BP2007/2428, Transcript of Proceedings [2007] AIRCTrans 167 (4 April 2007)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 16664-1

COMMISSIONER SIMMONDS

BP2007/2428

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
AND
SKILLED ENGINEERING LTD
s.451(1) - Application for order for protected action ballot to be held
(BP2007/2428)

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
AND
BUSICOM SOLUTIONS PTY LTD
s.451(1) - Application for order for protected action ballot to be held
(BP2007/2430)

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
AND
SKILLED ENGINEERING LTD
s.451(1) - Application for order for protected action ballot to be held
(BP2007/2457)

MELBOURNE

11.45AM, MONDAY, 19 MARCH 2007

Continued from 8/3/2007

Reserved for Decision

PN101

THE COMMISSIONER: Any changes to appearances please?

PN102

MR M MOIR: I appear for Busicom, on the last occasion Mr Britt of counsel appeared

PN103

THE COMMISSIONER: Leave was granted to Mr Britt and I’ll continue to grant that leave in your case Mr Moir.

PN104

MR MOIR: Thank you Commissioner.

PN105

THE COMMISSIONER: Now some new faces.

PN106

MR W SWAIN: Commissioner I’m not actually seeking leave to appear I am here on instructions from Schaefer Systems International Pty Ltd, whose employee Danny Samuels has a summons to witness issued to him. I am seeking leave to remain at the bar table.

PN107

THE COMMISSIONER: So there’s no appearance, well, so I won’t be hearing from you.

PN108

MR SWAIN: It is just out of courtesy Commissioner.

PN109

THE COMMISSIONER: Yes, I hear what you say.

PN110

MR A EMBER: I appear on behalf of the Australian Industry Group in relation to member Skilled Limited.

PN111

THE COMMISSIONER: Yes, thank you. Mr Terzic I think.

PN112

MR TERZIC: Commissioner, this morning I propose to call two witnesses Mr Mavromatis and Mr Samuels. Mr Mavromatis is an organizer with the - - -

PN113

THE COMMISSIONER: Yes, I read all about that in the outline.

PN114

MR TERZIC: Yes. Mr Samuels is an employee of Schaefer and the site manager for the relevant site. Mr Samuels has been compelled to come to the Commission this morning and give evidence. I will be examining him in the normal way, however, certain matters may arise concerning how that transpires. I would just like to address the Commission on a few issues relating to that but it may be appropriate that both Mr Samuels and Mr Mavromatis leave the court room briefly.

PN115

THE COMMISSIONER: Any objection to that course of action? Could I ask you both just to step outside beyond earshot please? Is there any issue that’s likely to be raised that might affect the other witness that the CFMEU is calling?

PN116

MR TERZIC: I don’t think so, Commissioner, but maybe to be prudent it might be better that they depart accordingly too.

PN117

THE COMMISSIONER: Yes, all right.

PN118

MR TERZIC: It may be Commissioner in the course of me examining Mr Samuels his responses to my questions might lead me to seek to having him declared a hostile witness or an adverse witness so that he can be cross-examined. If he was to be cross-examined there would be issues going to exchanges and conversations he’s had with Mr Mavromatis. Now if that was to transpire, because I propose Mr Mavromatis to be the first witness called I would then have to tell, or warn Mr Samuel of the nature of the exchanges that have been given in evidence already to give what is referred to as a Browne and Dunn warning.

PN119

So what I think might be the appropriate course is simply to allow Mr Samuels to allow in the court room while Mr Mavromatis gives his evidence and then he will be fully placed to give his version of events as to any dispute as to what transpired and various exchanges that I will be leading evidence on. If there is no objection to that course that’s what I propose to do, if not I’ll ask Mr Samuels remain outside while I examine Mr Mavromatis.

PN120

THE COMMISSIONER: Does anyone have an objection to that course of action? Mr Swain, I know you are not appearing?

PN121

MR SWAIN: Yes.

PN122

THE COMMISSIONER: We might just go off record if we could for a minute.

<OFF THE RECORD

PN123

THE COMMISSIONER: I’ve had an off record discussion with Mr Swain is sitting at the bar table for reasons that escape me but and there is no objection at all to the process, so I think that’s a wise move Mr Terzic and we will proceed that way.

PN124

MR TERZIC: I call Mr Tony Mavromatis.

<TONY MAVROMATIS, SWORN [11.51AM]
<EXAMINATION-IN-CHIEF BY MR TERZIC

PN125

MR TERZIC: Commissioner, in a slightly tardy way I did file and serve an outline of the case in this matter, it might be appropriate that it be tendered.

EXHIBIT #T1 OUTLINE OF SUBMISSIONS

PN126

MR TERZIC: For the record could you give your name and address and occupation again please?---Tony Mavromatis, I am an AMWU official of the metals division (address supplied).

PN127

Mr Mavromatis could I ask you to look at this document starting at what’s marked as paragraph 9 please? I ask that the parties look at T1, paragraph 9 and the Commission too. Mr Mavromatis you will see there at paragraph 9 on page 5 some sub paragraphs going from (a) to (m), could you just quickly read over that again please?---Yes.

PN128

Mr Mavromatis are the matters raised in sub paragraphs (a) to (m) true?---True and correct.

PN129

Yes?---Yes.

PN130

You will also note Mr Mavromatis and I’ll the Commission and the parties to look at page 10 of that document, that therein the date 15 March 2007 appears?---Yes.

PN131

Since 15 March 2007, have you had any further dealings with Busicom or Busicom management?---In telephone conversations?

PN132

Yes?---Yes, in telephone conversations up to 15 March, correct.

PN133

Could you tell the Commission the nature of those telephone conversations and to the best of your recollection when they occurred, with whom and what was said?
---I believe the diary would help me along but since I took over this site from Terry Bradley I have made telephone calls to Busicom. I spoke to a Paul - - -

PN134

THE COMMISSIONER: During the period?

PN135

MR TERZIC: This is from the 15th until today - - -

PN136

THE COMMISSIONER: Which is last Thursday?

**** TONY MAVROMATIS XN MR TERZIC
PN137

MR TERZIC: Yes?---With Busicom management?

PN138

Yes?---I’d say no.

PN139

Have you visited the Somerton site in question?---Yes.

PN140

Can you remember which day that was?---That was Thursday.

PN141

On Thursday?---Correct.

PN142

About what time?---That was 12 o’clock, noon.

PN143

Did you go out alone or with anyone else?---I went out with a CFMEU organizer, Mark Travers.

PN144

When you arrived at the site, who did you meet first?---The lady behind reception where we sign in and the appropriate process needs to take place before entering the site.

PN145

Where did you go after that?---After that the lady behind the reception called for Mr Samuels and Mr Samuels came along and took us to the crib sheds and there we met with our membership during their lunch break.

PN146

So when you say your membership, about whom are you referring?---I’m referring with Skilled Engineering, I still call them Skilled Engineering and some Busicom Solutions, I think it’s called, Busicom employees, yes.

PN147

About how many persons?---In that room at the time, I’d say employees that attended that meeting would have been close to – and I’m only guessing I never counted them – I’d say about 18.

PN148

Was Mr Samuels there with you when you spoke to these workers?---No,
Mr Samuels showed me the room that we would have the meeting in and he left me with the members.

PN149

So after the meeting what did you do then?---I went out and asked Mr Samuels if I could inspect the work area because some safety issues had been raised and I was told that no you cannot inspect the area, you’ve done what your right of entry is as allowed you to do, as far as the Workplace Relations Act he wouldn’t allow me to have a look at the warehouse or the work that the employees were working.

**** TONY MAVROMATIS XN MR TERZIC
PN150

He didn’t allow you, so what did you do in response to that?---So then I had to leave the site and I do hold an REO, OH&S ticket to inspect work sites where suspected breaches, or suspected allegations are made. I went outside, I filled out that form, I came back into reception handed that over and asked for again
Mr Samuels.

PN151

What did you do, what happened after that?---After that Mr Samuels came down, he got on the telephone, I don’t know who he was talking to, but my perception was that he was talking to someone above him and that person above him, my perception, because I couldn’t hear the telephone conversation was that no, we were not allowed to enter the site under our REO ticket. We further then rang up Work Safe to get an inspector out to make sure everything is true and correct. A work cover inspector did come out and after a period of time I was allowed on the site with the work cover inspector who went on the site and inspected the site.

PN152

About what time was that?---That would have been held up until approximately 20 past three to quarter past three.

PN153

I’ll just stop you there. Did you introduce yourself to the work cover
inspector?---Yes, I did.

PN154

Did he introduce himself to you?---Yes, he did.

PN155

Can you recall his name?---Mr Turner, Wayne Turner I believe.

PN156

So you met him on the site you were saying?---I met him at the site in the reception.

PN157

Where did you go after that?---After that we went towards the crib sheds. We entered the work area which we are talking about and walked around the site where the employees are working. Employees of Busicom and Skilled Engineeering.

PN158

When you say the work site, do you mean inside the warehouse?---Inside the warehouse, correct.

PN159

You said that the document you read was true and correct and in the document you described how one part of the warehouse is partitioned off?---Correct.

**** TONY MAVROMATIS XN MR TERZIC
PN160

You were in what side of the warehouse?---We weren’t – there’s one part of the partition which is obviously operational and the other side of the partition we say is under construction and we entered that construction part of the partition.

PN161

I just want to make it clear where you – there was you and you said Mr Turner, was he there too?---Mr Turner was there too, correct.

PN162

Anyone else?---Mr Samuels was also present.

PN163

That was the extent of the group?---That was the extent of the group.

PN164

Just you three?---Correct.

PN165

Then you said you started to look around the warehouse the inside of the warehouse the relevant part?---Correct.

PN166

What were you looking for?---We were looking for the way employees are supervised when it comes to manual handling and working at heights and we did find some problems.

PN167

When you say we, who?---Again the three, myself, the work cover inspector and Mr Samuels.

PN168

What were those problems?

PN169

THE COMMISSIONER: Hang on.

PN170

MR MOIR: I’m loathe to interrupt Commissioner, but I object on the grounds of relevance. As I understood it the purpose of today’s hearing was to ascertain the relevant award coverage of the site more squarely the issues whether the MECA award covers the site as served within the bargaining notice. I’m just struggling to see the relevance of this line of questioning.

PN171

THE COMMISSIONER: Mr Terzic?

PN172

MR TERZIC: Commissioner, the evidence we propose to adduce today will try to give the Commission a picture of the nature of the work in various aspects. That is, the types of workers who are performing the work, the systems being used, what is being undertaken at the relevant site and in doing so I will submit that what transpired on 16th the evidence Mr Mavromatis is giving now will have some relevance, it’s just that perhaps laying the foundation of giving that evidence might have been extended, but I wanted to make sure that it was properly before the Commission and not adduced too abruptly, but the relevant points will start to emerge pretty promptly from this point on.

**** TONY MAVROMATIS XN MR TERZIC
PN173

THE COMMISSIONER: Yes, okay. You heard that, you maintain your objection?

PN174

MR MOIR: Yes, I do Commissioner.

PN175

THE COMMISSIONER: I’m satisfied what he is saying – I mean I understand that this evidence is going to what basis Mr Mavromatis has to make whatever assessments he makes about the sort of work and stuff that’s being performed from his own observation.

PN176

MR MOIR: If the Commission pleases.

PN177

MR TERZIC: You said you referred to some problems about the persons working height?---Correct.

PN178

Just elaborate on that?---Well during our visit we came to an area where employees I believe were working up in the conveyor system up on top of a mezzanine floor which is being constructed during the life of this project. I think it was 5.9 metres high, approximately, there was no proper entry egress to get to this mezzanine floor. Employees were expected to use a scissor lift to get up and down as an entry to this floor. There wasn’t appropriate handrail systems in place, there was a gap of about two metres - - -

PN179

THE COMMISSIONER: I really am going to interrupt now. I understood you to be saying that this was setting a foundation – I don’t really know whether the existence or otherwise of handrails and so on is a matter that’s setting a foundation of anything that’s going to be said. How is it?

PN180

MR TERZIC: Well Commissioner one of the contentious issues as I appreciate the case is that the work in question is not construction work as circumscribed in MECA and Mr Mavromatis is giving a first hand account of how workers go about doing what they do.

PN181

THE COMMISSIONER: Well that’s fine, but what’s the existence or otherwise of handrails got to do with it? I would have thought that there would have to be handrails whether they were doing construction work or doing storage work? Unless they had other means of safety, safety harnesses or whatever.

PN182

MR TERZIC: The relevance might lie in the working at height was being done with temporary measures to prevent falls et cetera.

**** TONY MAVROMATIS XN MR TERZIC
PN183

THE COMMISSIONER: Well let’s deal with that. Let’s deal with that but not with – I mean I’ve got no difficulty when you go in that direction but that’s not the direction that it’s going.

PN184

MR TERZIC: So the issue in question, the safety issue in question Mr Mavromatis was whether the employees were safely working at height?
---Correct.

PN185

What measures were – did you see in place that were there to prevent them from falling or otherwise being in danger?---There were some handrails up, there were not some handrails up and there was some para-webbing put up which the work cover inspectors, made a determination that wasn’t good enough and the employees before they go up there and work, they had to complete installing the handrails, because only partially the handrails had been put up.

PN186

So these were partially put up?---Correct.

PN187

Were the safety measures there permanent or temporary?---Those handrails I believe will end up being permanent, and they haven’t just been completed.

PN188

So things hadn’t been completed, you could see that there was scope for the handrails to be installed later?---Yes, handrails had to be installed to complete the handrail system and also a stairway which leads up to the mezzanine floor had to be finished off also.

PN189

Yes, now did you know whether the workers you saw performing this work, were members of the AMWU or not?---Some of them.

PN190

How did you know that?---Telephone calls.

PN191

Did you know them personally?---Personally I’ve known of them, some of them, yes.

PN192

Do you know what grades they are? What type of workers they are?---Yes, some of them are fitters. I believe there was some boiler makers there. There was labourers, TA’s yes, that sort of nature of employees.

PN193

So going back to the inspection with Mr Turner, how much longer did that occur?
---We finished the inspection I think, it would have been around about 4 o’clock, 4.30 something like that.

**** TONY MAVROMATIS XN MR TERZIC
PN194

As a result of that inspection, did Mr Turner give you any assessment or summary about his views?---No, he’s not obliged to do that. My understanding is that you give it to the health and safety rep on the site and we have had a look at that field report that Mr Turner read out through the health and safety rep.

PN195

So you are saying that Mr Turner produced a report that you are aware
of?---Correct.

PN196

But he didn’t give it to you?---No.

PN197

Do you know who he gave it to?---He gave it to an elected health and safety rep.

PN198

Do you know that health and safety rep?---Yes, he’s – I’m going to have difficulties pronouncing his surname Commissioner, Henry Koralecoski or something like that.

PN199

So you’ve spoken to Mr Koralecoski since then?---Yes, I have.

PN200

Did he tell you about the safety report?---Yes, he did.

PN201

Did he give you anything in relation to it?---He gave me a copy of the field report.

PN202

Do you have a copy of the field report?---I do have a copy of the field report.

PN203

Do you have a copy of it in the court room here?---I do have a copy of it correct, it’s in my file.

PN204

I would ask the witness to look at this document please. The document I’ve just shown you, is that a copy of the field report you’ve just spoken of?---Yes, it is.

PN205

Commissioner I propose to tender that document.

PN206

MR MOIR: Commissioner, I propose to object to the document.

PN207

THE COMMISSIONER: On what basis?

PN208

MR MOIR: Firstly it hasn’t been served on my client in accordance with the Commission’s directions, this is the first time I’ve sent the report.

**** TONY MAVROMATIS XN MR TERZIC
PN209

THE COMMISSIONER: All right I understand that. How much of an adjournment do you need?

PN210

MR MOIR: Apart from that Commissioner, it’s - - -

PN211

THE COMMISSIONER: Well apart from that – how much – I mean I ask a question I expect an answer.

PN212

MR MOIR: Certainly, just looking at the length of it Commissioner.

PN213

THE COMMISSIONER: Are you saying a copy of that hasn’t been served by work cover on those instructing you either?

PN214

MR MOIR: Well it’s addressed to – it doesn’t appear to be addressed to anyone. It’s got Schaefer’s name on it. But I will just seek instructions.

PN215

THE COMMISSIONER: Yes, certainly.

PN216

MR MOIR: My client has not seen it before I haven’t seen it and it’s got a fair amount of information in it, by the looks of it Commissioner.

PN217

THE COMMISSIONER: Yes okay, so I repeat my question that you still haven’t answered. How much of an adjournment would you require?

PN218

MR MOIR: Ten minutes I would say.

PN219

THE COMMISSIONER: Is there any objection to the 10 minute adjournment?

PN220

MR EMBER: We would need copies as well.

PN221

THE COMMISSIONER: Of course, I’m sure that will be made available. The proceedings are adjourned for 10 minutes.

<SHORT ADJOURNMENT [12.14PM]
<RESUMED [12.31PM]

PN222

THE COMMISSIONER: Yes.

PN223

MR MOIR: Thank you for the short adjournment Commissioner, I’ve read the document. I formally maintain the objection on the grounds of relevance but obviously it’s a matter for the Commission to determine what weight.

**** TONY MAVROMATIS XN MR TERZIC
PN224

THE COMMISSIONER: Well I haven’t got it so I can’t really. What’s the relevance Mr Terzic? Is there something in there that’s going to get us to the issue?

PN225

MR TERZIC: The relevance is it’s a report done by a Work Safe inspector, Mr Turner as outlined in the evidence and it there makes observations by an independent and neutral person who obviously would have some expertise in the field of the type of work being performed and we will be relying on that point, to the coverage, the real coverage, which is the issue in dispute. There are passages in there that are relevant.

PN226

THE COMMISSIONER: Well I’m going to let it in but it will obviously be for the parties to make such submissions as they wish about the weight that should be given go it.

EXHIBIT #T2 WORK SAFE REPORT DATED 16/03/2007

PN227

MR TERZIC: Mr Mavromatis you’ve told the Commission what you did last Thursday, have you been on the site since then?---This morning.

PN228

Yes about what time did you arrive at the site?---Five to nine.

PN229

Commissioner, just to move things along a little, I’ll lead a bit but not in a way that - - -

PN230

THE COMMISSIONER: It’s hard to know what there can be that’s going to be controversial about it.

PN231

MR TERZIC: Well I’ll - - -

PN232

THE COMMISSIONER: And I’m going to make the point that under the Evidence Act, Commonwealth Evidence Act, prohibition against leading is only in respect of controversial matters. So I will put it on those who were also intending that you should object if you think he’s entering into that controversial territory.

PN233

MR TERZIC: Mr Mavromatis you were part of the party which included the Commissioner and the representative of the company, conducting a site inspection this morning?---Yes, correct.

**** TONY MAVROMATIS XN MR TERZIC
PN234

You arrived at the site at about 9 am?---That’s correct.

PN235

Then you walked into the – what we call the contentious part of the warehouse a little later?---Yes.

PN236

Then you proceeded to walk around the construction site in the presence of others in the inspection party, didn’t you?---Yes.

PN237

Now I just want you to tell the Commission to the best of your recollection what sort of activities you saw taking place at the site this morning?---Not very much I must say. A lot of people I think were cleaning up and making the site a little bit more cleaner. I did see people emptying out containers they were cleaning around a container area. Most people were hanging around the crib sheds having their smoko. I can’t – I don’t think I saw anybody working this morning to be quite honest.

PN238

In your earlier statement you said you saw forklifts and scissor lifts, did you see any similar equipment?---Yes, there were scissor lifts and forklifts out there, yes correct. Yes, there was a scaffold out there also, yes, seen that sort of stuff.

PN239

Did you see parts of the proposed system that were as of yet, uninstalled?---Yes, we did see some parts that haven’t been installed, and we’ve also seen some parts that have been installed. A lot of that work would involve fitters, labourers, riggers to get it in position. A lot of it is mechanical installation. There’s been some fabrication out there. Yes, we’ve seen all that.

PN240

About how long were you at the site this morning?---I don’t think it exceeded one hour.

PN241

That’s all for our evidence-in-chief Commissioner.

<CROSS-EXAMINATION BY MR MOIR [12.36PM]

PN242

MR MOIR: Mr Mavromatis, have I pronounced that correctly?---You have.

PN243

You say that you took over the organizing duties in late 2006?---Correct – no I actually took over the duties in late January 2007.

PN244

I see, you were asked to read out earlier on, read to yourself paragraphs (a) to (n) of exhibit T1, do you still have that in front of you?---Yes, I do.

**** TONY MAVROMATIS XXN MR MOIR
PN245

In paragraph (c) it says there late 2006 there was a handover and then you took over, so you actually took over earlier this year, not last year?---Well late last year the union approached me about taking over Mr Bradley’s scope of work and we were sort of preparing for that handover which really did take place officially in January this year.

PN246

Is it correct that the first time you attended the site, as you say in paragraph (d), 20 December 2006, or was it at some other point that you first attended?---No. The first time I attended the site was 20 December 2006.

PN247

Are you aware that the warehouse which the parties inspected earlier today, that warehouse structure was completed last year?---The building?

PN248

Yes?---Yes I think it was completed some time in October, or September around there somewhere.

PN249

THE COMMISSIONER: Can I just interrupt? What do we mean by completion because that has a meaning in other - - -

PN250

MR MOIR: Yes, I can clarify that in the questions.

PN251

THE COMMISSIONER: Because I’m aware, from the inspection this morning, I’m aware that the original builder is still on site.

PN252

MR MOIR: You are aware that the building which was inspected this morning that was under construction during the course of the last year?---Yes.

PN253

You are aware that the warehouse building became operational in the sense that products were being distributed to and from that warehouse from November 2006?---Part of the warehouse, yes.

PN254

So by that stage the building had been at least completed to a point where it could be partially operational?---I guess so, yes.

PN255

You are aware that operational state was achieved by about October 2006?---Yes, I guess so.

PN256

You refer to your conversations you’ve held with Mr Samuels this is in paragraph (l) of exhibit T1. You say there that you’ve asserted to him that the site was a construction site. Do you see that?---Yes.

**** TONY MAVROMATIS XXN MR MOIR
PN257

You maintain that the site remains a construction site to this day, don’t you?
---Yes, correct.

PN258

You are aware that Mr Samuels takes a totally different view on that point don’t you, or aren’t you?---No, I’m not aware of that. What I’m aware is that other people are making decisions above him.

PN259

Mr Samuels has and you quote him there said it was an operational site?---Yes.

PN260

He takes issue with your assertion that the building remains a construction site, doesn’t he?---He takes, sorry?

PN261

He takes issue with your assertion that the building remains a construction
site?---In other words, he doesn’t agree that it’s a construction site?

PN262

Yes?---Correct.

PN263

Where you quote him towards the end of paragraph (l) saying words to the effect, I guess so, and that’s in response to a question by you, or a suggestion by you, about compensation. Do you see that?---Yes.

PN264

Can I suggest to you that what in fact Mr Samuels in fact replied to you was rather than saying I guess so, what he actually said was that he has no idea regarding contractual issues, that he’s not privy to that?---I don’t believe that.

PN265

That it could be a possibility but he’s just not privy to that sort of issue?---I don’t believe that.

PN266

I have nothing further Commissioner.

<CROSS-EXAMINATION BY MR EMBER [12.41PM]

PN267

MR EMBER: Mr Mavromatis you said in your evidence to Mr Terzic that you met the CFMEU organizer Mark Travers to meet Mr Turner a while ago, that’s correct isn’t it?---Yes, I think so.

PN268

Is that the first time you’ve been out to the site with the CFMEU organizer Mark Travers?---No.

PN269

So there’s other times that you’ve been out to the site together?---Correct.

**** TONY MAVROMATIS XXN MR EMBER
PN270

So when you are going out to see the site, have you tended to tell Mark Travers, I’m going out to see the site, do you want to come to? Or how does that happen?
---Yes, we do talk.

PN271

Sort of a joint initiative?---Correct.

PN272

You’ve had discussion with Paul Borobokas from Skilled in relation to collective agreement, haven’t you?---Yes.

PN273

During the course of those discussions has Mr Borobokas mentioned to you that I guess words to the effect that we’ve already got an EBA?---Yes, he may have.

PN274

Yes, and in mentioning you’ve already got an EBA, has he alluded to a couple of different types of EBAs that he might have? In other words, has he talked about the labour hire agreement that Skilled have with the union?---Mr Borobokas response is that you’ve stopped construction and at this stage I can’t negotiate with you because he didn’t believe it’s construction.

PN275

But has he mentioned to you that he’s got another EBA?---He has a labour hire agreement to deal with metal industry award, correct, yes.

PN276

Has he mentioned to you that he’s got a MECA agreement as well?---Yes he’s got one.

PN277

He has?---Yes.

PN278

I’m not expecting to know the section number, but are you aware there’s a provision in the Workplace Relations Act 348 for the record, that says only one workplace agreement can have an effect in relation – at a particular time in relation to a particular employee?---Yes, but – I’m aware of that but you are talking about different awards here.

PN279

I’ve no further questions.

**** TONY MAVROMATIS XXN MR EMBER
PN280

THE COMMISSIONER: Ms Walters I should have asked you first of all. Do you have any questions for the witness and I will reserve the cross-examiner’s rights.

<CROSS-EXAMINATION BY MS WALTERS [12.45PM]

PN281

MS WALTERS: Do you routinely attend sites with officials of unions that may have coverage in sites that you are organizing?---Do I attend sites with other unions, yes I do.

PN282

That’s a matter of routine calls in an organizers day to attend various sites in conjunction with or along with other union representatives?---Correct yes.

PN283

That’s it.

PN284

MR EMBER: Sorry Commissioner, I did have a couple more.

PN285

THE COMMISSIONER: Arising from that?

PN286

MR EMBER: No.

PN287

THE COMMISSIONER: Well, is there any objection?

PN288

MR TERZIC: No.

PN289

THE COMMISSIONER: Yes, go on.

<FURTHER CROSS-EXAMINATION BY MR EMBER [12.45PM]

PN290

MR EMBER: Mr Mavromatis have you heard of the labour hire group?---Yes.

PN291

What do you understand that to mean?---Group of employers that get together and talk about their industry I suppose.

PN292

Have you attended any meetings with anyone from labour hire group that talks about negotiating a MECA EBA?---Yes, I have.

PN293

Did you attend one in early March this year, do you recall?---I have attended one yes correct.

PN294

Would it be true to say that at that meeting you strongly pushed for an agreement again for want of a better term, a patent agreement that might include the likes of Skilled as one of the members of the labour hire group that they might agree to the terms of such an agreement?---I’m not sure of that question mate, simplify it.

**** TONY MAVROMATIS FXXN MR EMBER
PN295

Sorry, I’ll rephrase it for you. So did you push for the labour hire group to negotiate a MECA EBA in early March at a meeting?---Did I push, it’s been requested upon them yes. I was only attending that meeting as an apology from somebody else.

PN296

Who was that?---I think it would have been Mr Gary Robb.

PN297

But you can confirm that Skilled Group is a member of that labour hire group?---I believe so, yes.

PN298

So you were there negotiating in Gary Robb’s stead, negotiating a MECA
EBA?---Yes.

PN299

You would agree that you are here seeking the MECA EBA?---Yes.

PN300

But you are aware only one workplace agreement can have effect at any one time in relation to employees?---Yes.

PN301

The discussions you’ve had with Mr Borobokas about EBAs has he given you any indication of when Skilled group might be finished on the job at Coles Myer distribution centre? When it’s work might be done there?---Yes, I do believe they say it’s not long to go yes.

PN302

Not long to go, so you admit it certainly is not long to go for the work?---I can’t admit that because I haven’t seen the contractual arrangements, but I can only go by way Mr Borobokas has said to me.

PN303

Thanks.

PN304

THE COMMISSIONER: I’ve got a couple of things just to confirm for the record matters that I thought we saw this morning and you indicate that there is a – I think in your adoption of what’s in exhibit T1 that there’s effectively a barrier between a part of the building that’s being used as a warehouse and that part of the building where the erection of metal work and other associated things is going on?---Yes.

PN305

That barrier is about 1.7, 1.8 metres high and it’s covered in black plastic, is that right?---I think it was – I didn’t go right up I think it’s like that shade cloth, I think the shade cloth. But it’s a wire fence and it’s black cloth, whether it’s plastic - - -

**** TONY MAVROMATIS FXXN MR EMBER
PN306

You can’t see through it?---No.

PN307

Have you – were you with me when I looked over the barrier?---No, I wasn’t.

PN308

I will let someone else deal with that. Now at the time we were there, people were fitting sprinklers?---Yes.

PN309

And it seemed pretty obvious to me because of those few that weren’t connected that they weren’t operational?---Yes.

PN310

Is that your judgment too?---Yes sir.

PN311

Are you aware whether the sprinklers are operational in the area of the plant that’s being used as a warehouse?---I’m not aware.

PN312

All right perhaps someone else will be. There were no permanent facilities for the workers to take meal breaks or that sort of thing, they were using what is commonly known as site sheds is that right?---Correct, crib sheds, crib portables.

PN313

Okay now it’s also a fact isn’t it that we have to put on safety helmets when we enter that area?---Yes sir it is.

PN314

I’ve got no other questions. Does that leave anyone to any – to cross-examine as to any further questions? No, Mr Terzic re-examination?

PN315

MR TERZIC: Nothing.

PN316

THE COMMISSIONER: Nothing, Mr Mavromatis you are free to go, you can remain if you wish.

<THE WITNESS WITHDREW [12.51PM]
<DANIEL JAMES SAMUELS, SWORN [12.51PM]
<EXAMINATION-IN-CHIEF BY MR TERZIC

PN317

MR TERZIC: Mr Samuels can you just give your name and address, either business address or residential indicating which one it is and your occupation again for the record please?---Thank you. My name is Danny James Samuels, I live at (address supplied).

PN318

Your occupation?---I’m employed as a site manager for this project.

PN319

Mr Samuels firstly I want to ask you some questions about your background and experience. So when you say site manager, is that the title you’ve used in your employment for some time now?---That was the title I was asked – the job that I was supposed to fill on these two jobs for Schaefer Systems.

PN320

Prior to – when you say these two jobs, which two jobs are you referring
to?---There are two projects that Schaefer have with Coles Myer.

PN321

Yes?---One is the Eastern Creek New South Wales, I’m site manager for that project and followed on with this one straight after.

PN322

Just prior to these two projects that we are referring to, did you work for Schaefer then?---No.

PN323

Who did you work for before?---Before that I worked for GEC Alston.

PN324

What does GEC Alston do?---GEC are major contractors that supply and install and commission engineering services to major projects throughout the country.

PN325

Can you give an example?---Well my role with them was to run an electrical contract Schedulek out of office at Port Kembla in New South Wales and we had national contracts for gas turbine installation for companies such as Boral. We did the services fit outs of the M5 tunnel in Sydney and we did the City Link project down here, this was all the signage and communications for that project.

PN326

So just referring to your earlier experience before Schaefer what industry would you say you worked in?---I did my apprenticeship with an electrical fitter mechanic in the quarry industry, from there went into design work in the brick industry and had about 17 years in the brick industry, which was turn fitting, design, construct and commercial design construct, high rise buildings, for companies such as Matthew Hall and the like before they were taken over. Kilpatrick Green, so that sort of industry background. Primarily electrical businesses and project management with Total Services projects for fire protection and mechanical services, electrical contracting services on building structures, construction service and maintenance work.

**** DANIEL JAMES SAMUELS XN MR TERZIC
PN327

Prior to working for Schaefer had you been a site manager as such before ?---I had been a – no not in the capacity as a site manager.

PN328

Okay, well just referring to your work at Schaefer, could you give an outline of the duties of a site manager?---My duties at the site is to be completely responsible for the activities on the site. To control the requirements for OH&S issues for the execution of the works, such as engineers that are sent from Germany that are experts in what they do and I have to make sure that what they do is accordance with the requirements of how we are allowed to operate in various states.

PN329

I am just going to ask you questions about he Somerton installation now. So you’re the site manager, are you the most senior Schaefer employee on site?---In terms of the structure of the company no, but I’m the senior person on that site that’s responsible for the site.

PN330

Yes?---So that lays with me and the German engineers would take my lead on what we needed to do on that site if things were not in accord.

PN331

Who would be more senior than you?---Well there’s various departments of Schaefer, they are a world wide organization. They all contribute to the overall project in their expertise. So it’s the site manager that gives all the technical expertise on the racking structure for example. There’s other engineer management type people from the business which are senior people within the business, certainly more senior than I am. They are there for the technical installation of the conveyor systems and all the marshalling of the goods in and out of the racking system.

PN332

So at the moment, I mean over the last week or so, how many directly employed Schaefer staff are at the site?---Directly employed Schaefer site, probably about 13, or 14 that’s an estimated guess.

PN333

Can you just outline their duties and role?---Yes, there’s an engineering manager in charge of the racking system. There’s a manager in charge of the equipment that goes into the repack system, which is an area – the conveyors that come in bring the goods into the system. There’s a company from Preen where they’ve got about three or four people who are there looking at the mechanical and supervision works and they supervise Skilled Engineering and Busicom personnel.

**** DANIEL JAMES SAMUELS XN MR TERZIC
PN334

You have referred to Skilled Engineering and Busicom personnel, what do you say your relationship with Busicom and Skilled is at the site?---In terms of amicability or?

PN335

What are the employees at Skilled, what are they doing?---The employees at Skilled are doing basically the racking installation part of the job as opposed to the conveyor fit out part of the job and their duties include installation of the racking, the mezzanines, the cladding around the racking system, the decking’s that are going on to the racking system and then from there on it becomes a fit out, so yes its true that Skilled have just about completed their tasks.

PN336

What types of employees are the Skilled employees?---Riggers, fitters, what Tony said was quite right. Riggers, fitters, trades assistants.

PN337

Typically what sort of tools do they use?---Typical tools that you use in the industry for any installation work . Includes scissor lifts, forklifts, scaffolds, what do you call it, rattle guns, or automatic spanners, if you want to call them that. Drills, saws, extension leads.

PN338

What about the Busicom employees?---Same thing.

PN339

Same thing?---Same thing.

PN340

What’s your relationship with these employees, do you give them instructions on what to do or intermediate supervision how does that work?---No, there are supervisors on the site who look after each group.

PN341

Who employs them?---Sorry?

PN342

Who employs them?---Busicom and Skilled have their own people. The Busicom content is supervised by the experts from Germany that are doing the conveyor installations and the fit out part of the work and the Skilled people have their own on site supervisor. They are virtually led by the engineer or manager of the racking system who is out from Germany in another part of the company to ensure that’s put up correctly.

PN343

Mr Samuels I’d just like to go back a few steps and ask some more I suppose fundamental questions. The building in question could you describe the overall building where the system is being installed?---The total building area is probably 600, 700 metres long by about 140 or 150 metres wide and the area that we’re putting our racking system in is an area that’s the full width of that building, about 140 odd metres by approximately 80 metres I would say and the work height is about 12 metres high.

**** DANIEL JAMES SAMUELS XN MR TERZIC
PN344

Who is the building being built for?---The people that own the development I understand are Austrak and it’s called the Austrak Development in that area at Somerton and I believe that Coles Myer lease the premises of Austrak.

PN345

What is the purpose of the premises when it’s completed?---It’s being called the national distribution centre for Coles Myer logistics.

PN346

What does that mean? Is it a warehouse for example?---It means that it’s an operational warehouse it brings goods in, stores goods, sorts goods and sends them out, despatches them out to wherever.

PN347

Would this be merchandise for the Coles Myer shops?---Yes, I would expect that would be the case, yes.

PN348

You were at the site inspection this morning with the inspection party?---Correct.

PN349

You’ve also heard Mr Mavromatis evidence this morning?---Yes, I did.

PN350

The whole building is partitioned off with a wire fence that’s got some black plastic?---Actually Tony was pretty right, it’s got both. It’s got a black plastic cloth and a shade screen cloth as well.

PN351

You were with the Commissioner and me weren’t you, when we had a look over the other side?---Yes, we were.

PN352

Now on the other side there’s an operational warehouse isn’t there?---Correct.

PN353

Who put the systems in place there?---Who manages that?

PN354

Yes?---There is a company which I believe to be a Toll based and owned company called In2store and they are the people that manage the premises for Coles Myer.

PN355

The equipment inside that do you know how that got to be there?---Only I see trucks come in unload, come in by forklift to the racking system and come back out and get loaded on the trucks and taken away.

PN356

THE COMMISSIONER: I think he means the racking system.

**** DANIEL JAMES SAMUELS XN MR TERZIC
PN357

MR TERZIC: The racking system itself?---The racking system our racking system or the other.

PN358

THE COMMISSIONER: On the other side of the fence?---Who’s installed that?

PN359

Yes?---Dexians.

PN360

MR TERZIC: Dexians?---During the time at which the building was being constructed.

PN361

That part was built at the same time as the building was being built is that
right?---Yes.

PN362

Were you around to see that?---No.

PN363

How do you know that?---Because I was there just prior to the builder receiving their certificate of completion, practical completion from Coles Myer which was about mid October.

PN364

Have you got an understanding of the sequence of events that led to that site being in the state it is today?---From when?

PN365

Well are you aware of when the foundation for the building was laid?---No.

PN366

Are you aware of when the building itself was erected?---No, I’m aware that it was completed about mid-October.

PN367

So that’s the building itself in which your racking system is being
installed?---Correct.

PN368

When was the first time you visited that site?---From memory initially would have been early October and then again about mid October.

PN369

Last year?---Yes.

PN370

At that time was the Dexian system complete as well?---I would have said almost complete, yes.

PN371

Almost complete and do you know when the Dexian side started operations?
---No, but it would have been after mid-October because Coles Myer didn’t have it until they’d wound the building up and had them off site.

**** DANIEL JAMES SAMUELS XN MR TERZIC
PN372

So when you first came to the site, there was an area that was set aside for Schaefer to install its system, is that correct?---Correct.

PN373

What was there when you first got there?---A clean floor area. At that time building services, Nielsen were just winding up and putting to work their electrical installations.

PN374

Now so that the warehouse is divided into two parts from what you are saying then, the Dexian side and the Schaefer side, it can be described in that way?
---Yes, okay.

PN375

What’s the main difference between the Dexian side and the Schaefer side?
---Okay, the Dexian side is a manually operated storage system of racking, whereas what we are installing for Coles Myer is an automated system of racking.

PN376

So you were faced with an empty space and to the best of your knowledge the Dexian system was just being finished off when you started?---If not completed, yes, that’s about right.

PN377

Okay so you’ve installed what’s there now with the Busicom and Skilled staff throughout from October last year?---Essentially, initially with Skilled yes, Busicom are more recent to the site for the purpose of the conveyor fit outs and installation.

PN378

Now the numbers of workers involved in this installation, have they remained more or less consistent or have they changed? Can you tell us?---No, there’s about 300 people inducted on to the site on our induction register and the site is probably currently running at a total personnel of about 65 people.

PN379

So earlier on were there more people working on the site?---No, we progressively build up to that, and tailored off as the works are completed.

PN380

Has Skilled been there since the beginning you said, Schaefer?---For the installation of the racking system, yes.

PN381

What about Busicom?---No.

PN382

When did Busicom start?---They started later on, I’m not exactly sure when but probably at about towards the end of December prior to Christmas there would have been a few on site.

**** DANIEL JAMES SAMUELS XN MR TERZIC
PN383

The arrangement to have Skilled and Busicom on site, is that an arrangement made between Schaefer and those two companies?---Yes.

PN384

So there’s contracts entered between Schaefer and Skilled?---I believe that’s the case.

PN385

Did you negotiate those or have any role in them?---No, not privy to any of that sorry.

PN386

Do you know who makes those arrangements?---I believe it would be my direct superior, the commercial manager in Sydney and with the input of the senior project manager and people in Germany

PN387

Do you know why Busicom came into the picture later on?---Simply because there was nothing for them to do prior to having some work for them to execute and that was to start putting the conveyor systems in.

PN388

Busincom do the conveyor side of things, is that right?---Yes.

PN389

Skilled did the racking?---That’s right.

PN390

That’s the distinction?---That’s about the distinction.

PN391

How much longer do you think the conveyor work will go on for?---The conveyor work will probably go on until about June July, at which case we will have to really position where we can start running the system and start to get tote boxes and everything around and that’s when the initial checks and commissioning would start.

PN392

Now the skills required to do the conveyor work and the racking system, are they largely the same, or are they quite different?---They involve the same type of people, with the exception that you don’t particularly need riggers to install conveyors.

PN393

Do you know why two different companies were used to do the two different functions?---No.

PN394

You don’t know?---No, I have no privy on to who was going to do the work or how many companies were going to be involved.

**** DANIEL JAMES SAMUELS XN MR TERZIC
PN395

Now so what somebody would have seen if they had been sitting in a corner of the warehouse over the last three months, they would have seen all of the metal racks that go up – how high are they?---About eight metres.

PN396

About eight metres high they would have seen all of those just been put together?
---As an assembly process, yes.

PN397

The pieces of metal they are made out of they came from?---Germany.

PN398

Yes you might recall I asked you on the inspection, it’s like a giant meccano set?
---Correct.

PN399

It’s a matter of putting it all together in the right way?---Correct.

PN400

It has to be quite accurate and it’s quite a precision thing. Now when it’s finished what will it be able to do can you describe it’s end purpose?---It will be able to store and transport what we call tote boxes with a maximum weight of about 28 kilos of goods in and out of that racking system controlled by a computerised ordering and packaging systems.

PN401

Now since you’ve been involved in this site you’ve had meetings with union officials haven’t you?---Correct.

PN402

With Mr Mavromatis?---Correct.

PN403

Can you name others?---Initially Terry Bradley before Tony came into the picture.

PN404

Yes?---One occasion Alley and Mark from the CFMEU.

PN405

There’s been some issues between the union and Schaefer about this stop haven’t there?---Yes, there’s been issues.

PN406

What’s the main issue?---The main issue is the contention that the union’s are presenting that this is a MECA site and we are instructed that that is not the case. It is a fit out on a construction site, on an old construction site, or a completed construction site.

PN407

Now you said MECA you know what MECA is?---I just believe it’s an award that applies to the metal trades industry down there.

**** DANIEL JAMES SAMUELS XN MR TERZIC
PN408

Have you heard about this prior to your work at Schaefer?---No.

PN409

Okay, so you’ve said the union officials have put to you it’s a MECA site?---They are maintaining it is a MECA site.

PN410

Your response to that contention has been?---Has been that it is not a construction site any longer that it is an operational premises warehouse and that we are installing our own racking system in here as would Dexian or any other person who is in that type of industry.

PN411

There’s never been any dispute with the Dexian side operation with anyone?
---No.

PN412

It’s just been the dispute between the unions and Schaefer has been the Schaefer part is a construction site or a MECA site? ---That’s the contention that the union’s are putting up yes.

PN413

You’ve effectively tried to rebut that proposition, haven’t you?---Yes.

PN414

Why?---Well because I believe that what we are doing is not part of the parcel and constitutes the – or can call it a construction site any longer, that’s all gone.

PN415

Has anyone told you to maintain that position?---Yes.

PN416

Who?---My superiors.

PN417

Can you name them?---Daniel Zercher is my project manager.

PN418

Yes, so you are taking that on instructions from someone at Schaefer?---Yes, I believe there is a letter in place from Coles Myer that we have to abide by and that is that it is a fully operational warehouse site and no longer a construction site.

PN419

Have you seen this letter?---No.

PN420

How do you come to know of its existence?---Because of discussions over these issues, I’m told it exists and I’m told that Schaefer have a copy of that letter from Coles Myer.

PN421

Have you spoken to anyone from Coles Myer about this issue?---I have to report daily on whether or not there are any union activities going on, on the site.

**** DANIEL JAMES SAMUELS XN MR TERZIC
PN422

Who do you report to?---I send emails to my boss, Daniel Zercher and to several people in the Coles Myer group.

PN423

You send them to several people in the Coles Myer group. Can you say who?
---The people I send them to is a guy by the name of Leo Pappas who is the appointed superintendent by Coles Myer for our works on that site. The executive committee people who form up the project control. There’s Timothy Nimmo, Peter Glosky and Dermoit McCarty.

PN424

So there is a competing view as to whether this is MECA work or construction work as opposed to installation and a completed site. What do you understand to be the significance of that issue?---From what I understand the building has been completed and handed over as a fully operational warehouse or facility. That we are in there installing and commissioning our own specialised automated packaging system which is just another part of the equipment that goes in to facilitate what Coles Myer need to transport goods in and out of that warehouse.

PN425

But the Schaefer side is not operational is it?---Not at the moment, nowhere near it.

PN426

The people who are working there now, the Busicom and the Skilled people, they will be gone when it’s operational won’t they?---Correct.

PN427

The people who were working the Schaefer side now they walk around wearing safety helmets, don’t they?---Yes in parts of the area yes, there are areas defined for hard hat use, yes.

PN428

When we had a look at the other side earlier this morning, you and the Commissioner, and me, we saw that they weren’t wearing hard hats were
they?---In some areas no.

PN429

Why do you have to wear hard hats on the Schaefer side?---Well we simply say that we have to abide with OH&S requirements on the site. There were and still are some areas that require hard hats to be worn in the event that something may fall from a height and hit somebody.

PN430

Yes?---So in other areas that’s when we relax because there’s no more high area work going on.

**** DANIEL JAMES SAMUELS XN MR TERZIC
PN431

Okay when we went around on the inspection this morning, you saw some boxes with equipment still to be installed, didn’t you?---Yes.

PN432

What was in them?---They are the conveyor systems to go on to the, into the racking systems and totes in and out of the mezzanine levels and around the floor area.

PN433

Okay that will be put into place and installed by Busicom?---Correct.

PN434

Now you referred to another site earlier that was at Eastern Creek, New South Wales, is that right?---Correct

PN435

Is that site similar to the Somerton?---Virtually identical.

PN436

So it has a Dexian part and Schaefer part?---Correct.

PN437

When that was constructed was it done in the same fashion, the Dexian part was done first?---No.

PN438

How was that?---The difference was that the builders at the time were in control of the site, it was still a construction site, and we were on site prior to Dexian in that respect. So they come on after us in that regard, whereas here, their work was virtually all completed by the time we got to site.

PN439

So in New South Wales it was when you went and install it was considered construction work?---Correct.

PN440

To all intents and purposes?---Correct.

PN441

What was the big difference in the way the actual way the work was done in New South Wales and Victoria? What was so different about it when you installed in New South Wales?---The activity of installing the racking and installing the conveyor systems are exactly the same.

PN442

Did you understand there were any industrial relations employment conditions differences attached to what happened in New South Wales for the Schaefer workers as opposed to what is happening in Victoria?---At what time now?

PN443

Yes, when the Schaefer systems were being installed?---At Eastern Creek?

**** DANIEL JAMES SAMUELS XN MR TERZIC
PN444

Yes?---We were virtually governed by the builder in Eastern Creek and we were all subject to the builder’s requirements. Whereas here there is no builder and we can be considered to be the prime contractor on this site.

PN445

So who is the builder at Eastern Creek?---Hansen and Yuncken.

PN446

Do you know who fabricated the building in Somerton, erected the building in Somerton?---The contractors that did the job for Coles Myer or the Austrak development were Bovis Lend Lease company I believe.

PN447

Yes so just to make it clear, when the New South Wales site was built the Schaefer work was installed at the same time as the Dexian work?---Correct.

PN448

Yes now you were here in the witness box when Mr Mavromatis was here, you haven’t seen his evidence, so I should just explain to you what he said. He said that he met with you on the 31 January 2007 and you gave him a tour of the inside of the warehouse. Do you recall that?---We did enter the warehouse but only at the entry end of it, we didn’t proceed through the warehouse at that time.

PN449

Can you remember Mr Mavromatis saying something to the effect of who declared this an operational site, to you?---Yes.

PN450

Can you recall your answer to that question?---I told him that we – that I was under the understanding that we had a letter from Coles Myer which said that this was no longer a construction site and that is the basis that we’ve employed Busicom and Skilled Engineering to do the job.

PN451

Yes can you recall Mr Mavromatis saying something to the effect that if the site was declared a construction site, you’d be able to get compensation for being misled or words to that effect?---Yes.

PN452

Can you recall how you responded to that?---Yes, I responded to that, that may be a possibility.

PN453

Are you – do you think you might have responded with words, I guess so?---No, I think that was interpreted that way.

PN454

So you maintain you said - your earlier answer is the one to the best of your recollection?---Yes.

**** DANIEL JAMES SAMUELS XN MR TERZIC
PN455

Now once the site has been – the Schaefer work has been finished and the last nut and bolt have been stuck on, it’s tested then isn’t it?---It starts that procedure yes.

PN456

Is there a more fancy name than test, is it commissioning or something?---The testing of this system is fairly involved and it starts off with a basic testing of equipment to make sure that things are turned off and operate as items of equipment. Second, after that sorry, there’s a process where that is all integrated as a system and then there’s the installation of all the software and networking between the Coles Myer communications and our PLC software system.

PN457

Who will do that?---Sorry?

PN458

Do you know who will do that?---IT specialists from Europe will be doing that in conjunction with the Coles Myer people for their networks. So the whole system has to be integrated and put into operation.

PN459

Do you know when Schaefer was contracted to do these jobs, both the Eastern Creek and the Somerton job?---No.

PN460

That’s all in chief Commissioner.

PN461

THE COMMISSIONER: Yes, Ms Walters?

<CROSS-EXAMINATION BY MS WALTERS [1.24PM]

PN462

MS WALTERS: Mr Samuels just a couple of quick questions in relation to the inspection this morning to start with. When we entered we moved through the crib sheds and the engineering part where you’ve got all the plant and the rest of it, we moved through that and came into I guess the warehouse area. If you stand in that area where we were for quite some time when we originally entered you’ve got the racking straight ahead in front of you, and then if you turn around and look to the left, you’ve got the manual rack length racking and the operational area of the site.

PN463

THE COMMISSIONER: To the right to be fair. To the right now, to the
right-hand side

PN464

MS WALTERS: I am turning to the right aren’t I?

PN465

THE COMMISSIONER: You said the left, so.

**** DANIEL JAMES SAMUELS XXN MS WALTERS
PN466

MS WALTERS: To the right sorry, I correct myself, and I think the Commissioner asked Mr Mavromatis a couple of questions in relation to the black fabric and or plastic covering to a fence which demarks the area. On that fence there are a number of signs, aren’t there?---Yes.

PN467

Do those signs indicate that the area, that you are in is a construction site?---No.

PN468

What do those signs say?---They indicate the PPE gear we expect people to wear in those areas.

PN469

Is the PPE gear that you would – that is required in terms of occupational health and safety standards, is that particular to the area that we inspected?---Yes. In areas, constantly the site changes. Initially the racking system was a hard hat area, that pipe is now constructed so we relaxed that so there was only the decking and virtually floor level work going on. So we relaxed the necessity for hard hats in that area. But there are mezzanine levels where you can do injury to yourself underneath that we have to use hard hats in, yes, the two metre level.

PN470

Right when we were at the site this morning, we moved around to our right and went straight down to the end and then we got to that area where indeed yourself, the Commissioner, and I think I was back probably looking up over on to the operational side of the site if I can call it that. Then we moved around and can you recall I think it was Mr Travers but there was some discussion about Bovis Lend Lease and you’ve indicated in your evidence previously, that you say the site is an old construction site and that the builder has left. Do you maintain that statement?---Yes, well the builder has left in terms of the construction that was done the construction of the building. There are two services that have warranty queries on the building, namely the sprinkler systems and the house electrics. Both of those contractors were the contractors under the Bovis contract to install those services in the building premises and they’ve been retained I believe under a separate contract. They report directly to Bovis who are there under contract to Coles Myer for the installation, extensions of those services into the racking system and into the sprinkler system.

PN471

That for which side of the site is that?---It is the complete site – sorry our site, what they are doing there at the moment is on our site, but it forms part of the already connected site overhead and the rest of the building complex. So there is power services fully operational in the building. There are other areas that have to be cut in as new sections of work to the – to our system.

**** DANIEL JAMES SAMUELS XXN MS WALTERS
PN472

Have the Bovis Lend Lease crib facilities and crib huts and amenities left the site?---What happened when the Bovis site had finished and only just recently, Nielsen moved their site sheds from the Bovis site over to our complex because they had to come around the whole area it’s been closed off now by the permanent fencing around the site.

PN473

When you said in evidence previously and I think Mr Terzic was taking you to issues between the union, is how his question started, you said words to the effect, this is not a MECA site, it is a fit out site of an old construction site. Can you explain what you mean by that?---Okay, I might have worded it badly, but what I was saying was that we are installing our system within a finished building, that’s what I was trying to allude to.

PN474

You’ve just referred to a finished building, is it correct that you’ve indicated that Bovis are still doing some variations to that building however? What’s considered defects or variation work, are you still doing that work?---Yes, I don’t know exactly what the content of any defect rectification works there are, but up until recently and say within the last month or so, Neilson were still carrying out electrical defect rectifications required by Coles Myer and they were reporting directly to Bovis we don’t manage them at all. All we do is give them a window of area to operate within our system and on our program.

PN475

That’s all.

PN476

THE COMMISSIONER: I think we’ll adjourn for lunch at this point we will resume until 2.30. I’ve got to instruct you not to discuss your evidence with any person during the break.

<LUNCHEON ADJOURNMENT [1.31PM]
<RESUMED [2.38PM]

PN477

THE COMMISSIONER: Yes Mr Moir.

<CROSS-EXAMINATION BY MR MOIR [2.38PM]

PN478

MR MOIR: Mr Samuels when did you commence as the site manager for the Somerton site?---I came down and started the site mobilisation on 1 November 2006.

PN479

When you commenced at that date were there already employees working at that site?---Yes.

**** DANIEL JAMES SAMUELS XXN MR MOIR
PN480

Who did you understand those employees were engaged by?---Engaged by Coles Myer.

PN481

What sort of employees are you talking about?---I suppose you’d call them warehouse personnel.

PN482

How many such employees do you recall there being, roughly speaking, at that time?---At that particular time there was probably about 30 or 40 people, of 150 that had been selected for training.

PN483

Could you describe the duties that they were performing?---No, I can’t. All I can understand it to be is that they were unloading and loading equipment and setting up the racking systems for the goods to be stored in. At that time, the numbering system had just been put through the plant and they were brining gear in and putting them into the racks in the manual handling part of the store.

PN484

Did you observe them performing those duties?---From time to time, yes.

PN485

Since then have you observed any changes in the nature of the employment?
---There’s a lot more going on in there from the time that it was initiated to now, to the present.

PN486

When you say a lot more going on can you; tell us what you mean by that?---Well there’s a lot more people on the site and the handling of equipment now that’s brought in and taken out of the warehouse.

PN487

What sort of duties are they performing now that you observe?---Well from all we could observe the observations made is that they were taking goods out of trucks by forklift, take them inside, allocating them into some sort of storage format and coded and being put in numbered racks in the racking system.

PN488

Did you observe these duties being performed when you commenced as a site manager?---Not to the same extent, but in progress yes.

PN489

So those duties had already started to be performed by the time you arrived at the site?---Yes.

PN490

You understood that those duties were being performed by employees of Coles?
---Yes.

**** DANIEL JAMES SAMUELS XXN MR MOIR
PN491

Were they also as you understood it employees of the logistics company managing the premises for Coles?---Yes.

PN492

That company is a company belonging to the Toll group as you understand
it?---Correct.

PN493

That company is by the name of In2store?---Correct.

PN494

Are you aware that there’s currently over 150 employees of In2store working at the Somerton warehouse?---I understand it is a three shift operation, there would be at least that many people in there.

PN495

Are you aware that the Somerton site has been working around the clock, so to speak with the three shifts?---A three shift operation.

PN496

That’s been since 8 January 2007?---That’s about the time, yes.

PN497

But before that date it was still operational nonetheless?---Yes.

PN498

For all you knew it had been operational in that sense for some time before you commenced on or about 1 November?---Correct.

PN499

You were asked questions about the builder, Bovis, and employees of the builder remain on the site today, as far as you are aware? Or contractors engaged by Bovis remain on the site?---Correct.

PN500

And they are employees?---Correct.

PN501

As I understand it they are currently performing work in relation to defects being rectified?---That’s correct.

PN502

You understand that there is a requirement for defects to be rectified by the builder within a 12 month defect liability period?---No, I don’t know the duration that’s put on them to get the defects corrected by, but I know that both companies involved have warranty issues with the installation that they did under the construction phase.

PN503

The defects which are being rectified, what are those defects?---I wouldn’t have a clue. I would say to do with whatever issues are the sprinkler installations and the electrical installations, but I’m not privy to know what they actually are.

**** DANIEL JAMES SAMUELS XXN MR MOIR
PN504

Is it the case the building itself the distribution facility centre, it was handed over by the builder to Coles and or In2store, prior to when you arrived at the site?
---Correct.

PN505

If I could just - - -

PN506

THE COMMISSIONER: Can I just ask? Are you sure about that because I think you said earlier in your evidence that the building was owned by Austrak?---I understand the premises is owned by the developers, the whole area in Somerton which was Austrak Developments I believe - - -

PN507

So how can you be sure that the builder handed the building over to Coles or In2store?---Because Coles Myer our client, told us that the building had been handed over as they issued the certificate of practical completion to the builder.

PN508

Who Coles had?---Yes.

PN509

MR MOIR: If I could just show you a document Mr Samuels, Commissioner, I’m just handing to Mr Samuels annexure (a) of Mr Desmond’s affidavit which hopefully the Commission received earlier this morning.

PN510

THE COMMISSIONER: It may be still, I don’t know whether my – the system is working but I’m not sure whether my associate has got it or not.

PN511

MR MOIR: My instructing solicitors were going to forward it through to the Commission this morning in accordance with the directions. It went about last night about 9.30.

PN512

THE COMMISSIONER: No, but our system has been done.

PN513

MR MOIR: I see. Perhaps - - -

PN514

THE COMMISSIONER: Just bear with me while I just check.

PN515

MR MOIR: Perhaps we’ll have to arrange for copies to be made Commissioner.

PN516

THE COMMISSIONER: Why they weren’t served on the other parties?

PN517

MR MOIR: Mr Terzic hasn’t received the affidavit apparently, perhaps the email arrived after he left the office.

**** DANIEL JAMES SAMUELS XXN MR MOIR
PN518

THE COMMISSIONER: They had to be served on them by 9 o’clock today and they were there that was the idea.

PN519

MR MOIR: Yes, that’s right. Mr Terzic - - -

PN520

THE COMMISSIONER: Physically handed to them. Well look I think we’ll have to go – have you got copies?

PN521

MR EMBER: I’ve got one copy.

PN522

THE COMMISSIONER: Of?

PN523

MR EMBER: Of the material that came through about 9.30 last night, your affidavit.

PN524

THE COMMISSIONER: All right so you got a copy righto, we need four copies.

PN525

MS WALTERS: Commissioner, I understand we are still on record, but if we could have a copy of the submissions of Busicom as well, as I understand the RG group rely on it for the purposes of Skilled.

PN526

THE COMMISSIONER: Yes, I haven’t got those either at the moment. So it’s the submissions and the affidavit that came with the material from somebody. The instructing solicitor which is?

PN527

MR MOIR: Rhodes Legal in Sydney.

PN528

THE COMMISSIONER: Rhodes Legal – does it need to hold us up while we wait?

PN529

MR MOIR: It’s probably best if everybody sees the annexure.

PN530

THE COMMISSIONER: Well it’s going to be a while then.

PN531

MR MOIR: Yes.

PN532

THE COMMISSIONER: Sorry I have the submissions.

PN533

MR MOIR: I think your associate copied them earlier.

**** DANIEL JAMES SAMUELS XXN MR MOIR
PN534

THE COMMISSIONER: He copied those but he didn’t get the - - -

PN535

MR MOIR: Not the affidavit it seems, I should have checked Commissioner.

PN536

THE COMMISSIONER: Here’s a copy of the submission. Ms Walters you are the only one that hasn’t got the submissions, is that right?

PN537

MS WALTERS: Yes.

PN538

THE COMMISSIONER: Everyone else has got the submission? So it’s the appendix for everybody and the submission for Ms Walters – sorry it’s not the appendix, it’s the witness statement and the appendix. Did you have the witness statement?

PN539

MR MOIR: Can I have the witness statement and I think one for Mr Terzic?

PN540

THE COMMISSIONER: I counted one for him so four.

PN541

MR MOIR: Thank you Commissioner.

PN542

Mr Samuels if I could take you back again to annexure (a) of the affidavit, that you have in front of you?---Yes.

PN543

You see that’s a memorandum from Coles Myer to Mr Daniel Zercher at Schaefer?---Yes.

PN544

You gave evidence earlier today that Mr Zercher is your supervisor?---Correct.

PN545

You see this is dated 16 November 2006, and it’s regarding the distribution centre at Somerton?---Correct.

PN546

If I could just draw to your attention those dot points appearing in the memo. The first one says that practical completion was achieved on 29 September 2006? Is that your understanding?---I knew it was sometime I thought around mid October, but 29 September that’s okay.

PN547

The next point that CML, Coles Myer Limited, subsequently undertook fit out activities, the site was handed over to Coles Myer operational team on 26 October 2006, again does that accord with your understanding?---That’s about right.

**** DANIEL JAMES SAMUELS XXN MR MOIR
PN548

If you just ignore that handwritten notation which was mine on the original affidavit about when the employees commenced. I think you gave evidence that by the time you arrived on the site, Coles Myer employees had already commenced as well as employees of In2store?---Correct.

PN549

The third point, you’d agree with that, would you not?---Yes.

PN550

As at 16 November 2006, that was a correct statement?---Yes.

PN551

Yes, you’ll just have to speak up?---Yes, sorry.

PN552

The next point refers to a limited number of defects being rectified by the builder. That accorded with your understanding at that time around November?---Correct.

PN553

The last point that the site does not require fit out of the Schaefer picking system to be operational, that accords with your understanding doesn’t it because the site was indeed being used in an operational sense before the installation work commenced?---Yes.

PN554

The installation of the Schaefer picking system referred to in the last dot point, when did that actually commence the installation work?

PN555

THE COMMISSIONER: I’m sorry he doesn’t talk about installation in that last point.

PN556

MR MOIR: No, I’m asking that when - - -

PN557

THE COMMISSIONER: But you are talking about the dot point and the dot point doesn’t refer to installation.

PN558

MR MOIR: That’s correct it doesn’t.

PN559

THE COMMISSIONER: It talks about fit out.

PN560

MR MOIR: That’s right.

PN561

THE COMMISSIONER: Is there any reason why you are not using that word?

PN562

MR MOIR: It says it doesn’t require fit out of the - - -

**** DANIEL JAMES SAMUELS XXN MR MOIR
PN563

THE COMMISSIONER: No, if you look at the subject of the letter it is talking about a fit out.

PN564

MR MOIR: Fit out yes. All right I will term it another way Commissioner.

PN565

When did the fit out of the Schaefer picking system actually commence?
---Probably about the second week to the third week in November after the site was mobilised and established.

PN566

When is it expected that the fit out will be completed?---Exactly under contract terms I’m not sure, but I would estimate that they would probably be around the end of July, beginning of August this year.

PN567

Could the picking system once it’s fully installed and operational within the distribution centre, could it be demounted or de-installed?---Yes.

PN568

How would that occur?---The same way it was erected.

PN569

In your experience, might that de-installation process occur at some future point?
---If at any point in time Coles Myer left the premises they could either take all that gear with them, or leave it for whoever took it over, depending on what the nature of the business was that was going to replace it. But the equipment could be taken out at any time, as easily as it was put in.

PN570

As far as you understand the equipment can remain there for how so ever long Coles remains the tenant of the premises?---Correct.

PN571

Are you aware of the duration of the lease?---No.

PN572

Have you been involved in work where such installations have been removed?
---On other projects?

PN573

Yes?---In – yes, I could say yes to that.

PN574

In the part of the distribution centre where the picking system is currently being installed and fitted out, the employees that are working there, they are employees of Busicom and Skilled Engineering, correct?---Correct.

PN575

Are they required to undergo any induction?---Yes.

**** DANIEL JAMES SAMUELS XXN MR MOIR
PN576

Is the induction the type of induction, that in your experience would be conducted on a building site?---Similar to.

PN577

Is there a red card?---No, that’s not required on our site.

PN578

Is there any delegate – sorry I withdraw that. Is there any requirement for Schaefer or Busicom or Skilled to show certificates of currency dealing with insurance?---With insurances yes.

PN579

What about a building licence, is a building licence required for this work?---No, not for the work we are doing. For the activities that Bovis are doing, apparently so, but not what we are doing.

PN580

So your company has never had to present a building licence?---No.

PN581

In relation to the fit out?---No.

PN582

What about Busicom or Skilled?---No.

PN583

Have you worked at non building sites or construction sites where persons have been required to wear hard hats?---Yes.

PN584

What sort of sites have they been?---In industries where we are doing maintenance of equipment, consequential fit outs of areas that have been demolished and stuff taken away or could be taken out and new equipment going in, so refurbishments that sort of caper.

PN585

Do you regard the employees wearing hard hats at this particular site as in the same type of circumstance as the one you’ve just?---Yes, I do.

PN586

You referred earlier to the building being finished and I take it from that you mean that the premises were completed so far as you are aware, prior to November 2006?---Correct.

PN587

Your understanding of the work being performed by Schaefer and its contractors, Busicom and Skilled is a fit out within existing premises?---Correct.

PN588

As I understand it that makes it different from your experience at the Eastern Creek site?---Correct.

**** DANIEL JAMES SAMUELS XXN MR MOIR
PN589

Where the fit out was occurring simultaneously with the erection of the warehouse building?---Yes.

PN590

Has it been your experience on previous jobs that such installations might be performed within the context of an existing structure?---Yes.

PN591

Has that sort of work been performed by Schaefer in the past?---Yes.

PN592

Is this any different from that type of work?---No.

PN593

I’ve no further questions.

PN594

THE COMMISSIONER: Yes, Mr Ember.

<CROSS-EXAMINATION BY MR EMBER [3.19PM]

PN595

MR EMBER: A couple of questions Mr Samuels. I would just ask for a little bit of latitude here Commissioner. The employees of Skilled, Busicom, Coles Myer, In2store, where do they park their cars?---Out in the car park, there’s a turnstile arrangement with a reception that’s there, 24 hour security and the cars park in a secured car park.

PN596

Is that that completed asphalt car park where it’s got the boom gates?---Yes, that’s right, boom gates, yes.

PN597

Are you aware of any other developments around on the Austrak site, you mentioned that it was - - -?---There are other construction sites around, yes, currently under construction.

PN598

Are you aware of – I’ll be honest with you I got lost this morning I was a little bit late – I ended up in a car park and I was pretty sure it was the wrong one, it had gravel and it was near a construction site and it said construction site car park, are you aware of any of those?---They are around there yes.

PN599

But the car park where the employees of Skilled, Busicom, Schaefer, In2store, they don’t park in such a car park?---Sorry?

PN600

They don’t park in that car park, they park in the one that you are talking about the earlier one?---Yes.

**** DANIEL JAMES SAMUELS XXN MR EMBER
PN601

No further questions Commissioner.

PN602

THE COMMISSIONER: Car parks are going to determine these things are they, is that your argument Mr Ember? I’ve got a couple of questions.

PN603

You said that equipment could be taken out the same way as it is put in. It was my understanding and you might want to confirm this that the rails along which the crane runs, or the cranes run, were made up of pieces of - - -?---Monorails.

PN604

Monorails which had to be welded together?---Correct.

PN605

How could that be taken out in the same way as it was put in?---They would have to be cut the same way as they are welded so the process - - -

PN606

No, you don’t cut the same way as you weld do you? You use a different sort of implement?---Okay, then you do an oxy cut to cut the rails off.

PN607

So therefore it wouldn’t be taken out the same way as it was put in because it was actually welded to be put in and it would have to be cut with a gas axe to take it out, as a matter of technicality?---Yes.

PN608

It’s not a question of undoing the bolts or anything like that, I mean you’ve got to undo the bolts too, but the lengths would be too long?---Yes.

PN609

I just want to confirm your description of the size of the building. I think you said it was 600 to 700 metres long?---Possibly yes, I’m not exactly sure.

PN610

Certainly more than 120 metres?---Yes, definitely.

PN611

You said it was between 140 and 150 metres, wide?---Yes.

PN612

Certainly more than 80 metres?---Yes.

PN613

I just want to confirm that was my view too, there is some evidence elsewhere of something smaller. You said you were the site manager?---Yes.

PN614

What site do you manage?---I manage the site where we are installing the Schaefer equipment.

**** DANIEL JAMES SAMUELS XXN MR EMBER
PN615

So that’s that area where it was blocked off – because people have used the word site in their discussion with you earlier and talked about the site being operational?---Yes.

PN616

Is there any sense in which the site of which you are the manager is
operational?---Not at this point of time.

PN617

That site is the area that’s delineated by that wire fence with the plastic and the shade cloth on it?---It is.

PN618

It is everything to the north of that?---Yes, north direction that’s right.

PN619

Can employees of Coles Myer enter that site without your permission?---Yes.

PN620

They can come on?---Yes.

PN621

The ones who are performing warehouse duties?---They are asked not to, but they can come through there is nothing to stop them, there’s nothing to stay don’t enter here, or stay away or anything like that.

PN622

Well there’s a fence?---The fence, okay, the purpose of the fence it was requested by Coles Myer to keep dust and noise suppressed.

PN623

So did you notice whether they are issued with hard hats?---They are not, I don’t think they are required to operate up with hards.

PN624

You are not allowed on that site without a hard hat, although you did
mention - - -?---That was the case initially when we were doing the erections but again those - - -

PN625

It’s still the case isn’t it? Aren’t there signs up saying you’ve got to wear a hard hat to get on the site?---In specific areas yes, but not in the whole site. As I said to you this morning when you came in, are you going to be in areas where you require hard hats and you said yes, you’d like to see the lot.

PN626

So they wouldn’t be able to go into those areas?---Not without hard hats, they would be challenged if they came into the site without a hard hat in those areas.

PN627

Are you responsible – you said you are the site manager – are you responsible for all of the activities that take place on that site?---Yes.

**** DANIEL JAMES SAMUELS XXN MR EMBER
PN628

So you would be responsible for Coles Myer employees if they came on to the site and undertook some activity?---If they came in there I would be held responsible for anything that happened to them while they were in there.

PN629

Okay so do you permit Coles Myer employees who are conducting warehouse activities come on to that site?---I can’t stop, so they can come in, there’s nothing to say they can’t. It depends on whether they are told to come in or not and for what reason. Some of them come in and announce themselves but others just come through it just depends on what they are doing.

PN630

What would be doing?---I don’t know, I don’t pay any particular attention but I’m not on the site all the time, I’m in the office quite a bit.

PN631

But anyhow, the fact is you are the manager of the site, that bit of the building that extends north from that fence line and taking a line out to the west – out to the east from that fence line?---Yes.

PN632

I note also outside the building there is a wire fence around the compound?---Yes.

PN633

What’s the purpose of that?---Coles Myer asked us to close that off so their trucks couldn’t come down into that area and just for safety reasons again, that people couldn’t be subjected to being caught out there, that’s why they have delineated that yellow brick road we have to pull in and out of the building. They challenge us if we walk out of that, we’ve all been pulled up for that at times. The purpose of the fence just around our area is just to say that that is our area. Coles Myer requested that we put that up, or asked us to put that up.

PN634

Are your employees permitted to go into the yellow area?---No, no, we’ve got no business. That’s the reason that all the facilities are there, we are not allowed to use the Coles Myer facilities, no canteens, no ablutions.

PN635

So there are canteens, ablution blocks in the warehouse proper?---Yes, but as part of this contract they asked Schaefer to provide the facilities for the workforce.

PN636

Your employees are not permitted to – not your employees, the employees of your subcontractors aren’t permitted to use those?---That’s correct. Our access tags only let us in to certain parts of the area.

PN637

Now you also mention in your evidence that you were installing the system in a finished building which was in contrast to the situation at Eastern Creek?---Yes.

**** DANIEL JAMES SAMUELS XXN MR EMBER
PN638

What was the situation at Eastern Creek?---When I went to the site Schaefer had already started, I replaced the manager that they had in there.

PN639

Was the roof up?---Sorry?

PN640

Was the roof up?---Yes, the roof was up, the walls were up, the doors were all hung, but there was still concrete work going on in the area that is now occupied by Dexian and that.

PN641

Right so in the area that you were working?---That part of the concrete works had been finished, so we got that as a clean slab.

PN642

That was practically complete the building as far as that area was
concerned?---That part of it yes, so we could come in and do our work.

PN643

They are the only questions I had, if that leads anyone to anything.

<FURTHER CROSS-EXAMINATION BY MR MOIR [3.27PM]

PN644

MR MOIR: Just a point of clarification on that last issue.

PN645

You took over from another manager at Schaefer?---Yes.

PN646

How long had that other manager been at the site?---The site had actually been set up actually on site in April I believe.

PN647

In April and when that manager was there before, he’d been there since about April, was it?---Maybe prior to I don’t know.

PN648

So when he was there was Schaefer performing the fit out of the picking system?
---The actual installation, the racking system.

PN649

Right so there were employees of sub contractors engaged by Schaefer?---Correct.

PN650

Could it have been then at that point before you arrived - - -

PN651

THE COMMISSIONER: Well better ask what his knowledge is.

PN652

MR MOIR: Yes, that’s what I’m asking.

**** DANIEL JAMES SAMUELS FXXN MR MOIR
PN653

That the building construction was not complete, in other words, that the roof wasn’t overhead?---No, the roof was complete.

PN654

When you were there, what about before when you were there?---It was just complete when I went on to site. I went on to site on 29 May 2006.

PN655

Right, so what I’m asking you is, do you know what the state of the building structure was when Schaefer first started work at that site?---When they first started work, no.

PN656

All right so you don’t know whether the building structure was practically complete or whether the building structure was incomplete for example, the roof was still yet to be installed?---In terms of the builder getting practical completion for the building, no, because there was still areas of floor that hadn’t been poured, concrete flooring that had to be poured.

PN657

You were also asked questions by the Commissioner about employees of Coles from time to time, entering into the part of the distribution centre where Schaefer has undertaken work?---Yes.

PN658

Would those employees include managers or supervisors from Coles?---Yes.

PN659

What interaction do you have with those managers and supervisors?---They come in and have a look at progress that we are performing. They attend progress meetings that we have monthly.

PN660

How often do they attend the progress meetings?---At random, they can come in at any time, but we do have a scheduled monthly meeting. We have coordination meetings as required with the subcontractors of Coles Myer that are doing the fit out for the sprinklers and the electrical works into the racking system and mainly they just manage how we give them the windows of access that they need to complete their works without interfering with our program.

PN661

THE COMMISSIONER: Did you have those meetings at Eastern Creek?---Yes.

PN662

MR MOIR: The monthly meetings does a representative from Coles usually attend those monthly meetings?---Yes, there’s a site superintendent on the site.

PN663

Does a representative of In2store also attend the meetings?---No, we have a subsequent – sorry a meeting after that just to find out whether we’ve got any In2store issues with the way they manage their traffic around the building and the like.

**** DANIEL JAMES SAMUELS FXXN MR MOIR
PN664

Is it the case – you referred to other meetings, apart from the monthly meetings, there could be meetings that are specially convened at the request of Coles?---I’m not up at that level of management, but they do have another management meeting which discusses the project in contractual terms and whether or not milestones have been completed or not.

PN665

Apart from the monthly meetings are there other meetings where a Coles representative will attend with you?---No, that’s all we have.

PN666

Just the monthly meetings, and at the monthly meetings where a Coles representative might be present, might they discuss with you work requirements?
---Yes.

PN667

What sort of work requirements?---Just mainly whether or not the program is on track, whether it’s behind, what are the plans put in place to recover the time, to finish on time, there’s no extension of time for the contract, that sort of thing, whether there’s any variations to discuss.

PN668

So you could be asked to explain for example, why progress is falling behind schedule?---I explain those things directly to my superior and then he takes that up with Coles Myer.

PN669

Could you also be requested to carry out work in a particular manner by the Coles representative?---No, not really.

PN670

Might you be given suggestions about how work could be carried out, by the Coles representative?---No, the only thing they do is come out and conduct safety audits with their In2store people as well, and providing we are working within the guidelines of their safety requirements on the sites they are happy.

PN671

You referred to employees sometimes passing through I think was your description of the area where Schaefer is performing work. Why might they be passing through, are they on their way through to the warehouse section?---I have no idea why they are in there. We don’t stop them and ask them questions unless they haven’t got the appropriate PPE gear with them at the time.

PN672

Right are they walking through perhaps one of the entrance doors and cutting
across?---We have seven entrance doors across the front, three of them are open at the moment which we bring our equipment through from container, unloading into the plant.

**** DANIEL JAMES SAMUELS FXXN MR MOIR
PN673

THE COMMISSIONER: When you say the front, that’s the front - - -?---The front is the eastern side.

PN674

Yes?---Where the containers are brought in. On the other side we’ve got two access doors allocated to us by Coles Myer for egress to and from our mess facilities and our site.

PN675

MR MOIR: Nothing further thanks.

PN676

THE COMMISSIONER: Yes, just before you do, because I asked a question a little back, and I just want to be sure. The meetings that you had at Eastern Creek did they involve Coles representatives?---Yes.

PN677

In the same way as you have meetings?---No, in other capacity because that was a building site and the builders ran the meetings on that site. They conducted the site meetings, we were virtually regarded as one of the sub contractors on that site at that time and Coles Myer were effectively conducting the - - -

PN678

They were dealing with the builder and the builder was dealing with you?---That’s correct.

PN679

Whereas here the builder – because you are that prime contractor?---Here?

PN680

Yes?---Yes.

PN681

They are dealing direct with you?---Correct.

PN682

Understand that – there was something else that just came up. No you don’t have another go either – he shouldn’t have had another go either. But you’ve done your cross-examination.

PN683

MR EMBER: It was just out of - - -

PN684

THE COMMISSIONER: Something arising from my questions?

PN685

MR EMBER: Yes, Commissioner.

**** DANIEL JAMES SAMUELS FXXN MR MOIR
PN686

THE COMMISSIONER: Okay.

<FURTHER CROSS-EXAMINATION BY MR EMBER [3.34PM]

PN687

MR EMBER: Mr Samuels I think you answer in response to the Commissioner’s question about the sheds that are there, the sheds are there because you are not the Skilled people and the Busicom people aren’t able to have access to the facilities that are able to be accessed by the In2store people is that right?---That’s right, and that includes Schaefer. None of us have got access to the Coles Myer site.

PN688

So the sheds are there as an alternative to that, not necessarily - - -

PN689

THE COMMISSIONER: No not as an alternative they are not permitted to use it is what he said?

PN690

MR EMBER: Yes, sorry - - -?---We can’t use Coles Myer facilities, we had to provide our own so that’s why the toilets are there and hooked into the Coles Myer sewer system as far as they’d let us go without having to have pump outs. So the ablution facilities and the mess facilities and our office facilities were all requested by Coles Myer that they wouldn’t provide any for us, so we had to set the site up for ourselves.

PN691

Yes, thank you.

<RE-EXAMINATION BY MR TERZIC [3.35PM]

PN692

MR TERZIC: Mr Samuels you were asked some questions by Mr Moir about the memo of 16 November (sic) you remember that?---Sorry?

PN693

The memo of 16 December (sic) and therein it refers to certain aspects being completed and partially complete, you recall that?---Yes.

PN694

You recall that, now just quite a simple question. In your view is the warehouse complete?---The warehouse is a complete building, yes.

PN695

But is the warehouse now functionally complete?---Yes.

PN696

So what are you doing there?---We are installing a racking system that we are adding in to the existing system.

PN697

What will be the status of the warehouse after you’ve put that in?---It will include the operation of an automatic packaging and storage system, storage racking system.

**** DANIEL JAMES SAMUELS RXN MR TERZIC
PN698

So it will add to the warehouse?---It will add to the warehouse.

PN699

It will be part of the warehouse won’t it?---It will be part of the warehouse in terms of the use of the building, yes.

PN700

So when you’ve finished Schaefer’s work there, there will be more shelving et cetera in the warehouse, won’t there?---Yes.

PN701

There will be more capacity in the warehouse won’t there?---Yes.

PN702

Once that’s all done, there will be storemen or other type workers working in the area where you are working now?---I would expect so.

PN703

The barrier will probably go away do you think, the barrier and it will all be part of the one thing inside, won’t it?---Correct.

PN704

Yes, thank you.

PN705

THE COMMISSIONER: In what sense is the site that you are manager of, a warehouse?---At the present time?

PN706

Yes?---Only – all I can say there is - - -

PN707

It’s what is intended to be in the future when you’ve finished?---When we’ve finished out part of it, yes.

PN708

It’s not a warehouse at the moment? It’s not receiving goods?---No.

PN709

It’s not receiving goods, it’s not storing goods is it?

PN710

MR MOIR: Commissioner, this is a matter for submissions obviously but it is within established place of employment.

PN711

THE COMMISSIONER: Well you will get your opportunity to make that submission, I was asking to what extent and he’s agreed that he is a site manager. He has agreed what the site is and he’s just answered a question in which he said that it was a warehouse and it seemed to me that it was important to establish whether the site that he is managing is a warehouse and if it is and in what sense it is. Now as I understand his answer in no sense is the site that he is manager of a warehouse.

**** DANIEL JAMES SAMUELS RXN MR TERZIC
PN712

Is that right, that was your answer?---Well it was an answer, all I can say - - -

PN713

It is going to be one day?---That part of it will become one, part of the existing part - - -

PN714

But the site you are managing, is it a warehouse?---The site I’m managing no, the site is an installation that’s occurring within the building.

PN715

MS WALTERS: Commissioner, just very briefly following on from that very point - - -

PN716

MR MOIR: Commissioner, the CFMEU doesn’t get a right of re-examination.

PN717

THE COMMISSIONER: Well then they shouldn’t have gone first in cross-examination should they? You can’t have it both ways.

PN718

MR MOIR: Well they did go first in cross-examination.

PN719

THE COMMISSIONER: Except she didn’t cross, she examined.

PN720

MR MOIR: No she cross-examined.

PN721

THE COMMISSIONER: It’s not my recollection of the form of questions.

PN722

MR MOIR: She did, she put leading propositions all the way through.

PN723

THE COMMISSIONER: About controversial matters?

PN724

MR MOIR: Yes, they were about finished buildings.

PN725

THE COMMISSIONER: Well I’m going to allow you to ask the question and if there’s any prejudice you can ask a question and open it up all over again.

PN726

MR MOIR: I don’t want to do that Commissioner.

**** DANIEL JAMES SAMUELS RXN MR TERZIC
PN727

THE COMMISSIONER: Don’t say you don’t want to you might want to. She might ask something and you need to so.

<FURTHER CROSS-EXAMINATION BY MS WALTERS [3.39PM]

PN728

MS WALTERS: Mr Samuels following on from those just raised with you, the contract Schaefer has with Coles Myer has a completion date, is that correct?
---I’m not privy to the actual contract arrangements, but I would imagine it would.

PN729

You mentioned progress meetings where you are required to deliver an area of the site and your site to the point in time?---Yes.

PN730

So there will be a point in time when you, Schaefer, leaves the site and presumably employees will then come in and distribute and under the direction of Coles Myer or Toll, perform those works, is that correct?---Yes.

PN731

They are not doing that at this point in time?---Not in that area.

PN732

THE COMMISSIONER: There is one question that I – you may not know the answer. Do you have any idea what the value of the Schaefer contract is?---No, I don’t have, I know it’s multi millions, but I couldn’t tell you how many.

PN733

Multi millions is as good as you can get?---Yes.

PN734

Nothing else? Thanks, you are free to go, you can remain if you wish and thanks for your assistance.

<THE WITNESS WITHDREW [3.41PM]

PN735

MR MOIR: That’s all the witnesses the AMWU will be calling.

PN736

THE COMMISSIONER: Ms Walters?

PN737

MS WALTERS: If the Commission pleases, we do have a witness that is Mr Mark Travers, it is appropriate to call him at this point in time.

PN738

MR EMBER: Commissioner if I could request about a five minute adjournment, I have to go to the bathroom.

PN739

THE COMMISSIONER: Certainly, we will just go off the record while you do that. In fact we can swear, do you have a problem if we swear the witness in. We won’t adjourn we will proceed on.

<MARK ALLAN TRAVERS, SWORN [3.42PM]
<EXAMINATION-IN-CHIEF BY MS WALTERS

PN740

THE COMMISSIONER: Has everyone got a copy of Mr Travers statement?

PN741

MR MOIR: I don’t.

PN742

THE COMMISSIONER: We will go off the record while we wait for Mr Ember to come back.

<OFF THE RECORD

PN743

THE COMMISSIONER: We are back on the record, excuse me we are back on the record, if I can interrupt people’s conversations.

PN744

MS WALTERS: Mr Travers, you’ve read over the statement and do you have a copy of that statement with you?---Yes.

PN745

Mr Travers, can you state for the record your name and address?---Mark Travers, (address supplied).

PN746

Do you declare the statement to be true and correct, or do you have any amendments?---No, there’s a couple of amendments I’d like to make that aren’t quite right. Which is 10 I didn’t meet Paul, I’ve only met and contacted Peter Wise and obviously the size - - -

PN747

THE COMMISSIONER: Sorry, so delete the words, and Paul Borobokas?
---Yes.

PN748

MS WALTERS: That’s correct?---And the size of the construction part is what I was referring to, not the whole site in general.

PN749

So at paragraph 13 Mr Travers where you say the distribution centre is approximately 120 long by about 60 metres wide, are you referring to – can you explain to the Commission what it is?---The Schaefer construction part of it that’s what I’m referring to approximately. The job itself is four times bigger.

PN750

THE COMMISSIONER: Well do you take issue the evidence before about the size of the place? Which is about 700 by 140?---No, I have no problem with that no.

PN751

MS WALTERS: Mr Travers are there any other corrections that you would like to make?---No.

**** MARK ALLAN TRAVERS XN MS WALTERS
PN752

I seek to tender that.

EXHIBIT #W1 WITNESS STATEMENT OF MR TRAVERS

PN753

MS WALTERS: Paragraph 2 Mr Travers, you indicate that you have some experience in the construction and or mixed metals industry. Can you just briefly explain that to the Commission?---I’ve been in the industry over 20 years. I’ve been involved with numerous mixed metals jobs probably for 15 of those years, and the latest one as an organizer was Laverton power station. Also looking after the other Coles Myers distribution centre in Laverton to construct the freezer part of the two projects. I was also coordinator on site for the Woolworths QP2 distribution centre, which was a similar project but together not separate projects, which Hansen Yuncken done that one by the way. Also Ford motor factory paint shop which was a metal trades job and also the Toyota factory in Altona which was a mixed metals job too. I can go on, but there’s plenty.

PN754

If you can just briefly indicate what you mean by mixed metals and what you are referring to when you say mixed metals?---It’s when the metal trades job description as in fitters, welders, placing and putting in conveyor machinery, any type like that, which is doing with their work. That’s what we call a mixed metals job and obviously it attracts a different site allowance and slightly different wages and components attached to that. Usually sit down on these jobs and do an on site agreement, obviously now it’s a little bit different in some circumstances with the new laws. But that’s basically what gets done, it’s an on site agreement.

PN755

At paragraph 4 of your statement you say that you first started negotiations for an agreement in conjunction with Terry Bradley?---Yes, that’s right, I was looking after the job from day one, with Bovis. I actually met Bovis and wanted to know the metals component of the job. Basically what they said we don’t nothing to do with the metals, we will be finished our part of the job before the metals come in and start their project. I contacted Terry Bradley who was looking after that part of it, before he went elsewhere. We started negotiations firstly that Tim Nimmo, is it? I went to the front gate and he was the contact I spoke to him. He give us Danny’s number, Danny Samuels, which we contacted Danny. Danny met us on site a few days later when he come down from New South Wales. The first meeting wasn’t too bad. We spoke about the mixed metals type of work. I don’t know what happened after that meeting but we got the next phone call, was don’t speak to me, you need to speak to Skilled Engineering and that’s when the contact was made with Peter Wise.

**** MARK ALLAN TRAVERS XN MS WALTERS
PN756

Mr Travers can I ask you to clearly indicate to the Commission what you mean by in conjunction with?---In conjunction with?

PN757

At paragraph 4 where you say in conjunction with Terry Bradley?---Well anywhere where the metals are involved and I think that it’s metals type work, because I don’t demark between them, so I’ll contact that organization to tell them that there’s work about to be taking place. Obviously I went down there with Terry to start talking about on site negotiations, as in agreements.

PN758

Right, can you briefly explain to the Commission why on at paragraph 11 on 7 March you instructed the CFMEU to send correspondence to Skilled Engineering?---Obviously we weren’t getting anywhere, so the next port of call, and I’m not one to all the legal type of stuff, I’m a hands on sort of a person on site, we like to try to get things worked out there, before it has to go any further. Every indication back from Peter Wise and from Schaefer was we are keeping what we’ve got, so then I contacted yourself and Jessie, to start proceedings in a legal manner.

PN759

Okay and in relation to this correspondence that you instructed the CFMEU sent, did you have any discussions with the metals about that or was that simply something that you instructed the CFMEU to do?---Obviously we spoke to the metals. We always keep talking to the metals regarding their type of work, but still we have no reply back – and I don’t think we’ve got a reply back to date as yet to my knowledge anyway.

PN760

You attended the site today?---Yes.

PN761

With the Commission and the various parties?---That’s right.

PN762

You’ve attended the site on previous occasions as well?---Yes.

PN763

Can you explain to the Commission because you do state at paragraph 20 that you believe the works that are being performed by Skilled Engineering employees falls within the scope of the MECA award. Can you explain to the Commission briefly why you believe that to be the case?---Well like I’ve explained before, every other type of job of this nature that I’ve worked on was always relevant to the metals, conveyors and the rest of it, we can demark with them if we want, but we don’t choose to do that because it’s their work.

**** MARK ALLAN TRAVERS XN MS WALTERS
PN764

In your experience why do you believe the area demarked that we saw today, by the - let’s call it the black plastic sheeting fence – why do you believe the area north of that – south of that – the area we inspected today is a construction site?
---Why is it a construction site?

PN765

Why do you believe in your experience?---Well the building is not – well the building is finished, but the inside of the building is not finished. It is clearly – if you can’t see that, well I’ll give up.

PN766

But are there any particular elements in terms of Occupational Health & Safety for example that would lead you to be more concerned about that area?---It's still a construction site and I really - when they say about not having a red card, well, I'll dispute that too because I'd be very surprised if you're allowed to work on that particular part of the job without a red card.

PN767

Could you explain to the Commission what a red card is?---A red card, you need to have for any type of construction work in Victoria. There are different colours throughout Australia. New South Wales at the moment is a white card, I think, and then there's a green card and there's also a blue card. It's - and we're not all married up. All the States are not all married up for those particular colours and cards. Some are, some aren't. It's quite funny, actually, the job started where that construction part is getting now, so the end of the shed finished at Somerton Road. They could have started that way before Bovis left the site, but Bovis left the site for one reason. They didn't want to deal with the metal trades component of it, because all the rest of the site was done under CFMEU and our jurisdiction.

PN768

Yes, and at paragraph 19 you say the employees are engaging in work best described as construction, erecting and installing plant?---Yes.

PN769

Such as the automated steel racking systems and conveyor systems?---Yes.

PN770

What type of classifications do you think these employees would come under in terms of the MECA award?---You would have fitters, obviously, boilermakers. If there needs to be any welding, you'll have a rigger, you'll have a forklift driver or possibly a small crane, depending on how they're going to do the work. What usually happens, we have a composite crew, with one of each of those people to erect the conveyors.

**** MARK ALLAN TRAVERS XN MS WALTERS
PN771

That's all.

<CROSS-EXAMINATION BY MR EMBER [3.57PM]

PN772

MR EMBER: Mr Travers, you said you started in your statement, originally started negotiations for agreement in conjunction with Terry Bradley. When did you actually start at that site? I think you mentioned that you'd been there
since - - - ?---I started when it was a green paddock, okay.

PN773

Right. But approximately when was that?---It would have been the start of possibly January or February last - I can't remember exactly when Bovis started it.

PN774

But certainly some period between you starting and then any discussion with Mr Wise?---Well, it's a bit hard to work out who was doing the fit out of that particular part, if you didn't know, and Bovis were not going to tell us, saying that it's got nothing to do with us. So how can you negotiate with someone that you don't know who to ring.

PN775

So who would you normally ring? I mean, would you normally talk to the site manager? Who do you normally ring in similar situations?---When a job first start?

PN776

After the job starts, when you think you're getting where you - - - ?---You go to the job and ask for whose the boss first, wouldn't you?

PN777

Right, and did you do that, did you ask Mr Wise who the boss is?---Of course I did.

PN778

Who did he say was the boss?---Danny Samuels was the first one that we got introduced to.

PN779

Who did he say was his boss?---Who?

PN780

Who did he say was his boss?---Who, Danny Samuels?

PN781

No, Mr Wise? I notice you did have Mr Borobokas in your statement earlier and now you've crossed that out. I'm just wondering, did he ever mention Mr Borobokas as being the boss?---And Terry Bradley was negotiating with Paul because I hadn't met Paul up until - I hadn't met Paul up until the last Commission hearing, so I didn't know him. I'd met Peter on site, that's who I kept negotiating with.

**** MARK ALLAN TRAVERS XXN MR EMBER
PN782

So you didn't know Paul, you hadn't met Paul?---No.

PN783

Your statement originally said that you'd met Paul?---Yes.

PN784

And Paul was the person that's responsible for enterprise negotiations. Did
you - you mentioned also Terry just a moment ago?---Mm.

PN785

You did say, I think, in response to Ms Walters' question, you usually go along with Terry when it's metals work, I think that's what you said, I think that's what - - - ?---No. I let him know if there's any type of metals work going to be taking place and I'll ring the organisation and let them know.

PN786

Right. So you'll go along to metals work with Terry?---We got classifications there too, as in riggers, as in forklift drivers, as in crane drivers, as in dogmen, yes, as in scaffolders.

PN787

But you're saying if you do want it, though, then you can get it, but you just sometimes make a decision, you know what, that's metals work, we won't got for it?---What's that?

PN788

Is that what you do? If you're with Terry, do you sort of sometimes say to him, "Terry, look, that's your jurisdiction" to use your term, that's your term?---Well, boiler making and fitting is his jurisdiction - well, sorry, is the metals jurisdiction, not ours, yes.

PN789

Are you aware, as I understand it, Mr Noel Washington, is he an organiser with the CFMEU as well?---That's right.

PN790

And are you aware of Mr Noel Washington's involvement with the labour hire group of which Skilled is a member, the Australian Industry Group and talking about the MECA agreement?---Noel is one of my bosses. He doesn't tell me every meeting he goes to.

PN791

Right. Is that a no?---That's a no.

PN792

But you're aware of that now. I'm not sure, I think you were in the court before?
---So you tell me. I'll check with him.

PN793

So you do say that when you spoke to Mr Wise, Mr Wise said, "We're keeping what we've got," I think that's what you said on the transcript before?---That's right.

**** MARK ALLAN TRAVERS XXN MR EMBER
PN794

Keeping what you've got. So by that you understood that Mr Wise was saying, we've got an agreement, we're keeping what we've got?---No, I'm not saying that a all.

PN795

What are you saying?---I said we're keeping what we've got on this site, that was it.

PN796

And what did you understand Mr Wise to be saying when he was saying we're keeping what we've got? If you're coming up to him and saying, I want an agreement with you, what do you believe him to be saying?---No. He said, "We're keeping what we've got." And I dispute that because it's a construction site.

PN797

Right, but he's saying, "We're keeping what we've got." What do you understand Mr Wise to be saying, what is he keeping?---I have no idea. He's keeping the wages and conditions on that site at the moment, I would presume.

PN798

Are you aware of the fact that there is - that Skilled has both a MECA and a labour hire agreement, as it were, they've got two agreements?---If they're current, I'm not sure, but after - - -

PN799

Well, they're current - - - ?---Hang on.

PN800

Sorry?---Let me finish. After all this to-ing and fro-ing over the last two or three months, there's a lot more coming out, so - - -

PN801

Sorry, I don't quite understand that?---Well, I know now that some people have got some things, some have got others. Some have got this type of agreement, some haven't got an agreement at all.

PN802

So when you were originally at the site you were talking to Bovis Lend Lease?
---Yes.

PN803

You then spoke to Mr Wise, but then - - -

PN804

THE COMMISSIONER: No, he spoke to Mr Samuels, in his statement.

PN805

MR EMBER: I understand he spoke to Mr Wise in his statement.

**** MARK ALLAN TRAVERS XXN MR EMBER
PN806

THE COMMISSIONER: No.

PN807

MR EMBER: Paragraph 7.

PN808

THE COMMISSIONER: Yes, paragraph 5 says, "In around November last year" he spoke to him, and Samuels - - -

PN809

MR EMBER: Sorry, yes.

PN810

THE COMMISSIONER: He's quite clear in his evidence.

PN811

MR EMBER: Yes, and then you contacted Mr Wise?---That's right.

PN812

But that was around December, wasn't it?---Mm.

PN813

And then I think the application, the application or the initiation of bargaining period is dated 14 February. So there's a bit of time there between your wanting an agreement and then actually pursuing one, isn't there?---Well, we're on a 36 hour week and we have a very good Christmas break too and no one really wants to deal with you within the month of December because they're all ready to go on holidays and when you come back from holidays in January everyone's just starting to wind up again, and then we have a couple more days off.

PN814

But that's the employees. If you want to speak to the company - - - ?---I'm on holidays too, mate.

PN815

There's nothing to stop you, is there?---Yes, there is. I'm on holidays. I don't take work home with me.

PN816

No further questions, Commissioner.

PN817

MR MOIR: Commissioner, I don't wish to cross-examine Mr Travers, but it's on the understanding that his evidence won't be relied upon in relation to - - -

PN818

THE COMMISSIONER: In the context of Busicom.

PN819

MR MOIR: Busicom application.

PN820

THE COMMISSIONER: I'm not sure that it's going to be possible to delineate that in that way. The matters are being heard concurrently, to the extent that he's given evidence about the site, it's the same site that Busicom has got.

**** MARK ALLAN TRAVERS XXN MR EMBER
PN821

MR MOIR: Yes, I accept that, Commissioner.

PN822

THE COMMISSIONER: I can't really avoid the conclusions, if any, that arise from his descriptions.

PN823

MR EMBER: Well, as I understand it, Mr Terzic won't be seeking to rely upon his evidence for the purposes of the AMWU's application.

PN824

THE COMMISSIONER: Yes, well - - -

PN825

MR MOIR: Therefore I don't - - -

PN826

THE COMMISSIONER: If that's the case then - - -

PN827

MR MOIR: I don't need to cross-examine him.

<THE WITNESS WITHDREW [4.06PM]

PN828

THE COMMISSIONER: Is that the evidence? Who wants to open the batting?

PN829

MR MOIR: Commissioner, there's one witness for Busicom, that's Mr Paul Desmond whose affidavit you now have, Commissioner.

PN830

THE COMMISSIONER: Come forward.

PN831

MR MOIR: Call Mr Desmond.

<PAUL ROBERT DESMOND, SWORN [4.07PM]
<EXAMINATION-IN-CHIEF BY MR MOIR

PN832

MR MOIR: Just for the record, Mr Desmond, could you please state your name and address?---Paul Desmond. (Address supplied).

PN833

And your present occupation?---I work for Busicom as a sales consultant, sales manager and a liaison officer.

PN834

How long have you worked for Busicom?---Two years.

PN835

And Mr Desmond, you have sworn an affidavit in relation to these proceedings?
---Yes.

PN836

Do you have a copy of the affidavit with you?---Yes.

PN837

I tender the affidavit, Commissioner.

EXHIBIT #M1 AFFIDAVIT OF PAUL ROBERT DESMOND

PN838

MR MOIR: Just one point of clarification, if I may, Mr Desmond. You refer in paragraph 4 to installation of the picking system at the Somerton Distribution Centre?---Yes.

PN839

Are you aware that there are employees of Coles Myer Limited currently working at the Somerton warehouse?---That's correct, yes.

PN840

And as far as you're aware since when have employees of Coles been working at the site?---Coles and the other company, Input, they've been there since about 26 October last year.

PN841

And the other company, is that In2Store?---Yes, that's correct, yes.

PN842

And so your understanding is that since at least 26 October last year employees of those two organisations have been performing duties at the Somerton site?
---That's correct.

PN843

I have nothing further, Commissioner.

<CROSS-EXAMINATION BY MR TERZIC [4.09PM]

PN844

MR TERZIC: Mr Desmond, about how many of your employees are working at the Somerton site?---Fourteen.

**** PAUL ROBERT DESMOND XXN MR TERZIC
PN845

And what classifications are they?---They range from forklift drivers to warehouse duties and labouring and fitters.

PN846

Warehouse duties?---Yes, we've asked for warehouse labourers to unload containers.

PN847

Roadwork on the Schaefer site?---Yes, that's correct.

PN848

And what industrial instrument are they working under in your view at the moment, or that you know of that they're working under?---What do you mean?

PN849

Well, where were their rates of pay derived from?---From the award.

PN850

Which award?---The Metalworkers.

PN851

The Metalworkers' Award?---Yes.

PN852

Are there any other instruments et cetera - - - ?---We have some in-house agreements, yes.

PN853

Some in-house agreements, are they registered or - - - ?---All our new ones are, yes.

PN854

Like, registered as Australian Workplace Agreements?---That's correct.

PN855

You understand what that is?---Yes, I do.

PN856

Then you've had some negotiations with Mr Mavromatis about reaching a workplace agreement?---He's phoned me, yes.

PN857

And those negotiations haven't resulted in any sort of - - - ?---No, not at this stage, no.

PN858

And the contentious issue has been whether the work is construction work or metalwork, is that right?---That's correct.

PN859

And you contend it's not construction work?---That's correct.

**** PAUL ROBERT DESMOND XXN MR TERZIC
PN860

On what basis do you contend that?---I work on these installations all over New South Wales, everywhere, and we go into existing facilities and we remove and install a lot of this sort of racking systems on a day to day basis and they're not building sites, no.

PN861

They're not building sites?---No. They're operational sites, like the one we're at now for Coles Myer.

PN862

Now, you've had a look at the site, have you?---That's correct.

PN863

You've been around and had a look?---Yes.

PN864

And when you were looking at the site on a total basis of the whole complex, would you say the whole complex is complete yet?---In some ways, yes.

PN865

In some ways no, then?---No, not necessarily. When we go into a job to do an installation for safety reasons we always sanction off the job anyway. It doesn't matter where we work.

PN866

Yes, so let me ask that question again. In your view, from what you've seen, is the warehouse complex complete now?---The actual warehouse complex is complete but the installation of the rackings, no.

PN867

So is the racking, do you consider that part of the warehouse?---It's an addition to the warehouse.

PN868

It's an addition to the warehouse?---That's correct.

PN869

So it's not a part of the warehouse?---It could be. It could be a part of any warehouse. We can remove it. You can take it, pull it down, put it up. They might take it with them if they close it down.

PN870

When it's operational would you - - - ?---Then it would be part of the warehouse, yes.

PN871

And there'd be people working on it, and you say they were warehouse workers?
---Yes, that would be correct.

PN872

And it's not complete yet, is it?---The installation of the racking is incomplete, yes.

**** PAUL ROBERT DESMOND XXN MR TERZIC
PN873

No, and nor is it conveyor belts?---That's part of the racking system, yes.

PN874

Thank you.

PN875

THE COMMISSIONER: You mentioned that the forklift drivers were doing warehouse work?---Yes. When we were asked - - -

PN876

Hang on. In paragraph 11 you talk about two forklift drivers who are primarily engaged in driving forklifts to move supplies required for the installation of the shaker mechanised picking system around the warehouse?---That's correct.

PN877

Why do you call that warehouse work?---Well, when we was asked to supply general labouring for unloading containers to work in existing warehouse, they must have a forklift ticket and be aware of all warehouse duties.

PN878

So why are you using the Metals Award as the instrument to base their wages, when - rather than the Storemen and Packers Award?---No, we have several different awards under this - - -

PN879

Well, I'm going on the answer that you gave Mr Terzic. I remind you that you are on oath?---Yes.

PN880

Under oath you said that the instrument that's being used, as the basis for the wages that are being paid, was the Metal Industry Award?---That's for the installation of the racking.

PN881

No, you didn't - - - ?---Well, I misunderstood the question then, your Honour.

PN882

The question was put, what instrument is being used to determine, to set the wages for the people at Somerton?---Separate, it's separate, your Honour. We have some forklift drivers that come under the warehousing.

PN883

I can only - - - ?---Well, I'm telling you - - -

PN884

What is your answer to that question?---Can I have the question again, please?

PN885

Yes. What industrial instrument is being used to base the wages for the employees at Somerton?---We base that on an overall of different categories, your Honour.

**** PAUL ROBERT DESMOND XXN MR TERZIC
PN886

What award is being used to set - - - ?---Well, if it was - - -

PN887

Hang on, don't interrupt you. You're not listening to my questions if you're interrupting me. So what award is used as the basis for the salary for the forklift drivers?---Packers award.

PN888

Which packers award?---The Warehouse and Packing Award, awards we follow.

PN889

Are you able to give me the precise title?---I don't have it with me, no. The State award, it's whatever it is for the State awards.

PN890

There are no State awards in Victoria, sir. You're in Victoria where there are no State awards, so it can't be the State award?---Well, the award, your Honour.

PN891

Sorry?---The awards that apply.

PN892

All right. So your answer to Mr Terzic's question was based on a misunderstanding?---That's correct, your Honour.

PN893

What did you understand the question to be?---I thought he was asking me about the actual - not just the forklift drivers, but the installation just of the racking, not the unloading of the containers. They're separate, separate awards. The same as the boilermaker, they come under a different award again.

PN894

Now, you've provided an annexure to your statement which talks about a fit out of the mechanised picking system. Is that what you mean by the racking system?

PN895

MR MOIR: This is the last dot point, is it?

PN896

THE COMMISSIONER: No, no. It's the subject of the memo.

PN897

MR MOIR: That's why I'm asking, Commissioner, as I'm not sure where you're looking at.

PN898

THE COMMISSIONER: I said, and I repeat again, that memo has as its subject, "The fit out of the mechanised picking system."

PN899

MR MOIR: Yes. It also refers to the final dot point which - - -

**** PAUL ROBERT DESMOND XXN MR TERZIC
PN900

THE COMMISSIONER: I'm talking about the subject of the memo.

PN901

MR MOIR: Yes, I'll just clarify - - -

PN902

THE COMMISSIONER: I'll go nice and slowly. Have you got the - - - ?
---Which subject is it there?

PN903

It's that document which is the appendix - - - ?---Yes, no, what number, yes.

PN904

No. It's - - - ?---On the front. Yes.

PN905

Now, you can see that line, Subject?---Yes.

PN906

And it talks about, the fit out of the mechanised picking system, is that what
you - when you're talking about the racking system, is that what you are talking about?---When I talk about - no, that's different, the racking system, we're not involved with, sir. We're involved with the mechanical system of the conveyor belts.

PN907

Well - - - ?---And the unloading of the containers. That's the only part we do on that site.

PN908

Well, the last dot point talks about, "The site does not require fit out of the SSI Schaefer Picking System to be operational." Do you understand that what your firm is involved in, is the fit out of the SSI Schaefer Picking System?---Part of, your Honour, yes.

PN909

Yes, okay. So when you talk about the racking system, it's that part of the picking system that you're involved in?---The racking system is separate, your Honour. We just doing the conveyor - it is all in conjunction with one but Skilled are doing the actual racking side of it and we're fitting the conveyor system side of it. It's two separate things that we're doing.

PN910

So this memo doesn't relate to the work that you're performing at all?---It is still part of it, your Honour.

PN911

Well, you see, I thought you were telling me it didn't?---It is part of the system, but it is different.

**** PAUL ROBERT DESMOND XXN MR TERZIC
PN912

Well, this memo, the subject of the memo is the mechanised picking system?
---Yes, correct.

PN913

And you've, in response to the questions I've just asked, said that the work you're doing isn't part of that?---It is part of it, your Honour.

PN914

It is part of it?---Yes, it is part of it.

PN915

Right, okay. So when we're talking about the racking system we're talking about part of the mechanised picking system?---Correct.

PN916

Now, are any of your employees engaged on the south side of the barrier?---No. No, your Honour.

PN917

Do any of your employees use the facilities that are available to the staff that work on the south side of the barrier such as their canteen, ablution facilities, et cetera?
---No, no.

PN918

So are they subject to the general supervision of Schaefer?---Correct.

PN919

And what is called the site manager for Schaefer?---Yes, correct.

PN920

Now, do you accept that he has no responsibility for what occurs on the south side of that barrier 2?---I'm not sure about that, your Honour.

PN921

You heard his evidence today?---I heard today, yes. I heard what he said.

PN922

On the basis of what he said, do you accept that?---What he said, yes, yes.

PN923

I've got no further questions. Does that lead anyone to any more?

<RE-EXAMINATION BY MR MOIR [4.20PM]

PN924

MR MOIR: Just a couple of questions arising out of cross-examination and then some out of the questions the Commission raised. You referred to Busicom workers working on the conveyor belt, part of the system?---That's correct.

PN925

That is a part of the Schaefer mechanised system being installed at the site?---Yes, correct.

**** PAUL ROBERT DESMOND RXN MR MOIR
PN926

And could you just explain how that part of the system, the conveyor belt part of the system relates to the part being installed by Skilled employees?---That helps speed the product when the - after it's all - feed from one system to the next, that's what delivers the product.

PN927

Which part then is being performed or installed by the Skilled employees?---That is the racking side of it and the rails, the hand rails and all that sort of stuff.

PN928

And how long have Busicom employees been performing work on the conveyor belt part of the system?---I think approximately five or six weeks.

PN929

And when did employees of Busicom first commence work at the Somerton site?
---Somerton, approximately five or six weeks.

PN930

And that would mean they've only been performing work at the site this year. There were no Busicom employees performing work at the site last year?---That's correct.

PN931

And what interaction, if any, do the employees of Busicom have with employees of managers or supervisors of Coles or In2Store?---I don't really understand what you mean. Are they working all together, is that what you're saying?

PN932

No, no. Do you have any interaction with Coles?---No.

PN933

Who do you interact with?---Schaefer.

PN934

Nothing further.

<THE WITNESS WITHDREW [4.22PM]

PN935

MR TERZIC: Is there any evidence from Skilled?

PN936

MR EMBER: No.

PN937

MR TERZIC: I've got a question I'd like to pose to Skilled's representative. There's been submissions filed by both - and served by both Skilled and Busicom. I've had a chance to have a read of them. The submission from Busicom seems to deal with the coverage issue, which is the matter we're most concerned with today. On the other hand the Skilled submission doesn't seem to touch on that subject matter at all. I was just wondering whether it was the intention of Mr Ember to rely or concur with the submission filed on behalf of Busicom and I'll deal with that in my submission, or if it goes beyond that I'll - - -

PN938

THE COMMISSIONER: Because all we were going to do today was this issue of the coverage.

PN939

MR TERZIC: Yes.

PN940

MR EMBER: If I could clarify, Commissioner, we received instructions late, and I think this was emailed through at 6 in the morning, these submissions in paragraph 1, I think, make it pretty clear that I am relying on the submissions of Busicom in relation to the MECA issue. I wasn't too sure whether we were talking about the whole issue. I think when I handed this to you this morning - - -

PN941

THE COMMISSIONER: Someone should have given you the transcript.

PN942

MR EMBER: I didn't have a copy of the transcript.

PN943

THE COMMISSIONER: Okay, that's understandable.

PN944

MR EMBER: Does that answer your question?

PN945

MR TERZIC: Yes. I just wanted to ensure that the - - -

PN946

THE COMMISSIONER: That we didn't get off - - -

PN947

MR TERZIC: That there were issues to deal with it in reply were confined to what was raised in the Busicom submission. Commissioner, the coverage issue was already dealt with in the written submissions in evidence as T1, and I'll seek to rely on those submissions, and the evidence that - I submit, the evidence that's come out of today's proceedings accords with the propositions or the assumptions that underpinned the proposition outlined in T1, but more to the point, at this juncture it's possible to remove from contention a couple of aspects of what the Commission must decide that have been conceded on - - -

PN948

THE COMMISSIONER: Yes. The difficulty I think I have, and I don't know whether you're going to meet it - maybe I've interrupted too quickly - but it seems to me that a major issue that's been taken with your submission is the application of 4.1.1(b) in the sense that 4.1(i)(a) doesn't apply, 4. 1.1(c) doesn't apply, 1.1(d) doesn't apply, 1.1(e) doesn't apply.

PN949

MR TERZIC: Curiously I think there's silence on (f), which might have some work to do.

PN950

THE COMMISSIONER: Yes. But it seems to me that there is a big issue there, as well as the issue you've addressed elsewhere in your submission.

PN951

MR TERZIC: Yes.

PN952

MR EMBER: Sorry, can I just clarify, are we going into submissions now, because I'll need to take some instructions for about five minutes, if I can, if we're going into submissions, and I'm just wondering if we could have a very brief adjournment, Commissioner.

PN953

THE COMMISSIONER: Perhaps you ought to hear his submissions first and then you might want to seek instructions rather than - - -

PN954

MR EMBER: Well, I've been requested to do that, Commissioner, so.

PN955

THE COMMISSIONER: What, before he makes his submissions?

PN956

MR EMBER: No, no, in relation to those submissions.

PN957

THE COMMISSIONER: Well, let's wait. The time for that might be - - -

PN958

MR EMBER: I just wanted to - - -

PN959

THE COMMISSIONER: Some time tomorrow, by the time we get there. So you might not need to.

PN960

MR EMBER: Yes, Commissioner.

PN961

THE COMMISSIONER: I'm sorry, Mr Terzic. So you might want to expand in that hearing, that's all.

PN962

MR TERZIC: Yes, thank you, Commissioner. It seems like there is no contest based on the submission Mr Moir has penned that the work that is in question is metal trades work as per clause 4.1.1, nor that it is work, that is metal trades work performed in the work of construction, application, erection and/or installation work and I'd invite Mr Moir to pull me up if I've misconstrued his submission, but that I think is made plain at paragraph 19, 18 and 19 really, of Mr Moir's submission and plainly, Commissioner, the work was inspected. The racking - - -

PN963

THE COMMISSIONER: It's probably going to help if I actually mark your submissions as exhibit M2. That way we can - yes, so. We're at paragraph 19.

EXHIBIT #M2 APPLICANT SUBMISSIONS

PN964

MR TERZIC: Yes. We said the respondent does not take issue with criteria (a) and (b). (a) and (b) are found in the preceding paragraph and that's where it says the work is metal trades work, and I submit that is clearly the case, the whole Schaefer system appears to be made of metal, and the work is performed in the work of construction, fabrication, erection and/or installation work incidental thereto, and that is that's borne out in the evidence where we all viewed a system of shelves, racks, conveyors that is partially complete and still under construction.

PN965

So the issues that need to be determined, and I've dealt with it in my submission, are firstly, is the site in question, is the Somerton site where Schaefer is conducting its business a construction site for the purposes of clause 4.1.1, and then does it relate to - and 4.1.1(b), a major industrial and commercial undertaking and I won't bother going through the rest of the paragraph in MECA that I'm reading from because we would say it is - the Somerton site in any shape or form at present is a major industrial and commercial undertaking, might properly be characterised as industrial or commercial, but it's one or the other. And we also contend that the work falls within paragraph (f) of the definition of on site construction work, it's metal trades work on other engineering projects.

PN966

I'm not sure if - - -

PN967

THE COMMISSIONER: You don't think that the - I mean, as I understand Mr Moir's argument, even if is a major industrial or commercial undertaking, it's not one of a like nature.

PN968

MR TERZIC: Our contention is - - -

PN969

THE COMMISSIONER: Or has it only got to be industrial undertakings that have got to be of a like nature? I'm having trouble understanding 4.1.1(b).

PN970

MR TERZIC: Well, the whole set out of this one, we would argue, was infected with infelicities as Madgwick J used that term in Cook's case that I'll look at later, but it does go on to say, and other major industrial undertakings of a like nature, and the words "major industrial and commercial undertakings and associated plant" is followed with a comma and that, we would say, suggests there were various species of projects, undertakings, ventures, et cetera that are picked up and dealt with and one can quite readily put the Somerton site in major industrial and commercial undertakings and more pointedly, the Schaefer work might then be deemed to be the associated plant that is to be erected inside and installed inside the warehouse.

PN971

The warehouse complex itself, we're saying, is a major industrial and commercial undertaking. That it fits with the adjective "major", I think couldn't really be contested. The site is approximately enormous, despite some rather inadequate estimates of its size by some of the union's witnesses. It is an enormous site. I think the more accurate representations or estimates as to the site given by Mr Samuels of the plant might be about 80 metres by 300 metres or in that order, and one can clearly see it will act as a warehouse for one of the major retailers in Australia in Victoria.

PN972

THE COMMISSIONER: Sorry, which site are you talking about now?

PN973

MR TERZIC: Somerton, the whole site. The whole site.

PN974

THE COMMISSIONER: I think his figure was six to 700 meters by 140 to 150.

PN975

MR TERZIC: Well, I think I didn't have that note at hand, but it is a major site. I don't know if I'm going to be contested on that.

PN976

THE COMMISSIONER: And the site of which he was the manager I think is about 80 metres by about 150.

PN977

MR TERZIC: Yes. So the first question is, is really whether the site is a construction site and at paragraph 6 of the AMWU's submission, I took a practical approach by taking he noun "construction", looking at its etymology, the noun construction comes from the verb "to construct" and I referred to a definition of that verb that I took from the Macquarie Dictionary, and I'll hand up some copies. This is from the latest edition of the Full Macquarie Dictionary.

PN978

THE COMMISSIONER: Thank you. I'll mark that.

EXHIBIT #T3 EXTRACT FROM MACQUARIE DICTIONARY

PN979

MR TERZIC: In the second column, the right hand column on page 416 the verb "to construct" is a transitive verb and the first definition there set out is "perform by putting together parts, build, frame or devise" and inside the Schaefer site the evidence clearly shows that there is a system of racking, an automated system of racking that is being assembled, put together, built. Various parts have come in containers. Many of them from Germany and the employees in question are erecting and assembling them.

PN980

So a plain reading of the - - -

PN981

THE COMMISSIONER: Hang on, sorry. Sorry, Mr Terzic, while I'm interrupting you on that, the CFMEU managed to make the dictionary.

PN982

MR TERZIC: Yes. I saw them there. They're a significant institution in Australian life.

PN983

THE COMMISSIONER: They're renowned.

PN984

MR TERZIC: Yes. Now, before I continue any further analysis, just on some of the phraseology of the award, it's - - -

PN985

THE COMMISSIONER: I don't know whether we're going to do too much of this today. We've been at it for a long time, you might appreciate. Can we just go off the record to discuss what's going to happen next.

<OFF THE RECORD

PN986

THE COMMISSIONER: Yes, Mr Terzic, as you were saying before we went off the record.

PN987

MR TERZIC: Yes. In many respects the task that falls to the Commission is one of interpreting an award and I've got two authorities, I think, that would provide some measure of guidance. One is Cuxson's (?) case, Cuxson CSR, and I've handed up copies, and I won't excessively read on these decisions. I think some of them are quite well known, but on page 184 Madgwick J sets out some principles that ought to be applied in interpreting awards and essentially he says that narrow or pedantic approaches should be avoided, the intention is to find out what the intention of the framers of the document were, that they might be of a practical bent. He refers to infelicities and inconsistencies and I submit that some of those, the effects can be found in an examination of the award provisions in question and indeed, if one was to be excessively narrow or pedantic or a slave to grammar, one might find that it's possible to include or exclude almost anything.

PN988

So while a literal look at the award is always in order, a practical interpretation should be strived for. I also referred to, in my submission, an article from the Sydney Law Review, and the relevant passage there - I won't read it, but it's in a similar vein - appears at page 251 under the heading Interpretation of Agreements and the relevant passage just says something to the same effect, "The interpretation of awards and agreements is anything but uniform, but has attempted to adopt a similar approach to that use and statutory interpretation. Narrow, literalistic and pedantic approaches should be avoided."

PN989

And it's within that context that I will be presenting an interpretation of the relevant award provisions. So one question that the Commission will have to decide is whether the work in question is taking place within a construction site. We've all seen the evidence. I won't attempt to recapitulate it extensively, but our submission is simply this. The site remains a construction site, notwithstanding parts of it have been completed, parts of it are operational and indeed, in my submission, I pointed to why such might be a situation that would be quite favourable to the proprietor of the final site, and that is that they're could be some utility or return gain on investment, if you can make some part of it productive and functioning.

PN990

THE COMMISSIONER: So you accept the site is the totality of that building?

PN991

MR TERZIC: Yes. There's various sites, really, that you could say that the Somerton site in toto, which would be the whole of the building and one could say parts of the site would no longer appropriately be called a construction site, but other parts are still in a construction phase and they - - -

PN992

THE COMMISSIONER: So no weight should be given to the fact that Mr Samuels is regarded as a site manager, and you've got that barrier and all the rest of that that goes on?

PN993

MR TERZIC: Well, he's the site manager of the construction section of the total site, and in my submission I proffered examples of similar undertakings, they're hypothetical, such as the construction of a multi pot line aluminium smelter. One pot line might be complete and operational. That would no longer be a construction site in the same vein, but the second pot line which might be partially complete, would remain a construction site until it has finished or - - -

PN994

THE COMMISSIONER: I have it in my mind, Mr Terzic, and you will appreciate I have some experience in the building and construction industry, as a member of this Commission, that I was involved in a number of disputes at the Shell Refinery when they were constructing a new catalytic cracker and although it was in the refinery site, they strung a line around it and called what was inside the line a construction site. Now, that might have been because everyone agreed, I don't know, but it would have - they were clearly building a catalytic cracker, which is a slight bigger operation than what you're dealing with here, but an engineering project on a production site. But they were able to make the distinction that this was a construction site, even though it was in a larger establishment that was producing various petro chemical products.

PN995

MR TERZIC: Yes, and in relation to the divide that we seek the Commission to adopt, and that it is possible to divide an entire site, namely the Somerton site, and into partly operational and partly construction and the part that we're examining today, construction, I did - it's not really on point, but there is some recognition of dividing lines and how they can be sometimes difficult to find in the Thiess case that I've put in my submission and I've handed up to the parties, and there the question was whether a workshop on a coal mining lease was within the coal industry and mainly I'd refer to the judgment of Leighton CJ, who was in the majority, but I'd just ask the parties to look at paragraph 6 which is on page 3 of 13 where his Honour notes:

PN996

The line between industries is in many cases not clear. One industry might be entirely concerned with the services of another industry and yet may not be part of that other industry.

PN997

And he gives some examples.

PN998

And then I ask the Commission to look to page 7 of 13, paragraph 17, and in this matter the Judge asks rhetorically:

PN999

In my opinion the question to be asked is what is the substantial character of the industrial enterprise in which the employer and employees are concerned.

PN1000

Commissioner, the character of the enterprise in which the relevant employees is concerned is construction, they are building and fabricating a automated warehouse system. They are not engaged in delivery, despatch or any sort of warehousing function. The evidence shows that for operational reasons that we don't have evidence of and we can't - it's not really proper to have a full inquiry into the nature of how Coles runs its business.

PN1001

But what's quite clear is that there are two sections to the warehouse, what's known as the Dexian section and the Schaefer section. They work on a different basis. One's manual, one's automated. The Dexian section was finished and then it's a little bit unclear as to what the time lag was, but pretty shortly thereafter in a vacant space in the site, Schaefer started building its part, the automated part in a way that's contiguous to the Dexian site and then the evidence seems to indicate and we're not in a position to contradict it, but based on the annexure to Mr Desmond's affidavit that goods will start flowing into the Schaefer site currently being catered for in the Dexian site.

PN1002

So that the company has chosen to construct its warehouse in this fashion in this order, does not detract from the fact that it is still construction going on and the complex in and of itself won't be complete, won't be complete until the Schaefer installation is finished and it's clearly not finished. All the evidence points in that direction. Now, the idea that a construction site might be fazed in that manner, since inconformity with some passages in the Jackson v Monadelphous case, and I've handed up copies of that and referred to it in my submission, and here the question before the Industrial Relations Court of Australia, which later transposed to the Federal Court when the latter was abolished, was whether work was MECA work or metal industry work, which is exactly the same question as is before the Commission here, although the basis upon which it was asserted it was MECA work, unsuccessfully, I might add, was in relation to maintenance work.

PN1003

Here the work of the relevant employees is not maintenance work, but the decision goes over many different issues. The analysis of which award covered the work starts at page 19 of 33 of the copy I've provided and mindful of the time, I won't read extensive passages. But the issue here concerns whether maintenance work was maintenance work that was captured by MECA and it was not. The site in question was the Olympic Dam Mine Complex at Roxby Downs, which I'm sure would be within the Commission's knowledge and you could take judicial notice of, and it's also referred to in the submission as a major complex, mine complex, that was going through various, what's referred to as optimisation works and the relevant employees were engaged on the optimisation works which were started well after the mine had been in operation for some time.

PN1004

Now, I'd ask the Commission and the parties to look at page 21 and look at the fourth paragraph, it starts with the word, "Evidence", and on the right hand side, about halfway through the paragraph, the words, "that is appears", and his Honour said:

PN1005

The work that both Jackson and Wilson undertook involved mostly comparatively minor modifications or repairs to components of the plant that was operating and had earlier been constructed and/or fabricated and/or erected and installed.

PN1006

I end the quote there. Then I ask the Commission and the parties to refer to the paragraph beginning with, "The broad exception" and on the fourth line, the sentence begins with, "Their work", and there his Honour just goes over what he said earlier, where he says, "It was overwhelmingly involved in modification and repair of existing plant."

PN1007

Now, the passage I'd like the parties and the Commission to pay special attention to is the one that reads, after the parentheses, "The only basis upon this work could fall within the definition of on site construction work" - and I pause there for a moment. So the question is purely related to on site construction work. It's not in relation to 6.3. So I return to the quote:

PN1008

If I accept the contention of the applicants that the entire complex -

PN1009

I'll break with the quotation. So here he says, was the entire complex was at all relevant times a construction site.

PN1010

In my view it was not. Those areas of the complex on which the plant was built which commenced to operate as part of the process of processing the ore and extracting minerals ceased to be part of the construction site, notwithstanding the other plant might later be built approximate to it and linked to the chain of processing and extraction.

PN1011

I end the quote there.

PN1012

Now, the inference one can draw from that passage is that his Honour recognises that within a completed operational site construction activities might take place and they could be properly considered to be construction activities and to the extent that there was any notion that the warehouse was operational, that doesn't preclude on site construction happening at the site, and that is, we assert, on site construction, is fortified and amplified by the fact that the whole process has taken place in a continuum that has not yet reached its end point whereby part of the warehouse complex is complete and operational. A part of it was, at the beginning of Schaefer's work, avoid space, and since then plant, equipment, shelving, racks, machinery et cetera have been installed and continues to be installed and the work of the employees in question has nothing to do with the sort of work that was ultimately carried out at the warehouse site.

PN1013

Now, in the written submission I do concede that sometimes work might have a construction type appearance in that things are being built or refurbished and there might be safety precautions and other indicia that would lead towards the view that the work is construction, and perhaps in some of those cases a fuller examination might lead to questions raised as to whether it is construction or not, but perhaps for industrial or practical reasons it's considered construction for the purposes of determining industrial conditions, or for other purposes and some examples where disputes over those issues were for determination have proved to be unsuccessful and I've referred to some authorities there.

PN1014

One was the Simon Engineering matter which was modification and expansion to existing plant and it was held not to be MECA work in the Simon matter, which is a decision of Commissioner Grainger, and the authority is clearly marked of 23 December 2002, because it was really something of a different characteristic altogether in accordance with the Commissioner and his finding at paragraph 24(v)(b) at page 9, really pointed out that the work is only an upgrade of pre-existing plant.

PN1015

Commissioner, this is not an upgrade. It's the completion of a whole new segment of new plant that will, when completed, mark the completion of the warehouse in and of itself. Similarly the South Australian decision I've referred to, again was found to be outside of the scope of - - -

PN1016

THE COMMISSIONER: Have you handed that up?

PN1017

MR TERZIC: Yes, I have. I've handed up a copy of that to - - -

PN1018

THE COMMISSIONER: I think maybe I didn't get it. I got two copies of the Blair decision.

PN1019

MR TERZIC: And this decision can be looked at by the parties and the Commission perhaps more fully at a later time. But this involved the maintenance upgrade of air-conditioning ducting in a building and that had already been constructed and from what I can deduce from the decision, occupied and was functioning office block, when the air-conditioning ducting was - it appears, taken out, replaced, and the Magistrate there found that the work was - at page - more properly characterised as a maintenance upgrade, or an improvement on an existing system. I emphasise the words "existing system", and that's midway through the last paragraph of page 7.

PN1020

It's perhaps worth noting that while merchandise can be stored in both systems in place, the systems are quite different in the way they work. One is manual, one is automated, and it's worth noting that the work was thought of as nothing but construction in Sydney when the actual installation work in and of itself, according to the evidence of Mr Samuels, was identical to what is going on at Somerton. It's just the sequence of events. The Dexian part was constructed after the Schaefer part in Sydney in New South Wales and here the reverse has taken place and that seems to be the strongest basis by which the respondents assert that the work is something other than MECA work. That basis, I submit, can't be seen to hold water.

PN1021

Now, in the course of cross-examining - I withdraw that. In the course of examining Mr Samuels, he was handed a copy of a WorkSafe report that's now exhibit T2. This is a report of Wayne Turner that was conducted late last week, apparently a WorkSafe or WorkCover inspector properly accredited and it's just worth noting that some of his observations in the first paragraph, particularly at page 2, where it was his view that there was a construction area, and that's in the first paragraph about the sixth line on page 2, he says, "The construction area was barricaded off" - I think there's two f's there - "off from the Coles Distribution Complex", and later he says, "The work activity is being carried out, hazards and risks were similar to those undertaken on a number of construction sites that I have been involved in." I end the quote.

PN1022

Commissioner, these are the observations of somebody who would not be expected to make self serving statements about he would characterise the work. He has just made a call on it from a health and safety perspective. One would guess he might be oblivious to the nuances of the argument now being propounded in the Commission and I do caution against self serving statements having much relevance at all. Of course, it's a facile thing to have union witnesses and say it's a construction site and for the respondent's witnesses to say, well, it's not construction, it's something else and to try and split hairs and avoid the real inquiry. The real inquiry is served by the Commission hearing, the evidence, weighing it up.

PN1023

The Commission's own observations are properly before the Commission. I make the point that the Commission may inform itself as it sees fit, both under section 110 and 111. Commissioner, if the work is not a construction site, we're at a little bit of a loss to find any other characterisation of it. Now, the other aspect to this application clause involves 6.3.1 and therein I will simply rely mostly on my written submission where I look firstly at a literal approach and therein I say that the exemption only applies to a permanently established place of work including a warehouse, et cetera. That all speaks in the past tense. Something that has been established.

PN1024

The warehouse in and of itself is yet to be established. We contend it's partially established. There are no stores or warehousing personnel in the part in question and again we rely on the ability to delineate a site as being partially constructed, part of the operative. We would not seek to labour MECA in a way to say that the work of the operatives are anything other than operative type work, stores work being performed by stores persons, remain so and should be treated as so. The work we contend is construction work, should be treated as construction work and that is a sensible, rationale, purposive approach that we say would no doubt accord with the framers of the award and that's one that we commend to the Commission and if that purposive construction that I refer to in paragraphs 14 to 16 is adopted, it's in conformity with quite a detailed examination of MECA by his Honour, Moore J in Jackson v Monadelphous, that's the approach we commend to the Commission.

PN1025

On that basis we would seek the Commission find that there are employees circumscribed in the bargaining period notice over whom a ballot can take place. That's a description that comes from MECA. It all falls into place that the application should continue. If the Commission pleases.

PN1026

THE COMMISSIONER: Yes, thank you, Mr Terzic. Ms Walters?

PN1027

MS WALTERS: Is the Commission pleases, the CFMEU relies on the submissions that were put by the AMWU in relation to the oral submissions made as to interpretation and application of the MECA award and we, further to the submissions of the AMWU, we simply reiterate the importance of, or where in fact the determination of whether or not MECA award applies, and that goes to whether or not the site that was subject to inspection today is a construction on site, and therefore clause 4 of the award applies stems from and goes to the application before you and that is then the validity of the notice issued, that is, the bargaining notice which is exhibit MT1 as to the CFMEU's application and I think it was also provided attachment A to the application pursuant to section 451 in accordance with the relevant provisions of the Act.

PN1028

And the question then becomes, the employees who the CFMEU proposes to be bound by the proposed agreement, as indicated in the bargaining period of notice, fall within the cope of, that is, their classifications fall within the scope of the MECA award, and that's where the importance sits and to make. The concern being that certainly - and if you go to the objects of this division of the Workplace Relations Act, if you could bear with me, I think is at - - -

PN1029

THE COMMISSIONER: 449.

PN1030

MS WALTERS: 449, yes. The characterisation needs to be, as I reiterate, do the relevant employees who the CFMEU proposes are to be bound by the agreement, fall within the scope of the classifications provided under the MECA award and part of that question goes to the application of clause 4 of that award, and CFMEU submits that on the basis of the site inspection this morning and the evidence before you, that the relevant employees who are engaged at the site by the employer, the CFMEU is seeking to enter into an agreement with carrying on on site construction work and their classifications appear within that award and therefore the bargaining notice at MT2 is a valid notice of initiation of bargaining period and on that basis we say that the initial question that the Commission has indicated that it wishes to make and that is the question of, is the MECA award the appropriate award to underpin the agreement.

PN1031

We say it is, and we only make these submissions in relation to this question and that is, there is some concern on the submissions as put by the Australian Industry Group on behalf of Skilled Engineering which go to separate questions of patent bargaining and genuinely trying to negotiate and I think it's approximately at paragraph 16 of those submissions by the AIG group that it's not quite clear that in fact whether it's construing the fact that the CFMEU says that the MECA award is the appropriate award to underpin the agreement as a claim in itself and therefore in circumstances where those submissions go to the fact that the CFMEU is of the opinion that the relevant employees perform work under clause 4 of that award is a claim and therefore goes to their submissions on genuinely trying to negotiate and/or the fact that both the metal union and the CFMEU, both applicants in these proceedings in relation to, Skilled Engineering have made that claim that goes to an allegation of patent bargaining, we would seek to have an opportunity to be heard on that because it's not clear from their submissions whether in fact that is the case. It does appear to be the case.

PN1032

I simply make that point because the Commission has indicated the purpose it wishes to hear submissions at this point in time goes to simply the question of the application of the MECA award, if that's clear.

PN1033

THE COMMISSIONER: Well, it goes beyond that. The parties agreed to that process.

PN1034

MS WALTERS: Yes, Commissioner, there's no submission that the parties have not agreed or certainly that the CFMEU has not agreed to that process, although I think the submissions of Busicom go to that question. However in circumstances, given the material that I've had an opportunity to see today, I simply make the point that in circumstances where our consideration of the application of the MECA award as the appropriate award to underpin the agreement and, in terms of classification of the relevant employees, that going to any other jurisdictional argument, that the ballot order not proceed, that that should - the Commission should give the opportunity for the parties to be heard on that separately and of itself because that is a separate matter to what's before you at the moment.

PN1035

THE COMMISSIONER: But if I'm against you on this matter, it'll - - -

PN1036

MS WALTERS: In essence, Commissioner, yes.

PN1037

THE COMMISSIONER: So you won't get an opportunity to be heard.

PN1038

MS WALTERS: Well, in the first instance, no, you're right, Commissioner, yes.

PN1039

THE COMMISSIONER: Yes, well, obviously. Mr Moir, I think you've got the leadership in this issue.

PN1040

MR MOIR: Certainly, Commissioner. Like the CFMEU, Commissioner, my client would seek to be heard on whether the applications meet the other requirements - - -

PN1041

THE COMMISSIONER: Well, in a technical sense you don't want to be heard on that. You'd rather they were tossed out on this?

PN1042

MR MOIR: Yes. If the application is dismissed on this threshold point which we've addressed in our outline of submissions and which is identified in paragraph 2 of - - -

PN1043

THE COMMISSIONER: Yes. Before you go on, there is a small housekeeping matter I've got to attend to. Although the submissions don't go to the issue, I'll mark them all the same, Ms Walters, it will be exhibit W2.

EXHIBIT #W2 CFMEU SUBMISSIONS

PN1044

THE COMMISSIONER: Sorry, Mr Moir.

PN1045

MR MOIR: Thank you, Commissioner. So if I could just address then that preliminary question outlined in paragraph 2 of our outline of submissions. The preliminary question arises because in respect of my client the AMWU has applied to the Commission for an order for a ballot to be held to determine whether proposed industrial action has the support of relevant employees. The relevant employees identified in the union's application are those employees nominated in the amended bargaining period notice.

PN1046

That notice was amended on 8 March before the Commission and the relevant terms of the amended notice are set out in paragraph 7 of our outline of submissions and it's clear from the notice that the relevant employees for the purposes of section 451 of the Act and the application being put forward by the applicant union are those employees purportedly covered by the National Metal Engineering On Site Construction Industry Award 2002.

PN1047

Now, my client submits that the employee is engaged by it, firstly not carrying out on site construction war, as defined in clause 4 of the MECA award, and furthermore, even if they are carrying out such work they are excluded from the coverage of the award by virtue of clause 6.3. So those are the two propositions being advanced by the respondent to the AMWU's application. They're set out at paragraph 8 of our submissions.

PN1048

Commissioner, you'll see that from paragraph 9 we address the principles of award interpretation and I won't dwell upon those. I just not that there's a recent decision by his Honour, French J, in The City of Wanneroo, and it's referred to in paragraph 10 of our submissions and there's a convenient summary of the principles governing award interpretation in that decision including by reference to the Legislative Instrument Act of 2003 and in turn the Acts Interpretation Act. It's clear, in my submission, that by virtue of those pieces of legislation it is necessary to consider the context and purpose of the provision or expression being considered.

PN1049

In this case the expression or provision which is in question, at least initially, is at clause 4.1. Clause 4.1 hinges on the expression, on site construction work, and then in addition to that there's an issue about the interpretation and application of clause 6.3. The Commission will note that we have stated in paragraph 6 of our submissions that the issue of whether the employees in question are covered by the MECA award is strictly speaking a matter for judicial interpretation and would therefore be outside the scope of the Commission's jurisdiction and we've referred to some authorities in that regard at paragraph 6.

PN1050

If the Commission is against us on that point then you go on to consider the interpretation of, firstly, clause 4.1 and then, if necessary, clause 6.3.

PN1051

THE COMMISSIONER: Yes, look, I understand the point you're making there and you're inviting me to - if I was to find I couldn't interpret the award in the way in which you describe, don't I just deal with the other matters and if they're not employees then you go to the court and get an order to that effect? Isn't that the process that is implicit in your submission?

PN1052

MR MOIR: No, not necessarily, Commissioner. It is strictly speaking - - -

PN1053

THE COMMISSIONER: Well, no, because I'd have to accept that - I mean, if I can't interpret it, I can't interpret it either way and so therefore to the extent that the application sought to cover people - sorry. The bargaining notice went to people who were covered by the MECA award and that was an issue, I'd just have to disregard that, go ahead and determine the application on all of the other matters, the other disputed matters and if you felt that there weren't such employees, you'd have to take action elsewhere.

PN1054

MR MOIR: No.

PN1055

THE COMMISSIONER: I would have thought the other Cram case stood for the alternative proposition.

PN1056

MR MOIR: Well, I can come to Cram in a moment, but fundamental to a consideration of the application before you is whether or not the employees are covered by the MECA award.

PN1057

THE COMMISSIONER: And if that involves an interpretation of the award, on your submission I can't do it.

PN1058

MR MOIR: Indeed. If it involves an exercise of judicial power and it's calling for such an exercise of power by the Commission, then the application is outside the jurisdiction of the Commission. It's as simple as that.

PN1059

THE COMMISSIONER: And is it your submission that that is what I'm to be doing in this proceeding?

PN1060

MR MOIR: It is. That's what the application before the Commission is calling for you to do.

PN1061

THE COMMISSIONER: So if I uphold your submission, we press on to the other matters?

PN1062

MR MOIR: No. If you uphold our primary submission set out in paragraph 6 then you will find that the application is outside the Commission's jurisdiction in its current form.

PN1063

THE COMMISSIONER: No, because that would require me to make an interpretation of what the award said.

PN1064

MR MOIR: That's what the application requires you to do. The application is requiring you to make a determination about award coverage. Such a determination is an exercise in judicial power and is therefore outside - - -

PN1065

THE COMMISSIONER: No. Don't I just not make that determination? Don't I just grant the order subject to the other matters and if I've acted beyond jurisdiction, or, sorry, if there are no such - if you believe there are no such employees, it's up to you to go to the court and say so, and get them to come up with an order?

PN1066

MR MOIR: Well, no, Commissioner, because the Commission has to consider exactly what it is that the Commission is being asked to do in the application.

PN1067

THE COMMISSIONER: Doesn't that then therefore bring me within the other Cram case?

PN1068

MR MOIR: All right, well, I'll come to Cram in a moment, but just so I can clarify. If the application is requiring you in its current form to exercise judicial power, then you should dismiss it on the basis that it's outside the Commission's jurisdiction.

PN1069

THE COMMISSIONER: But are you saying that it is?

PN1070

MR MOIR: Yes, we are.

PN1071

THE COMMISSIONER: Well, okay, why?

PN1072

MR MOIR: Why? Because the applicant - - -

PN1073

THE COMMISSIONER: I understand that I don't have jurisdiction to determine judicially. I understand that submission. Why do you say that's what I'm being asked to do? That's what I don't understand.

PN1074

MR MOIR: Because the Act requires the Commission to consider whether or not to make an order for a ballot to be held in relation to proposed industrial action. This particular application which is before you is asserting in its terms that the relevant employees are covered by a particular award. That issue is in contention between the parties. The only way that it can be resolved is judicially. Now, that - - -

PN1075

THE COMMISSIONER: But even if it wasn't in contention between the parties, it would still require the Commission to come to a view, because, I mean, if it's people covered by the XYZ award, and the parties don't disagree that they're covered by the XYZ award, it's still necessary for the Commission to come to a view about that.

PN1076

MR MOIR: Yes.

PN1077

THE COMMISSIONER: The Commission doesn't derive jurisdiction from the consent of the parties in the ballot application. The Commission derives jurisdiction from the existence of a jurisdictional fact.

PN1078

MR MOIR: Indeed, and this jurisdictional fact is in issue - - -

PN1079

THE COMMISSIONER: The fact that it's in issue doesn't alter the requirement of the Commission to come to a view about it.

PN1080

MR MOIR: Well, the Commissioner, I think, is now referring to Cram's case and whether the Commission can in fact - - -

PN1081

THE COMMISSIONER: No, no. I'm referring to your submission and trying to understand why it is that I've got to come to a - why it is necessary for me to exercise judicial power to deal with the application that's been lodged by the CFMEU and the AMWU.

PN1082

MR MOIR: Well, if I could take you to - - -

PN1083

THE COMMISSIONER: It's that connection that I'm trying to understand.

PN1084

MR MOIR: Certainly. So what I'll do - - -

PN1085

THE COMMISSIONER: And what I was saying was, if you are correct, then any reference, possibly to other things as well, but any reference in a ballot application to people being covered by an award would require that same exercise of power and the Commission, on your submission, would be acting beyond power.

PN1086

MR MOIR: If the Commission turns to paragraph 7 of our outline of submissions, the Commission will see there the relevant extract from the amended bargaining period notice.

PN1087

THE COMMISSIONER: Yes.

PN1088

MR MOIR: It identifies that if this bargaining period notice is read in conjunction with - - -

PN1089

THE COMMISSIONER: Yes. No, I understand your point about it being in dispute. But there could quite easily be, in fact, I'm aware of it, where bargaining notices talk about people being covered by - so as to distinguish people from management, they say people covered by the XYZ award, employed by company A. Now, it clearly is put in there to distinguish the award employees from the non award employees. Now, as I understand your submission, if it be correct, then on all of those occasions the Commission would have to reject this proposition because it would be involving itself in an exercise of judicial power.

PN1090

MR MOIR: That wouldn't be the case, Commissioner, if the award coverage was not in dispute between the parties.

PN1091

THE COMMISSIONER: Why? Why does the existence of a dispute determine whether or not there's an exercise of judicial power?

PN1092

MR MOIR: Because this application - - -

PN1093

THE COMMISSIONER: No, no, I understand about this application. But why does the existence of a dispute about whether people are covered by an award or not determine whether the Commission, in dealing with an application under 451, which contains a reference to an award is exercising judicial power or not?

PN1094

MR MOIR: Because the Act requires the Commission to be satisfied that the employees are covered in the terms asserted in the application. The Act requires you to be satisfied that the employees here are covered by the MECA award. Now that - - -

PN1095

THE COMMISSIONER: And in another application it would be just the same. I've given you the example and you keep wanting to avoid the example I'm giving you.

PN1096

MR MOIR: Yes, I'm not avoiding - - -

PN1097

THE COMMISSIONER: Well, how about confronting it head on, then.

PN1098

MR MOIR: I am, Commissioner. If you'll allow me to explain it, then I'll be happy to do so.

PN1099

THE COMMISSIONER: Well, so far you've only explained that there's a dispute.

PN1100

MR MOIR: Well, Commissioner - - -

PN1101

THE COMMISSIONER: Why does - my question was why does the existence of a dispute become important?

PN1102

MR MOIR: Commissioner, you have to - the existence of a dispute requires a determination to be made about award coverage.

PN1103

THE COMMISSIONER: No, but doesn't a - I'll put the question to you as precisely as I can.

PN1104

MR MOIR: Yes.

PN1105

THE COMMISSIONER: In the example I gave you, doesn't that require the determination of the extent of award coverage?

PN1106

MR MOIR: An example where it's not a dispute between the parties, is that what you are saying?

PN1107

THE COMMISSIONER: There is no dispute between the parties about the existence of award coverage.

PN1108

MR MOIR: If it's not in dispute, then the Commission considers whether the requirements of the Act are met in relation to the application, including the requirements in section 461. Now, in this matter, it's in dispute, it's hotly in dispute about whether these employees, as a matter of law, as a matter of law, are covered by the MECA award. Now, until that issue is determined by a judicial authority the application cannot proceed. Now, the question is, does the Commission have authority to determine that question in the course of dealing with the application and in my submission it cannot because it would require the Commission to exercise a judicial function, a judicial function essentially about whether, as a matter of law, the employees in question are covered by the - - -

PN1109

THE COMMISSIONER: I understand all of that. What I don't understand is the distinction you make or the qualification you put in about the existence of a dispute.

PN1110

MR MOIR: Because in a case where it's not in dispute, which would be the ordinary case, you would imagine, before the Commission, an application is lodged - - -

PN1111

THE COMMISSIONER: Well, not necessarily ordinary, but a not extraordinary case where they talk about people covered by an award.

PN1112

MR MOIR: In a case where an application is lodged for - - -

PN1113

THE COMMISSIONER: Well, how can the Commission be satisfied who the relevant employees are?

PN1114

MR MOIR: Because it's not in issue, Commissioner.

PN1115

THE COMMISSIONER: Since when has the requirement for - the Commission has still got to be satisfied about who the relevant employees are.

PN1116

MR MOIR: Commissioner, I can't really take it any higher than that.

PN1117

THE COMMISSIONER: Well, I'm trying to understand why - - -

PN1118

MR MOIR: There has to be a determination - - -

PN1119

THE COMMISSIONER: The Commission has to determine who the relevant employees are in the case that I've given you in the example I gave you before.

PN1120

MR MOIR: Yes. A jurisdictional fact.

PN1121

THE COMMISSIONER: That is to say the people mentioned in the bargaining notice. Now, that means that the Commission is expressing a view about who is in the bargaining notice. Now, whether there's a dispute or not about it is immaterial, it seems to me.

PN1122

MR MOIR: Well, if there's a dispute on foot, which there clearly is in this case, you have to arrive at a conclusion where you're being asked to arrive at a conclusion - - -

PN1123

THE COMMISSIONER: I can arrive at a conclusion whether there's a dispute or not.

PN1124

MR MOIR: Well, you're being asked in this application to arrive at a conclusion about the legal status of the employees in question. Are they covered by the MECA award or not.

PN1125

THE COMMISSIONER: And the Commission would have to do that in the other case too, because it's got to determine who's going to be balloted.

PN1126

MR MOIR: Yes. The Commission would not have to determine that where it's not an issue between the parties. The Commission would consider whether the application in relation to the relevant employees meets the requirements of the Act.

PN1127

THE COMMISSIONER: So if the Commission held a view that there were no such persons, even if the parties agreed amongst themselves that there were, the Commission had a view that there were no such persons, he's still be obliged to grant the application. I don't think so.

PN1128

MR MOIR: Well, if the Commission had concerns of its own about what was the legal status of the employees in question, then that may involve the Commission exercising judicial power. But in this case, the application's requiring you, in effect, to make a declaration that legally the employees concerned are covered by the MECA award. Now, that's an issue which has to go before a court of law and it may be that until that issue is determined by a court of law, then the application cannot proceed, and that would be the logical consequence of the submission - - -

PN1129

THE COMMISSIONER: Well, that's what you're saying, is it?

PN1130

MR MOIR: Well, that's the - - -

PN1131

THE COMMISSIONER: It's not just the logical consequence, it is your submission. It is the submission of those instructing you?

PN1132

MR MOIR: That is the submission and - - -

PN1133

THE COMMISSIONER: I want to know exactly where I stand when Busicom is addressing me and given that Skilled Engineering adopt those - or have indicated, foreshadowed that they're going to adopt those submissions, I want to be sure that that's what Skilled Engineering are adopting. I don't want any equivocation about it.

PN1134

MR MOIR: Yes, Commissioner. It's quite clearly spelt out in paragraph 6.

PN1135

THE COMMISSIONER: Yes. I now understand what your paragraph 6 says.

PN1136

MR MOIR: Yes, yes. Now, the Commission referred to re Cram where in that case the High Court said that, and the Commission will be familiar with this, that just because the Commission might form an opinion as to legal rights and obligations as part of its dispute settling function, that does not involve per se an exercise of judicial power. But in this case you're not being asked to consider whether to make an award. You're being asked to consider whether to grant an application for a ballot and pivotal to that issue is what is the precise coverage of the employees in question at all.

PN1137

Now, until that matter is resolved by a court of law, the application in its current terms is therefore outside the scope of the Commission's jurisdiction. That's the submission of my client and I can't take it any higher than that. I hope that's clear, Commissioner.

PN1138

THE COMMISSIONER: I understand.

PN1139

MR MOIR: Yes. If the Commission is against the respondent on that point, then the Commission considers the points raised in paragraph 8 of the outline of submissions. The first point is whether the work being carried out is on site construction work. Now, I've referred to the principles of award interpretation from paragraph 9 onwards, and if the Commission believes that it has jurisdiction to determine the application and therefore consider clauses 4 and 6 of the MECA award, the Commission must have regard to the context and purpose of those clauses. We point out in paragraph 15, Commissioner, that there's really no evidence - - -

PN1140

THE COMMISSIONER: There's no evidence about the contextual purpose.

PN1141

MR MOIR: Purpose, but there is one statement in the cases about the purpose which is relevant and Mr Terzic took you to it. It's the decision by the South Australian Industrial Relations Court, page 7, and the learned industrial magistrate on that page refers to what appears to be the apparent purpose of those provisions of the award concerning its coverage and this is in the final paragraph on page 7 and it says there, towards the middle of the paragraph, the words beginning, "I am certainly":

PN1142

I am certainly of the view that it was not within the contemplation of those who framed the appendix or the construction award and whose apparent purpose was to establish wage parity ...(reads)... at the time of construction of major projects.

PN1143

So you have a finding there by the Magistrate about what appears to be the purpose of the awards coverage, which is to ensure wage justice between metal trades workers who are brought on to a construction job alongside the other construction workers. Now, clearly in this case the evidence does not meet that type of purpose because the tradesmen and other employees who were involved in the construction and erection of the Somerton site have long gone, and that the employees of - - -

PN1144

THE COMMISSIONER: I don't know about long gone. There's sprinkler pipe fitters there and there are other people there and - - -

PN1145

MR MOIR: Well, they've certainly been gone for some months now.

PN1146

THE COMMISSIONER: The sprinkler pipe fitters were working there today. I saw them with my own eyes.

PN1147

MR MOIR: Yes, I accept that. I'm talking, and I should have made myself clearer in what I was saying, the construction work, apart from the sprinkler fitting which the Commissioner has referred to, was completed, as I understand the evidence, by about mid October. The employees of my client commenced work earlier this year. That was Mr Desmond's evidence, some five or six weeks ago, and it's not a case therefore where you have employees of Busicom - - -

PN1148

THE COMMISSIONER: Mr Samuels' evidence was quite clear that the sprinkler fittings that were put in were put into the roof and they now had to be extended down into racking and that work to my certain knowledge is being conducted by sprinkler pipe fitters.

PN1149

MR MOIR: Yes, I don't take issue with that. The Commissioner has rightly point that out, but it's not as if this is a case where you have employees of Busicom who are working shoulder to shoulder with large numbers of other tradesmen and building workers who are currently carrying out the job. Now, from paragraph 17 we consider in our submissions, clause 4 of the award. I don't need to take the Commission through that clause except in paragraph 18 - - -

PN1150

THE COMMISSIONER: Hang on, you do, because you've left out 4.1.1(f).

PN1151

MR MOIR: Yes, and what we say in relation to that, Commissioner, is that clearly this is not an engineering project. It's not the type of work which meets the definition of 4.1.1(f) which the AMWU is now seeking to rely upon.

PN1152

THE COMMISSIONER: Well, why do you say that because the evidence of Mr Samuels was that the people who are supervising that work, specific work as distinct from his role, to whom he reports, were engineers.

PN1153

MR MOIR: Well, I say that because it's - and it goes to the character of the work being performed, that it's an installation - - -

PN1154

THE COMMISSIONER: Well, what evidence have we got about that? What we saw?

PN1155

MR MOIR: Indeed.

PN1156

THE COMMISSIONER: So if it looks engineering work, it's got bits of metal being bolted together, a high level of design being completed, and you say it's not engineering work. On what basis?

PN1157

MR MOIR: Well, before you even consider whether it's an engineering project, the Commission has to be satisfied that it's work being carried out on a construction site.

PN1158

THE COMMISSIONER: No, I understand that.

PN1159

MR MOIR: Could I just concentrate on that.

PN1160

THE COMMISSIONER: But I was asking why you'd left (f) out.

PN1161

MR MOIR: Yes. Well, the reason we left (f) out was because it wasn't raised anywhere in the applicant's submissions, except by Mr Terzic on his feet today. So I'm responding to that.

PN1162

THE COMMISSIONER: Because he just basically glossed over the whole thing and said it's clearly construction work, as I read his submission anyhow.

PN1163

MR MOIR: But the threshold issue is whether it's - - -

PN1164

THE COMMISSIONER: And he's concentrated on 6.3.

PN1165

MR MOIR: Well, I'm coming to 6.3, but the threshold issue for clause 4 is whether it's work carried out at a construction site. Now, the Commission doesn't even consider (a) to (f) unless the Commission is satisfied that it's work on a construction site. Now, in my submission the only basis upon which this work could fall within the definition of on site construction work is if the Commission accepts the contention that this complex was and remains a construction site, that in my submissions it's clearly not and in that regard could I refer to the observations of Moore J in Monadelphous, which Mr Terzic took the Commission to. It's at page 21 of the report. Mr Terzic took the Commission to the third last paragraph beginning with, "The broad exception" and Mr Terzic read out from the middle of that paragraph, "The only basis upon which this work could fall within the definition of on site construction work is if I accept the contention of the applicants that the entire complex was at all relevant times a construction site."

PN1166

So that's the first point to make, that you can only accept the argument of the AMWU that the work falls within the definition of on site construction work if the entire complex was at all relevant times a construction site. Now, in this case, clearly the entire complex is not a construction site, even if you accept the union's proposition that part of the site is construction, but the other part isn't, and that's putting aside all the evidence about how the site is currently operational and has been operational for some time.

PN1167

THE COMMISSIONER: It's the definition of site, isn't it?

PN1168

MR MOIR: Well, it says there you must accept the proposition that the entire complex was at all relevant times a construction site and then it goes on and says, his Honour is not satisfied that it wasn't, and he explains why he is not satisfied.

PN1169

THE COMMISSIONER: No, I understand all of that.

PN1170

MR MOIR: He says in the final sentence, the reason essentially why he's not satisfied is because it's partly operational. Now - - -

PN1171

THE COMMISSIONER: No. Because it's totally operational.

PN1172

MR MOIR: Well, I read it another way, that - - -

PN1173

THE COMMISSIONER: Because that's why he uses the word notwithstanding.

PN1174

MR MOIR: No, he says ceased to be or be part of a construction site.

PN1175

THE COMMISSIONER: Yes.

PN1176

MR MOIR: Notwithstanding that other plant might later be built, approximate to a link to the chain of processing extraction. Now, in my submission that's on all fours with the evidence in this case. What you have in this case is evidence that there's a warehouse and distribution facility which is currently operational, has been operational at all relevant times, notwithstanding that part of it, there's installation work going on and there's a debate between the parties about whether that installation work constitutes construction work or not, but putting that issue aside, the evidence is crystal clear, that part of the site, if not the majority of the site, is operational and has been for quite some time.

PN1177

Moore J says the only way you can accept that the work meets the definition of on site construction work is at relevant times the entire complex is a construction site. He then says, in this case it wasn't because part of the site, at least part of the site, if not all of the site, is operational.

PN1178

THE COMMISSIONER: That's where all of the site was.

PN1179

MR MOIR: In this case - - -

PN1180

THE COMMISSIONER: Well, I understand that that's your reading of it. I have to disagree with it.

PN1181

MR MOIR: Well, in my submission what Moore J says there, and this is a Judge of the Federal Court interpreting and applying the very same provisions that the Commission is being asked to interpret.

PN1182

THE COMMISSIONER: Yes, I understand - look, I'm starting to find that offensive, almost.

PN1183

MR MOIR: Well, Commissioner, the Commission is saying that you disagree with his Honour.

PN1184

THE COMMISSIONER: No, no. I disagree with your interpretation of what his Honour says, is what I'm saying.

PN1185

MR MOIR: I'm sorry.

PN1186

THE COMMISSIONER: I certainly accept his Honour's analysis.

PN1187

MR MOIR: I thought that what his Honour was saying was quite clear, that the work falls - - -

PN1188

THE COMMISSIONER: Well, I just said I disagree with you. If you want to cavil, keep on.

PN1189

MR MOIR: Yes. In my submission Moore J says that the site was not a construction site because the entire complex was not a construction site.

PN1190

THE COMMISSIONER: Yes, I understand that's what you're saying.

PN1191

MR MOIR: Yes.

PN1192

MR TERZIC: Look, I'll deal with that in reply by referring to another passage. I think I'd better put that to Mr Moir now so we can just deal with it. I'd ask him to read, on the same page, about halfway through the third paragraph, the word "however" appears and therein his Honour says, "some of the work during the relevant time was construction", some wasn't, but the entire place wasn't construction, and I think that's made clear in the passage starting at "However". I just think Mr Moir should deal with that before he tries to place that - - -

PN1193

MR MOIR: Which is why his Honour says that because the entire complex was not construction, it doesn't fall within the definition.

PN1194

THE COMMISSIONER: Well, I understand.

PN1195

MR MOIR: That is exactly what his Honour is saying.

PN1196

THE COMMISSIONER: Well, you're continuing to cavil with the proposition that I've put back. But you're entitled to - well, you're not entitled to do it, I find it offensive.

PN1197

MR MOIR: Commissioner, I did not certainly intend to cause an offence. I'm just trying to - - -

PN1198

THE COMMISSIONER: I've heard your submission. I agree with what his Honour says. I don't agree with the gloss that you put on it.

PN1199

MR MOIR: And the point that Mr Terzic raises in my submission just reiterates what I've said. Now, apart from Moore J's observations, the Commission has of course seen the site. Clearly it's operational, at least in part. The AMWU relies upon the report of the WorkCover inspector. In my submission, if the Commission is against us on the primary point, then it's a matter for the Commission to determine the nature of the work and how it's to be characterised. The opinions of Mr Turner are not probative in that regard in my submission.

PN1200

In relation to criteria (d) which we refer to in paragraph 18, whether the site has been specifically established for the purpose of constructing or installing the Schaefer automated system, again I just refer to the evidence that the site is now a distribution facility for Coles, and I refer in particular to annexure A of Mr Desmond's affidavit and the various points made in that memorandum, which have not been substantially challenged in these proceedings. Putting aside paragraph or sub-paragraph (f), the only other paragraph that could possibly meet the definition of on site construction work, if the Commission is satisfied that this is a construction site, is (b) - - -

PN1201

THE COMMISSIONER: I'm sorry. I need to go back to that point that you just made.

PN1202

MR MOIR: I'm sorry.

PN1203

THE COMMISSIONER: They talk about practical completion on 29 September and then talk about the undertaking of fit out activities I presume between 29 September and 26 October, the site handed over the CML operational team on 26 October. Well, that suggests the fit out is not part of the operations, contextually anyhow.

PN1204

MR MOIR: Yes. It also suggests the fit out was, just as a matter of logic, it followed from the completion of the building and the operation - - -

PN1205

THE COMMISSIONER: Yes, but fit out at least in my experience is usually regarded as part of a construction activity. Now, I understand that you're saying that's not the case on this occasion, but it's implicit I think, or at least it's open to the inference that it was still under construction until, on their own interpretation till 26 October. That's the inference I drew from that, because otherwise there'd be no need to mention it, would there?

PN1206

MR MOIR: Yes. Up until the point that the site was handed over to the operational personnel, then - - -

PN1207

THE COMMISSIONER: Yes. You see, that then raised very clearly in my mind what the site is. Now, there seems to be some agreement amongst the parties that the site is the totality of it, but I'm not - just because the parties agree to that doesn't mean that I do. We've got a site manager who came and gave evidence on summons and he's manager of something, and he's not manager of the total building, and your client's report to him, they don't report to Coles Myer, that seems to me to be a matter of some consequence. I'm far from deciding it, but it seems to me to be a matter that is there and it's important that I bring it to your attention.

PN1208

MR MOIR: Certainly, Commissioner. It's obviously within the context of a complex which is partly operational and also in the context of evidence that the work being carried out at this part of the site did not commence until after the rest of the site became operational.

PN1209

THE COMMISSIONER: Or the rest of the site was handed over, yes.

PN1210

MR MOIR: Yes, that's right. So the evidence establishes that - - -

PN1211

THE COMMISSIONER: No, no. You see, you go from complex to site, as though they're the same thing. Now, there's a big building which at some stage was one site, at least on - and it is quite clear that the site manager is not the site manager for the total complex which suggests, at least in the eyes of Schaefer that they've got a site and they employ a manager to manage that site and Schaefer have then contracted with Busicom, your client, and with Skilled to provide certain labour on that site. Now, clearly Coles doesn't believe that, but Coles aren't sitting here. Coles might be right, but equally Schaefer might be right in their description. A practical bloke, I am, you know.

PN1212

MR MOIR: Yes. It seems to boil down to whether you regard that part of the premises where work is being performed by Schaefer and its sub-contractors. It's a site in itself.

PN1213

THE COMMISSIONER: Well, Schaefer do, because they've got a site manager.

PN1214

MR MOIR: Well, the fact that they call it site manager is really neither here nor there, particularly in the context of interpreting and applying the award. The - - -

PN1215

THE COMMISSIONER: Okay. Tell me where the award starts to define it?

PN1216

MR MOIR: Well, I'll come to - - -

PN1217

THE COMMISSIONER: What sort of - - -

PN1218

MR MOIR: The fact that Mr Samuels, his position is titled, Site Manager, could simply be a label of convenience or a carry over from his previous work where he's always been described as a site manager. The issue before the Commission is whether or not - or what is the site, what is the site.

PN1219

THE COMMISSIONER: Exactly.

PN1220

MR MOIR: And is the site, just that part of the premises, for the purposes of the award, or is the whole of the complex.

PN1221

THE COMMISSIONER: Yes.

PN1222

MR MOIR: And I'd just come back to what his Honour said, that it has to be looked at in terms of the entire complex. It's a global view that has to be taken of it. If this was a site - - -

PN1223

THE COMMISSIONER: Where does complex start and stop? There's no evidence before me there. There was some evidence that there's a whole complex called Austrak. I mean, that opens up Pandora's Box, really. There's construction going on on the site, if we're talking about the complex.

PN1224

MR MOIR: Well, at least to my observation, Commissioner, the site was a discrete site in itself. The warehouse facility is a self contained building where operational activities are now being performed.

PN1225

THE COMMISSIONER: Well, there's no operational activities being undertaken in that - - -

PN1226

MR MOIR: In that part of the site.

PN1227

THE COMMISSIONER: In that site.

PN1228

MR MOIR: Or that site.

PN1229

THE COMMISSIONER: I mean, we're just going round in circles.

PN1230

MR MOIR: Yes, and that's where I think his Honour's analysis is useful, that you have to look at it in the context of the entire complex in, the entire Somerton warehouse facility, the facts are - - -

PN1231

THE COMMISSIONER: So that what you're saying - it was at Olympic Dam, wasn't it? - so that the work that's going on at Olympic Dam now to expand it is not construction work.

PN1232

MR MOIR: Well, it would always depend - - -

PN1233

THE COMMISSIONER: On your interpretation of his Honour's position.

PN1234

MR MOIR: Well his Honour says that it doesn't meet the definition unless the - - -

PN1235

THE COMMISSIONER: No, I understand what you say about it, but that would be - that must be - - -

PN1236

MR MOIR: What is the entire complex.

PN1237

THE COMMISSIONER: If your interpretation of his Honour's position is correct then the only conclusion one can come to is that any expansion of the Olympic Dam mine will not be construction for the purposes of MECA.

PN1238

MR MOIR: Well, if it's an upgrade of the existing facility - - -

PN1239

THE COMMISSIONER: No, no. It's an expansion. BHP are undertaking expenditure of some mutli-million dollars to expand Olympic Dam.

PN1240

MR MOIR: Well, if that involves the establishment of a new complex - - -

PN1241

THE COMMISSIONER: No. It's the expansion of the existing mine.

PN1242

MR MOIR: Well, Commissioner, it's always difficult to comment on hypotheticals but - - -

PN1243

THE COMMISSIONER: No, no, there's nothing hypothetical about it. BHP are undertaking an expansion of the Olympic Dam mine, spending - - -

PN1244

MR MOIR: Well, Commissioner, I don't know what the circumstances are. I haven't been to the site. I've no knowledge about the site. The Commission may have such knowledge, but I certainly don't. It may be that if that work is involving the establishment of entirely new complexes - - -

PN1245

THE COMMISSIONER: I'm sorry, the mine is a mine.

PN1246

MR MOIR: All right.

PN1247

THE COMMISSIONER: They're not establishing a new mine. They're expanding the existing mine.

PN1248

MR MOIR: Well, that - - -

PN1249

MR EMBER: Commissioner, I've actually been there, and if I can assist, I've actually been to Roxby Downs, I've been down under the ground, I wore a hard hat, I wore a hard hat and it wasn't a construction site. I've seen what they're doing and it's very different to what we're talking about here, very different.

PN1250

THE COMMISSIONER: But it's the same mine - - -

PN1251

MR EMBER: I went there a year ago.

PN1252

THE COMMISSIONER: Yes. It is the same mine that's being expanded, isn't it?

PN1253

MR EMBER: Well, there's a site - there's a mine there but there's new accommodation, there's lots of different things.

PN1254

THE COMMISSIONER: Yes, but it's one mine. They're not building a new mine. They're expanding the existing mine. The mine is the complex that's being expanded.

PN1255

MR EMBER: Well, they're building facilities, they're doing a whole - - -

PN1256

THE COMMISSIONER: Yes, of course, Mr Ember, that's what they're doing here too.

PN1257

MR EMBER: Yes.

PN1258

MR MOIR: Commissioner, I really can't comment about Roxby mine or any other mine.

PN1259

THE COMMISSIONER: No, that's right.

PN1260

MR MOIR: I'm talking about the Somerton site. The evidence in my submission is clear, there is a complex, it's the warehouse - - -

PN1261

THE COMMISSIONER: But if there be a complex at Olympic Dam, then if you're reading off his Honour's - and I'm not quibbling with his Honour - if you're reading of his Honour's decision is correct, then you've got his Honour saying that that can't be construction.

PN1262

MR MOIR: Commissioner, I can't comment without knowing what are the circumstances of the mine.

PN1263

THE COMMISSIONER: Okay. But I understand what you're telling me, that is, that what his Honour is saying is, if it's the same complex, then anything that happens in that complex, once its operational, can't be construction. Have I understood that? Okay.

PN1264

MR MOIR: If the Commission is against me on that point, then the Commission goes on to consider whether the other criteria are met. I don't seek to add anything to the materials set out in our outline of submissions. I just draw the Commission's attention to paragraph - - -

PN1265

THE COMMISSIONER: So if I come to the view that it is a construction site, and that it's engineering - sorry, that it's a separate site and that it's engineering - - -

PN1266

MR MOIR: It means - do you mean - - -

PN1267

THE COMMISSIONER: Yes. That's it.

PN1268

MR MOIR: No, that's not it, Commissioner, because you've still got to consider (d), paragraph 18(d), criteria (d) set out in paragraph 18.

PN1269

THE COMMISSIONER: Criteria?

PN1270

MR MOIR: (d).

PN1271

THE COMMISSIONER: (d), yes, that's what I'm saying there is that site. It's been established as a site to construct the Schaefer system.

PN1272

MR MOIR: If that's the finding of the Commission - - -

PN1273

THE COMMISSIONER: That's what I'm saying.

PN1274

MR MOIR: Then (d) is - - -

PN1275

THE COMMISSIONER: Because if it is a separate site - - -

PN1276

MR MOIR: If that is the finding of the Commission then (d) is met, in my submission though (d) is not met. The evidence doesn't - - -

PN1277

THE COMMISSIONER: Because it's a single site, yes.

PN1278

MR MOIR: And also there's no evidence to support the proposition that (d) is met. There's no evidence that this site, or that part of the Somerton warehouse was specifically established for the purpose of constructing and/or installing the system. There was evidence about what happened up at Eastern Creek, which is not relevant to discerning the work here.

PN1279

THE COMMISSIONER: No, no.

PN1280

MR MOIR: But there's no evidence about (d). There's no evidence that (d) is met in my submission, and it's reinforced, the alternative - - -

PN1281

THE COMMISSIONER: Well, if there be a separate site, what other purpose has it got?

PN1282

MR MOIR: Well, the evidence is that the installation - - -

PN1283

THE COMMISSIONER: No, the inference that the - the sheer existence of the separate site, if it be a separate site, must inevitably be for the purpose of installing the Schaefer system. It can't be for anything else.

PN1284

MR MOIR: Well, how do we know that? It was specifically established for - - -

PN1285

THE COMMISSIONER: Because - - -

PN1286

MR MOIR: There's no evidence to support that.

PN1287

THE COMMISSIONER: It's a reasonable inference from the existence of the separate site. What else is the separate site for?

PN1288

MR EMBER: It wasn't going to be a - - -

PN1289

THE COMMISSIONER: No, I can't imagine - you see, the inference can be drawn, if there's no other alternative inference. If you can give me an alternative inference as to why it's a separate site, other than for that, then I'm going to hear you but - - -

PN1290

MR MOIR: Well, it's not our onus, Commissioner.

PN1291

THE COMMISSIONER: No, no, I know that, but in terms of - - -

PN1292

MR MOIR: I think the onus of making out the union's application.

PN1293

THE COMMISSIONER: No, but being able to draw an inference - where there is only one inference capable of being drawn, then it's open to the Commission to draw that unless there's more than one inference to be drawn. Now, if I come to the view that it's a separate site, I'm putting to you that it's inescapable that the purpose of that separate site is to allow the installation of the Schaefer system.

PN1294

MR MOIR: Well, if I can refer the Commission to annexure A of exhibit M1, the final point, "The site does not require fit out of the Schaefer picking system."

PN1295

THE COMMISSIONER: No, but that's predicated on a finding that it is one site. Now, I'm putting to you that if it is two sites, that is, that there is a separate site where they are installing the Schaefer system, then - sorry, I'll put that another way. If there is a separate site, the only reason to have that separate site is to enable the installation of the Schaefer system and there's no other inference that can be drawn, reasonably, anyway.

PN1296

MR MOIR: Yes, and that would then be premised on this notion that - - -

PN1297

THE COMMISSIONER: It was a separate site.

PN1298

MR MOIR: There's a separate site, yes.

PN1299

THE COMMISSIONER: Sure, yes.

PN1300

MR MOIR: The warehouse is partitioned, effectively.

PN1301

THE COMMISSIONER: Yes, that's what I said, yes, that's what I said.

PN1302

MR MOIR: Yes, all right. Then the respondent obviously doesn't accept that point.

PN1303

THE COMMISSIONER: Because clearly if - no, no. I've put it to you to give you the opportunity to respond to it, otherwise I'm in all sorts of strife.

PN1304

MR MOIR: Yes.

PN1305

THE COMMISSIONER: Now, I clearly said that one can't draw that inference if there's no separate site. Clearly if there is one big site, then the purpose of the site is not to install the Schaefer system. You know, the site hasn't been specifically established to install the Schaefer system. It's been established to put a store there, I understand that. But you were saying there was no evidence about it and I'm saying I don't know that there's need to be if I come to the view that there's a separate site.

PN1306

MR MOIR: Yes, I don't think I can take the point any further, Commissioner.

PN1307

THE COMMISSIONER: No, no. I just want to be understood.

PN1308

MR MOIR: Sure. Mr Terzic submits that the AMWU is at a loss to see how the work could be characterised as anything other than MECA. Could I refer the Commission to paragraph 10 of Mr Desmond's affidavit, exhibit M1, where Mr Desmond - and this is perhaps a point of confusion, when he was in the witness box, but Mr Desmond makes it clear there that the respondent is paying the employees in accordance with the metal and engineering award 1998.

PN1309

The Commission will be familiar with that award, but schedule A of the award sets out the industries and callings which are covered by the Metal Industry Award, and if I could just refer in particular to items 22, 57, 62 and 63 of schedule A of the Metal Industry Award, this notion that somehow the union is at a loss as to how the work could otherwise be characterised, just doesn't hold water in light of those particular items set out in schedule A. In light of those items the employer has been paying the employees in accordance with the Metal Industry Award and providing terms and conditions in accordance with the award.

PN1310

If I could just move on briefly to clause 6.3. Even if the Commission is satisfied about the application of clause 4, there is still the exclusion to consider under clause 6.3. From my reading, Commissioner, none of the authorities have considered the application of clause 6.3 so it's perhaps somewhat of a novel issue that now presents itself before the Commission. It's quite clear that the award doesn't - - -

PN1311

THE COMMISSIONER: Well, wasn't it considered by Commissioner Grainger?

PN1312

MR MOIR: Perhaps I'm wrong on that.

PN1313

THE COMMISSIONER: The matter was put up?

PN1314

MR MOIR: Yes, I think, come to think of it, Commissioner Grainger may have touched upon it, as well as clause 4. I note that in that case the Commissioner observed that the mere fact that there were signs referring to construction work at the particular site were not significant indicators that this is a construction rather than a maintenance project. That's at - - -

PN1315

THE COMMISSIONER: 24.7, that clearly removes the work.

PN1316

MR MOIR: Yes. So that clause has certainly been applied by Commissioner Grainger. Now, the evidence in this case is obviously critical on this point and the evidence is that the work is being performed by, not only employees of the respondent and Skilled Engineering, but by employees of the lessee, Coles, and the logistics company engaged by Coles In2Store. The evidence also establishes that those employees of Coles and In2Store have been on the site for some months and certainly prior to the point of which Busicom's employees first commenced work at the site.

PN1317

It refers to a place of employment and a permanently established place of employment. If one looks at the warehouse site globally once again, it's clearly an established place of employment. There's work being carried out within the four walls of that place of employment and the fact that the award exclusion refers to the term "within" supports, in my submission, that the place of employment must be looked at globally and not in the rather artificial way being suggested by the AMWU, which is to segment off part of the warehouse as if it doesn't even exist.

PN1318

The AMWU's approach is to effectively ignore the majority of the warehouse site where employment is being carried out on a permanent basis. That is, employment being carried out by the employees of Coles and In2Store. Now, in my submission that clearly raises the exclusion contained within clause 6.3.1. This is clearly reinforced by the examples referred to in 6.3.1. It goes on to give examples of what is a permanently established place of employment and the one example nominated is warehouse, alongside workshop and factory. It specifically says warehouse, where products are manufactured or services rendered.

PN1319

Now, clearly this is - and when I say this, I mean, the Somerton site as a whole, this is a place of employment, namely a warehouse where services are being rendered and it's permanently established as a place of employment by dent of the Coles and In2Store employees. The evidence establishes that there are currently over 140 employees performing warehousing duties at the site. So in my submission, 6.3 applies. Then in the final part of our submissions, Commissioner, we refer to the AMWU's submissions. There has been some reference to the plastic partition, as if that is evidence of two separate sites, an operational site and a construction site.

PN1320

The evidence makes clear in my submission that there were employees working on the Schaefer installation work when that partition was put up. Mr Samuels gave evidence that after he commenced at the distribution site, he was requested by Coles to put up the partition and I think he referred to Coles wanting to keep dust out from the rest of the - - -

PN1321

THE COMMISSIONER: Well, it becomes hearsay, doesn't it?

PN1322

MR MOIR: Yes, it was, but it would perhaps be a logical inference to draw, Commissioner.

PN1323

THE COMMISSIONER: No. The other logical inference that can be drawn is they want to separate the construction site from the operational site.

PN1324

MR MOIR: Well, there was - - -

PN1325

THE COMMISSIONER: And I gave you the example before of the Shell Refinery.

PN1326

MR MOIR: Yes. I just - - -

PN1327

THE COMMISSIONER: There are two inferences to be drawn, so I can't draw any.

PN1328

MR MOIR: Yes. Well, the other evidence was that there are representatives of Coles to attend the monthly meetings and to whom Mr Samuels has some interaction with therefore.

PN1329

THE COMMISSIONER: They did that in Sydney too, on a construction site.

PN1330

MR MOIR: Yes, but that would make sense that obviously Mr Samuels on behalf of Schaefer would discuss matters with Coles, given that it is their workplace.

PN1331

THE COMMISSIONER: Well, it's not unusual for clients to be discussing construction progress with their contractors.

PN1332

MR MOIR: No, but - - -

PN1333

THE COMMISSIONER: I don't know whether that takes us anywhere. It works both ways, it seems to me. The inference can't be drawn one way or the other there.

PN1334

MR MOIR: This is a site, however, where there is a workplace in operation. There's an established workplace and it's been in operation, it's been up and running for some time and you've got evidence that there are employees of Coles and In2Store who from time to time are coming into that part of the facility, having discussions with Mr Schaefer and perhaps passing through that part of the facility for whatever reason. Mr Samuels couldn't say why. He just wasn't aware. But that just reinforces - - -

PN1335

THE COMMISSIONER: Was it part of his evidence that those were employees employed by Coles at that facility?

PN1336

MR MOIR: Yes, that was his evidence, that Coles employees were wandering through - - -

PN1337

THE COMMISSIONER: I understand they were Coles employees, but whether they were Coles employees employed at that facility wasn't clear to me, because it sounded like it was management people who were coming along to make sure the progress on the site was - - -

PN1338

MR MOIR: Well, the evidence is also that you not only have the warehouse employees but there are actually offices established there at the site as well. I'm not sure if the Commission saw those on the inspection, given that I arrived late, but it's supported by annexure A of Mr Desmond's affidavit in that memo from Coles refers to the offices. If I could just take the Commission to that. Yes, the offices occupied by warehouse operations and management staff. So you actually have offices being occupied there by the operational people.

PN1339

THE COMMISSIONER: Yes, sure, yes, yes.

PN1340

MR MOIR: So what we're dealing with here is a fully functioning workplace and you've got installation work going on within the context of a workplace which has been up and running now for some months.

PN1341

THE COMMISSIONER: Yes, I understand that's the submission.

PN1342

MR MOIR: Yes.

PN1343

THE COMMISSIONER: And clearly, it's a submission that gains great force if it is regarded as one site. But it's a submission that has no force if they are two sites.

PN1344

MR MOIR: Yes, and that's the proposition implicit in the AMWU's arguments and I've addressed that point and I don't think I need to take it any further. If the Commission pleases.

PN1345

MR EMBER: Commissioner, I'm not going to take too much of the Commission's time except to make it clear that we do seek to rely and adopt the submissions of Mr Moir.

PN1346

THE COMMISSIONER: Including the submissions regarding jurisdiction?

PN1347

MR EMBER: Yes. In full, including the submissions both in respect of the AMWU's application and the CFMEU's application. Just a couple of points I'd just liked to pick up on very briefly. And this comes down to clause 6.1.3 in the award and you did mention, Commissioner, and I respect that, you're a practical man, I think this comes down to practical issues. It doesn't, in this case, come down to the fact that this award shall not apply to work carried out permanently established places of employment, such as workshop, factory and warehouse and products and manufacture of services rendered. We say that is the case. That is the extension - - -

PN1348

THE COMMISSIONER: I'd better not go anywhere near an oil refinery when they're doing some construction then.

PN1349

MR EMBER: We also say, Commissioner, that the fence itself, as we understand it, it's called a partition, for want of a better word, the partition there as I'm instructed, which is primarily there because there are produce across on one side, it is protected from dust. Now, it's not a partition which, as I've seen, and I've seen them in oil refineries as well, where you've got a fence around it. You don't actually need any dust protection. You just put a few barbs on it and you've got - - -

PN1350

THE COMMISSIONER: No, they usually run a piece of plastic around.

PN1351

MR EMBER: You can make sure that you're okay, yes. So it's not two sites. It's one site. The exclusion applies.

PN1352

THE COMMISSIONER: Well, you're up and making your submissions, so you're going to get that question. If it's one site, why can't they all use the same toilets and canteen?

PN1353

MR EMBER: That's a good point.

PN1354

THE COMMISSIONER: That's why I'm asking you the question.

PN1355

MR EMBER: And that's what I was just about to come to. The fact is that crib sheets do not a construction site make.

PN1356

THE COMMISSIONER: I'm not suggesting they do. I'm asking, if they are not two sites, why then can't they use the canteen and the ablution facilities that are available for the operational employees?

PN1357

MR EMBER: Look, I don't think the evidence went to that at this point. We just said - - -

PN1358

THE COMMISSIONER: No. The evidence was that they can't use it.

PN1359

MR EMBER: Exactly, and in fact they're not allowed to use them.

PN1360

THE COMMISSIONER: All right.

PN1361

MR EMBER: So I think it's important to realise that there are facilities there. This is an operational site. As a total there are facilities there. It might be that these employees on that side of the partition aren't using them.

PN1362

THE COMMISSIONER: They're not allowed to cross that line and go and use them, yes.

PN1363

MR EMBER: Well, again, I can't comment on that, Commissioner. I'm just - - -

PN1364

THE COMMISSIONER: No, you're saying it is one site.

PN1365

MR EMBER: I'm saying it is one site, absolutely, absolutely.

PN1366

THE COMMISSIONER: Even though there's a fence there and the people can't cross it and go and use the toilets on the other side.

PN1367

MR EMBER: Absolutely, absolutely, Commissioner, because I'm certain that I also, when I came into the site visit this morning, came through certain parts and didn't need to, as I say, I put on a hard hat, but I think I was allowed access across to where employees that work on the operational side of the partition, that those employees also have access to. So I think just to say that you've got crib sheds on one side - - -

PN1368

THE COMMISSIONER: That's the car park.

PN1369

MR EMBER: Yes, absolutely, absolutely, and again I did note - - -

PN1370

THE COMMISSIONER: So if they've got a common car park, they're working on the same site, is that your submission?

PN1371

MR EMBER: No, Commissioner. I'm saying that you can't actually just judge the site and its makeup on just these issues. I think I did note the fact that there was another site at the Austrak development, which had a car park, which said "construction site car park". So - - -

PN1372

THE COMMISSIONER: Yes. That's in the Austrak development. We've already entered that discussion.

PN1373

MR EMBER: Yes, absolutely, and so I think we need to - - -

PN1374

THE COMMISSIONER: The Austrak development's a lot bigger.

PN1375

MR EMBER: I think we need to have a look at these things in total. I think there's a number of things that point to the fact that this is a site in total and that that partition and those crib sheds and the fact that we wore hard hats, which I've worn at Roxby Downs, when it was an operating site, do not make it a construction site. That's the point I'd like to make. Finally, Commissioner, I'd like to make - - -

PN1376

THE COMMISSIONER: So it's not a construction site at Roxby Downs. Is that what you're telling me?

PN1377

MR EMBER: Well, when I was there, it certainly wasn't.

PN1378

THE COMMISSIONER: You're not there since the construction was started?

PN1379

MR EMBER: Well, they were looking at it - - -

PN1380

THE COMMISSIONER: Well, thank you for the benefit of your evidence from the bar table. I'll disregard it.

PN1381

MR EMBER: Well, you were raising the Roxby Downs site, Commissioner.

PN1382

THE COMMISSIONER: No, but I was raising it in the context of the multi - I think it's hundreds of million dollar upgrade of that site, that BHP Billiton are undertaking and on the proposition that was being put to me as an interpretation of his Honour, Moore J's decision, the only conclusion one could come to would be that that is not going to be a construction site.

PN1383

MR EMBER: And again I was just making the point again about wearing a hard hat and I also make the point about - - -

PN1384

THE COMMISSIONER: I wasn't making any point about wearing hard hats. I was making a point about the interpretation that Mr Moore was putting on Moore J's decision, the consequence of it would be that BHP's expansion of the mine at Roxby Downs could not be construction.

PN1385

MR EMBER: Well, let me put it this way, Commissioner. There's a number of other - - -

PN1386

THE COMMISSIONER: It's got nothing to do with hard hats. It has nothing to do with anything like that. It's got simply to do with the fact that it is one complex.

PN1387

MR EMBER: I'm making that part of my submission because these were issues that were raised, Commissioner. I'd just like you to consider them, that's all.

PN1388

THE COMMISSIONER: Well, what submission was made about hard hats?

PN1389

MR EMBER: Well, I'd love to go to the transcript. There's a lot of stuff about hard hats - - -

PN1390

THE COMMISSIONER: Sorry. There's evidence about hard hats. What submission was made about hard hats?

PN1391

MR EMBER: Well, I'm certainly making a submission now.

PN1392

THE COMMISSIONER: Right, feel free.

PN1393

MR EMBER: The other issue I think that we have to look at, Commissioner, is that in the whole context of this matter, I think we've talked, and again I don't want to steal any of my friend's thunder here, we're talking about the application of the MECA award. I have filed some submissions in relation to other matters as well. I'd just like to note for the record, Commissioner, that those submissions, if you are of a mind that you determine that you do have jurisdiction to determine the issue of the MECA award and its application and you then also further find that you're able to make or proceed with an application in relation to the ballot application, then we'd seek to reserve our right to make further submissions, obviously.

PN1394

In light of the evidence today particularly, I might say I just want to put it on the record, I might say the evidence of Mr Mavromatis and Mr Waters of the CFMEU which we'd seek to - - -

PN1395

THE COMMISSIONER: You're talking about Mr Travers, are you?

PN1396

MR EMBER: Sorry, Mr Travers, who we would seek to utilise in support of our submissions, but otherwise, Commissioner, I have nothing further.

PN1397

THE COMMISSIONER: Thank you.

PN1398

MR MOIR: Commissioner, noting the time, there was one very small point that I overlooked. It's just this. You raised the point about how employees of Coles and In2Store do not seem to be entering into that part of the warehouse where Schaefer is performing work and its contractors and vice versa, but they're employees of Busicom and Skilled not going to - - -

PN1399

THE COMMISSIONER: I don't know about that. But they can't go to the toilets and they can't go to the canteen.

PN1400

MR MOIR: Right. Well, I'd just ask the Commission to bear in mind that this is a warehouse facility where the security of stock is obviously going to be a critical issue and that could be quite a logical explanation for why there might be restrictions on movements within that facility.

PN1401

THE COMMISSIONER: Yes. Probably more reason than dust and the other.

PN1402

MR MOIR: Indeed, yes.

PN1403

THE COMMISSIONER: I mean, that gives us a third possibility.

PN1404

MR MOIR: Indeed.

PN1405

THE COMMISSIONER: A third inference to be drawn about them. Do you want to respond now or do you want to do something in writing?

PN1406

MR TERZIC: I'll try and make it not more than two minutes, Commissioner. I'll try and make this as briefly as possible and then it's all finished.

PN1407

THE COMMISSIONER: I'd be particularly interested to hear what you say about paragraph 6 in the primary submission, that's why I'm offering you an opportunity to put it in writing.

PN1408

MR TERZIC: Unfortunately for my friend I contend that he's fallen into error and he's in effect inviting the Commission to follow his error in submissions he's propounded on the paragraph 6 issue or the boiler makers issue or the separation of powers issue. I think he's badly misconstrued the decision in re Cram and other High Court decisions which allows the Commission to make findings along the way of any exercise they are - any power they were exercising as to a particular jurisdictional fact et cetera, as long as the ultimate thing the Commission does is not an exercise of judicial power. And what Mr Moir is really stating to you is he's conflating what you're doing here with what's provided for under section 848 of the Act which is interpretation of awards which is a power that's reserved to the Federal Court of Australia and the Federal Magistrate's Court which would allow those courts to issue a final and binding declaration or an interpretation as to how an award would apply.

PN1409

Here, if you were to find that the work was MECA work, that would not be a final and binding declaration as to the coverage they work in. It would just be a finding made along the way in issuing a ballot order under the relevant parts of the Act, and that distinction has been made plain numerous times. If the Commission was restricted in making any finding on anything anywhere, the Commission's work would quickly ground to a halt. The Commission is, on almost all matters, required to make a finding as to the applicability of the statute as compared to facts or - - -

PN1410

THE COMMISSIONER: In re Cram it wasn't about a dispute finding in any event. It was about something else altogether different, as I recall, because it was Cram operating as a coal tribunal.

PN1411

MR TERZIC: Yes, and I think the issue was - - -

PN1412

THE COMMISSIONER: It was an issue about whether or not preference should be granted.

PN1413

MR TERZIC: Yes. I think the issue was also dealt with, from memory, by Gaudron J in Ranger Uranium where the issue was taken as to whether the Commission making a reinstatement award under the conciliation and arbitration powers, was a judicial function and from memory her Honour, Gaudron J, said, it's not a judicial function, it's an arbitral function and any inquiry into whether dismissal was harsh, unjust or unreasonable is just a step along the way along the findings of the power which is the arbitral function.

PN1414

So the issue has been raised from time to time by advocates seeking to avoid a determination by the Commission, but it has never succeeded and there's ample authority of various Full Benches along that line. I also contend that there's been a serious misconstrual of what Moore J held in Monadelphous. In Monadelphous, what the applicants tried, what the employees tried to do in relation to MECA was really, colloquially speaking, a try on, and the analogous situation to what's happening at Coles Myer is that there would be the equivalent of some maintenance workers going to work in the operational site, the Dexian site, I think it was called, and those workers then saying, well, because the site is a construction site, because there's construction activities taking place on the site, all work that falls within metal trades work, which is otherwise captured by MECA, is then construction work. That proposition should flow.

PN1415

Now, in his decision, the passage I did refer to, Moore J said, at page 21 of 33, about halfway through the paragraph which begins with the approach:

PN1416

However during the period Jackson and Wilson were employed by Monadelphous, the on site construction work was generally work involving the erection of plant intended to supplement, complement or replace existing plant which was then operating.

PN1417

I'll end the quote there. So what his Honour is countenancing and recognising was that even though the Olympic Dam site was an operational site at the time, there could still be construction activities taking place on the site, on the operational site.

PN1418

But what his Honour also said was it's a bit of a stretch to say that work that could otherwise be MECA work is automatically captured by MECA because there's some construction going on elsewhere at the site. And we're not saying that, because the equivalent situation, as I said, would be if we tried to deem some maintenance work taking place on the Dexian site is then captured by MECA by virtue of the construction activities taking place on the Schaefer site, and his Honour said that what the unions or what the applicant is inviting him to do, which he wouldn't do, was declare the whole site a construction site and he wouldn't do that. He said that, I will restrict my finding as to what is construction to those areas that are construction sites.

PN1419

So implicit in what his Honour found in Monadelphous is that the one site, a large industrial enterprise or complex, could be partially construction, partially operational, and by the mere fact that there's some construction going on some places, it doesn't make the whole site construction, and that's not what we are putting to the Commission. We're saying the construction part is construction. The operational part is operational. The two can be divided quite neatly by the plastic barrier, by the nature of the work, by the awards or the instruments covering those workers. It's not a difficult thing to delineate and mark off what side's construction and what side's operational and we're not trying to say that the whole site must take one character and one characteristic alone.

PN1420

That is an absurd proposition and it would defy a rational and realistic approach to the application of MECA. There's clearly construction activities going in on one side. Operational activities going on in the other side. That's what we say is appreciated and adopted by Moore J in the Monadelphous case. Lastly, a point that was also, I found somewhat absurd, was that Mr Moir said that the work in the Schaefer site must be for the purpose of installing engineering works, or engineering - we can't understand what else it's there for. It's not a poultry farm or an indoor cricket arena. That part of the building was established to be a site where engineering works were to be installed and they are being installed.

PN1421

It's just plain, and it defies any sort of reason to say it was set up to do anything else in that particular locale. If the Commission pleases.

PN1422

MS WALTERS: Nothing further, Commissioner.

PN1423

THE COMMISSIONER: I propose to reserve my decision, which may be an interim decision, it may be a final decision in the matter. I would hope to address it very quickly. The proceedings are adjourned, thank you.

<ADJOURNED INDEFINITELY [6.54PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

TONY MAVROMATIS, SWORN PN124
EXAMINATION-IN-CHIEF BY MR TERZIC PN124
EXHIBIT #T1 OUTLINE OF SUBMISSIONS PN125
EXHIBIT #T2 WORK SAFE REPORT DATED 16/03/2007 PN226
CROSS-EXAMINATION BY MR MOIR PN241
CROSS-EXAMINATION BY MR EMBER PN266
CROSS-EXAMINATION BY MS WALTERS PN280
FURTHER CROSS-EXAMINATION BY MR EMBER PN289
THE WITNESS WITHDREW PN316
DANIEL JAMES SAMUELS, SWORN PN316
EXAMINATION-IN-CHIEF BY MR TERZIC PN316
CROSS-EXAMINATION BY MS WALTERS PN461
CROSS-EXAMINATION BY MR MOIR PN477
CROSS-EXAMINATION BY MR EMBER PN594
FURTHER CROSS-EXAMINATION BY MR MOIR PN643
FURTHER CROSS-EXAMINATION BY MR EMBER PN686
RE-EXAMINATION BY MR TERZIC PN691
FURTHER CROSS-EXAMINATION BY MS WALTERS PN727
THE WITNESS WITHDREW PN734
MARK ALLAN TRAVERS, SWORN PN739
EXAMINATION-IN-CHIEF BY MS WALTERS PN739
EXHIBIT #W1 WITNESS STATEMENT OF MR TRAVERS PN752
CROSS-EXAMINATION BY MR EMBER PN771
THE WITNESS WITHDREW PN827
PAUL ROBERT DESMOND, SWORN PN831
EXAMINATION-IN-CHIEF BY MR MOIR PN831
EXHIBIT #M1 AFFIDAVIT OF PAUL ROBERT DESMOND PN837
CROSS-EXAMINATION BY MR TERZIC PN843
RE-EXAMINATION BY MR MOIR PN923
THE WITNESS WITHDREW PN934
EXHIBIT #M2 APPLICANT SUBMISSIONS PN963
EXHIBIT #T3 EXTRACT FROM MACQUARIE DICTIONARY PN978
EXHIBIT #W2 CFMEU SUBMISSIONS PN1043