C2005/3905, Transcript of Proceedings [2006] AIRCTrans 413 (22 March 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 14580-1

SENIOR DEPUTY PRESIDENT LACY

C2005/3905

LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION
AND
SECURE PARKING PTY LTD
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/3905)

MELBOURNE

10.02AM, WEDNESDAY, 02 NOVEMBER 2005

PN1

MR B REDFORD: I appear for the union in this matter.

PN2

MR R NAUGHTON: If it please you, sir, I appear on behalf of the company, Secure Parking, and I seek leave to appear.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Naughton. I have the written submissions of both parties, the agreed statement of facts, and I think one witness statement that had attachment A and B, a witness statement of Kieran Credaro. Should I have another witness statement or not?

PN4

MR REDFORD: Your Honour, it wasn't our intention to call any witnesses, and it's my submission that the witness proposed to be called by the respondent doesn't contribute anything to the determination of the questions we have requested you determine because the evidence is all about the - - -

PN5

THE SENIOR DEPUTY PRESIDENT: The circumstances of the applicant, not about the issue of the interpretation? I understand that. While you're on your feet, Mr Redford, I omitted to ask did you have any objection to Mr Naughton being granted leave to appear?

PN6

MR REDFORD: No objection, your Honour.

PN7

THE SENIOR DEPUTY PRESIDENT: No. Leave is granted, Mr Naughton. Yes. So your point is that the evidence is irrelevant?

PN8

MR REDFORD: That's right, your Honour. But if you're against me on that point, then it would seem sensible that Mr Bellas give evidence himself about his own personal circumstances. Now, that evidence will not be overly controversial. In fact, the only thing in the evidence of the witness proposed to be called that we would contest is that what we're describing as the split shift arrangement specifically advantaged Mr Bellas with respect to his personal and family circumstances.

PN9

THE SENIOR DEPUTY PRESIDENT: Would he dispute what's said in the statement? At this stage I haven't determined whether or not I'll give any weight to the statement, but is he proposing to dispute the contention that Mr Credaro objected to the change in the shifts?

PN10

MR REDFORD: His evidence, as I understand it, your Honour, will be that he objected to propositions that he be moved from the site, but that it was never proposed that his shift be altered, and that therefore he never objected to the alteration of the shift arrangements.

PN11

THE SENIOR DEPUTY PRESIDENT: I suppose the other thing I was going to ask is this something of a test case in the context of this sort of split shift arrangement being applied in other places?

PN12

MR REDFORD: No, it's not, your Honour. The only possible application of this matter elsewhere might be with respect to another member of the union, Mr Tran, who's mentioned in the respondent's submissions, but I should say that I have no instructions about that matter, I've not spoken to that person. I'm simply vaguely aware that he was in the same boat, your Honour. But other than that, no.

PN13

THE SENIOR DEPUTY PRESIDENT: All right. Perhaps I'll just ask Mr Naughton. Mr Naughton, how am I to be assisted by the supposed evidence of Mr Credaro?

PN14

MR NAUGHTON: Well, the points seem to be, sir, that one of the allegations
- one of the issues made in the LHMUs outline of argument at paragraph 17 is the point that the inconvenience arising from a broken shift is an impact in fact on the employee's work, and so that seems to be one of the general propositions which is being argued by the LHMU. Mr Credaro's evidence is that there was never a complaint by Mr Bellas that the shift at Warringal Hospital caused him an inconvenience and he - and I think that's conceded on the part of Mr Bellas and the LHMU. The only issue seems to be whether or not he was in fact benefited by this particular arrangement. I don't know if we can really take that much further.

PN15

Mr Credaro's evidence would be limited to the fact that there was never any complaint made, but on a number of - on two occasions in 2001 and 2002, as I recall, he proposed to alter the shift and was faced by some opposition from Mr Credaro and Mr Tran.

PN16

THE SENIOR DEPUTY PRESIDENT: Isn't there an issue of merit? I mean, I haven't actually looked too closely at the terms of the dispute resolution clause or whether or not it provides any guidance about the way in which the agreement ought to be construed, or whether there is any other clause within the agreement that speaks of how it ought to be construed, but I didn't gather that it was an issue of merit, or there was any issue of merit. It was really just a question of what the actual agreement meant.

PN17

MR NAUGHTON: The problem is that I guess we would be saying that we would be raising with you questions about the purpose of this rest breaks provision and the circumstances in which the 100 per cent loading would apply, and they would be presumably to address questions of inconvenience or the unavailability of a proper rest break on the part of an individual who was working according to some prearranged shift. So I think the purpose behind clause 13.5 of this agreement might bring in issues about inconvenience and other matters. In fact, they seem to be raised by the LHMU in their outline of argument.

PN18

THE SENIOR DEPUTY PRESIDENT: Right. The principles generally are that on questions of interpretation, any commonly-known facts surrounding the making of the agreement would be admissible, but I just don't appreciate or understand how Mr Bellas's personal circumstances have any bearing on that issue.

PN19

MR NAUGHTON: Well, if there's a concession on the part of the LHMU and Mr Bellas that he was not inconvenienced by the shift arrangement, then I think we would agree with that. We would just accept that.

PN20

THE SENIOR DEPUTY PRESIDENT: Perhaps I'll ask Mr Redford. Mr Redford, does Mr Bellas concede that there was no inconvenience to him in working the split shift?

PN21

MR REDFORD: Your Honour - - -

PN22

THE SENIOR DEPUTY PRESIDENT: I mean, it obviously wasn't done for his convenience, but the question is whether he was inconvenienced by it.

PN23

MR REDFORD: The answer to that question, I think, your Honour, the proper answer to that question is that if he were to give evidence, he would not give evidence that he was inconvenienced by it.

PN24

THE SENIOR DEPUTY PRESIDENT: He what? He would not give evidence that he was inconvenienced?

PN25

MR REDFORD: Correct. But that shouldn't diminish from the submissions to which my learned friend refers that we do make, that if you feel the need to go beyond the plain and ordinary words in the agreement, and of course our primary submission is that you do not need to go beyond those words, if you do feel the need to go beyond those words, that as a general proposition split shifts are inconvenient and often compensation attaches to the working of a split shift.

PN26

THE SENIOR DEPUTY PRESIDENT: But there are some principles in the Commission that actually acknowledge that, aren't there?

PN27

MR REDFORD: Sorry, your Honour?

PN28

THE SENIOR DEPUTY PRESIDENT: There are some principles, established principles of the Commission that acknowledge the inconvenience of split shifts and in fact allow some penalty, but that's - well, I don't know. I mean, maybe we'll get to that issue, if on the plain meaning of the words, it can't be decided. If they're ambiguous in some way and it was necessary to look at the surrounding circumstances, that may well be an issue I suppose.

PN29

MR REDFORD: Indeed, your Honour, and we say nothing more than that, and we don't intend to call evidence in support of the proposition.

PN30

THE SENIOR DEPUTY PRESIDENT: Perhaps the best way to deal with it is to have the evidence and then we can deal with it in final submissions what weight, if any, I should give to it.

PN31

MR REDFORD: That leaves me with the dilemma as to whether or not to seek to call Mr Bellas.

PN32

THE SENIOR DEPUTY PRESIDENT: You can call Mr Bellas. Mr Bellas is present.

PN33

MR REDFORD: Yes, yes. Yes, and if the respondent intends to call Mr Credaro, I would seek to call Mr Bellas.

PN34

THE SENIOR DEPUTY PRESIDENT: Would you want to cross-examine Mr Credaro?

PN35

MR REDFORD: Very briefly, your Honour.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes. You can have leave to call Mr Credaro. I understand your point, that you had not intended calling Mr Credaro because you had not anticipated the fact there would be any evidence in relation to the matter. I still haven't actually concluded that the evidence is going to be given any weight at the end of the day. I think it's just perhaps for the sake of convenience, perhaps we get on with it on that wide basis and we'll see where we go after that.

PN37

MR REDFORD: Thank you, your Honour.

PN38

THE SENIOR DEPUTY PRESIDENT: Very well. Did you want to make any
- you would probably want to cross-examine Mr Credaro before you call Mr Bellas, I suppose, wouldn't you? It's your application, or is it a joint application?

PN39

MR REDFORD: Well, the union is named as the applicant, but it is an application by consent. I tended towards, given that we're named as the applicant, the idea that Mr Bellas would give evidence first. I don't have a strong view on that.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes, very well. There's no necessity for you to make an opening, unless you particularly want to stress any of the aspects of your case at this stage?

PN41

MR REDFORD: I don't propose to do that.

PN42

THE SENIOR DEPUTY PRESIDENT: No, all right. Do you want to call Mr Bellas now?

PN43

MR REDFORD: I call Mr Bellas.

PN44

THE SENIOR DEPUTY PRESIDENT: Yes.

<MICHAEL BELLAS, SWORN [10.16AM]
<EXAMINATION-IN-CHIEF BY MR REDFORD

PN45

MR REDFORD: Mr Bellas, can you state your name and occupation for the record, please?---Michael Bellas and I'm a car park attendant for S & K Parking.

PN46

You are aware that this matter concerns work you performed for Secure Parking at the Warringal Hospital, aren't you?---Correct.

PN47

You haven't read, but you are aware of the contents, of a witness statement that's been filed in this matter by Mr Kieran Credaro?---Correct.

PN48

Who was your area manager and supervisor when you worked at Warringal Hospital?---Correct.

PN49

Now, when you worked at Warringal Hospital, could you tell us what your hours of work were, beginning from Monday?---Monday, Thursday and Friday I worked from 6.30 to 8.30 in the morning, and then I went home until 12 o'clock. I came back and worked until 6.30. Then from Tuesday and Wednesday, I worked from 6.30 to three.

PN50

All right. Could you describe the geographical setup of the car parks at the Warringal Hospital for us?---Sure. There was one major park, car park in the hospital which was partly open air and partly underneath, and then down the road there was another car park which there was about 40 cars that could fit in there.

PN51

So which car park did you work at?---I worked at both. In the morning when I got there at 6.30, I'd go down to the other car park, and then the other car park attendant would relieve me because it was cold, there was no shelter there, and it was incredibly cold in winter, so we had to swap so the other person could come back.

PN52

So on Mondays and Thursdays and Fridays when you worked what we're calling a split shift - - - ?---Correct.

PN53

- - - at 8.30 am when you finished the first shift, how many people were left at the car park?---In - - -

PN54

In a car park attendants' capacity?---Well, there was - - -

PN55

How many car park attendants?--- - - - in general 40 down below - - -

**** MICHAEL BELLAS XN MR REDFORD
PN56

How many car park attendants were there?---One.

PN57

Mr Bellas, if you don't mind us asking, what was your family situation at the time?---I was divorced. Possibly separated in the beginning and then divorced, but I was living in Fairfield, they live in St Kilda.

PN58

They being your - - -?---My children and my ex-wife, they live in St Kilda, and I lived with my partner in Fairfield.

PN59

How far is it from Warringal to St Kilda?---About half an hour drive.

PN60

The witness statement that I - - -

PN61

THE SENIOR DEPUTY PRESIDENT: So, sorry, he was living in Fairfield then, was that right?

PN62

MR REDFORD: Yes, your Honour.

PN63

THE SENIOR DEPUTY PRESIDENT: So how far was Fairfield from Warringal?---About a 10-minute drive. Possibly less.

PN64

MR REDFORD: Just backing up a second; the children, where did they go to school?---St Mary's Presentation College on Dandenong Road in Windsor, which is borderline St Kilda.

PN65

So when you worked a split shift, was it possible for you to take your kids to school?---No.

PN66

Was it possible for you to pick them up?---I never picked them up because they were old enough to walk home.

PN67

Yes, how old were they, Mr Bellas?---Well, my two daughters are, at the moment, 18 and 15. So they would have been 12 and 15 at the time.

PN68

Yes, 10 minutes from Warringal to Fairfield?---Correct. Or even less.

PN69

What did you do in the break?---I went home and that's mainly it. I did visit an old lady, I was part of a thing called Do Care, but I could have easily visited her in the evening, but I did visit her once a week for an hour.

**** MICHAEL BELLAS XN MR REDFORD
PN70

Did the break cause you any disadvantage, specific disadvantage, which you can tell us about?---It wasn't good going to work for two hours and then coming home for three and a half hours, but having said that, I also concede that, you know - I mean, it was good and bad. That's how I can describe it.

PN71

Was it ever proposed that you not work a split shift any more and just work a straight shift?---It may be true, that - that may be true. Recollecting on my conversations with Kieran, it may be true, but I can't say - Kieran may have said that to me.

PN72

So your evidence is that he might have proposed to stop you working the split shift?---He may have. He may have.

PN73

If he said it, what was your response?---My response was that ultimately it's his decision, that ultimately it's his decision. If he changes the rosters, then ultimately that's his authority and decision.

PN74

Did he ever propose to move you from the Warringal Hospital to another site?
---Yes, he did.

PN75

What was the response to that?---That I was concerned about the new policy of moving people from car park to car park and that, no, I wasn't happy about that.

PN76

What do you mean, the policy of moving people from car park to car park?
---There was a policy of transferring people from car parks to different car parks that was coming in at the time and I was - eventually he moved me to Blackwood Street car park on the condition that I was only there for someone going away on holidays. Then while I was there he came and saw me and said, sorry, you must stay here now. And so - - -

PN77

THE SENIOR DEPUTY PRESIDENT: Sorry, Blackwood Street, was it?
---That's right. So I actually felt a bit - he changed his mind and made me stay there and I quite happily stayed there.

PN78

MR REDFORD: During this period, did you ever object to working a split shift when speaking with Mr Credaro?---I don't think so.

PN79

Did you ever advise him or someone else in the company that you were entitled to be paid extra for doing it?---I honestly can't remember. I may have.

**** MICHAEL BELLAS XN MR REDFORD
PN80

The witness statement asserts that the first time you ever said anything about being paid more for working this arrangement was in late 2004. Could that be right?---Yes.

PN81

All right. Just wait there, Mr Bellas, and Mr Naughton may have some questions for you.

PN82

THE SENIOR DEPUTY PRESIDENT: Could I just ask before you do start cross-examination.

PN83

Mr Bellas, when you moved to Blackwood Street, did you work the same shifts or did you change shifts?---Changed shifts from 7 o'clock to 3.30.

PN84

So they were just straight day shifts?---Straight day shift.

PN85

All right. Thank you.

<CROSS-EXAMINATION BY MR NAUGHTON [10.25AM]

PN86

MR NAUGHTON: Mr Bellas, can I show you a map? This is just to confirm the evidence you've given about the proximity of your address?---I haven't got my glasses on, but is that Hall Street?

PN87

Yes, Hall Street - this is page - - -

PN88

THE SENIOR DEPUTY PRESIDENT: Perhaps my associate could assist you in having - - - ?---I've got my glasses in my bag, but I'm quite happy. If that's Hall Street, that's Warringal, yes.

PN89

MR NAUGHTON: So you confirm that the address where you were living and Warringal Hospital appear on the same map, in Melway - - - ?---Correct, if that's the Melways and that's Hall Street, that's - yes.

PN90

And it would probably be less than a 10-minute drive from - - - ?---I said that, yes.

PN91

If I could tender a copy of that?

PN92

THE SENIOR DEPUTY PRESIDENT: I don't think there's any dispute about it, is there?

**** MICHAEL BELLAS XXN MR NAUGHTON
PN93

MR NAUGHTON: No, I don't think so, sir.

PN94

The two issue that arise very briefly out of your evidence, Mr Bellas, and I think you've made this pretty clear, to the best of your knowledge you can't recall ever complaining that you were disadvantaged as a result of the split shift? Is that correct?---Correct.

PN95

I think you said to the LHMU representative that the first time you complained about an underpayment under the award was towards the end of 2004?---Correct.

PN96

That was after you had been moved from the Warringal Hospital to the Blackwood Street car park?---Correct.

PN97

I have no further questions.

PN98

THE SENIOR DEPUTY PRESIDENT: Any re-examination?

PN99

MR REDFORD: No, your Honour.

PN100

THE SENIOR DEPUTY PRESIDENT: Thank you for your evidence, Mr Bellas. You're excused.

<THE WITNESS WITHDREW [10.27AM]

PN101

THE SENIOR DEPUTY PRESIDENT: Yes. Do you have any further evidence?

PN102

MR REDFORD: No, I don't, your Honour.

PN103

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Naughton?

PN104

MR NAUGHTON: Sir, having heard what Mr Bellas has said, there doesn't seem to be a great need to call Mr Credaro.

PN105

THE SENIOR DEPUTY PRESIDENT: Save that Mr Redford has indicated that he has a couple of questions he wants to ask Mr Credaro.

PN106

MR NAUGHTON: Well, I would anticipate just formally tendering - - -

PN107

THE SENIOR DEPUTY PRESIDENT: Yes, that's fine. Yes. So if you call Mr Credaro.

<KIERAN CREDARO, SWORN [10.29AM]
<EXAMINATION-IN-CHIEF BY MR NAUGHTON

PN108

MR NAUGHTON: Mr Credaro, can I show you this document and ask you to - I should say, your full name is Kieran Credaro?---That's correct.

PN109

Your current work position is?---At the moment, car park manager for Melbourne Airport car parks, under Secure Parking.

PN110

Were you previously manager of Mr Bellas?---That's correct.

PN111

At different car parks that he worked at in the city?---That's correct.

PN112

If I show you that, can you identify that document for the benefit of the Commission? Or are you familiar with that document?---Yes, I am. That's correct.

PN113

That document is a witness statement that you prepared a number of weeks ago?
---Yes.

PN114

I tender that document, sir.

PN115

THE SENIOR DEPUTY PRESIDENT: You confirm that the contents of that are true and correct, do you, Mr Credaro?---That's correct, yes.

PN116

Yes, all right. Can I have the document, please?

EXHIBIT #SP1 STATEMENT OF KIERAN CREDARO WITH ATTACHMENTS

PN117

MR NAUGHTON: I can show you another copy of that document, just so you have a copy in front of you and ask you to look at exhibit B to the document. You heard Mr Bellas in his evidence say that he first raised the issue of an underpayment towards the end of August 2004, and this is a letter signed by Mr Bellas raising that issue. Can I just ask you to confirm that so far as you're aware, this was the first indication by Mr Bellas that Secure was in breach, or allegedly in breach, of a provision of the EBA?---That's correct.

PN118

I have no further questions.

PN119

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Naughton. Mr Redford?

<CROSS-EXAMINATION BY MR REDFORD [10.31AM]

PN120

MR REDFORD: Mr Credaro, you've had the opportunity to hear Mr Bellas's evidence. Not all witnesses have that opportunity, but anyway, you heard what Mr Bellas said about his children and school, and that would be right, wouldn't it? When he worked a split shift, he would not have had the opportunity to take the kids to school or pick them up?---What would be right?

**** KIERAN CREDARO XXN MR REDFORD
PN121

What he said about his children and their schooling would be correct? I'll put the question properly to you. That when he worked a split shift, he would not have had the opportunity to take the kids to school or pick them up?---I couldn't comment on what he did personally between the times that he was on a split shift. That would be just making assumption.

PN122

Perhaps if I back up a second, and cast your mind back to high school, you will recall that high school students generally arrive at school at about 8.30, for commencement at around about 8.30, 9 o'clock, and finish school at about three, 3.30, four, and are on their way home at about that time?---Mm mm.

PN123

That'd be right, wouldn't it?---As for school children finishing times, yes. I assume that would be the case.

PN124

So when he works a split shift, Michael was at work from 6.30 am to 8.30 am?
---On set days a week, that's correct.

PN125

Yes, when he works a split shift, and then he's back at work at midday and he's there until about 6.30?---That's correct.

PN126

So he wouldn't have had the opportunity to take his kids to school and pick them up from school, at their ordinary commencement and finishing times?---Once again, you're making - asking me to make an assumption on something that I can't verify.

PN127

THE SENIOR DEPUTY PRESIDENT: Well, you can't dispute what is said about that?---No, I can't. No.

PN128

MR REDFORD: Now, in your witness statement - I withdraw that. You heard what Mr Bellas said about the geographical set-up of the car parks, that there are two. Let's call them car park A and car park B. Car park A, he says, fills up to about 40 cars?---Car park A was the bowling green, yes. The requirement of two people was to have one stationed at car park A and one stationed at car park B, and to obviously to fill one car park before they allowed the other park to fill.

PN129

I understand that that's why you finished work at 8.30 am, because when you're working the split shift, you're working from 6.30 am to 8.30 am, in car park A, which by 8.30 am is full, so you can finish?---Yes, if it had filled by that time, yes. That's correct.

**** KIERAN CREDARO XXN MR REDFORD
PN130

In your witness statement at paragraph 6 you talk about your concern in relation to this roster arrangement because you say that there were periods when only one person was rostered to work at the car park, but presumably you're talking about the period after 8.30 am when the worker in car park A leaves?---There are options that allowed an EBA to change the way we managed our people as the business required on site and so to facilitate a better operation of the business, we could spread some of the hours in a different set-up and have a different operating situation that would make - would give more coverage in the way - in the respect if people go sick or they have to - not available to turn up on the day which you, you know, occasionally do - does happen, people do call in sick. So then there's an exposure to our client of not being able to provide that service, and at all times we look at options to incorporate that service so it creates the less downtime as possible.

PN131

Sure. I just want to - I mean, this is really just by way of clarification. I just want to understand the problem. I understood the problem to be that at 8.30 am, worker number 1 working in car park A goes home because car park A is full, and you're left with worker number 2 by himself in car park B for the rest of the day?---Well, until 12 o'clock.

PN132

Until 12 o'clock. I see. So for that period, from 8.30 am until 12 o'clock, worker number 2 is there by himself?---That's correct.

PN133

Problematic. So when you ultimately succeeded in changing the arrangement, you put on a casual, so presumably you had - and I understand your evidence to be that you had one permanent employee working a fixed eight-hour shift and a casual?---You're incorrect. When we changed the shift, we turned it around and it gives the opportunity of having a fulltime employee, a permanent part-time employee and a casual. This, by a sheer fact, has increased the amount of resources that were available to manage that car park in the event that any of the particular people became ill or were unavailable to fulfil their shifts. So in actual fact, it actually also generated more employment for that area as well.

PN134

Well, how did it work? Just tell us how it worked?---In different ways. There was the options of having a fulltime employee, then the EBA said we had an option to have part-timers, part-time in the afternoon. And then, or vice versa, whichever suited the employees, have a part-time shift in the morning and an afternoon shift, and then the casual would come in. In actual fact, the casual was there for three hours instead of two hours, to then to support - - -

**** KIERAN CREDARO XXN MR REDFORD
PN135

I'm sorry, you've lost me. Monday, we have three workers; permanent, part-time and casual?---Yes.

PN136

What's the permanent work?---Permanent worker would be an eight-hour shift, fulltime shift.

PN137

Beginning at?---The desired time, at - sorry, I'll just refresh myself at what time the park opened. At 6.30 or whatever time it started, he would do eight hours, with his break. And we'll make it really simple, because take from morning for the first eight hours - - -

PN138

So, 6.30 am until three?---With a half-hour break. There would be a - - -

PN139

A permanent part-timer? When does he start?---He would - I am - he would start in the afternoon.

PN140

Okay, and when does the casual start?---The casual would be there at the same time in the morning to manage the other park, or swap with the particular person that was there on site, and loop, either way, for the three hours of their minimal call-in.

PN141

So in the middle of the day, the permanent worker who is working the eight-hour shift is there by himself, until the part-timer starts in the afternoon?---Part-timer usually started about midday, if I recall. Maybe slightly earlier, to give the fulltime person their ability to have a lunch break. That's how I originally set it up before I moved on and that's been quite a while since I've been back there.

PN142

Okay. All right.

PN143

THE SENIOR DEPUTY PRESIDENT: Sorry, could I just clarify? That meant from 8.30 till 12, there was still only one person there?---No, should be more 9.30 to about 11.30, if I remember the roster correctly, which I used to change the roster to have the - three hours for the casuals, when they first start in the morning, and then there was a - because the - also to accommodate for a lunch break and I believe at that stage it was 11.30, and then that would be when the permanent part-timer would start, would be 11.30 or midday.

**** KIERAN CREDARO XXN MR REDFORD
PN144

And this is the arrangement that was introduced after Mr Bellas was moved to Blackwood Street, is that right?---The - that is correct. And the reason for it is it gave us another resource to use to manage in the event that there was a situation where any of the employees couldn't fulfil their duties on that day.

PN145

MR REDFORD: If we move to paragraph 7 in your witness statement, that's where you give evidence that a change in the roster arrangement was strongly resisted, and then later in that paragraph, the end of that paragraph you say that
Mr Bellas was reluctant to move to a car park in the city. Now, it's the case, isn't it, that what you're suggesting there, that is being resisted, is a move in site to, in this case - - - ?---Sorry, do you want to split your questions, or make your question more clear?

PN146

No. What I'll - - -?---Well, I didn't understand the content of your question.

PN147

What you're talking about in paragraph 7 is a proposal that Mr Bellas move to a car park in the city, aren't you?---Okay. To take a step back, to facilitate a change to the roster, there was two fulltime people there and in that situation there, to change the roster around it would mean that, as we've just heard, there would be a casual and a permanent part-time and the hours wouldn't have been flexible enough to suit two fulltime people. So in that event there - - -

PN148

Can I just interrupt you, just by way of clarification, what you're saying there in your evidence is that you proposed that Michael Bellas move to the city and he resisted it?---No, I proposed to change the roster to cover the car park and the operation of the car park.

PN149

Which would have resulted in Mr Bellas moving to the city?---It would have resulted in one of the fulltime people needing to be relocated.

PN150

And that was resisted?---Yes.

PN151

Yes. Yes, I don't have anything further, your Honour, thank you.

PN152

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Redford. Any re-examination?

PN153

MR NAUGHTON: No re-examination, sir.

**** KIERAN CREDARO XXN MR REDFORD
PN154

THE SENIOR DEPUTY PRESIDENT: No re-examination?

PN155

MR NAUGHTON: No re-examination. Can I just check that the map was tendered as - - -

PN156

THE SENIOR DEPUTY PRESIDENT: Well, I didn't mark it. I'm happy to mark it, but as I say, I don't know that it will serve much purpose because it's not something in dispute.

EXHIBIT #SP2 MELWAY MAP REFERENCE B1

PN157

THE SENIOR DEPUTY PRESIDENT: Thank you for your evidence, Mr Credaro. You're excused.

<THE WITNESS WITHDREW [10.43AM]

PN158

MR NAUGHTON: That concludes the evidence.

PN159

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Redford, do you wish to make further oral submissions?

PN160

MR REDFORD: Yes, there are a couple of things I would seek to say, your Honour.

PN161

THE SENIOR DEPUTY PRESIDENT: Yes, by all means.

PN162

MR REDFORD: Firstly, if it's of assistance, I have a copy of the agreement that I can hand up to you that is in a format that may be slightly easier to work with.

PN163

THE SENIOR DEPUTY PRESIDENT: Not in algebra? Because the one that I have does appear, although I did have a copy of the other one, but the one that was filed appears as though it's written in algebra.

PN164

MR REDFORD: Yes. The one that was filed is a certified copy, your Honour, so the one I have handed to you I don't propose to tender. It's also marked with notes, the one I've handed up, and I don't propose to tender it, but it's just a little bit easier to work with.

PN165

THE SENIOR DEPUTY PRESIDENT: Well, given that it's not a current agreement, perhaps I'll mark the document which you've provided.

EXHIBIT #LHMU1 SECURE PARKING VICTORIA ENTERPRISE AGREEMENT

PN166

MR REDFORD: Your Honour, in its written submissions, the respondent raises a preliminary matter about the way the first question we have submitted to you has been framed. The first question that was submitted to you is the question:

PN167

Was Bellas entitled, under clause 13.5 of the EBA, to be paid double time, ie. an additional 100 per cent loading for each hour worked for the second scheduled period of work, 12 pm to 6.30 pm on Mondays, Thursdays or Fridays?

PN168

The respondent objects to the use of the words, "second scheduled period of work" and I just wanted to indicate that we see that objection as being entirely proper, your Honour, because of course - - -

PN169

THE SENIOR DEPUTY PRESIDENT: I am grateful for that, because I did think it should be expressed in more neutral terms, as a proposition, yes.

PN170

MR REDFORD: Indeed. It would have answered itself, in my submission, had it been expressed that way.

PN171

THE SENIOR DEPUTY PRESIDENT: Pre-determinative of the issue.

PN172

MR REDFORD: Indeed. We know the respondent doesn't agree with that answer. I can't resist saying, though, your Honour that it was an easy mistake to make because of course what we did was use very ordinary and - ordinary and plain words to describe the second part of the split shift. We called it the second scheduled period of work. That's why our first line of attack, of course, your Honour, is that that's exactly what the second part of the split shift is. That therefore on any plain reading of the agreement, given that that second scheduled period of work begins within 10 hours of the end of the first scheduled period of work, the loading is payable on the hours worked during that shift equivalent to 100 per cent of the ordinary time rate.

PN173

In the written submissions filed by the union, we say that that's the appropriate way in which to interpret this agreement, that consistent with ordinary principles of interpretation and construction of enterprise agreements and awards, that your starting point should be the ordinary or the plain grammatical meaning of the words and the construction should be an objective one. I have referred there to Emwest, your Honour, in my written submissions at paragraph 9. So for completeness, I'll hand up a copy of that decision, but I don't intend to take your Honour to it.

PN174

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN175

MR REDFORD: It's a well-established principle of interpretation. If your Honour was interested, picked up in particular in discussion in Amcor, particularly by Kirby J. We fleshed that submission out in our written submissions by specifically addressing the question of ambiguity, and submitting, your Honour, that there is no ambiguity in these words and so therefore you need not have any recourse to any other material in construing the clause. What we say is that we're not - we don't contest what the respondent says in its written submissions about context and about the nature of interpretation of these industrial documents.

PN176

We simply say that where you can glean a plain meaning from the agreement, and there is nothing in the context of the agreement that contradicts that plain meaning, that there is no need, and indeed, that it's improper to embark on an investigation for some other meaning. If your Honour was concerned about the plain meaning of the words, then what we say, consistent with Emwest and similar decisions, is that the appropriate next step is to look at interpretation in the context of the statute. This is properly put as a submission in the alternative, your Honour, because primarily of course we say that you don't need to do this. But if you were to look to the context of the statute, what we've said in our written submissions is that the objectives of the Workplace Relations Act provide - - -

PN177

THE SENIOR DEPUTY PRESIDENT: The Act in place at the time the agreement was made, though, was the former statute, wasn't it? Or was it made under the 1996 Act?

PN178

MR REDFORD: The only thing I know about that, your Honour, is that there's a submission made by the respondent that it's made under the previous Act. That's right.

PN179

MR NAUGHTON: If I could just assist, sir? The agreement was certified on 20 November 1996, and it was covered by the previous Act.

PN180

THE SENIOR DEPUTY PRESIDENT: Yes, under 170MHA or something, was it, or - - -

PN181

MR NAUGHTON: That's right.

PN182

THE SENIOR DEPUTY PRESIDENT: Yes.

PN183

MR REDFORD: I'm not sure that that causes me any great difficulty, your Honour, in that while unfortunately I can't reel off the objectives of the previous Act - - -

PN184

THE SENIOR DEPUTY PRESIDENT: I can check that anyway. But your point is that it has to be construed consistently with the objects of the Act and the general context of the legislation that was in place at that time.

PN185

MR REDFORD: That's right, your Honour, that's right. And I've referred in particular to the maintenance of the safety net because what we submit, your Honour, is that this Commission approaches split shifts from the perspective that disadvantage attaches to the working of those shifts and that it's appropriate that that disadvantage be compensated and that therefore if one is to look at the clause in question, compensation for working a split shift as a meaning of that clause is entirely consistent with that objective.

PN186

The reason why there is not considered to be disadvantage attaching to the working of split shifts is because of its impact on things like family and personal life and, of course, another objective of the Act is to assist employees to balance those responsibilities with their work responsibilities, so again an interpretation of this clause which compensates an employee for disadvantages impacting on work life balance, is again entirely consistent with the Act.

PN187

THE SENIOR DEPUTY PRESIDENT: Do you know if there was any provision in the agreement for split shifts, the working of split shifts?

PN188

MR REDFORD: There's no provision in the agreement for working split shifts, your Honour.

PN189

THE SENIOR DEPUTY PRESIDENT: No. Do you know if there is any provision in the underpinning award for split shift arrangements?

PN190

MR REDFORD: There's no provision in the award for working split shifts.

PN191

THE SENIOR DEPUTY PRESIDENT: And there was not at that time, do you know, because the award has been simplified since then?

PN192

MR REDFORD: Indeed. I can't answer the question as to what the award said at the time, your Honour.

PN193

THE SENIOR DEPUTY PRESIDENT: Yes, all right. If there is no provision in the agreement or in the award, or there was no provision in the award for working split shifts, what do you say as to the implications of that or the absence of any provision for working split shifts?

PN194

MR REDFORD: My feeling on that point, your Honour, was that it has no real impact on the question. I was tempted to put to you that what that silence does is weigh in favour of our interpretation, but given that the agreement is elsewhere silent on the question of split shifts, that what the parties intended to do was to compensate employees who work split shifts by way of the rest breaks clause, but I was concerned that I'm entering into an area where I'm making submissions to you about what the intention of the parties was when they made the agreement and in my submission that's not appropriate. So that's what I say about that, your Honour.

PN195

THE SENIOR DEPUTY PRESIDENT: You say it must have been in contemplation of the parties making the agreement that the absence of any provision for split shifts meant that arrangements that were characterised or may be characterised as split shifts would attract this sort of 100 per cent penalty?

PN196

MR REDFORD: No, I don't because I don't think it's an appropriate submission to make that - I don't think it's appropriate to make submissions to you about the intention of the parties when they made this agreement. I simply say that the agreement is silent on the question of split shifts and employees would not be compensated for the disadvantage attaching to working split shifts unless the clause 13.5 is construed in the manner in which we suggest.

PN197

THE SENIOR DEPUTY PRESIDENT: All right.

PN198

MR REDFORD: Just to round that point out about the construction of the agreement with respect to the statute, this is where, as I've suggested to you already, your Honour, I contest the relevance of Mr Bell's own personal circumstances because what we say is we say as a general proposition, there is disadvantage attaching to split shifts, whether or not in particular individual circumstances, such as Mr Bell's, there is evidence of that disadvantage. I feel safe in making - - -

PN199

THE SENIOR DEPUTY PRESIDENT: You say it's notoriously known that disadvantage attaches to split shifts?

PN200

MR REDFORD: That's right, yes. Finally, your Honour, I make a simple point about anything else that might be made about Mr Bell's circumstances and behaviour during this period and that is that in our submission a failure on the part of Mr Bell as to contest his roster, to object to his roster, to explain why the roster didn't suit him, to request that he be paid the loading that we contend for, to agreeing not to be paid the loading, is irrelevant, and that all of this material - - -

PN201

THE SENIOR DEPUTY PRESIDENT: You can't contract outside a statutory or a document that has statutory force.

PN202

MR REDFORD: That's my point, your Honour. They are the submissions I wish to make to build on the written submissions. I would like to reserve my right to apply, your Honour.

PN203

THE SENIOR DEPUTY PRESIDENT: Right to apply, yes. Perhaps what I'll do, Mr Redford, is mark your written submissions as the outline of the submissions of the applicant as LHMU2.

EXHIBIT #LHMU2 OUTLINE OF APPLICANT'S SUBMISSIONS

PN204

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Naughton?

PN205

MR NAUGHTON: Sir, I will be in principle relying on the outline filed on behalf of - - -

PN206

THE SENIOR DEPUTY PRESIDENT: Yes, I'd better mark that as well, as SP3.

EXHIBIT #SP3 OUTLINE OF RESPONDENT'S SUBMISSIONS

PN207

MR NAUGHTON: You probably don't want another copy of the agreement to add to the documentation you have, but what is useful about this copy of the agreement is that it's also in a reasonably user friendly format but it shows the certification details indicating that - - -

PN208

THE SENIOR DEPUTY PRESIDENT: I think my associate actually extracted a copy of this in this form, but in any event I'll mark this copy of the Secure Parking Victorian Enterprise Agreement 1996 as certified by Commissioner Gay on 20 November 1996 as exhibit SP4.

EXHIBIT #SP4 COPY SECURE PARKING VICTORIAN ENTERPRISE AGREEMENT 1996 CERTIFIED BY COMMISSIONER GAY, 20/11/1996

PN209

MR NAUGHTON: Now, as is evident from our submissions - - -

PN210

THE SENIOR DEPUTY PRESIDENT: Perhaps just before you go on. Is there any objection to me working off that document, Mr Redford, off exhibit SP4, which has come from - or appears to have come from the Commission's - - -

PN211

MR NAUGHTON: There are just a couple of - there's no notations, but there are some - if you go to clause 13 there are some lines and underlinings which - - -

PN212

THE SENIOR DEPUTY PRESIDENT: Well, I won't be taking any notice of the underlinings. I presume they weren't made at the time the agreement was certified.

PN213

MR NAUGHTON: No, that's correct.

PN214

MR REDFORD: No, I don't object to that, your Honour. If in doubt you can of course have regard to the agreement I submitted with the submission.

PN215

THE SENIOR DEPUTY PRESIDENT: Yes. If I'm actually working on any particular clause I'll cross-reference them in any event just to confirm they are the same. Sorry, Mr Naughton?

PN216

MR NAUGHTON: Sir, as is evident from our submissions, essentially the argument that we make is that this was an old Act EBA and there are provisions in the Industrial Relations Act which indicate that an EBA, which has lasted more than three months longer than its nominal expiry date, takes effect as an award. Now that is only relevant so far as our submissions are concerned in that many of the cases the Commission has dealt with in terms of interpreting an award are appropriate in how you should consider this particular document. The main difference between us seems to be whether you look at the plain grammatical meaning of the words in clause 13.5, which is what - - -

PN217

THE SENIOR DEPUTY PRESIDENT: That's the starting point, though, isn't it, surely?

PN218

MR NAUGHTON: Well, we say it's - and we agree it's the starting point, but so long as you - there's not a suggestion there that one looks at those words in isolation and - - -

PN219

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I don't think that's ever the case. They have to be construed within their own context and in the context of the agreement as a whole and of the legislation, I think.

PN220

MR NAUGHTON: Well, certainly that would be our submission. In the submissions that we've filed there's some extracts of cases that contain those particular provisions and some of that language has been extracted from a decision of Commissioner Roberts in the Wombo Coal case. If I could take you to paragraph 49 of his decision and these are, we would submit, standard propositions taken into account by the Commission in interpreting awards, but at paragraph 49 there's an extract from a case, Short v Hercus, where it said that it's not always possible to examine a word or expression standing on alien ground.

PN221

Then over the page in paragraph 51 there's a reference to a decision of Neeves J in the Meat and Allied Trades Federation case where he says:

PN222

The true meaning and effect of the award must be ascertained not by construing the language used in isolation but by construing the language in his setting and in his context and in light of all these surrounding circumstances.

PN223

And then there's - - -

PN224

THE SENIOR DEPUTY PRESIDENT: But there's no evidence of the surrounding circumstances here before me, apart from the legislation and the agreement itself, isn't that right?

PN225

MR NAUGHTON: That's correct. In fact, our view is that what you need to do in looking at paragraph 13.5 is in particular to look at the objects provision in clause 9 of the agreement where there is emphasised matters, work flexibility issues, questions about the needs of the enterprise, but in particular the requirement that clause 13.5 is read in conjunction with those objects. The flexibility of the employer to possibly set up a system of split shifts as applied at the hospital, and then you work from the objects provision to clause 4 of the agreement which seems to put an obligation on the parties to ensure that the objectives outlined in clause 9 are achieved throughout the life of the agreement, and then if you go back - - -

PN226

THE SENIOR DEPUTY PRESIDENT: The parties being also the union and the employer, is it?

PN227

MR NAUGHTON: That's correct. I guess what we're saying is the LHMU has entered into an agreement which includes as one of its objectives the principle of allowing an employer to utilise shifts and arrangements which enhance work flexibility, and then here we have the union more or less coming forward and arguing, well, no, you're not entitled to any flexibility at all, and if you do initiate something like a split shift there is a penalty attached to it, and we just don't think, having regard to the broad purpose and objectives of the agreement that that is a legitimate argument.

PN228

THE SENIOR DEPUTY PRESIDENT: Was the split shift arranged or a matter agreed between the union and the employer, do you know? There's no evidence before me about that anyway.

PN229

MR NAUGHTON: There's no evidence before you about that but if you go to the hours of work provision, clause 13, again you can say that this is a provision which reflects the objects of the Act, but clause 13.1 talks about working arrangements reflecting the need to accommodate the following priorities, clause 13.1.

PN230

THE SENIOR DEPUTY PRESIDENT: Yes.

PN231

MR NAUGHTON: Maintenance of customer satisfaction, establishment of a professional working environment, flexibility in the scheduling of work and employee satisfaction. Now, that issue of flexibility is in 13.1 and it is part of the objects of the agreement and we say that allowed the company to establish a rostering arrangement that suited the operation of the Warringal Hospital Car Park on this particular occasion and they should not be subject to any penalty arrangement which arises out of clause 13.5.

PN232

THE SENIOR DEPUTY PRESIDENT: What, do you say the notion of a penalty arrangement is anathema to ..... if you like but flexibility as it's articulated in 13.1?

PN233

MR NAUGHTON: We say it's completely antagonistic to any idea of there being flexibility available under this agreement because as soon as you establish a split shift arrangement then there is a penalty of double time attached on any further hours of work.

PN234

THE SENIOR DEPUTY PRESIDENT: But it doesn't stop you introducing split shifts, for example, does it?

PN235

MR NAUGHTON: No, it doesn't but there's a significant inhibition or we would say it's a penalty on the parties if they do and that can't have been on a reading of the words contemplated by the parties when they reach this agreement.

PN236

THE SENIOR DEPUTY PRESIDENT: What did you say initially? It's not a prohibition, what did you say, it's an impedance or - - -

PN237

MR NAUGHTON: Well, I guess it just inhibits that kind of - an inhibition on the availability of this kind of arrangement. I tend to think that if you read the clause the way that Mr Redford suggests it would basically mean that the company wouldn't have been allowed to have a roster where a car park attendant worked at one site and then moved across to another site because technically that would have meant that they were working at the other site without a 10 hour break in between.

PN238

THE SENIOR DEPUTY PRESIDENT: Does work time continue during the period of transferring from one site to another site?

PN239

MR NAUGHTON: But imagine that the roster didn't, imagine that there was a two hour break because the person travelled from one site to another and that break was unpaid, now, is the union entitled, in those circumstances to argue, no, you can't do that because you require a 10 hour break, and we say that that's just a very unusual way of interpreting the roster arrangement. The other point that needs to be made is that, and I think in some of the discussion between yourself and Mr Redford, there has been a suggestion that clause 13.5 is somehow about split shifts.

PN240

In fact we need to remind ourselves that the heading of that clause and the apparent purpose of that clause is to deal with the issue of rest breaks and the whole purpose of this provision is to allow for a penalty when an individual employee is required to engage in work in circumstances when they haven't had a sufficient break between, we say, their period of working hours on a particular day and the time when they are next required to attend for work.

PN241

It's not about split shifts. It's to deal with circumstances where a worker is required to attend for work without a sufficient break and that's in some way emphasised by the fact that the second paragraph of the provision talks about health and safety considerations and you need to - well, we would say that one needs to take into account the fact that it's a health and safety issue, it's the failure to allow for an appropriate break, and it's in those sorts of circumstances where the penalty may have been available, but none of those are at issue here.

PN242

Prior to commencing work at 12 o'clock in the afternoon there's been this three hour break, but Mr Bellas had only been required to work for the two hour period before that break. There was no question that he was exhausted or unable - not having a sufficient break by then returning for work at 12 o'clock as required by his roster. So really the whole purpose is not satisfied by Mr Bellas' claim in these circumstances because there's no question of him not having an appropriate or sufficient break before he commenced work at 12 noon.

PN243

The other point which we make in the submissions is that the award requires under clause - - -

PN244

THE SENIOR DEPUTY PRESIDENT: Is this before or after it's been simplified?

PN245

MR NAUGHTON: I'm sorry - - -

PN246

THE SENIOR DEPUTY PRESIDENT: Which award are you talking about, the - - -

PN247

MR NAUGHTON: No, I'm sorry, I'm talking about the agreement.

PN248

THE SENIOR DEPUTY PRESIDENT: The agreement, yes, all right.

PN249

MR NAUGHTON: The agreement contains provisions dealing with working hours in clause 13.2.

PN250

THE SENIOR DEPUTY PRESIDENT: Yes.

PN251

MR NAUGHTON: And our argument is that the reference to the minimum hours of work in 13.2 is a relevant consideration here as well. The fact that Mr Bellas employs 13.2(a)(ii), had to work a minimum of six hours on a particular day and that meant that after his two hours at Warringal Hospital between 6.30 and 8 am he had to at least work another four hours that day to comply with the requirements of the award and he wouldn't have worked his shift of minimum hours until he had worked that minimum, so - - -

PN252

THE SENIOR DEPUTY PRESIDENT: Unless he was a casual or part timer.

PN253

MR NAUGHTON: Which he wasn't. He was a full time permanent employee. So our argument as a result of that proposition is that his scheduled period of work on a Monday, Thursday or Friday was in fact the two hours in the morning plus the hours he worked from 12 to 6.30 pm which satisfied the requirements of the agreement so far as the minimum hours of each day, which again suggests, so far as in our submission that the issues arising under clause 13.5 weren't made out as a result of this particular roster.

PN254

The objectives provisions in the agreement, sir, which I've referred to, and these are matters which I've emphasised in the submissions, but I would request that you have regard to the specific language of clause 9 which talks about there being a commitment on the part of the parties that the LHMU and Secure, to establish an efficient, productive and effective operation which benefits both the company and its employees. So there is a balance here between what type of arrangements can benefit the company just as much as there may be for arrangements that might benefit the needs of its employees.

PN255

Clause 9.1 refers to one of the issues that has to be taken into account as being the needs of the enterprise and it refers to an objective of the Act being to enhance and optimise cost effective, excellence and performance with changes in work procedures and practices contributing to and maintaining this position. So issues about establishing a rostering arrangement which is cost effective and suited to the needs of the company again is important and in clause 94 the argument that work can be undertaken in a "fully flexible manner without demarcations and limitations," and I guess the argument that we make is that the interpretation of clause 13.5 made by the LHMU is one which imposes this kind of limitation and restriction on the company.

PN256

So they are, together with our submissions, essentially the matters that we wish to draw to your attention.

PN257

THE SENIOR DEPUTY PRESIDENT: What do you say about the fact that there is no provision in the agreement or the underpinning - well, I don't know about the underpinning award yet, but I gather there may not be anything in the underpinning award about the facility of split shifts?

PN258

MR NAUGHTON: Well, I think our view is that read according to its terms, the agreement does and we would submit the agreement does allow the company to set in place flexible working arrangements and that would include this particular split shift arrangement.

PN259

THE SENIOR DEPUTY PRESIDENT: But it's not expressly provided for, is it? There's no express provision for split shifts?

PN260

MR NAUGHTON: No, I would accept, there's no express provision but there is nothing on the fact of the agreement to prevent that arrangement and in fact many of the provisions seem to, in a sense, encourage the parties to contemplate a flexible working arrangement that might embrace split shifts.

PN261

THE SENIOR DEPUTY PRESIDENT: Has there been a new agreement made or not?

PN262

MR NAUGHTON: No. There was a replacement agreement, as I understand it, in 1999 which was never certified, and in fact I think there is some reference to that agreement in the LHMU - - -

PN263

THE SENIOR DEPUTY PRESIDENT: Yes.

PN264

MR NAUGHTON: And the parties have recently negotiated a 2005 EBA, but there hasn't been - the 1996 agreement was terminated earlier this year but that has been the underpinning EBA since 1996, yes.

PN265

THE SENIOR DEPUTY PRESIDENT: The only other thing I suppose I need to clarify with you is the - am I right in understanding the issue of calculation also is in dispute?

PN266

MR NAUGHTON: Well, I think the argument is that if Mr Bellas is entitled to anything, then it should be the amount plus various safety net increases that arose during the course of the agreement and my instructions are that we don't object to that, or we have nothing - we wouldn't argue that particular point.

PN267

THE SENIOR DEPUTY PRESIDENT: If in the event that I found or I find that there is an entitlement to a penalty, then there's no reason why the parties couldn't work out the calculations themselves, is there?

PN268

MR NAUGHTON: No, that's so, yes.

PN269

THE SENIOR DEPUTY PRESIDENT: All right. Thanks very much, Mr Naughton. Mr Redford, you have a right of reply, but do you agree that in the event that I do find that there is an entitlement to a penalty in respect of the period commencing at 12 noon on the days of the broken shifts, do you agree that the parties could do the calculations themselves? It wouldn't be necessary for - - -

PN270

MR REDFORD: Yes, I do, your Honour. I omitted to say anything about the second question and I should have, but my point in relation to the second question was that in reality, as I understand it, there was a 1999 agreement struck but not certified that the employees were paid those rates.

PN271

THE SENIOR DEPUTY PRESIDENT: That's the safety net increases?

PN272

MR REDFORD: I stand to be corrected on this, your Honour, but no, not the safety net increases. The rates of pay that were negotiated and agreed upon in the 1999 agreement, that wasn't certified. The employer, by way of contract, paid those rates and my point was that we don't seek that the loading that we contend for be paid at those rates and we also don't agree that the loading should be payable at the frozen rate, that being the rate - the last rate of pay in the 1996 award.

PN273

THE SENIOR DEPUTY PRESIDENT: You agree with what Mr Naughton said, that it would be that rate, plus the safety net increase?

PN274

MR REDFORD: Plus the safety net increase.

PN275

THE SENIOR DEPUTY PRESIDENT: For the life of the agreement.

PN276

MR REDFORD: That's right, your Honour, and that was the second question I understand that's been conceded. Just by way of short reply, your Honour, I might if I could just take you back to Emwest and in particular take you to the paragraph that we referred to in our written submissions and that was paragraph 33 which in this particular copy of the decision is on page 12.

PN277

THE SENIOR DEPUTY PRESIDENT: Yes.

PN278

MR REDFORD: There are really two points we make flowing from this. The first is that what the court essentially says is perhaps summarised best in the final sentence of that paragraph where their Honours say:

PN279

However where only one construction is open, section 15AA does not provide a warrant for redrafting legislation closer to an assume desire of the legislature.

PN280

Now, whilst that sentence refers to a statute that's not relevant to you in this matter, I mean, also refers to legislation. The principle of interpretation being referred to by their Honours there is that you don't need to go and look for another meaning of words where one is already readily apparent on the face of those words. That's the first point we make coming from Emwest.

PN281

The second point is that what is inappropriate in the view of their Honours in this case and in many decisions like this, is to look to the assumed intention of the parties to the agreement and make assumptions and suppositions about that intention when construing the words of the agreement because the problem, of course, your Honour, is that one can often come up with a whole range of different possible intentions of the parties when looking at interpreting words and in my submission - - -

PN282

THE SENIOR DEPUTY PRESIDENT: I can only draw inferences about the assumed intentions of parties based on facts, and as I say, there are no real - or there is no evidence before me of the surrounding circumstances apart from the Act and the award themselves.

PN283

MR REDFORD: Yes, agreed, your Honour, but only where there's some ambiguity on the face of the words. And so we submit firstly that there is no ambiguity in this case.

PN284

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that, yes, I understand that.

PN285

MR REDFORD: The problem for the respondent in my submission is, for example, in relation to making submissions about possible intention with respect to things like flexibility. The respondent takes us to clause 9 of the agreement and in my submission makes a range of assumptions about what flexibility in that clause means. The respondent assumes flexibility means things like split shifts. The agreement certainly doesn't expressly contemplate the concept of a split shift. Frankly, in my submission, your Honour, clause 9.4 of the agreement, which almost defines flexibility, contemplates multi-skilling, not split shifts. It talks about demarcations and limitations on performance subject to things like individual skill and knowledge, not shift arrangements.

PN286

A similar point might apply to clause 13.1 which again - - -

PN287

THE SENIOR DEPUTY PRESIDENT: To what, sorry?

PN288

MR REDFORD: To clause 13.1 which was referred to by the respondent which refers again to flexibility but which doesn't necessarily contemplate split shifts. It could mean the arrangement that Mr Credaro described applies now which seems to involve different start and finishing times, seems not to involve the permanent roster. Perhaps flexibility and scheduling of work means that, not split shifts. So in my submission, your Honour, these contextual clauses - - -

PN289

THE SENIOR DEPUTY PRESIDENT: I don't think there was any provision for part time, was there, in this agreement or in the award prior to the simplification?

PN290

MR REDFORD: There is provision in this agreement for part time work.

PN291

THE SENIOR DEPUTY PRESIDENT: Is there? Yes.

PN292

MR REDFORD: At 12.4, your Honour.

PN293

THE SENIOR DEPUTY PRESIDENT: Sorry.

PN294

MR REDFORD: But the upshot of that, your Honour, is that in my submission those clauses don't assist you if you feel compelled to go to them at all. Attached to that it's worthwhile I think that I submit that of course another assumption that appears to have been made by the respondent is that if these clauses don't contemplate split shifts, then the implication of our construction of clause 13.5 prevents the respondent from using split shifts. Well, that's just not right, your Honour. The respondent could use split shifts and pay the loading. The loading itself doesn't prevent the use of that kind of working arrangement. It wouldn't, for example, prevent the respondent using employees to work at different sites.

PN295

It may mean that employees working at different sites during one day are paid compensation for the inconvenience attaching to that. It may mean that unless your Honour's point is correct and that is that there's a break in work when one moves from site to site, but it doesn't prevent that practice, your Honour.

PN296

THE SENIOR DEPUTY PRESIDENT: I don't think it was the argument of the employer prevents it, but it inhibits it. It's an inhibition on the flexibility, if you like, as they interpret the word flexibility.

PN297

MR REDFORD: Yes, and I wouldn't want to get into a circular argument about that. I certainly understand the submission that an employer may be reticent to use the arrangement if it knew it would have to pay more, but I might just as soon say that a clause that provides compensation for that arrangement actually facilitates the respondent's use of such an arrangement, it enables the respondent to recruit employees that will participate in the arrangement because they get more money, your Honour, and indeed, often that's the way these clauses are approached, that - - -

PN298

THE SENIOR DEPUTY PRESIDENT: It would be cheaper, though, wouldn't it, to employ a casual to work for a couple of hours or something like that to - I don't know if that were allowed, but anyway.

PN299

MR REDFORD: I can't really say much about really the final point the respondent made about hours of work. I concede that the agreement provides for a minimum number of hours of work of six and that, on our construction, the first shift in the split shift breaches that clause. I simply say that that breach doesn't cure the breach that I contend for. The fact that the respondent required Mr Bellas to work a two hour shift and then a six hour shift, in breach of the hours of work clause, doesn't mean that the respondent's protected from a breach of the agreement flowing from its failure to pay him the loading in the second shift, in our submission, your Honour.

PN300

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Redford.

PN301

MR REDFORD: Thank you, your Honour.

PN302

THE SENIOR DEPUTY PRESIDENT: I thank both parties for the very hopeful comprehensive submissions. I'll reserve my decision and publish that in due course. Is there any urgency about this matter?

PN303

MR NAUGHTON: Not from our - - -

PN304

MR REDFORD: No, your Honour, we know you have many other urgent matters to attend to.

PN305

THE SENIOR DEPUTY PRESIDENT: Thank you very much. Very well, I adjourn the matter.

<ADJOURNED INDEFINITELY [11.32AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

MICHAEL BELLAS, SWORN PN44
EXAMINATION-IN-CHIEF BY MR REDFORD PN44
CROSS-EXAMINATION BY MR NAUGHTON PN85
THE WITNESS WITHDREW PN100
KIERAN CREDARO, SWORN PN107
EXAMINATION-IN-CHIEF BY MR NAUGHTON PN107
EXHIBIT #SP1 STATEMENT OF KIERAN CREDARO WITH ATTACHMENTS PN116
CROSS-EXAMINATION BY MR REDFORD PN119
EXHIBIT #SP2 MELWAY MAP REFERENCE B1 PN156
THE WITNESS WITHDREW PN157
EXHIBIT #LHMU1 SECURE PARKING VICTORIA ENTERPRISE AGREEMENT PN165
EXHIBIT #LHMU2 OUTLINE OF APPLICANT'S SUBMISSIONS PN203
EXHIBIT #SP3 OUTLINE OF RESPONDENT'S SUBMISSIONS PN206
EXHIBIT #SP4 COPY SECURE PARKING VICTORIAN ENTERPRISE AGREEMENT 1996 CERTIFIED BY COMMISSIONER GAY, 20/11/1996 PN208