C2005/4241, Transcript of Proceedings [2005] AIRCTrans 1836 (7 September 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12611-1

COMMISSIONER LEWIN

C2005/4241

THE AUSTRALIAN WORKERS’ UNION
AND
RESORTS NEWMAN SEWELL
s.99 - Notification of an industrial dispute
(C2005/4241)

MELBOURNE

10.13AM, THURSDAY, 25 AUGUST 2005

PN1

MS Z ANGUS: I appear on behalf of the Australian Workers' Union.

PN2

MR W SEWELL: It's my company who is the respondent to this claim through the union.

PN3

THE COMMISSIONER: Thank you. I received some material about this matter in addition to the notification this morning from the AWU and I gather that's been provided to you, Mr Sewell.

PN4

MR SEWELL: Yes, it has, but only just a few minutes ago, Commissioner. I also have some documentation I've prepared as well which, as I was saying to those present prior to you coming into the room, that I would have thought I should have got this to you. It's quite a substantial amount of information. However it's entirely up to you but I thought we could proceed because we're all here at this point.

PN5

THE COMMISSIONER: I can make arrangements for you to transmit it to this registry. I'm not quite sure whether or not that's what my associate is doing now. She may be going to rectify some of the problems caused by my inadvertent activation of the internal electronic system, but could I just be clear on whether or not the AWU is in receipt of the information you've just referred to.

PN6

MR SEWELL: No, they have not received the information that I have prepared for this hearing.

PN7

THE COMMISSIONER: All right. Well, in the interests of time it's a claim for underpayment of wages having regard to the number of hours worked, isn't that right?

PN8

MS ANGUS: Yes, sir.

PN9

MR SEWELL: It also involves - I haven't really disputed the shortfall of payment to Mr Penn, Commissioner. I guess what's in dispute here is this 200 hours of accrued overtime that the claimant is claiming he is still owed. I sent a letter to the union, Commissioner, which you should have a copy there, dated 3 August. It should have one of my letterheads with the company name Resorts up in the top left.

PN10

MS ANGUS: I'm assuming, Mr Sewell, that's the letter you sent me about the meeting, is that the letter you're referring to? Or there is another bit of correspondence that you sent the Commission but not to me?

PN11

MR SEWELL: No, no, I've only ever sent stuff to you. No, it's the one where I said I agreed to pay Darren's back pay and you may recall that there's this disputed situation where Darren's father came in and negotiated this three days settlement on what was allegedly still owed in accrued overtime and I offered in that letter to actually make good on that payment in accordance with that arrangement brokered by Mr Penn senior with my superintendent. So the letter that I'm referring to which I faxed you - - -

PN12

THE COMMISSIONER: I do have something on the file here dated Monday, 8 August, from [e-mail] which was - - -

PN13

MR SEWELL: Would that be an email, Commissioner?

PN14

THE COMMISSIONER: It is, but it's addressed to my associate. Well, it's addressed to my chambers, yes, sorry, and to my associate.

PN15

MR SEWELL: Did I not send that, Commissioner, requesting today's meeting rather than - or today's video link up rather than me appearing in Melbourne, is that what - - -

PN16

THE COMMISSIONER: That's what I think is the case and I don't have anything else on the file from you or the company.

PN17

MR SEWELL: Commissioner, can I suggest, this document which I prepared which, I guess, can you see this here?

PN18

THE COMMISSIONER: I can.

PN19

MR SEWELL: It's quite a detailed document. It has a copy of my letter that I wish to present today which no one has seen yet and also has a copy of this letter that I refer to that was sent to Zoe, the one with - - -

PN20

THE COMMISSIONER: What's the date of that?

PN21

MR SEWELL: That's dated 3 August.

PN22

THE COMMISSIONER: Yes.

PN23

MR SEWELL: I also have copies of diary entries, copies of stat decs from other people and other - can I suggest, Commissioner, that I simply fax down the letter that we're talking a bout now rather than the whole lot.

PN24

THE COMMISSIONER: Which is the letter you're talking about, 3 August?

PN25

MR SEWELL: Yes, 3 August.

PN26

THE COMMISSIONER: That won't be necessary. Ms Angus has a copy of that.

PN27

MS ANGUS: I do, Commissioner.

PN28

THE COMMISSIONER: So I'll ask her to tender that and I'll mark that as A1.

PN29

MS ANGUS: Perhaps a useful way of presenting is if I provide that letter, the response from the union to that letter and then outline what the union's position in relation to overtime is and then Mr Sewell can have the opportunity to respond. Is that - - -

PN30

MR SEWELL: Yes, that would be best, Commissioner.

PN31

THE COMMISSIONER: All right. Would you be kind enough to approach the bench and tender that, thanks.

PN32

THE COMMISSIONER: I'll just read these now, Mr Sewell.

PN33

MR SEWELL: That's fine, Commissioner.

PN34

THE COMMISSIONER: I have had an opportunity to read the letter of 3 August, the facsimile of the company in reply and also a statutory declaration by Brian Penn. I'll return those to you in a moment, Ms Angus, because I'm going to ask my associate to copy them and you'll tender those, I take it?

PN35

MS ANGUS: Yes, I will. I think actually the statutory declaration is from - - -

PN36

THE COMMISSIONER: It's contained in the material that you filed this morning as well.

PN37

MS ANGUS: Yes, it is, Commissioner.

PN38

THE COMMISSIONER: We'll just get that copied. So what you can understand, Mr Sewell, is I have read your letter of 3 August and I understand its contents. I also understand that there is a dispute as to whether or not those contents are accurately representative of the factual situation.

PN39

MR SEWELL: Well, Commissioner, I have quite conclusive proof that whilst Mr Penn certainly did accrue overtime he has at this stage, and I have records to back this up, he has taken a total of 76.5 hours already, Commissioner, in lieu of this overtime that was owing. Now, Commissioner, this overtime was accrued during the summer of '03-04. The reason Darren accrued the amount of overtime that he did was because primarily it was a logistical reason, Commissioner, that he was getting a lift to and from work with the superintendent, Allan Chapel, at that time because he obviously didn't have any transport, and that's fine. Often Allan, being superintendent, had to stay back and work additional hours and because Darren was getting a lift with Allan, he stayed back and did some work, which I knew about at the time and I was fine with that.

PN40

However, this claim, Commissioner, that there's still 200 hours owing on top of the 76.5 hours that he's already taken, when this overtime was accrued in a period of approximately 24 weeks, Commissioner, from October '03 through till March '04, a total of 24 weeks. So if Mr Penn's current claim is to be believed, then a total of 276.5 hours, which is over seven weeks of work - - -

PN41

THE COMMISSIONER: 276.5?

PN42

MR SEWELL: Hours of overtime is apparently being claimed by Mr Penn as having been worked with 76.5 having already been taken, and I have diarised entries to show that, with a further 200 hours being claimed by Mr Penn. Now, Commissioner, it's just simply not possible for Mr Penn to have accrued over seven weeks worth of overtime in a 24 week period. For a start that's just not possible. We have records, and I will tender these records to show that none of our diarised entries or records show anything like that, and also we have proof of the fact that he has already taken this 76.5 hours.

PN43

THE COMMISSIONER: Do you have a view as to how much was accumulated?

PN44

MR SEWELL: Well, according to my superintendent on the site it was 76.5 hours plus three days, Commissioner, and on the 18th - was it - - -

PN45

THE COMMISSIONER: That was offered?

PN46

MR SEWELL: On the 18th of the eighth Mr Penn senior came in, requested a meeting with my superintendent which he informed me of. I said, yes, that's fine. At that meeting it was negotiated that there was still three days owing and that subsequently, Commissioner, I agreed - well, he would have taken that time off. Unfortunately Darren went on workers' compensation soon after and wasn't able to take it. I offered the extra three days to be in settlement of this accrued overtime, Commissioner, and the union knocked it back because they're still claiming that he's owed 200 hours which is just completely not the case.

PN47

I haven't disputed the shortfall of pay, Commissioner.

PN48

THE COMMISSIONER: Has that been paid?

PN49

MR SEWELL: I offered to pay it and the union has refused to accept it. There's two parts to that.

PN50

THE COMMISSIONER: Well, could I just focus on that particular aspect of the matter.

PN51

MR SEWELL: The shortfall of pay?

PN52

THE COMMISSIONER: Correct.

PN53

MR SEWELL: Certainly.

PN54

THE COMMISSIONER: What is that amount?

PN55

MR SEWELL: There was two parts to it. The first was during a period and the total was $618.24. That shortfall occurred when Darren was actually working for me. The other shortfall of $1432 occurred while and since Darren has been on Workers' Compensation. Now, when Ms Angus informed me of that situation I rang the insurer and informed them and they told me that there would be a date. Zoe, can you hear me?

PN56

MS ANGUS: I can Mr Sewell.

PN57

MR SEWELL: Did I not say that there was a date, a review date that the insurance company would back pay Darren if there had been a pay rise issued while he was on compensation? Look, I believe, Commissioner, that that has happened. I don't have any documentation to prove it, so that's the two parts of the claim for shortfall of wages that I referred to. The first part when he was still working for me and now the subsequent part when he's on comp.

PN58

THE COMMISSIONER: Leaving aside the question of overtime, from the union's perspective, is that the dimension of the claim?

PN59

MS ANGUS: Mr Sewell's correct in that as a total, in terms of an underpayment, amounts to $2050. I've got that itemised, summarised in a letter - - -

PN60

THE COMMISSIONER: Three thousand or two thousand?

PN61

MS ANGUS: 600 plus 1400, basically.

PN62

THE COMMISSIONER: It's 1400, yes, sorry.

PN63

MS ANGUS: That amounts to 2050, if that's useful to see that calculation.

PN64

THE COMMISSIONER: You agree on that?

PN65

MS ANGUS: Yes, we agree on that. It also comes in two parts in the sense that the second part occurred while Mr Penn was on WorkCover. What we do disagree about, although factually Mr Sewell is correct, although I understand that Mr Sewell told me that the insurance company undertakes an annual review. That review falls in September or November of this year. I indicated to Mr Sewell that given that this matter has now been live for some five months that we were not in a position to wait until the insurance company undertakes that review and that really the contractual relationship is between the employee and the employer and we see it as Mr Sewell's responsibility to cover that shortfall, and then if he wants to retrieve any money from the insurance company, then that's - - -

PN66

MR SEWELL: Yes, I don't have a problem with that.

PN67

MS ANGUS: So yes, we are agreed that we are short roughly $2000 in terms of the payment, and then there's the issue of overtime.

PN68

THE COMMISSIONER: Thank you. Well, Mr Sewell, is there any barrier to you paying this, since you acknowledge it as your debt?

PN69

MR SEWELL: No, Commissioner, I've already accepted the - I offered to pay 618.24 - - -

PN70

THE COMMISSIONER: But shouldn't you simply say now, because you're not paying the money to the union, that you will pay this amount of money to your employee, Mr Penn?

PN71

MR SEWELL: I've already agreed to pay the 618.24 and now that - - -

PN72

THE COMMISSIONER: What - yes, sorry, I beg your pardon?

PN73

MR SEWELL: Now that Zoe has said that perhaps rather than what I did was, I went back to the insurer, this is for the period of time that he was on workers' comp, and said that it's their responsibility to pay. I think she's probably got a valid point that I probably should pay it and then chase the insurance company itself. So, no, I don't have a problem with that. I'm quite happy to pay the - - -

PN74

THE COMMISSIONER: Within what time will you make payment?

PN75

MR SEWELL: Today.

PN76

THE COMMISSIONER: Well, let's say by the close of business tomorrow, you'll despatch the payment.

PN77

MR SEWELL: I shall. Can I question something here? Each time I've received a letter of demand from the union, Commissioner, it says here, forward a cheque to Mr Brian Penn. Now, I know that that's his father, but is that kosher, is that normal, Commissioner, that I would simply forward a cheque to his father and not to Darren?

PN78

THE COMMISSIONER: Well, if the union is acting with the authority of your employee to your satisfaction, then if they're the instructions that your employee has given to his agent, then you can do that. However, you could if you wished make arrangements which were designed to ensure that the payment was made to your employee by - - -

PN79

MR SEWELL: I don't have a problem with that, Commissioner. I just wish to make the point that Mr Penn senior, Brian Penn, is acting on behalf of his son in this issue. Can I just make that point, please?

PN80

THE COMMISSIONER: Yes, well, I'm assuming that the union is authorised by their member to act on his behalf.

PN81

MR SEWELL: Okay.

PN82

THE COMMISSIONER: Is that correct?

PN83

MS ANGUS: That is correct.

PN84

THE COMMISSIONER: Now, if the union is authorised to act as his agent in this matter, then if they say, please send it to his father, you can reasonably do that because you're complying with your employee's request through their agent.

PN85

MR SEWELL: I understand that.

PN86

THE COMMISSIONER: However if you chose to, it would not be unobjectionable for you to say, I would prefer to send the money directly to my employee, unless there's some information before me which indicates that this payment is unlikely to be effective, such as Mr Penn is overseas or in disposed or whatever he is.

PN87

MR SEWELL: No, I understand. Yes, I understand.

PN88

THE COMMISSIONER: I don't have any real problem with you sending it to his father.

PN89

MR SEWELL: Okay.

PN90

THE COMMISSIONER: Obviously you'd have a covering letter, "This cheque is made out in favour of your son and that it is in settlement of his claim in relation to underpayment of wages and I have forwarded it to you on the advice of the AWU who are acting as your son's agent on the understanding that you will present the cheque to him."

PN91

MR SEWELL: Okay.

PN92

THE COMMISSIONER: Now, you will have a record of all that. If it goes astray and his father wrongly takes advantage of the situation somehow - - -

PN93

MR SEWELL: That was one of my concerns, Commissioner.

PN94

THE COMMISSIONER: You would have some redress about the payment, but most likely it would be that your former employee would have some cause of action against his father, I would think. That is a decision that you will have to make as to whether you try and give it to your former employee.

PN95

MR SEWELL: Okay.

PN96

THE COMMISSIONER: I imagine your supervisor probably knows of his whereabouts if he's still in Wodonga.

PN97

MR SEWELL: I've actively encouraged my superintendent, Commissioner, to have nothing to do outside of work or anywhere with any of the Penn family. There's been some threatening situations and so I've told him not to have any form of contact with these people at all, so no, I'll post it to Mr Penn, to Brian Penn, Commissioner, and I'll - - -

PN98

THE COMMISSIONER: If you would prefer, to ensure that the cheque gets into the hands of your former employee and to have some record of that, it seems to me it wouldn't require ingenious solutions. I mean, the possibility could be that you could make the cheque available through a branch of your bank and have - - -

PN99

MR SEWELL: Could we not electronically deposit the funds, because I'm sure we'll still have Darren's - - -

PN100

THE COMMISSIONER: If that's possible and the account of your former employee is still active and can receive the funds, probably actually the best.

PN101

MS ANGUS: Look, I wouldn't object to that. That's probably the - - -

PN102

THE COMMISSIONER: Probably the best course of action in truth.

PN103

MR SEWELL: I shall do that, by close of trade tomorrow.

PN104

THE COMMISSIONER: Yes, thank you. So now the only thing before me is, because that's agreed, the question of the so called overtime/time off in lieu. Could I just ask, I just want to be clear on something and Ms Angus might be in a good position to answer this question, I haven't had a chance to look through it in relation to time off in lieu provisions. I take it the award authorises time off in lieu?

PN105

MS ANGUS: For the period of overtime that we're talking about, it was a Schedule 1A.

PN106

THE COMMISSIONER: I see.

PN107

MS ANGUS: An arrangement was clearly entered into and has been, in relation to a number of employees, that - - -

PN108

THE COMMISSIONER: So you're really submitting that it's a contractual responsibility.

PN109

MS ANGUS: Indeed.

PN110

THE COMMISSIONER: What Ms Angus is saying on behalf of the AWU is that this responsibility arises out of the contract of employment between you and your former employee, Mr Penn.

PN111

MR SEWELL: Could you just ask that question again, please, Commissioner?

PN112

THE COMMISSIONER: It's not so much a question. I'm saying the AWU submits that this amount which is claimed arises out of the terms of the contract of employment from you and your former employer, Mr Penn.

PN113

MR SEWELL: It is a verbal arrangement, Commissioner, that during the summer, that particular summer, that some overtime was paid for and some was held in lieu to be taken off the winter. We're talking about maintaining a golf course, Commissioner, so there's times during the year when the work load - - -

PN114

THE COMMISSIONER: I can imagine a seasonal situation. Can I just ask you then about the verbal arrangement so that I'm clear about this, who made the arrangement?

PN115

MR SEWELL: The superintendent on site after - - -

PN116

THE COMMISSIONER: Did he tell you what it would be?

PN117

MR SEWELL: After consultation with myself, it's generally, Commissioner, more an acceptance that there will be some overtime worked. It's very hard, in fact it's impossible to predict how much that will be because it, again, can be influenced by climatic influences. If we get a lot of rain, there's more to do. If there's less rain, there's not as much. It was just a general arrangement between my company through the superintendent and our staff that if some overtime needed to be worked, some of it would be paid for but some would be taken off in lieu.

PN118

Commissioner, a lot of staff prefer to do that. You know, they like to know - - -

PN119

THE COMMISSIONER: If this arrangement was made, as you say, at the time it was permissible, I think that's effectively conceded - - -

PN120

MR SEWELL: Yes.

PN121

THE COMMISSIONER: What I'm trying to establish is what is the arrangement?

PN122

MR SEWELL: Well, I guess it's as simple as if the work needs to be done to keep the course maintained, that they simply stay back after hours or start a bit earlier and simply work a number of hours extra each day, if that's required. It's almost a day by day thing, Commissioner, because - - -

PN123

THE COMMISSIONER: All right. So what happens after that's been done?

PN124

MR SEWELL: After the overtime has been accrued?

PN125

THE COMMISSIONER: Yes.

PN126

MR SEWELL: Usually I guess it's carried forward to either a period of time where either we are unable to work on the course because of - or not so much unable but it becomes - due to rain it becomes uncomfortable working on the golf course outside, so sometimes time in lieu can be taken then. Also during the winter, Commissioner, when there's just less to do, that with notice given to the superintendent by the staff - - -

PN127

THE COMMISSIONER: So employees can elect to take the time, subject to approval by the superintendent?

PN128

MR SEWELL: That's most certainly the case, yes. Also the superintendent - - -

PN129

THE COMMISSIONER: How much time does the employee take?

PN130

MR SEWELL: That also is dependent upon their own requirements. For example, if they have something that they wish to go away for, then it could be a two or three day block of accrued overtime taken, or it could be to finish early for a family reason or again, it could be weather related.

PN131

THE COMMISSIONER: So if say I was your employee and I worked 50 hours over the summertime in addition to the ordinary hours during the week, how many hours would I be entitled to have off?

PN132

MR SEWELL: Well, whatever the accrued overtime is. Whatever the accrued overtime that hasn't been paid for is.

PN133

THE COMMISSIONER: Right. So when you pay for overtime, at what rate do you pay for it?

PN134

MR SEWELL: Well, it would be at the normal rate, I guess, Commissioner, the time and a half for the first few hours and double time - - -

PN135

THE COMMISSIONER: So whatever the amount of - - -

PN136

MR SEWELL: Sir, I believe that most of the overtime, in fact probably all of it is time and a half.

PN137

THE COMMISSIONER: Time and a half, all right. So, if for instance I had worked the 50 hours over the summer time and the weather changed and there was an opportunity to take some time off, how would you calculate my entitlement to time off?

PN138

MR SEWELL: If you've worked two hours at time and a half, then you're entitled to three hours of time off.

PN139

THE COMMISSIONER: I see. All right. Well, is it perhaps the case that there may be some misunderstanding between you in that Mr Penn might be calculating it at the - it's not suggested that he worked 200 hours, but that he was entitled to 200 hours?

PN140

MR SEWELL: Well, I have thought of that as well, Commissioner, and no, I don't believe that I am in any uncertainty as to that part of the equation.

PN141

THE COMMISSIONER: Do you think he's claiming to have worked 200 hours and therefore he's entitled to 300 hours pay?

PN142

MR SEWELL: No, no, that he has 200 hours on top of the 76.5 that he's already taken of accrued overtime still owing.

PN143

THE COMMISSIONER: All right. Just speaking hypothetically, if we leave the 76.5 out of it, is it possible there's a misunderstanding to the monetary equivalent?

PN144

MR SEWELL: I have not been told of that by the union, Commissioner. I have assumed that it would be as per as I told you based on the - - -

PN145

THE COMMISSIONER: So your understanding is that if Mr Penn is saying that he's owed 200 hours, what he means by that is that he worked 276.5 hours?

PN146

MR SEWELL: The union has stated, Commissioner, that he's owed 200 hours. He has had 76.5 hours off time in lieu.

PN147

THE COMMISSIONER: I understand that. Perhaps if I could just ask you to reconsider the question again. From what you said earlier I got the impression that your perspective is that you're being told over the October-March period between 2003 and 2004 Mr Penn worked 276.5 hours in addition to his ordinary hours?

PN148

MR SEWELL: That was on the basis of the time and a half equation, Commissioner.

PN149

THE COMMISSIONER: I see, so therefore if we said roughly 300 hours, then - - -

PN150

MR SEWELL: No, no, the other way, Commissioner, that the 200 hours, when I said he'd accrued 200 hours of overtime or worked 200 hours, that was on the basis of it being at the time and a half. In other words, it wouldn't have been that he was actually - - -

PN151

THE COMMISSIONER: That was the monetary equivalent of the amount owed to him.

PN152

MR SEWELL: Yes, because that's the unit that the union have insisted on using, Commissioner, being just the hours owed.

PN153

THE COMMISSIONER: Time and a half.

PN154

MR SEWELL: Yes. I've just tried to keep it simple here.

PN155

THE COMMISSIONER: And you don't dispute the correct application of the time and a half.

PN156

MR SEWELL: No, of course not.

PN157

THE COMMISSIONER: The issue is what number of hours should it be applied to?

PN158

MR SEWELL: Well, again, I'm just trying to keep things speaking in the same terms that the union has in relation to the 200 hours and the fact that I've applied my response in this 76.5, I've kept at the same unit in hours rather than saying, well, 76.5 hours taken off is the equivalent of one-third or whatever of that in actual worked hours. I've simply just kept it at the hours owed to keep it simple.

PN159

THE COMMISSIONER: Two-thirds, isn't it?

PN160

MR SEWELL: Yes, something like that.

PN161

THE COMMISSIONER: So that would be about 50 hours of time worked?

PN162

MR SEWELL: I guess that would be - I can't do that math in my head, Commissioner, but I guess that would be somewhere round that area.

PN163

THE COMMISSIONER: That would give you 75, eight hours - - -

PN164

MR SEWELL: Yes, that's correct. Yes, if you multiply 50 by 1.5, that's around about 75, so yes, that's correct.

PN165

THE COMMISSIONER: Approximately equal to 50 hours work.

PN166

MR SEWELL: That's correct.

PN167

THE COMMISSIONER: All right. Now, without saying how much time was actually taken off by Mr Penn between October 2003 and March 2004 what do your records tell you he actually worked in that period?

PN168

MR SEWELL: Our records indicate, Commissioner, that it was approximately 50 hours or thereabouts. It's a little bit hazy to be honest. I guess there could be, you know, at least 10 hours either way on this.

PN169

THE COMMISSIONER: So somewhere between 40 and 60 hours.

PN170

MR SEWELL: Well, you have to take into consideration the extra three days that we believe that Darren is owed. So if you added - - -

PN171

THE COMMISSIONER: I don't think we need to actually if you think through what I'm asking you, it's a simple question and it doesn't need to be adjusted in any way. It's what do your records tell you was the number of additional hours over and above 38 per week that - I take it it was a 38 hour week?

PN172

MR SEWELL: Yes, that's correct.

PN173

THE COMMISSIONER: Mr Penn worked in that October '03, March '04 period?

PN174

MR SEWELL: Approximately 70 hours, give or take five or 10.

PN175

THE COMMISSIONER: Approximately 70 hours' work?

PN176

MR SEWELL: That's correct.

PN177

THE COMMISSIONER: Now, your records will establish that as a matter of fact, will they?

PN178

MR SEWELL: Yes, they will.

PN179

THE COMMISSIONER: So in essence what you say is that out of that time worked Mr Penn has taken about 50 hours already?

PN180

MR SEWELL: Well, if we're now talking in the unit of an hour at a time and a half, then that's correct. There's 50 hours - - -

PN181

THE COMMISSIONER: So there would only be 20 hours left and therefore 30 hours paid?

PN182

MR SEWELL: Something in that range, yes. I have to be honest, there is some, as I said, area of error, the five to 10 hours that - which is why we originally arrived at that decision, Commissioner, at the three days, roughly 24 hours worth of work.

PN183

THE COMMISSIONER: So how precise are your records?

PN184

MR SEWELL: They're precise enough for us to arrive at this decision, sir.

PN185

THE COMMISSIONER: Right. So do they record the number of hours in addition to working hours worked on a daily basis?

PN186

MR SEWELL: They were diarised entries back then. We simply - we have a better system in place now, but we're using the superintendent's diary.

PN187

THE COMMISSIONER: I see, and therefore that is your wages record for the purpose of this matter?

PN188

MR SEWELL: For that period of time, yes.

PN189

THE COMMISSIONER: That's Mr Chapel?

PN190

MR SEWELL: That's correct.

PN191

THE COMMISSIONER: And has the union had the opportunity to see this diary?

PN192

MR SEWELL: I have some copies with me here today but not all of the copies that are required.

PN193

THE COMMISSIONER: I think they'd probably want to see the original. Is there any reason why - that original, I take it, still exists and is in your possession?

PN194

MR SEWELL: Yes, it does.

PN195

THE COMMISSIONER: Thanks, Mr Sewell. I just want to ask Ms Angus some questions now. Does Mr Penn have any records?

PN196

MS ANGUS: Mr Penn has his own calculation and an affidavit sworn to the effect that that is .....

PN197

THE COMMISSIONER: Is that in the material that you sent me this morning?

PN198

MS ANGUS: Yes. I sent over three documents. In fact, perhaps three that I intend to rely on and two of them are statutory declarations.

PN199

THE COMMISSIONER: Yes. I will mark those in a moment. I just want to actually mark for the record now as A1, the letter from Resorts dated 3 August and the response of the union by fax dated 10 August, that will be A1, that is the two documents.

EXHIBIT #A1 TWO DOCUMENTS, LETTER FROM RESORTS DATED 3 AUGUST AND RESPONSE BY FAX DATED 10 AUGUST

PN200

THE COMMISSIONER: I'll now mark what was sent to me this morning and copies provided to Mr Sewell which will be A2.

PN201

MS ANGUS: Which is the bundle of documents?

PN202

THE COMMISSIONER: Correct. That contains statutory declaration by Mr Brian Robert Penn, a statutory declaration by Brian James Beach, a statutory declaration by Cain Richard Ryeberger and the affidavit of Darren James Penn.

EXHIBIT #A2 BUNDLE OF THREE DOCUMENTS

PN203

MS ANGUS: Can I indicate that we rely on them for different purposes. In terms of the statutory declaration from Brian Robert Penn in A2, we rely on that to support the union's position that there was no agreement reached in relation to - - -

PN204

THE COMMISSIONER: With Mr Brian Robert Penn?

PN205

MS ANGUS: Yes.

PN206

THE COMMISSIONER: On behalf of his son. Where do we find the calculations?

PN207

MS ANGUS: Okay. In relation to the other documents, the exhibit A2, the affidavit included in that by Darren James Penn, who is the member, and we'd rely on - that is actually a statement that's been prepared to WorkSafe in relation to some bullying allegations that was bought. For the purpose of these proceedings, the underpayment in the issue of overtime, on the second and third page of that document, the second page he speaks about in the second full paragraph there, he speaks about the arrangement with Allan Chapel who's the superintendent for putting in a diary the overtime hours and then on the third page in that document - - -

PN208

THE COMMISSIONER: I'm sorry, which paragraph contains the issue about the diary?

PN209

MS ANGUS: It starts, "I had a rough idea myself and" - - -

PN210

THE COMMISSIONER: This is on page 2? Yes, I see. It's in the middle of the page.

PN211

MS ANGUS: Yes, and it's to the effect that Darren and Allan - or Darren originally kept a copy of the amount of hours worked and then was told by the superintendent, Allan Chapel, that he did not need to record the time as I could trust him. On the next page then, which is the third page of the affidavit, marked page 4, the first paragraph there, "I think at this stage I had about 200 hours of unpaid overtime", and that's when he first asked for some time off in lieu. So we'd rely on that affidavit for that purpose, and the other two affidavits, Commissioner, of Brian James Beach and Cain Richard Ryeberger, both of those are ex employees of Resorts Newman Sewell. Mr Beach indicates that he also had entered into such an arrangement in relation to overtime and that he had accumulated by his calculation 114 hours overtime between the period of April 2003 and April 2004, which he lost when he left because he resigned from that company, ad he also indicates in that statement that Darren Penn, and I'm reading, "was the greenkeeper. He worked plenty of over time as well. It would have been at least three weeks," and can I note, Commissioner, that it was three weeks in April 2004 and that Darren Penn then continued on for at least another year.

PN212

THE COMMISSIONER: So you say that's corroboration about the amount of work being done?

PN213

MS ANGUS: Yes, Commissioner, so it's on that basis - - -

PN214

MR SEWELL: With all due respect, Commissioner, I mean these affidavits and stat decs, I've got the similar sort of situation here where, you know, that story is just not agreed with at all. I request - - -

PN215

THE COMMISSIONER: You certainly can indicate that you dispute those facts. I'm not reaching any conclusions. I'm just asking what the line of reasoning that the AWU would have me accept is.

PN216

MR SEWELL: Well, Commissioner, I would have liked to have seen some - look, I've got staff all over the country and, you know, I pride myself in - - -

PN217

THE COMMISSIONER: Look, I can probably reassure you by saying that I don't have any intention today of reaching conclusion as to the number of hours that actually were worked in lieu.

PN218

MR SEWELL: I understand the process, sir, but I would like to have seen, if Mr Penn, that is Darren, were able to show me conclusive proof of this overtime that he has worked that our records don't back up, then I would have to reconsider. So if - - -

PN219

THE COMMISSIONER: I think what's being said to you is that he's made an affidavit, he's available if necessary for cross-examination, to the effect that in August of 2004 he had about 200 hours of unpaid overtime or time off in lieu. Now, that's I think what Mr Penn would have you accept. Now, the situation is that it's your responsibility to keep the wages records.

PN220

MR SEWELL: I understand that.

PN221

THE COMMISSIONER: Now, as I understand what you're saying to me, the best you'll be able to do in order to conform or comply with that legal responsibility is to produce the diary of Mr Chapel.

PN222

MR SEWELL: That's correct.

PN223

THE COMMISSIONER: Now, it seems to me that where we're going with this is that unless Mr Chapel's diary is very precise and orderly and systematic and it's contents were accepted by Mr Penn, it's unlikely to satisfy as a basis for the settlement of this dispute. Now, if the union looks at the diary and they take instructions from Mr Penn and he says, look, this doesn't record the facts, I contest this strenuously, I don't have any pay slips that show what my accumulated entitlements to time off in lieu or payment of overtime are. This is the only thing which the company relies upon, then we'll have to have a talk to Mr Chapel. I mean, probably Mr Penn and Mr Chapel will have to get into the witness box, because at the end of the day what will happen is that the Commission will have to determine what the number of hours worked were, what the number of hours taken off were and what, if any, is the balance owing to Mr Penn.

PN224

MR SEWELL: I understand.

PN225

THE COMMISSIONER: The only way I can arrive at that conclusion given the dispute between the parties about the accuracy or otherwise of their respective evidence of the amounts claimed and counter-claimed is to hear the people concerned, because we don't have a time and wages book, we don't have the employee systematically receiving pay slips, we don't have any signatures, we don't have anything of that nature. So it'll be the evidence of the two parties concerned, Mr Chapel and Mr Penn, as to what happened over that period that would have to be taken into account by the Commission.

PN226

MR SEWELL: Well, I guess, would it be fair of me to suggest at this point that we produce this diary?

PN227

THE COMMISSIONER: Yes.

PN228

MR SEWELL: And if agreement is still not reached at that point, then I'm quite happy for it to go to the next level.

PN229

THE COMMISSIONER: All right. Would you be averse to the idea of the diary being produced and Mr Chapel being available?

PN230

MR SEWELL: Well, I can't speak for Mr Chapel, Commissioner. I can certainly run it past him. But I can't give you an answer at this point in time.

PN231

THE COMMISSIONER: All right. So that would be dependent upon him from your perspective?

PN232

MR SEWELL: I can't compel Mr Chapel to do anything, Commissioner. I can suggest to him that you need to - - -

PN233

THE COMMISSIONER: What's his position in your company, I'm sorry?

PN234

MR SEWELL: He's the golf course superintendent.

PN235

THE COMMISSIONER: Who does he report to?

PN236

MR SEWELL: Well, he reports both to me and to our client, the Wodonga Country Club.

PN237

THE COMMISSIONER: Right, but as far as his employment is concerned, he reports to you, I take it?

PN238

MR SEWELL: That's correct.

PN239

THE COMMISSIONER: And do you expect him to comply with any reasonable direction given by you?

PN240

MR SEWELL: Well, of course, he's my employee. I often give him - - -

PN241

THE COMMISSIONER: Would it be within the scope of such a direction to direct that he attend a conference to discuss the question of the wages of one of the employees under his supervision?

PN242

MR SEWELL: Again, Commissioner, I cannot answer that at this point because I have a particularly - - -

PN243

THE COMMISSIONER: You're concerned about the relationships?

PN244

MR SEWELL: I beg your pardon?

PN245

THE COMMISSIONER: Are you concerned about the relationships or the time?

PN246

MR SEWELL: I just have a particularly strong policy, Commissioner, when it comes to my staff, and especially my leading hands, I like to empower people to do the job. My company is spread from north Australia right through to Victoria. I cannot rule all these different teams by taking power away from them. So all I'm saying to you, Commissioner, is that, look, I'm almost certain - - -

PN247

THE COMMISSIONER: You'd like to consult with him, is that what you're saying?

PN248

MR SEWELL: Yes, that's what I'm saying, yes. I'm not going to sit here and say, I will force Allan Chapel to appear before you because that's just not how I operate. I'm almost certain that he will want to because he obviously would like to have his say, I believe.

PN249

THE COMMISSIONER: All right. Well, let's assume that Mr Chapel is most likely to be prepared to discuss the matter. I think it mightn't be a bad idea to leave Mr Penn's father out of the equation.

PN250

MR SEWELL: That would please me greatly.

PN251

THE COMMISSIONER: So that if it was Darren and Ms Angus and Mr Chapel, they could have a meeting for the purposes of discovery, the diary could be presented.

PN252

MR SEWELL: Yes.

PN253

THE COMMISSIONER: Yes. I'm about to ask you about this, but I just wanted to understand what the respondent's position was given that Mr Chapel was or is the respondent's employee.

PN254

MS ANGUS: Our dilemma is the following. Darren Penn, the employee, and member, is on WorkCover at the moment. He's not well at all and- - -

PN255

THE COMMISSIONER: Are you going to tell me what his illness is?

PN256

MS ANGUS: Well, he's put in a complaint both to the Equal Opportunity Commission and to WorkSafe which are both being investigated in relation to bullying and a rapid deterioration of the relationship between the work place - - -

PN257

THE COMMISSIONER: So you're saying that it's not a good idea for him to talk with Allan Chapel?

PN258

MS ANGUS: Well, at one stage he was considering return to work and that was just unable to proceed, he wasn't up to it. If there's - - -

PN259

THE COMMISSIONER: I'm not going to bring this matter to a conclusion in any event, because I'm prepared to allow Mr Sewell to consult with Mr Chapel, although I should say, Mr Sewell, if necessary, I have the power to require this, but - - -

PN260

MR SEWELL: Commissioner, can I ask, who else is present in the court there, please?

PN261

THE COMMISSIONER: There are two officials of the AWU present in the court.

PN262

MR SEWELL: And who are they, please?

PN263

THE COMMISSIONER: Whom I recognise from their appearance in the Commission on a regular basis. They are Mr - - -

PN264

MR SEWELL: May I ask who they are, please?

PN265

MS ANGUS: They're unrelated to these proceedings. They happen to have finished in another matter.

PN266

THE COMMISSIONER: It's a public hearing.

PN267

MR SEWELL: All right, okay.

PN268

THE COMMISSIONER: The Commission conducts its proceedings in public unless parties request that they be conducted in private and I suspect that there's not much to be gained or lost by excluding the other officials.

PN269

MR SEWELL: No, that's fine. I just wanted to know who it was, Commissioner. If you're comfortable with it and I'm not entitled to find out who they are, then there's not much I can do about it.

PN270

THE COMMISSIONER: You are entitled to find out who they are. Do you want to know their names?

PN271

MR SEWELL: Yes, please.

PN272

MS ANGUS: Commissioner, would you like me to introduce them. Mr Sewell, can I introduce you to - you can probably see them on the camera behind me. This is Tonia Stevens who's an official with the AWU and next to her is Craig Winter who's a fellow industrial officer, also with the Australian Workers' Union. They've actually just finished other matters in the Commission on different floors and we are car pooling. That's why they're in the court.

PN273

MR SEWELL: That seems rather acceptable.

PN274

MS ANGUS: Although I'm sure they're most intrigued to follow these proceedings as well.

PN275

MR SEWELL: Let's proceed, please.

PN276

THE COMMISSIONER: Look, I'm certainly not going to decide to require Mr Chapel to attend a conference until you've had a chance to consult with him, Mr Sewell.

PN277

MR SEWELL: I understand.

PN278

THE COMMISSIONER: It would be desirable if whatever happens happens in a way that's convenient to all parties. If Mr Penn is ill advised to be in a conference with Mr Chapel, it may be that the diary could be presented to Ms Angus for consideration. Ms Angus could simply make an application that this diary be discovered by the Commission now and I have the power to require that if necessary. So I think it's probably advisable if some mutually acceptable arrangements for - - -

PN279

MR SEWELL: So if I understand this correctly, Commissioner, because Darren's alleged condition that he may not be able to appear at a hearing with Mr Chapel, is that correct?

PN280

THE COMMISSIONER: I think a conference is what we were discussing. Your question is a different question. Are you in a position to answer that?

PN281

MS ANGUS: I think it's preferable if he doesn't. If need be, then, you know, he's young, he's now going to have problems receiving ongoing income. He's keen to retrieve this money that he is entitled to. So if that's the means by which he is going to achieve it then he may have to.

PN282

THE COMMISSIONER: He may have to.

PN283

MS ANGUS: And if it's only a matter of a video conference anyway, then it certainly makes it easier if people aren't attending in the same room. That might be - if it could be set down in Wodonga.

PN284

THE COMMISSIONER: I should say that if there is a contest of fact and I determine that I will actually hear it and that it will involve the giving of evidence by witnesses and the cross-examination of witnesses, then I wouldn't do that by video conference. I don't think that's a suitable arrangement. In fact I think you would be disadvantages by that, Mr Sewell, quite considerably if you were trying to do it by video conference.

PN285

MS ANGUS: Commissioner, can I - - -

PN286

MR SEWELL: Well, that will be an interesting situation to - - -

PN287

THE COMMISSIONER: But we're unlikely to come to that. I mean, in my experience if we apply the correct process, we'll get to a position where each party will make a reasonable estimate of their ability to prove the relevant facts.

PN288

MR SEWELL: I agree.

PN289

MS ANGUS: That's what I'd like to put to the Commission, Commissioner, and Mr Sewell, we have provided evidence, as we understand it, we have provided an affidavit that 200 hours is the estimate put by Darren. We've supported that with two statutory declarations that attest that other employees have accumulated excessive, in one word, and 114 hours in another stat dec hours of overtime and this is a common practice. So there's nothing extraordinary about Darren having accumulated 200 hours. I have on numerous occasions requested Mr Sewell - - -

PN290

THE COMMISSIONER: And entitlement to payment for 200 hours.

PN291

MS ANGUS: And entitlement for payment for 200 hours. I have on numerous occasions requested from Mr Sewell that if he has any record that is a more reliable factual account of actual number of hours accumulated, please forward that over, and we've had a number of conversations with Mr Sewell, you will recall, where you haven't assisted in providing any other account by which we can calculate the hours that he was entitled to be now paid for. On that basis, Commissioner, all that we can go by, unless you're minded to direct Mr Sewell or recommend that Mr Sewell - we resolve the matter today and Mr Sewell pay according to the calculation which is the strongest calculation - - -

PN292

THE COMMISSIONER: Yes. I am not prepared to do so in light of the factual dispute and I would need to see the diary before I even took the next step as to contemplating that.

PN293

MS ANGUS: In which case can I make application now to have - - -

PN294

THE COMMISSIONER: For discovery of the diary. Well, it seems to me that that's pretty irresistible. You have the advantage of reading it, Mr Sewell. It's the basis of your case. The Commission has to see it, therefore the union has to see it.

PN295

MR SEWELL: I understand, Commissioner.

PN296

THE COMMISSIONER: What's the best way for it to be produced?

PN297

MR SEWELL: I guess we would either post it to the Commission direct. I'm not comfortable about the union having possession outside of our control of this diary, Commissioner.

PN298

THE COMMISSIONER: Look, I don't have any difficulty with your concerns about possession. I wouldn't require you to surrender it to the union. I would accept what you're suggesting which is that you'll forward it to the Commission or have it delivered it here - - -

PN299

MR SEWELL: Yes.

PN300

THE COMMISSIONER: And that Ms Angus can view the diary under Commission supervision and we will take responsibility for the possession of the property.

PN301

MR SEWELL: I accept that. Yes, I think that's best.

PN302

MS ANGUS: As long as I can then make copies in order to discuss the content.

PN303

THE COMMISSIONER: Yes, yes.

PN304

MS ANGUS: But yes, we wouldn't object to that.

PN305

THE COMMISSIONER: I would permit Ms Angus to, for the purposes of these proceedings, to make copies of the entries in the diary.

PN306

MR SEWELL: That's fine.

PN307

THE COMMISSIONER: I will however make a direction that the union or any other person is not to make reference to the contents of the diary except in these proceedings.

PN308

MR SEWELL: Well, I don't see that we have any other way around that, Commissioner. I mean, the diary is going to become an integral part of my situation.

PN309

THE COMMISSIONER: Yes. I'm just going to clarify what I've just said. Ms Angus will gain some knowledge which may or may not be relevant to this matter by reading the diary.

PN310

MR SEWELL: Sorry, I understand, yes.

PN311

THE COMMISSIONER: I'll protect that information and the privacy of it by the making of a direction pursuant to the Act that no person is to refer to any of the content of the diary except in these proceedings or in conferences between the parties in relation to the proceedings.

PN312

MR SEWELL: I understand.

PN313

MS ANGUS: Certainly, Commissioner, I give an undertaking that that will be the case. I'm also concerned that the diary - I also express concern that adjustments might be made to the diary so that it contain information which is consistent with Mr Sewell's position and if it's appropriate I believe that the Commission should issue directions to that effect.

PN314

THE COMMISSIONER: I also formally, and you should tell Mr Chapel this, Mr Sewell, I now direct that no entries in that diary should be made in relation to dates prior to today.

PN315

MR SEWELL: I understand.

PN316

THE COMMISSIONER: Very well. How long do you think it might take for that to be achieved, Mr Sewell?

PN317

MR SEWELL: I'll make arrangements today or tomorrow, Commissioner, and have it posted it down. I'll get an address from the people - - -

PN318

THE COMMISSIONER: My associate will provide you with the contact details. I am simply going to direct that you produce the diary to the Commission no later than the close of business tomorrow week.

PN319

MR SEWELL: Okay.

PN320

THE COMMISSIONER: And I will make arrangements for Ms Angus to view the diary. My associate will be present whilst the diary is viewed and if any copying is to be done it'll be done by my associate and I will provide you with a copy of anything that is copied from the diary. I will then retain the diary subject to further proceedings in this matter.

PN321

MR SEWELL: Yes.

PN322

THE COMMISSIONER: I was going to say, Ms Angus, I think it's all very well for the affidavits to be relied upon to some extent but if there's a significant dispute, as there is, they aren't necessarily conclusive of themselves. It seems to me that the best evidence is going to be the evidence of Mr Penn and Mr Chapel. Mr Sewell, would it be possible for you to calculate the amount of money at stake as between the two of you? I don't mean right now.

PN323

MR SEWELL: Yes, certainly, Commissioner. You mean in - - -

PN324

THE COMMISSIONER: Your perception of what, as I understand it, you concede is owed in relation to this overtime working and the claim that the union - - -

PN325

THE COMMISSIONER: I'm sorry, what was Darren getting per week? I've got it here. Let's say, Commissioner, that he was on approximately $500 gross per week, it was a bit more than that, and I've offered three weeks - sorry, three days of - - -

PN326

THE COMMISSIONER: They were almost about to accept that.

PN327

MS ANGUS: You please me there for a moment, Mr Sewell.

PN328

MR SEWELL: I beg your pardon?

PN329

MS ANGUS: You pleased me there for a moment, but it turned out to be a slip of the tongue.

PN330

MR SEWELL: Indeed it was. So I've offered the three days which I guess you're looking at around about $1500, Commissioner.

PN331

THE COMMISSIONER: I understand that. I would like you to - - -

PN332

MS ANGUS: Our position - can I just, for the record, indicate, Commissioner, that our position is that he is owed $3000, $2900.

PN333

MR SEWELL: Sorry, no, I've made a mistake there. It was three days, Commissioner, that I offered, three days.

PN334

THE COMMISSIONER: I don't want you to do this now. I want you to - - -

PN335

MR SEWELL: No, I'd rather not do it now because I - - -

PN336

THE COMMISSIONER: Now, I want you to write me a letter expressing your understanding of the amount claimed and your view of the amount owed and I want the union to do the same, only vice versa, the amount claimed, your understanding of the amount offered because I'm not quite sure that everything's precisely - - -

PN337

MR SEWELL: I've pretty much done that with this letter that I brought in today, but I may just alter it to clarify it more along the lines of what you want and then - - -

PN338

THE COMMISSIONER: All right. Can you send me the material that you wanted to tender earlier today, the large amount of material and provide a copy to the union?

PN339

MS ANGUS: And, Commissioner, if I could also ask for transcript in this matter.

PN340

THE COMMISSIONER: Yes, I'll order transcript in the proceedings and I'll list this matter for mention again - it will have to be late in an afternoon in the week beginning 5 September. Is there some problem for you with 5, 6, 7, is there?

PN341

MS ANGUS: 5 and 6 - - -

PN342

THE COMMISSIONER: But 7 would be?

PN343

MS ANGUS: 7, in the afternoon?

PN344

THE COMMISSIONER: Yes. How about 7 September?

PN345

MR SEWELL: Yes, I can do that.

PN346

THE COMMISSIONER: All right. So I'll say 4.30 Melbourne time, that's the same for you, isn't it?

PN347

MR SEWELL: Yes.

PN348

THE COMMISSIONER: So there will be a formal listing notified in any event.

PN349

MS ANGUS: Commissioner, can I clarify, that's for mention and programming - - -

PN350

THE COMMISSIONER: Mention and programming.

PN351

MS ANGUS: And also report back?

PN352

THE COMMISSIONER: Yes.

PN353

MS ANGUS: Yes.

PN354

MR SEWELL: When did you wish this - the diary and the other documents to be at your office, Commissioner, when was it by?

PN355

THE COMMISSIONER: By the close of business on 2 September. That gives you all of the week beginning the 29th, next week.

PN356

MR SEWELL: That's fine.

PN357

MS ANGUS: That's actually not very long for us, Commissioner, to then inspect, speak to - there's long distances involved.

PN358

THE COMMISSIONER: Look, I think I'll make it the 1st, which is the Thursday, so the diary has to be in the Commission and in the union's hands by the close of business on 1 September. That's a week.

PN359

MR SEWELL: Okay.

PN360

THE COMMISSIONER: That will give the union between the 2nd and the 7th to take instructions from Mr Penn. Now, it's important that direction as to the time be complied with and if you can get it down sooner, Mr Sewell, that would be appreciated.

PN361

MR SEWELL: I'll certainly get it down as soon as I can.

PN362

THE COMMISSIONER: All right, because I anticipate the union will have to take instructions from Mr Penn and they will now have to make arrangements to do so and if the diary doesn't arrive, those arrangements could be disturbed.

PN363

MR SEWELL: Okay. I'll get it there as soon as I can. I don't see any reason why - yes, the diary and this other documentation.

PN364

THE COMMISSIONER: All right. I will make arrangements for the fax service that you can use if you wish. The building in which you are now is where the Commission's Registry is situated. We have - - -

PN365

MR SEWELL: The diary will be coming out of Wodonga so it's only got to get from Wodonga down to you guys, so that won't take long.

PN366

THE COMMISSIONER: Thank you. I wasn't quite sure whether you had it with you.

PN367

MR SEWELL: No, no, at this stage I haven't. This other information that I'll be tendering, I certainly obviously have here, but I'll put that in an Express bag and it'll get down to you.

PN368

THE COMMISSIONER: Mr Sewell, it's probably more convenient if you take it to the Registry and file it in this proceeding.

PN369

MR SEWELL: The Registry being where?

PN370

THE COMMISSIONER: It's in the building you're in now.

PN371

MR SEWELL: So I should get it sent up from Wodonga to here?

PN372

THE COMMISSIONER: No, no, I'm sorry, just a moment. The material that you have with you - - -

PN373

MR SEWELL: Yes.

PN374

THE COMMISSIONER: You are going to file in these proceedings?

PN375

MR SEWELL: That I am, yes.

PN376

THE COMMISSIONER: Yes. I'm talking about that material only.

PN377

MR SEWELL: Okay, all right.

PN378

THE COMMISSIONER: If you take that material to the Registry of the Commission in the building - you're in the Commission's hearing room now or conference room, I'm not quite sure which one - if you go to the Registry and my associate will inform you what floor they're located on in Brisbane, and you file the papers that you want to file in these proceedings there, they will stamp them and they will despatch them to me and they'll be here tomorrow morning.

PN379

MR SEWELL: Okay. I wish to alter the letter that you have requested where I clarify the amounts - - -

PN380

THE COMMISSIONER: It's up to you to file whatever you want. You haven't filed anything as yet, so you can make any changes.

PN381

MR SEWELL: I have not, yes. So I will probably file this tomorrow morning, Commissioner, once I've altered the letter in accordance to your request.

PN382

THE COMMISSIONER: As you wish.

PN383

MR SEWELL: Thank you.

PN384

THE COMMISSIONER: Very well. So that will take us through to 7 September, is that right?

PN385

MS ANGUS: Yes, Commissioner.

PN386

THE COMMISSIONER: All right. Anything further, Mr Sewell?

PN387

MR SEWELL: I don't believe so. Just to clarify that I have agreed to pay the shortfall of wages by close of trade tomorrow night?

PN388

THE COMMISSIONER: Yes, correct.

PN389

MR SEWELL: One proviso - or not a proviso, but one question on that, Commissioner, is that I believe that we have received some documentation from the insurer just in the last couple of days that Mr Penn may have already been back paid that by the insurer, so all I request is that if that is the case, that I can send that information to Zoe to show that - I don't want to double pay in other words.

PN390

THE COMMISSIONER: I understand that.

PN391

MR SEWELL: I just want to clarify - - -

PN392

MS ANGUS: Can I also make the point that you will need to - assuming that that isn't the case and the insurer is currently underpaying, you'll also need to, in addition to the amount that you're forwarding, you'll need to inform the insurer of the correct amount so that from this point onwards they continue - they pay out the correct amount - - -

PN393

MR SEWELL: Yes, I've actually already done that, Zoe, but I just want to make sure that they haven't already paid him and if that's not the - whatever happens there, I'll inform you.

PN394

MS ANGUS: Certainly and can I just indicate that the amount that we've agreed on, the 2050, is up until the 1st of the fifth as you'll see on the letter that I forwarded to you and it's from that point on that the insurer would need to then take responsibility - it's between you and the insurer obviously - but then adjust the records from that point on.

PN395

MR SEWELL: I believe that's the case, Zoe, yes.

PN396

MS ANGUS: Yes, all right.

PN397

THE COMMISSIONER: I'll adjourn these proceedings to 4.30 pm on 7 September.

PN398

MR SEWELL: Okay, thank you, Commissioner.

<ADJOURNED UNTIL WEDNESDAY 7 SEPTEMBER 2005 [11.23AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 TWO DOCUMENTS, LETTER FROM RESORTS DATED 3 AUGUST AND RESPONSE BY FAX DATED 10 AUGUST PN199
EXHIBIT #A2 BUNDLE OF THREE DOCUMENTS PN202