2 per cent of something less than a commencement rate. So in other words, less than what an employee with no skills, as a permanent, would be paid. I accept, from Mr Fuller, that that was a position that was agreed to by this union and ultimately agreed to by the employees but nevertheless, the submission my friend made in her opening submissions in relation to all this concern that these employees would get paid more than others - and she somehow links that to 11(j) which says that employees will not be employed to the detriment of permanent employees - it does not say in there that casuals won't be treated better than or given more money than, it just says you won't employ them in the detriment.
PN1545
So, in other words, I'm not going to get rid of permanent employees and go and hire casuals. Why would that concern be in there? Because casuals get paid less than permanents. That is why the concern is there. She also says that there was this collapsing of the seasonals and casuals into one thing. I don't agree with that either. The seasonals were done away with. Why were the seasonals done away with? Because one, a casual employee that was working permanent with CBH this week, became seasonal next week and lost money, even though they had the same skills, did the same work.
PN1546
Secondly, there was this issue about nepotism, on how the seasonals got appointed to experienced rates. That was an issue. Ms Waclawik concedes that she remembers something about that in the May 16 meeting, although again that is not in the minutes. It would seem that of the May 16 meeting, there was a lot of things that didn't make the minutes, but what you can't get away from is that at the end of the meeting, this is the document that was presented, this was the document that was given to the employees and there was an acceptance by CBH, even though the Workplace Relations Act puts the onus on the company.
PN1547
It does not put the onus on the union, although from a union perspective I might disagree with that, but nevertheless I unfortunately don't have the power, at this point in time, to alter anything in the Act. Section 170 LT(7) sets out quite clearly, the explanation of the terms of the agreement to persons as mentioned in paragraphs 170LJ(3)(b), 170LK(7) or paragraph 170LR(2)(b):
PN1548
...must have taken place in ways that are appropriate, having regard to the person's particular circumstance and needs. An example of such a case would be where the person is included...
PN1549
Then it lists a number of the prescribed persons. The onus and the onus in the statutory declaration is for the employer to carry out that task. The evidence before the Commission is that - I was having a slight at CBH. I understand that there was an agreement that Mr Roy went and did that. I understand the reason we are here now is CBH have a disagreement in what Mr Roy left the May 16 with and went to explain to employees. Not only Mr Roy but Mr Ripepi and every other place around the State where that was explained.
PN1550
If it was so crystal clear, when there were meetings at every district, every zone, attended by whatever RPOs attended the meetings - and as you heard Mr Ripepi, not everybody came in and he spoke to the others by phone - at every meeting the same explanation was given and not one person has raised a concern. None of the districts came back with a problem about it, none of the employees came up with a problem about it. The only one consistent thing throughout those discussions or around those meetings and explanations was they were conducted by Mr Roy, at every site.
PN1551
That is the only thing that is consistent. That is what the employees voted on, that is what the committee agreed on, what they left on the May 16 meeting. The only thing that seems to have changed is how Mr Fuller interprets it. We had Ms Waclawik, in the discussion with Mr Roy, agree on an interpretation that they both concede Mr Fuller had a difference of opinion. Now it would seem, from the witness statements, Ms Waclawik's view of it and Mr Fuller's view of it are the same. Given the fact that Mr Fuller is Ms Waclawik's supervisor or boss - whichever way you want to describe it - it is probably not surprising.
PN1552
But even in October last year, Ms Waclawik had a different view of it to Mr Fuller. While she does not conceded it was the same as Mr Roy's, you can't get away from the fact that those four employees - and from the list that is attached at JR1 - not all of them were RPOs. One of them was a sampler. By the list of the employees there, none of them were in charge of a bin. You only simply have to look down the list. When you look down the list, the only people that are in charge of bins, that I can see, is at Moonee - I'm not sure what that is short for? I will stick with Moonee - is Mr Bingham - Mr Main, I think it is, is an RPO in charge.
PN1553
All the rest of them are simply RPOs, yet they are all still experienced - quite a number of them. There are some that aren't experienced yet but there a number of samplers. I mean, in terms of Ms Maver, who was one of the specific employees raised, is a sampler at Una. Ms Gain, who was one of the specific employees raise, is a weighbridge operator. Mr Debeaux was an RPO, Mr Collins was an RPO. You can't get over that fact that they were all changed. In fact, in terms of Geraldton, as I understand the position - and I understand this dispute arose originally from those four employees in Geraldton - after Ms Waclawik chatted with the district manager, there now isn't a problem.
PN1554
All the RPOs with more than 2 years are all now experienced or on the experienced rate. In terms of Mr Ripepi, in Merredin - in Merredin district - they had no problem until after the memo came out. Now they have got a couple of employees, in terms of the district - none in the depot where Mr Ripepi works - but a couple of employees, in terms of the district, who have a number of years experience but can't seem to get to the experienced rate all of a sudden. An employee with 5 or 6 years experience. That is not harvests. That is 5 or 6 years experience.
PN1555
See, you are talking about someone who is more than likely, up around RPO level 1 or a senior RPO and that is simply given on Mr Ainsworth's evidence on how long it takes to get there. You would have to ask yourself then, why wouldn't those people be made up? I mean, they are people that can run bins. They can run the entire operation. Don't they get on well with the district manager? Now, those were the issues that the union had concern of; those were the issues the employees had concern of.
PN1556
It was in that background and that backdrop that 11(k) came into being. I mean, if you look at things that create ambiguity, I come back to the questions that I've put to Mr Ainsworth and that which is contained in the table. I can understand how, on my first year as a sampler - I would come along and I'm a year 1 sampler and that is what I get paid. I can understand in my second year, I come along and I'm a year two sampler and that is what I get paid. What happens when I come back in year three?
PN1557
My friend says that - well, and her witness' evidence is that I come back in year three and unless they appoint me as a year three person, I stay at year two. Now that would have been a great thought when I was 21, if someone wouldn't appoint me to 22, I could have stayed there and just kept getting 21. I mean, my mother is still 21 but she told me she went backwards. Nevertheless, if I look at the agreement in terms of ambiguity, how can I be a year three sampler on year two? The answer to that is, I can't. I can be a year three sampler or, if I was really good, I could be appointed there.
PN1558
The same as I could be a two harvest casual or, if I was really good, I could be appointed there. Now that is the evidence Mr Ripepi gave. Mr Ripepi was clear and unshaken in his evidence: there were two ways. One was to have done two harvests and the second way was to be good. I think he phrased it as the other criteria of attitude, aptitude and work performance. If I fitted into that criteria, the zone manager could appoint me. If I did two harvests, then I'm up there.
PN1559
He explained that to his district manager and his district manager, on Mr Ripepi's evidence, was that the district manager said, well, we've got casuals that have been here for a year but haven't done two harvests. What do I make them? He brought in a criteria for himself, to say that those people, he would make up after 20 weeks. Now Mr Ripepi's evidence says, I don't care what you do to those but you understand that if he has done two harvests, he is experienced. How you determine anyone that has not done two harvests is up to you.
PN1560
That is the position that was agreed in the March meeting. That was the position that was put to employees to explain the agreement and that is what employees voted on and the agreement subsequently got registration. That issue needs to be weighed and we say, should carry heavy weight, in terms of the Commission's determination on this issue. None of the company's witnesses can give any evidence about what the explanation was that was given to employees because they gave none. The only thing that came out is the criteria that Mr Fuller set out some 2 months after the agreement was registered, after the commencement of harvest.
PN1561
Mr Ripepi's evidence is that is the same criteria they had for experienced seasonals, the same thing they raised problems with because of nepotism, favouritism and what have you and they wanted to get away from that. Now if you have a look at common intent - my friend seems to want to bring up common intent of the negotiations - the common intent is that there was an agreement, there was nepotism and favouritism, there needed to be a way to progress employees. The common intent is that CBH move from, by appointment only - and their explanation for that is: we made a typographical error.
PN1562
I mean, we drafted the agreement - it was all in our previous drafts - but we made a typographical error in this draft. So I mean, a typographical error to remove the word "only" must have been the delete key. Why would you delete it? I could understand if you were typing it afresh but these were working drafts. My friend says there were a number of them. I mean I haven't seen any of them yet but given that there were a number of them, why would a typographical error be a deletion. I could understand failing to type it in but not a deletion, if they were previous drafts.
PN1563
I mean, my friend has already said in terms of - I'm sorry, Ms Waclawik has already said, in terms of her evidence, that she does what all of us do. That is, she cheats. She types up one and then just copies them. Anyone that types it up separately is a nut but nevertheless, you still had, even on the draft of K2 - if you had copied that, it still had by appointment only, so it still required you to hit the delete key. With respect to a typo, I've never known a deliberate delete to be a typographical error but that is the situation you had.
PN1564
You had an agreement that went to vote, you had it knocked back and then the only thing you can see that has been taken out and altered is the word "only" removed and a criteria moved in for an upgrade. Not an appointment - an upgrade. That was CBH's own wording, following the May 16 meeting. It wasn't the union's wording. It was CBH - either Mr Fuller or Ms Waclawik since they are the two people who seem to be accredited with the draft, although from Mr Fuller's point of view it was all Ms Waclawik's fault. She did it.
PN1565
That is the position you have in terms of where we've come from and where we've moved to. In terms of - and I don't intend to go through it at length - the methodology you should adopt, I simply say the appropriate methodology to adopt in determining if there is ambiguity and uncertainty in agreements under the jurisdiction we are in and that is the agreements registered under the Workplace Relations Act 1996, is that set out in the decision of SDP Lacy, paragraphs - predominantly paragraphs 20 on. Set it out up to about paragraph 32, I think, from memory.
PN1566
That sets out all the case references and the approach that should be taken and indeed, the approach that is taken in terms of this jurisdiction and Full Benches of this jurisdiction. Quite simply, when you adopt that approach, it is really an issue of whether the case is arguable by both parties. That is why I said, at the outset, I could be cheeky and say that I will simply rely on the common English meaning of the words. It is common in agreements, as it is in awards. My friend says, because it appears after it, it carries less weight.
PN1567
I guess that means that if you put the classification structure at the back of the award, it carries less weight than the pay rates. Now, that is just an absolute nonsense. Where a classification structure is set and that is all clause 11.6 is. All 11.6 is, is a listing of the wage rates that apply in terms of the agreement. That is all it is, it is on page 6.11, I guess it is 11(e) but the table that is shown there is simply a listing of the various grades. Now, you look at that and then you look at all those things that are contained in terms of that provision. For example, how the RPO's move up and down is set out in 11(b) and that is in accordance with the company's receival point operator and plant operator development programs.
PN1568
It then sets out - nowhere in the agreement does it set out what that is but everyone knows what it is. It then sets out all the various rates. Then we get to how those things are then interpreted. Now, quite clearly that sets out, in 11(k), how an appointment can be made. If I accept what my friend says and simply say that by appointment means you have to be appointed, then 11(k) sets out how it happens. Unless you are appointed by the zone manager, then you do two harvests. Now, all that says to me is if I've done two harvests, I get appointed to the experienced rate.
PN1569
If I haven't done two harvests, then I've got to mark sure I prove my worth to the zone manager, not the district manager. The evidence from my friend's witnesses are people get confused between the district and zone managers. I'm quite sure a number of zone managers will be disappointed to hear that. I would imagine they would have thought their positions were well known in the CBH. Certainly I don't suffer any misapprehension about what the two different positions are.
PN1570
But if I can't impress the zone manager or at least impress someone that is going to go and report to the zone manager, I have to be there for two consecutive harvests. It does not say in this agreement or the previous agreement or even the award for that matter that I have to be there for the whole harvest period, even when you look at the seasonal rates. I mean, the seasonal rates in the award said that a seasonal employee means one continual engaged during the season, not for the whole of the season.
PN1571
Employment may be terminated by either party for 1 days notice or the forfeiture of 1 days pay as the case may be. Now, what happens to a seasonal that actually is employed for the whole 3 months of the season? You would think there would be something to cover that. Well, surprisingly enough, there is in the award. If I stay there for the whole 3 months of the season, you have to give me a weeks notice, not a day, a week. So if my friend's submission is correct that this collapsing of the seasonal into the casual was all that happened, then if I actually do stay for a whole season, that is assuming the season runs from October through to the end of January, then I would have to get a weeks notice.
PN1572
Mind you, to do that I would have to travel from Geraldton through to Esperance picking up the various bins on the way as bins open and close during the year. I mean, the season in Merredin might only be a period of 8 weeks. The season at Wongan Hills may be 4 weeks. It is whatever time period the bins are open for receivals. Now, that is determined according to a number of factors but probably the most important one is how much grain is around the place.
PN1573
You may have a season in Esperance district that opens for a week. The same season in Geraldton would be open for 8 weeks simply because they got rain in Geraldton and didn't get any in Esperance. Now, that is the way CBH works. So it is not simply a matter of collapsing. It is simply that there was an equity in terms of how the season was operated in terms of money, in terms of appointment. The agreement and the common interest of the parties was to address those two issues.
PN1574
The money issue was addressed by getting rid of the seasonal rate because it caused a drop in pay. How people are appointed got eliminated because it gave a guaranteed employment after 2 years or a completely discretionary appointment up to the 2 year mark. On the premise, as Mr Roy put it, why would you keep employing somebody that couldn't do the job. The answer to that is, you don't because if you are going to go out and employ people that can't do the job, then you would never be able to sack somebody who couldn't do the job because you condone people not being able to do the work.
PN1575
If anyone believes employers go out and purposely hire people they know that can't do the job, then I suggest the company is not going to last very long. But that is the position. Simply from our point of view - well, from my point of view I don't think there's an arguable case either way. The agreement is very specific and that is that there are two methods to progress, one by the doing of 2 years and one by appointment, a discretionary appointment.
PN1576
If the Commission is of mind to think or to decide in terms with the relevant authorities in this jurisdiction that both sides have an arguable case, then we say the only intrinsic information that is relevant to the decision-making process is what the employees were told the agreement meant. In looking at that, you need to look at the evidence of Mr Roy and Mr Ripepi, both of who attended those meetings. Mr Roy attended all of them and Mr Ripepi attended the ones in his district as the member of the negotiating committee.
PN1577
That process was agreed to by CBH as the method by which it was going to be done. Now, in agreeing to that, they also agreed to the outcome. That is a vote in favour of the agreement. Now, if this was such an important matter to CBH, they maintained absolute discretion because that is what my friend's argument is. Our position was absolute discretion over the appointment of these positions, then that is what the agreement would have said. They would have kept the wording in from the January agreement that said it is "by appointment only".
PN1578
Now, in part, one of the cases my friend referred you to, well, I don't like going to other jurisdictions in terms of this jurisdiction although this one appears to have at least gone to the High Court and that is at paragraph 25 where the decision goes to:
PN1579
If it transpires that the parties have refused to include in a contract a provision which would give effect to the presumed intention of the persons in their position, it may be proper to receive evidence of that refusal.
PN1580
Now, quite frankly, you have already heard the evidence. You have seen the draft that my friend put up to demonstrate that this by appointment was continually in there. What no one can explain is why the "only" got dropped off, why it was deleted. Now, if it was an absolute discretionary judgment or a discretionary position, the words "by appointment only" would have maintained their presence in the agreement. But you have already heard that that caused an issue, it caused an issue because of nepotism and favouritism.
PN1581
It was Mr Ripepi's suggestion that you can get over that by having a two harvest criteria that gets you to the position. Not only did he explain it to his employees, he explained it to his district manager. His district manager didn't have a problem with it. The unfortunate part about that is that all transpired prior to 20 October memo. So not only to the employees but also to the district manager and it was accepted, employees were reclassified. The only concern the district manager had was how he would develop the criteria for other than two harvests. As Mr Ripepi rightly pointed out to the district manager, that is up to you.
PN1582
That is the situation, that is the only intrinsic evidence we say that is of any importance at all in this matter. The other issue of course then arises, should the Commission find in our favour what should then occur to the agreement. Now, my view is that it should then proceed to alteration to fix it, if that is appropriate but if you accept my submission, there is no ambiguity and that is the agreement is clear. It should just remain the way it is and that is that there are two methods of progression. Unless the Commission has any questions of me, I don't intend to go any further.
PN1583
THE COMMISSIONER: No, I don't have any questions, Mr Llewellyn.
PN1584
MS KRUGER: Mr Commissioner, sorry, I just have one matter arising. I will be very short. Just on my friend's submission in terms of the March ballot, it is not something that was canvassed previously, not something I anticipated in closing. Just one comment on that, Mr Commissioner. There seems to be an inference from Mr Llewellyn that the March ballot was voted down because the "by appointment only" appeared in the agreement or the proposal that was put. Just to reiterate, there's no evidence in front of the Commission concerning the issue of why the March ballot was voted down. Thank you, Commissioner.
PN1585
THE COMMISSIONER: Do you want to say anything as a result of that? Otherwise I think we will just - sorry.
PN1586
MR LLEWELLYN: No, look, I think I will leave that alone. I could take my friend to a number of things that she led that weren't in evidence but I will leave it alone.
PN1587
THE COMMISSIONER: Well, on that basis, this Commission will be adjourned. I will reserve my decision. Thank you.
ADJOURNED INDEFINITELY [5.43pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
DOMINIC RIPEPI, SWORN PN120
EXAMINATION-IN-CHIEF BY MR LLEWELLYN PN120
EXHIBIT #L1 WITNESS STATEMENT OF DOMINIC RIPEPI PN125
CROSS-EXAMINATION BY MS KRUGER PN128
RE-EXAMINATION BY MR LLEWELLYN PN250
WITNESS WITHDREW PN285
JOHN GRAEME ROY, AFFIRMED PN286
EXAMINATION-IN-CHIEF BY MR LLEWELLYN PN286
EXHIBIT #L2 WITNESS STATEMENT OF JOHN GRAEME ROY PN290
CROSS-EXAMINATION BY MS KRUGER PN292
RE-EXAMINATION BY MR LLEWELLYN PN492
WITNESS WITHDREW PN556
JAMES FULLER, SWORN PN612
EXAMINATION-IN-CHIEF BY MS KRUGER PN612
CROSS-EXAMINATION BY MR LLEWELLYN PN617
RE-EXAMINATION BY MS KRUGER PN859
EXHIBIT #K1 MINUTES PN876
FURTHER CROSS-EXAMINATION BY MR LLEWELLYN PN913
EXHIBIT #K1 MR FULLER'S WITNESS STATEMENT PN926
EXHIBIT #K2 RPO AGREEMENT PROPOSAL DATED 23/01/2003 PN926
WITNESS WITHDREW PN967
RHYS WILLIAM AINSWORTH, AFFIRMED PN969
EXAMINATION-IN-CHIEF BY MS KRUGER PN970
EXHIBIT #K3 STATEMENT OF RHYS WILLIAM AINSWORTH PN976
CROSS-EXAMINATION BY MR LLEWELLYN PN999
WITNESS WITHDREW PN1163
NATASHA SOPHIA WACLAWIK, SWORN PN1165
EXAMINATION-IN-CHIEF BY MS KRUGER PN1166
EXHIBIT #K4 STATEMENT OF SOPHIA NATASHA WACLAWIK PN1169
CROSS-EXAMINATION BY MR LLEWELLYN PN1200
RE-EXAMINATION BY MS KRUGER PN1393
WITNESS WITHDREW PN1406
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