C2007/3377, Transcript of Proceedings [2007] AIRCTrans 630 (4 December 2007)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 17823-1

COMMISSIONER HOFFMAN

C2007/3377

s.170LW - prereform Act - Appl’n for settlement of dispute (certified agreement)
Transport Workers’ Union of Australia
and
TNT Australia Pty Ltd
(C2007/3377)

BRISBANE

10.06AM, MONDAY, 12 NOVEMBER 2007

MS K BOW: I appear on behalf of the Transport Workers’ Union of Australia Queensland branch and with me I have the branch secretary, MR H WILLIAMS.

MR S BENNETT: I appear for the respondent, TNT Australia Pty Ltd trading as TNT Express. I am instructed by MS P MORINDINI.

THE COMMISSIONER: Yes, thanks Mr Bennett. Yes Ms Bow.

MS BOW: Thank you, Commissioner. Is it necessary to go over the outline of submissions?

THE COMMISSIONER: No. You can be assured that all the submissions and affidavits have all been read.

MS BOW: Thank you, Commissioner. May it please the Commission I’d like to call Mr Hughie Williams to the witness stand, please.

THE COMMISSIONER: Yes, thank you. Do I take it Mr Williams is required for cross-examination? Is he, Mr Bennett?

MR BENNETT: No, Commissioner. I’ve already indicated to Ms Bow that I won’t be cross-examining Mr Williams, but I think she wishes to place his evidence-in-chief.

THE COMMISSIONER: No, that’s fine.

MS BOW: In the event that they’re not being cross-examined is it necessary to call them as a witness, or does their evidence just stand?

THE COMMISSIONER: Yes, the evidence just stands Ms Bow.

MS BOW: Thank you, Commissioner. I apologise for that.

THE COMMISSIONER: A short appearance, Mr Williams.

MR WILLIAMS: Very good indeed. They should be more like that.

THE COMMISSIONER: Yes, thank you. So you wish to tender Mr Williams’ statement?

MS BOW: Yes thank you, Commissioner, I do.

THE COMMISSIONER: Yes.

EXHIBIT #TWU1 STATEMENT OF HUGHIE WILLIAMS

MS BOW: Thank you. May it please the Commission - - -

MR BENNETT: Commissioner, sorry, perhaps just before Ms Bow calls her next witness can I just clarify, I meant to leap to my feet at the outset to clarify this, but I understood there were two exhibits made when the matter was before you previously in conciliation, exhibit B1 and exhibit B2. Do those continue on, those exhibits? They were the heads of agreement, the 2005 Heads of Agreement was marked as B1 and the site agreement, the 2001 Site Agreement was marked as B2.

THE COMMISSIONER: I think we’ll give them new numbers.

MR BENNETT: They need to be re-admitted?

THE COMMISSIONER: Just for ease of the file. Anyone dealing with it in future I think it would help.

MR BENNETT: Is it of use perhaps to all the parties if those are tendered now and marked as exhibits?

THE COMMISSIONER: Yes. I assume there’s no objection to that, Ms Bow?

MS BOW: No, Commissioner, I don’t have any objection. And it might be useful to tender all of the agreements in the same manner.

MR BENNETT: Yes. I was actually going to suggest I think during the week my associate forwarded to Ms Bow and to the Commission the full copy of the 1994 agreement with the execution page which we only obtained from the Commission’s archives about mid way through last week. And the transcript of the hearing. I do have further copies of that agreement.

THE COMMISSIONER: Yes. If you wouldn’t unfortunately my associate has been off sick for a few days and is still away sick, so if you just would have a spare that would be useful.

MR BENNETT: I don’t have multiple copies of the transcript unfortunately. I certainly have copies here of the 1994 agreement.

THE COMMISSIONER: Do you know was that emailed through?

MS BOW: I have a copy of it, your Honour.

THE COMMISSIONER: Delivered or faxed? Faxed through, was it?

MR BENNETT: Commissioner, you should now have the 1994, what was then a Comet Quick As Air Agreement, sorry Quick As Air Express and Comet Express Agreement, a similarly named 1998 agreement and then the 2001 site agreement which is of course referred to in the application and the 2005 heads of agreement which provides the relevant - - -

THE COMMISSIONER: Yes. Well, attached to one of your witness statements was the 1998 agreement.

MR BENNETT: And the 1994 agreement, but not that copy. Not the version that I’ve just handed up because we only got that from the Commission last week.

THE COMMISSIONER: Right. So do you want the document attached to a statement, I think of Mr Minkus?

MR BENNETT: I think Mr Minkus.

THE COMMISSIONER: Mr Minkus, yes. Do you want those then marked separately now?

MR BENNETT: No. I think if you leave them as attachments to Mr Minkus.

THE COMMISSIONER: Leave them just as attachments and we just mark the 1994 and the 1998 agreements?

MR BENNETT: Yes and I think you were going to remark the 2001 and the 2005.

THE COMMISSIONER: Sure.

MR BENNETT: So we’re all on the same page.

THE COMMISSIONER: All right, yes. I think we’ll mark those.

EXHIBIT #TNT1 1994 AGREEMENT
EXHIBIT #TNT2 1998 AGREEMENT
EXHIBIT #TNT3 2001 AGREEMENT
EXHIBIT #TNT4 2005 AGREEMENT

THE COMMISSIONER: It should make it a bit easier for reference.

MR BENNETT: Thanks, Commissioner.

THE COMMISSIONER: Yes. Thanks, Mr Bennett. Yes Ms Bow.

MS BOW: Sorry, I didn’t actually follow that as well as I should.

THE COMMISSIONER: Sorry, do you want me to slow down?

MS BOW: Yes, thank you.

THE COMMISSIONER: So the 1994 agreement is TNT1, 1998 TNT2, 2001 TNT3 and the 2005 agreement TNT4.

MS BOW: Thank you, Commissioner.

THE COMMISSIONER: Thanks. Yes, who is your second witness? Are they in the order of the material as you present it, are they? So Mr Point, was he the next witness?

MS BOW: No, I was going to call Frank Whitfield who’s the next witness please, Commissioner.

THE COMMISSIONER: Okay. Is Mr Whitfield required for cross-examination Mr Bennett?

MR BENNETT: Yes, Commissioner.

THE COMMISSIONER: Yes. Yes, thank you.

<FRANCIS WILLIAM WHITFIELD, SWORN [10.15AM]
<EXAMINATION-IN-CHIEF BY MS BOW

THE COMMISSIONER: Yes, Ms Bow.

MS BOW: Thank you.

The witness statement that was submitted as unsigned, I have a signed and declared copy that I’d like to tender through the witness if I may.

THE COMMISSIONER: Yes, thank you.

MS BOW: The top one is the original for the Commission and the bottom one is for the witness.

Mr Whitfield, do you have a copy of this statement that you prepared for today?
---Yes.

Is that a copy that you have in front of you?---I’ve got it here.

Yes. Would you confirm that’s your signature?---Yes.

At the bottom of each page?---Yes, definitely.

And on the third page. May it please the Commission, I’d like to tender that as evidence in these proceedings.

EXHIBIT #TWU2 STATEMENT OF FRANCIS WILLIAM WHITFIELD

MS BOW: Thank you. Mr Whitfield, would you care to make any changes to that witness statement?---In regards to you see, I’m not real good with dates and for the exact dates of when these things happened, but I said here section 5:

Everyone had to work back until work was completed.

That was in the Comet depot when we had the wall up between us, between Comet and Quick As Air and that’s how it use to be. They had people who worked in the morning, people who worked in the afternoon and there were some permanents. Some were permanents that go home as per choice, but as the drivers got in they worked back and I don’t believe that there was any agreed overtime roster in place there. It was when we moved into the Excel depot, which was up the road wholly and solely as Comet Transport once again, when they brought in the overtime roster and how it derived and all that, that was when we moved up to the Quick As Air Comet depot up the road. And at that time they brought in a pm shift. So no, in regards to that no, there’s nothing a lot to change except it makes it look like I’m talking about the wrong depot here.

**** FRANCIS WILLIAM WHITFIELD XN MS BOW

It says:

Not long after the company moved to the Excel depot when they started introducing the pm shift.

?---Yes.

And then it goes on at number 5, it says:

Everyone had to work back until the work was completed.

Are you saying that’s an incorrect statement?---Everyone use to work back, but there was no actual control over the numbers of people. You know, like you just come in, you work back. You know what I’m saying?

Yes, but is there something you want to change in your statement, Mr Whitfield?
---No. Well, when I say no I mean in this depot. You know, that’s how it was in that particular depot and that’s how it was in the Comet Quick As Air depot when we moved into that depot and then it changed.

Okay?---Yes.

All right. Mr Whitfield, there’s evidence before the Commission or there’s going to be evidence before the Commission today. There’s a statement been made that says that:

The number of permanent employees required for overtime was dependent on the number of casuals who were available to work in the evening. We had approximately 40 casuals in the pool. Half of them had truck licences and the other half did not.

I’m reading from, sorry, paragraph 14 of the statement of Morris Janke. So
Mr Janke may explain that:

Half of them had truck license and the other half did not. All 40 were usually rostered to assist with unloading - - -

THE COMMISSIONER: Sorry, just hold for one moment if you would. So
Mr Janke at paragraph sorry?

**** FRANCIS WILLIAM WHITFIELD XN MS BOW

MS BOW: 14.

THE COMMISSIONER: 14, sorry. Yes, thank you.

MS BOW:

All 40 were usually rostered to assist with unloading the line haul trucks and loading the delivery trucks for four hours in the morning. Those who had a license were available and were required to perform driving duties that day. They would continue on and worked a normal day shift. The remainder worked a split shift and returned at approximately 3 pm to assist with unloading the delivery trucks and loading the line haul in the afternoon. We generally needed about 40 employees to work from approximately 5 pm when the fleet started returning until the work was finished. If we had 25 casuals available then we only needed 15 permanents to work overtime. If we had 20 casuals available then we only needed 20 permanents to work overtime. On some occasions we had less than 20 casuals available and would roster more than 20 permanents to work overtime. The numbers fluctuated daily.

In your recollection, Mr Whitfield, is that a true recollection of the process that was used?---It may have been a true recollection of the process used up to a point, whereas that our overtime, you’ll see in my statement there, our overtime was just about diminished in the yard, what they agreed would never happen. With after
6 o'clock they refused to pay any permanents to work back. And that’s when it also says in here that after 6 o'clock they had a bit of a rumble, but that was Morris Janke, that goes after sort of.

My question Mr Whitfield was in relation to this outlined process where based on the number of casual they had, they then topped it up with permanents. Is that a true recollection of how the process worked?---The casuals that worked all day, all day, were sent home. Like if they came in and they started with the PUD fleet in the morning, the casuals that went out on the road never got to work overtime at night. The permanents got rostered back over night and preference to the casuals. That’s how that was. Permanents always got rostered back. If a casual started in the morning and he worked straight through until say 5.30, 6 o'clock or whatever time he got back if he went out in a truck, he went home and the rostered permanents done the position. The casuals that done split shift that started in the morning for four hours and in the afternoon for four hours, the afternoon casuals will work back. But then there was jobs in the depot whereas if the casuals had worked past the four hours they would put permanents into those positions on a roster basis and send the casuals home. That’s how that use to be.

**** FRANCIS WILLIAM WHITFIELD XN MS BOW

Okay. In your statement at paragraph 18 and then paragraph 19 you say that there was a lot of upset in the yard and that you called a meeting in the car park one morning before work. You make a statement that the regional manager, Mr Peter Gutsche, was asked to attend that meeting to answer the drivers’ questions and that he stated that the company had decided that they were no longer going to use the agreed roster process. Mr Gutsche claims in his statement that he didn’t make that statement. Do you stand by the statement that you make?---Not everyone - I heard him say it. The roster process as it was wouldn’t be used as a roster process. The 20 man agreed roster process wouldn’t be as it is anymore. That’s what he said basically to the best of my recollection. And it almost went from probably after that safety dispute in the back shed which brought us here last time when they took the people who were rostered out of the back shed, after that dispute the 20 man roster we still would have had, say, six out there and at least 12 on the dock. All of a sudden they had three on the dock, right? So our roster’s gone from, the process went from 20 people to three. But then I argued with the management of the fairness of the way it use to be to the fairness of it the way it is now. Whereas it use to always roll over, like if you had 100 people and 60 wanted to work overtime, they put their name from A to Z on the roster, right, and the roster process use to roll over in alphabetical order until they got the 20 people a night. That’s how it use to work.

Sorry, are you saying that there’s only three people being used for overtime now?
---Well, I look around there over night time when I unload, I get in one of the loader trucks they get it and I only seem to see three, maybe four people working back that I can recognise as being drivers.

Okay. Did the company stop using the agreed process that you just described?
---The agreed process has been stopped. The fairness side of it had been stopped. And it was only in the last week or maybe fortnight that after me talking to them, I said look this is not fair, there’s people here that aren’t even getting asked, they seem to be asking the same three or four people every night of the week out of all the people that were on the roster. I said you should at least see how many people want to work back and then put them from A to Z again and if there’s only three, there’s only three. But at least it’s fair. I argued that on the fairness of it. Because there’s people there at one stage they claimed that they were losing up to $200 a week at one stage. And yet, you know, myself because of the way they run the business and because of the way it all happened, I was actually getting more money. I was actually getting later and later because the process was you’d come in, you had a debrief, and you couldn’t get on the dock and get out of there the way you could when the roster people were on the dock to help you unload, the scanners were all full and all that. You couldn’t get through there as quick now as you could when the roster people were there.

**** FRANCIS WILLIAM WHITFIELD XN MS BOW

So you’re saying that the agreed roster process was stopped by the company? Because the company claims that they never stopped using the agreed process?
---Well, they stopped going around and asking the people of a morning after that meeting with Peter Gutsche in the car park when the guy, what’s his name, John Sellers, he use to take the numbers of a morning and years ago supervisors and radio operators done it before that. But they use to have the agreed numbers in the morning for the evening. So they’d know, they’d have their manning levels filled to do the job.

Mr Whitfield, did you ever come into work to arrive back at the depot and relieve a casual employee?---Me personally, I wasn’t on the roster, of course not.

Okay?---But, if you want me to finish, but that was the case, that people were on the roster. You know, years ago that was the case. They use to relieve casuals that had already worked the four hours as per the agreement and the overtime was offered to the permanents.

Okay. I have no more questions.

THE COMMISSIONER: Just one point. I might wait until you’re finished,
Mr Bennett. Yes, Mr Bennett.

MR BENNETT: Thank you.

<CROSS-EXAMINATION BY MR BENNETT [10.28AM]

MR BENNETT: Mr Whitfield, just in your evidence this morning you made a reference to 60 out of 100 who wanted to work the overtime?---I just say 60 as a number.

Roughly how many people in your experience, how many people at the moment are prepared to work the overtime? How many of the PUD drivers?---To be honest with you they went around, it was only in the last week or fortnight we tried to get these numbers to see how many wanted to be on that list and I couldn’t truthfully tell you how many people put their name down. But in saying that one of the guys who did work, I asked him when did he think he’d get another go and he said probably in a fortnight’s time.

Right?---That’s what I was told.

**** FRANCIS WILLIAM WHITFIELD XXN MR BENNETT

It’s nothing like 60 though, is it?---I don’t know how many is on the roster. I just named a figure just to give you a variation. I’m not sure what it is, you know?

If I was to put it to you that it’s low as 15, there’s really only about 15 blokes in the whole yard that actually are prepared to work overtime, would you agree with that?---That’d shock me.

That’d shock you?---Yes.

You think it’d be more than 15?---Yes.

I see. So somewhere between 15 and 60?---Well, every driver would have his right to put his name on that list, right? So if there was, say, off the top of my head, I can’t honestly tell you how many PUD runs there are, but there’d have to be 50, 60 PUD runs at least, all right? Or permanent people. Now, I would say they’d get well over 20 of those people would want to go on a rotating roster. Because you’re not going to get every night of the week.

No, but it could be as low as 15 to 20?---No, it wouldn’t be. I don’t think it would be that low personally, but I could be wrong.

Right. Without worrying about the numbers is it your impression that a lot of blokes want to work overtime, or most people don’t want to work overtime?
---That’s why we’re here because people do want to work overtime.

More than half or less than half?---I’d say probably half would be happy to be on the roster. At least half. I’m only saying that, that’s what I feel. I don’t know that that’s true.

All right. The company should have the figures on that by the way because they’ve only done it in the last week or fortnight or something.

Right. You talked in your statement about the overtime process, or the roster process, which was introduced in the Comet yard when that business was in the Excel depot?---Yes.

You say you remember that process quite clearly. Can you just explain how that process worked?---Well, normally Harkam, he was the am supervisor and there was a list of people the same as there was up to just recently. There was a list of people that wanted to work the overtime. If you didn’t want to work the overtime you unloaded and clocked off and went home, if you wanted to work the overtime normally Harkam would go around in the morning and ask the PUD drivers who wanted to be on the roster that night in a rotating fashion and then your name would go up. Sometimes they’d tell you then where you were working, whether it be on the dock unloading or driving a fork or helping down the other end loading a trailer. We all blended in those days with the so called pm shift and helped out all over the depot.

**** FRANCIS WILLIAM WHITFIELD XXN MR BENNETT

And how many names would be on that list?---Exact names? I couldn’t give you a number, but I would, it would be well over 15 I should imagine.

However many people wanted to work overtime, that’s how many names were on the list, wasn’t it?---Well, I’m honestly not sure whether we had the sealing of 20 there, right, when I talk about the 20 man roster, or we agreed on the process of 20 when we moved from there back in the Quick As Air. Because when we moved from that, this is where it gets confusing for the Commissioner, when we moved from that depot back into the Quick As Air Comet depot when we amalgamated, the process was there that the guys felt - see, Quick As Air was a depot that closed around 6 o'clock, half past 5, 6 o'clock most nights and there wasn’t overtime there, but when we had to took the freight bodies from the Comet depot back up to the Quick As Air depot they agreed on the process of an overtime roster and the overtime roster and the manning levels that were negotiated probably back then were taken to the other depot and they agreed somewhere in the due process of 20 people. And it’s been that way for years. TNT has always looked after permanents in regards to their overtime, over casuals and they always respected permanents. I think they’ve even got a sign saying Invest In People and I always seen that as they invested in people by not disadvantaging them with overtime as a permanent employee and providing that overtime to a casual instead of a permanent employee. That’s how I looked at it personally.

This is helpful. So you’re not so sure now about the number 20 going back to the Comet yard? You think maybe the number 20 came into the equation later on?
---That’s what I tried to say here.

Yes. Well, in your statement - - - ?---That’s what I tried to say earlier up with the yard, you know?

In the statement you say at paragraph 8 the agreed process was that 20 people who wanted to work overtime that night would put their name on a list every morning. The context of that in your statement is you’re talking about that Excel, the Comet depot?---Yes.

That’s not right, is it?---No and I’ve got to say that that’s a part of - see, we jumped from yard to yard, but we did have a rotating roster. I couldn’t swear on the bible, as I’ve just done, whether that his the agreed figure there, but I know it was the agreed figure up the road.

**** FRANCIS WILLIAM WHITFIELD XXN MR BENNETT

Because the rotating roster, I need to be clear about this Mr Whitfield, the rotating roster doesn’t have any number connected with it, does it? It’s just people put their name on a roster because they’re prepared to work and then the company drew from that roster in a fair process in alphabetical order, drew the number of people that it needed to work the overtime?---No, no.

That’s the original process, wasn’t it?---Not the process that I can recall under the EBA. I don’t know if it was that way originally.

This is before the EBA?---Yes, I know where you’re coming from.

Back at the Comet depot?---I couldn’t swear that there was or there wasn’t a number there. I can’t swear to that, that there definitely had been a number and the number, that’s where I got slurred when I put this in here, the number was definitely agreed upon, 20 if not more, in the EBA. The company always encouraged more people to work.

You weren’t involved in the negotiation of the EBA, were you?---No.

See, Mr Eastwick, and I’m sure you’ve read and seen his affidavit?---I’ve heard parts of it, yes.

He’s quite clear that when he joined the business which was at that Comet Excel depot, you recall that?---Yes I do.

He remembers the agreed roster process, but he said it didn’t have any sort of quota or number attached to it at all. In those days it was just a process with a rolling list for the fair allocation of overtime worked?---I would say that the number would have been 20 or greater. That’s how they derive at the number in our agreement when we went into the Quick As Air Comet depot as it merged and they negotiated the EBA.

But that was just a function of how many people the business needed, wasn’t it?
---Well, it was then and they agreed that they’d always need that many people otherwise the company wouldn’t have put it in the EBA.

Well, that was part of the EBA negotiation and you don’t know anything about that because you weren’t there, is that right?---I was in the next yard when the EBA was voted on, but I wasn’t a part of the negotiation.

**** FRANCIS WILLIAM WHITFIELD XXN MR BENNETT

Yes right, thank you?---I’ve been around a long time, Commissioner.

I’m sure you have. Have there always been 20 PUD drivers working on the overtime shift since your recollection of this number becoming involved?---Yes. When I say 20 people, I use to have the company ring me up when we use to use the words when it fell over, when they couldn’t fill the roster, right? That happened a couple of times a year and it was mainly around state origin time or the time there was an event on where people wanted to go earlier and it did fall over. But the company was aware of that. We discussed it with them. It got down to 18 a couple of times, they couldn’t fill it with the 20. And I said to them why don’t you come to see me of a morning because some people say no, I don’t, I want to go home and watch the footy and I will say come and see me and I can go on the freights people that have knocked it back and just see if they do want to work back and tell them that - see, people get a bit blasé on the importance of a roster, they want it but then I always maintain if you want a roster you’ve got to maintain a roster, right? You’ve got to give the company the commitment of the numbers that you’re going to commit to something.

The reality is the numbers have fluctuated, isn’t it?---Most nights 99.9 per cent of them got the numbers I would say throughout the year.

The numbers have fluctuated, haven’t they?---Not much below 20, hardly ever.

But the numbers have fluctuated?---Well, they wouldn’t go over 20. The company, even though it said in the EBA that they would go over 20, they wouldn’t put more than 20 on. They use to ask for 23, 24, 25 in one period and then they stopped doing that and they let it ride at 20. So when you say the numbers must have fluctuated, a couple of times a year yes they did go down.

And historically, as you’ve just said, sometimes it was up, sometimes it was over 20?---And they never asked anymore.

Well, at some point in history it obviously did. You just said - - - ?---Yes, they use to. At some point in history they did ask - - -

So if we go back over the 15 year history, roughly, the numbers have fluctuated. It hasn’t been fixed at 20 throughout that period, has it? Sometimes, you’ve just said that sometimes it was 23, 24?---The only time it ever fell down was when there was an event on. That’s what I’m saying to you. When there’s an event on that it couldn’t get the numbers. If you can show me - that’s what I felt. I never went back on it, but I told the company when they use to come and see me or ring me and say we’re having trouble filling the roster, I’d say tell the guys doing the roster to see me in the morning, that if you haven’t filled it I'll put an announcement over and nearly all the time the numbers were completed. They always got enough. They nearly always got enough.

**** FRANCIS WILLIAM WHITFIELD XXN MR BENNETT

Okay?---Very seldom was it, in my opinion, didn’t have the numbers after we spoke over the two way and made an announcement saying hey fellows, you want this roster you’ve got to fill it, you know?

Ms Bow asked you earlier about your evidence regarding Mr Gutsche’s statement about, in recent times, about the agreed roster procedure, so not surprisingly I’m going to ask you about it as well?---Yes, fair enough.

You said that the company has now decided that they no longer want to abide by the agreed roster process. That’s what you said in your statement?---Yes.

But if I understood what you said in response to Ms Bow earlier, you seem to be acknowledging that Mr Gutsche had been more specific than that, that
Mr Gutsche, and I think your evidence was, that he said the 20 man roster process wouldn’t be used anymore. What’s the difference between what you said just now to Ms Bow and what you said in your statement?---Well, Mr Gutsche said that the 20 man process wouldn’t be used anymore and I don’t believe the roster was ever taken up after that. There was pm supervisors use to ask the same three to four people to work back every night. There wasn’t a rotating roster in process, there was no alphabetical order roster in process, no fairness in process. And it’s only been in the last week or fortnight that they’ve tried to put something back in process and what they have put back is a rotating roster that we’ve got to go an talk to them and have it fine tuned because there are people on it that aren’t even suppose to be on it that haven’t even got licenses. They thought they were drivers but they’re not, you know? And the process has got to be put back in place whereas it’s fair, it’s a fair share of it, but I don’t see in regards to our agreement as a 20 man roster that’s in the EBA which is the agreement and everyone from that, they’re asking three to four people how that can be justified.

See, there’s two separate issues here aren’t there, Mr Whitfield? There’s a rostering process which is a rolling list and we talk about the alphabetical order which is a fair process for allocation of overtime?---Agreed.

There’s that process and there is your argument that there is some kind of quota of 20 positions on that pm shift. Those are two separate issues, aren’t they?---No, that’s the one issue. They agreed. The 20 man agreed - - -

You see, I put it to you that Mr Gutsche made it very clear that the company intended to continue to Honour the agreed roster process which is the rolling list, the alphabetical allocation of such overtime as was available. He made that pretty clear, didn’t he? Whether you agreed with it or not, that’s what he said?---But well, it’s not, it only came back into place, and it hasn’t been put in place properly, because I went up and I said to him that I thought it was discriminatory towards certain people who worked in there.

**** FRANCIS WILLIAM WHITFIELD XXN MR BENNETT

Why did it stop, Mr Whitfield?---Well, it just stopped getting done because - - -

Who was collecting the names?---John Sellers because Peter Gutsche - - -

Yes. He’s not a manager, is he?---No.

Who is Mr Sellers?---He runs the freight office.

That's right. And he use to collect the names?---Yes.

And he just decided, didn’t he, that he wasn’t going to collect the names anymore?---He was at that meeting that morning - - -

And he just decided that if in his mind the company wasn’t going to Honour his understanding of a 20 man quota, then he wasn’t going to collect the names anymore. That’s what he decided, wasn’t he?---Well, that’s more or less what he was told.

No, no. That’s what he decided?---Well, I don’t know how - - -

That he stopped collecting the names and for a while the agreed roster process found it, but it found it because Mr Sellers stopped collecting the names, didn’t it?---He was at that meeting that Peter Gutsche that I called in that time in the car park, I got Peter Gutsche to come out and address it and he was at that meeting that morning.

And so he decided off his own bat that he wasn’t going to collect the names anymore?---Well, you’d have to ask John how it came about.

But in any event as I understand your evidence, in more recent times efforts have been made, perhaps as a result of your intervention, to get that agreed rostering process back up on - - - ?---Yes, granted.

But the company is quite prepared to do that, isn’t it? There’s been no resistance from the company to - - - ?---Well, they were pretty slow doing it, I can tell you that. They were pretty slow getting it up and running.

When you asked them about it did they respond?---They always said they were going to do something, but they just, you’d have to remind them on just every couple of days. You’d have to say when’s that roster, yes I’m working on that, I’ve told the supervisors to get the numbers, I’ve done this, I’ve done that and then when they have done it you found out that the process, you know, never went anywhere near the agreed amount, it went back to the three or four and you know, one day in a fortnight when you’ve got casuals working there doing the work that our people use to do and probably earning lots more money than our people - not probably, I know that some of them are - it just doesn’t seem right to me in the fairness of it all.

**** FRANCIS WILLIAM WHITFIELD XXN MR BENNETT

No further questions thank you, Commissioner.

THE COMMISSIONER: Yes, thank you. So Mr Whitfield, whilst you have reservations about how many people are now being put on the roster and whether or not they should be the casuals or permanents, you are saying that at least in the last week or two the company is back using the alphabetical process?---It hasn’t been done properly, but it’s there but needs to be fine tuned, needs to be tidied up. You know, like they’re down to three people, four people a night - - -

Yes, but putting aside the number, when you say needs to be tidied up, in what respect does it need to be tidied up other than the numbers?---I personally haven’t seen this, this list, this roster. There’s people on it that shouldn’t be on it. Like they’ve asked, I'll just mention, they asked a casual that’s there, he’s casual on our books, he works every day, he goes out in the van, the company are putting him through getting his license, but he - - -

He’s not a licensed driver?---He’s not a licensed truck driver. His difference in income would be 22.50, I think, compared to my 17.80. Why should he get the right to work overtime, you know? It’s the gross difference in pay.

Yes, thank you. Yes Ms Bow.

MS BOW: I don’t have any further questions, thank you.

THE COMMISSIONER: Yes, thank you. Anything arising out of that?

MR BENNETT: No.

THE COMMISSIONER: You’re excused, Mr Whitfield?---Thanks very much.

<THE WITNESS WITHDREW [10.46AM]

MS BOW: Thank you. I’d like to call Peter Grieve as the next witness please.

MR WHITFIELD: Could I have a question? Am I allowed to stay?

THE COMMISSIONER: Yes you are. You certainly can stay. That’s in terms of the Commission’s side of it. I’m not sure what arrangements you have between the company and the union. But there’s no difficulty if you stay and ......
Mr Bennett, you require Mr Grieve I assume?

MR BENNETT: Yes.

THE COMMISSIONER: Yes, thank you.

<PETER JOHN GRIEVE, SWORN [10.47AM]
<EXAMINATION-IN-CHIEF BY MS BOW

MS BOW: Could the witness be shown this statement? Mr Grieves, do you have a copy of your statement with you?---I have a copy of my statement, yes.

Okay. May the witness be shown that statement. Is that a copy of your statement there?---It’s a copy, yes. That’s the original.

Okay. And is that your signature on the bottom of the first page and on the second page?---Yes it is.

May it please the Commission I’d like to tender that as evidence in these proceedings.

THE COMMISSIONER: Yes.

EXHIBIT #TWU3 STATEMENT OF PETER JOHN GRIEVE

MS BOW: Mr Grieve, would you like to make any changes to that statement?
---No, no changes.

Okay. All right, thank you for that. Just a few questions. There is evidence before the Commission in relation to from a Mr Morris Janke. I’d like to read that paragraph 14 to Mr Grieve please and ask him his opinion on it. It outlines the process that was used by Mr Janke and it says:

The number of permanent employees required for overtime was dependent on the number of casuals who were available to work in the evening.. We had approximately 40 casuals in the pool. Half of them had truck licenses and the other half did not. All 40 were usually rostered to assist with unloading the line haul trucks and loading the delivery trucks for four hours in the morning. Those who had a license were available and were required to perform driving duties that day. They would continue on and worked a normal day shift. The remainder worked a split shift and returned at approximately 3 pm to assist with unloading the delivery trucks and loading the line haul in the afternoon. We generally needed about 40 employees to work from approximately 5 pm when the fleet started returning until the work was finished. If we had 25 casuals available then we only needed 15 permanents to work overtime. If we had 20 casuals available then we only needed 20 permanents to work overtime. On some occasions we had less than 20 casuals available and would roster more than 20 permanents to work overtime. The numbers fluctuated daily.

**** PETER JOHN GRIEVE XN MS BOW

Is that a true and correct account of the process that was used?---No, it’s not.

In what way is it different?---It was actually the overtime roster was filled by the permanents first. Basically the 20 that was in the agreement. Then after they got that 20 they go fill the rest of it with casuals.

All of the casuals?---Well, it all depended on what number they got. Sometimes it was filled first with the casuals from the split shift, then after if they still didn’t have enough numbers of casuals from the split shift they had to ask more permanent drivers first that were on the roster apart from the 20 they’d already asked if they wanted to work back, which could have been by phone call, radio message on the two way. Then if they were still short numbers they could ask the casuals that had worked full day being the ones that had come into work in the morning and then they needed them to continue with driving duties during the day.

Thank you for that. Peter, was there ever any problem - there seems to be concerns with the company about the amount of overtime being worked by the drivers. Was there ever any problems with drivers having a 10 hour break and starting at their required ordinary start time the next day?---Ordinary start time, no. Very rarely it’d be ordinary start time it affected.

So the company wasn’t in effect paying for employees that weren’t there because they didn’t have a 10 hour break?---No, no.

Were you present during the negotiation of the 2001 agreement?---I was, yes.

Okay. And at that time were there any discussions about the 20 person roster?
---There was a discussion. The consultative committee at the time were looking to increase the number from 20 to 25, but with the negotiations, the consultative committee and the management it was kept back at the number of 20. It was also brought up that 20 was the minimum they could ask. If they needed more they could always ask more to work back at night, but it was an agreement with both the consultative committee and the management that it be kept at 20.

And was there any industrial action over the negotiations of that agreement?---No, not that I’m aware of, no.

Okay. And did the company ever indicate at that time that they might reduce the number below 20?---Never. In fact it was always stated they need that number, the 20, for the pm operations to operate properly at night.

**** PETER JOHN GRIEVE XN MS BOW

There’s a claim that the employees, had the company tried to alter that 20 person roster the companies would have taken industrial action. Is that true?---That’s a ..... no, because if they wanted to alter it there’s the process of going back to the consultative committee that’s in the EBA where they can sit down to negotiate look, we don’t need this many. But that’s never happened. And there’s me being still part of the consultative committee and I’ve never been involved in any discussions.

So the company never called a meeting of the consultative committee to review the operational requirements or needs?---No, never.

Okay. But that is allowable under the agreement?---I believe it is under the agreement, yes. It’s stated there.

I think somewhere it’s quotes as clause 23, Commissioner. If I could I’d just like to locate that clause. It is clause 23 of exhibit TNT3. So are you saying that the consultative committee never met at all in relation to this issue?---No, never. I’ve never as a consultative committee had any discussion with the adjustment of the overtime roster.

It says:

The discussion process shall be generally in accordance with the following.

This is clause 23(b)(iv):

Discussions shall identify the changes necessary at the terminal or to the fleet vehicle to achieve the objectives set out at how those changes are to be implemented. The agenda of those discussions shall not be limited and can address all aspects of the work performance and how work is performed.

So the company could have negotiated with the consultative committee if they were required changes within - - - ?---Yes, yes. Because it was agreed from both sides where they could foresee that there could be changes in the business where things do need to be changed for the operations to run better and more efficient. That’s why basically why that clause was put in there.

Thank you. I’d like to refer to the statement before the Commission from Robert Minkus and in particular clause 12, paragraph 12. It says that there was negotiations around the introduction of casuals. What happened in relation to casual hours? Were there some sort of special negotiations in relation to the casual hours in the depot?---Yes. Casual split shifts, originally I believe under the award split shift, they would work four hours in the morning and four hours in the afternoon into the evening. I wasn’t present at the negotiation at the time, but I believe that those hours were changed to five hours in the morning and three hours in the afternoon as it suited the running of the business better. So there was a change to casual hours to that, to split a five and three instead of four and four.

**** PETER JOHN GRIEVE XN MS BOW

So in relation to it not being - did you work overtime, Mr Grieve?---Do I work overtime?

Yes?---Yes, every day.

And what would happen when you came back to the depot if there was a casual working on the docks and you were to work overtime?---If you were on the roster you were allocated a work position. It could have been forklift loading a
semi-trailer, off siding one of the forklift drivers. If there was a casual there that had done his split shift, had worked the full day and was working back there, it was always the right of the permanent employee to take over that casual’s work function, but he had to take over the actual job that that casual was doing.

And did that disrupt the business?---No. They, most time the casual then moved on, or would see a supervisor and be moved on to another position to help somewhere else, or if he wasn’t needed he would be sent home.

Okay. It says in the evidence that will be before the Commission:

It would compromise TNT’s ability to process its freight in a cost and time efficient manner. For example, if there was a change over in the pm shift from a casual employee to a PUD driver, this would result in disruption of the pm shift and TNT operations.

Do you agree with that statement?---Not really.

So when you did change over from a casual there wasn’t any disruption?---There wasn’t any disruption because most of the time the permanent employee would have better knowledge of the job function he’d be doing than the casual because he’s had more years experience there.

And did the company ever raise any concerns about that process when you take over from a casual?---No, not back then, no.

The company claims that they didn’t stop using the agreed roster process. Is that true?---No, that’s not true. They did stop using the agreed roster process.

Okay. And in what way? How did that happen?---I believe they just stopped asking the permanent drivers on that list in the morning. They had a, there was a job function of one guy there to go around to the permanent drivers and ask them if they would like to work back that night. And I believe that stopped around August, mid to late August some time I believe.

**** PETER JOHN GRIEVE XN MS BOW

Were you in attendance at the meeting, the yard meeting, with Mr Gutsche in relation to the rostering process?---No I wasn’t. I’m on a later shift start.

I don’t have any further questions.

THE COMMISSIONER: Yes, thank you. Yes Mr Bennett.

<CROSS-EXAMINATION BY MR BENNETT [11.00AM]

MR BENNETT: Thank you, Commissioner.

Mr Grieve, I’m delighted to hear that you seem to now acknowledge that the company could have reduced the number of 20 PUD drivers working overtime. So they could have done that so long as they’ve gone through a process pursuant to clause 23 of the agreement. Is that still your evidence?---That’s still correct, yes.

So the number 20 wasn’t set in stone, was it?---It was in the EBA agreement.

But your clear evidence is that it was able to be renegotiated?---Yes it could be renegotiated if the company wanted it to be renegotiated, but they never approached.

Because that number 20 was based on the company’s need, operational need, for 20 PUD drivers to work overtime, wasn’t it?---It was based on an agreement I believe. I wasn’t present at the first EBA, part of that agreement, but I believe it was based on an agreement between the committee management at the time that they come to an agreement together that the number be 20.

Based on the company’s need?---Need, yes.

Because you know that from your own involvement in the 2001 negotiation, don’t you? Your evidence is very clear that the company said it needed 20 PUD drivers?---Yes, at least.

And the company did try to go through a consultation process about its changing need, didn’t it?---Not with me involved, no. I’ve never been invited. I’m still on the consultative committee, I’m the only one there, and I’ve never been invited along to any meeting whatsoever of changes they’ve needed.

**** PETER JOHN GRIEVE XXN MR BENNETT

The union took industrial action in relation to this issue, didn’t it?---I believe they did.

As soon as the company even raised the possibility that it might need to change that number the blokes walked out, didn’t they?---I believe so.

So there wasn’t much room for consultation was there really at the end of the day?---I believe they just stopped using, that’s why the actual members stopped work. Was they just stopped without consultation, they stopped using the overtime roster. I believe that’s why the members walked out on strike.

I put it to you that Mr Gutsche and others had had a number of conversations, perhaps not with you but certainly with Mr Whitfield, over a long period about the company’s changing need and the fact that it would need to reduce the number of PUD drivers rostered back and was constantly warned or threatened that if the company tried to meddle with that number there’d be industrial action?---I do not believe that’s the case.

I see. That’s Mr Gutsche’s clear evidence in this matter. Are you saying he’s not telling the truth about that?---No, I don’t believe he is telling the truth.

Ms Bow asked you earlier about Mr Janke’s evidence about the roster process and I am a bit confused, I must say, about your evidence about that process and about how it affected the casuals. Because later in your evidence-in-chief you seem to be acknowledging that priority was given to split shift casuals. Is priority given to split shift casuals?---Priority was given to split shift casuals after the permanents were asked on the roster.

See, that hardly seems fair. I mean, surely the company would give priority to a split shift casual. It would be incredibly unfair on someone who was working a split shift if they didn’t get their full days work as a result of getting bumped by a PUD driver?---That did happen sometimes, but priority, it was like a seniority system. It was always the permanents on that list were asked to perform overtime duties that night first.

Even at the expense of a split shift casual?---It could have been sometimes, but it would have been very rarely if it was.

You see, Mr Janke is very clear in his evidence that split shift casuals got priority?---Only after the permanent employees were asked.

**** PETER JOHN GRIEVE XXN MR BENNETT

I see. Are you absolutely sure about that? It seems manifestly unfair?---I’m positive. It was always done on a daily basis. They’d walk around with the list, the permanent PUD drivers or drivers, asked each one until they got their number of 20 if they were needed, the rest of the spots would be filled first by the split shift casuals because they’d only done the five hours in the morning, then if they needed more, if there wasn’t enough people, then depending the operations would change daily, you know, for how busy it was, if they needed more then they’d come back and ask - if they’d gone through the whole permanent list they would then ask the casuals that had worked through the day if they would require to work back.

THE COMMISSIONER: But if they hadn’t asked all the permanents they would have been asked?---Yes, they would have asked all the permanents first. They wouldn’t have gone back to the ones they’d asked previously, the ones who already said no.

It’s more - - - ?---Yes, if there was 40 on the list and they’d got to say 25, filled the 20, he’d mark finished and then they’d start from there asking if they would like to work back that night.

MR BENNETT: When are you talking about there, Mr Grieve? What period?
---That period would have been back in the Comet Quick As Air ......

Before the 1994 enterprise agreement was done?---No, no. It would have been after the - that would have been during the 1994 enterprise agreement.

This is you’re talking about the situation that prevailed after the EBA was done?
---Yes, yes.

Are you familiar at all with the process before the EBA was done?---Yes because I commenced work at Comet Express in April 1998 so I was actually up at the Comet Express yard before we moved in and become Comet Quick As Air just up the road.

And can you explain what the process was in those days? Was there a roster process back then?---Yes. Basically it was pretty similar. They’d have a list of drivers in alphabetical order and go around and get their - back then I don’t think there was actually no set number, there was no set number set in place. But also saying that, it was a lot less people working in that yard. It was nearly the whole yard they would need to keep the process going in the night operations.

**** PETER JOHN GRIEVE XXN MR BENNETT

See, what Ms Bow didn’t tell you about Mr Janke’s evidence there was that he was talking about that period. That paragraph that she read out to you, that’s
Mr Janke’s evidence about what the process was, the roster process back then before the EBA was done?---I don’t know how Mr Janke would know a lot because Mr Janke wasn’t involved in Quick As Air Express. This process before was I’m talking about it was with Comet Express. Mr Janke was never - - -

Yes, he was quite clear about that. He says that the process initially commenced when Comet was separate over at Excel and he says that he wasn’t there, but when the businesses were rejoined together as Comet Quick As Air, that process that, if you like the Comet process, was then imported into the new merged business. Is that as you understand it?---Basically, yes.

In that case do you now think that Mr Janke’s recollection of that process at that time is correct?---No.

Why not?---It was still the permanents were asked first.

Not back in those days?---Yes it was.

In any event your evidence is that at that time there was certainly no suggestion of any fixed number. The number of people who worked overtime were just purely dependent upon the company’s fluctuating needs?---Which time is this, the Comet?

This is at that time?---The Comet time?

Yes?---Yes, that's correct. But as I stated it was nearly the whole workforce, the majority of what we needed to keep the operations at night.

Now, you weren’t involved in the negotiation of the 1994 or the 1998 EBAs, were you?---No. That's correct, yes.

You say at paragraph 12 of your statement that the company just stopped using the agreed roster process. That’s not correct really, is it?---No, that is correct.

Well, you said to Ms Bow that you were there when Mr Gutsche made a statement to the yard about this?---I wasn’t, no. I wasn’t present.

**** PETER JOHN GRIEVE XXN MR BENNETT

Sorry, you weren’t present, I apologise?---I was not present at that meeting.

I misheard your answer to that. So you can’t comment on what Mr Gutsche said?
---No, I can’t comment on what Mr Gutsche said.

Well Mr Gutsche’s evidence at least is that he said that the company wasn’t going to stop using the agreed roster process, but they could no longer continue to have 20 PUD drivers rostered every night? Are you not in a position to make any comment about that?---No, not really, because I wasn’t present at that meeting.

See, there are two separate parts to this process really, aren’t there Mr Grieve? There’s a roster process which is about a fair allocation of overtime using a rolling list from which names are taken alphabetically. That’s the fair roster process, isn’t it?---Of permanents, yes.

Yes. And then separate to that there’s the union argument that there is what might be called a quota of 20 names for the pm shift. That’s a separate aspect of it, isn’t it?---That 20 name, it’s taken together. It’s 20 names taken from that rolling roster list as per the EBA agreement.

I know that you see it as being tied in together. I’m putting to you that you can see them as two separate issues and that indeed Mr Gutsche saw it as two separate issues and that the company’s position was that the agreed roster process for the fair allocation of what overtime was available, that should continue, but that the company couldn’t promise that it would continue to have 20 people on the pm shift?---No. I see it as both items together. What Mr Gutsche stated - and as I said I do not know, I was not present at the meeting. I’ve had no discussions at all or heard Mr Gutsche saying anything about the roster system.

But there is a process in place now, isn’t there?---A process in place of what?

For rostering people to work overtime, PUD drivers to work overtime?---There is one in place, but they are not using it as per the EBA agreement.

Well, there is a process in place for the fair allocation of overtime, is there not?
---there is one in the EBA, but the company is not using it at this moment.

Is there any process being used at the moment to allocate overtime in a fair way, a rostering process?---No.

**** PETER JOHN GRIEVE XXN MR BENNETT

No process at all?---No process to allocate it fairly, no.

Well, that’s inconsistent with Mr Whitfield’s advice. He said that there is a process in place, that it’s partly as a result of his own initiatives to press the company to do that and he says that there has been, at least for the last few weeks, in place a process for the fair distribution of overtime?---There may be a process in place, but it’s not being done fairly at this time. They seem to be consistently only asking a few individuals to consistently work, not consistently but ones they are asking more than others to work overnight if required.

And do you know how many people want to work overtime out at the PUD fleet?
---At this moment, no. Honestly no I can not, but I believe it would be a lot of them.

How many drivers are there altogether in that group?---The drivers’ number I do not know. At a rough guess there could be 70 to 80 drivers.

Yes. I put it to you that it’s probably closer to 60. But out of that my understanding is that there’s only about 15 drivers that would actually want to work the overtime?---No, I believe there’d be a lot more than that.

On what basis?---Just what I’ve seen, just talked to the guys around the place. I believe if there is 60 drivers I’d say it’d be more around 50 that’d be willing to do overtime.

50 out of the 60 that would put their names regularly on a list?---Yes.

Do you know how many were on Mr Sellers’ list when he use to do the job?---No I do not.

I put it to you it was a lot less than 50. In any event it was Mr Sellers, wasn’t it, that use to collect the name?---Until recently, yes.

And then he just decided that he didn’t want to do that anymore?---No. He was told, I believe, that he wasn’t to be going there and asking for any more names.

Why do you say that?---That’s just what I believe had happened.

Did Mr Sellers tell you that?---No. Just I heard around the depot that he was told he wasn’t required to do the roster system anymore, they won’t be using it.

**** PETER JOHN GRIEVE XXN MR BENNETT

We’ll take that up with Mr Sellers. But Mr Sellers certainly didn’t tell you that?
---No.

I have nothing further thank you, Commissioner.

THE COMMISSIONER: Yes, thank you. Yes Ms Bow.

MS BOW: I don’t have any questions for this witness.

THE COMMISSIONER: No. You’re excused, you may step down?---Thank you, Commissioner.

<THE WITNESS WITHDREW [11.15AM]

THE COMMISSIONER: We might have a short break until 11.25.

<SHORT ADJOURNMENT [11.16AM]
<RESUMED [11.30AM]

THE COMMISSIONER: Yes Ms Bow.

MS BOW: Thank you, Commissioner. May it please the Commission I’d like to call Mr Paul Farbaek to give evidence.

<PAUL FARBAEK, SWORN [11.30AM]
<EXAMINATION-IN-CHIEF BY MS BOW

THE COMMISSIONER: Yes Ms Bow.

MS BOW: Thank you. Could the witness be shown this signed - I’m sorry, none of them are signed before the proceedings. That’s for the Commission. I just want to, just to verify it. is that the statement that you prepared for today,
Mr Farbaek?---Yes.

Is that your signature at the bottom of each page and on the last page?---It is, yes.

May it please the Commission I’d like to tender that as evidence in these proceedings.

EXHIBIT #TWU4 STATEMENT OF PAUL FARBAEK

MS BOW: Mr Farbaek, are there any changes that you’d like to make to your witness statement?---No I don’t believe.

Okay. At paragraph 10 and then at 11 you state that all of a sudden the company reduced the number of people they were using from the roster. They would only pick two or three drivers from the list and they wouldn’t be in alphabetical order. When did that happen?---Pretty much straight away I believe that, yes, I just come in and I was told there was no longer a roster.

Okay. And who told you there was no longer a roster?---Another co-worker there at work when I came back at work one night. I thought I’d work back and I just got told that there was no roster anymore that night.

All right. And is there a fair process being used for rostering of overtime at the moment?---At the moment there is. There’s been, well, fair. Well yes, it’d say it’s fair. It’s been in place for two weeks.

Okay. And what does that involve?---They ..... what do you mean, sorry? I don’t understand the question.

How does it work?---Well, they ask, you have your name on a list, a roster list and then they pick out I believe there’s three or four, whatever, six people, however how many, I’m not sure how many they’re picking out now at this stage, in alphabetic order.

**** PAUL FARBAEK XN MS BOW

So they’re using alphabetical order now?---As far as I know they are, yes. They’ve been doing it for two weeks, but prior that they weren’t. It was just hit and a miss.

No more questions.

THE COMMISSIONER: Yes, thank you. Yes Mr Bennett.

<CROSS-EXAMINATION BY MR BENNETT [11.34AM]

MR BENNETT: Mr Farbaek, just in relation to your last comment there, you said prior to the last two weeks it was just hit and miss. Who was making that decision?---Management.

Who in management?---Well, whoever makes them decisions. I don’t know, I just come in to work and get told I’m not working.

Well, how do you know that whoever was making that decision, how do you know that they weren’t selecting names in alphabetical order?---I use to have my - do I need to speak in this microphone? I use to work back at night and I’ve never got asked anymore, wasn’t asked to work back. I approached supervisor, the pm supervisor and he just told me that he had the roster full. And I approached other management, they told me that maybe, they couldn’t say that was the case, but they said maybe it’s because I come in late. So I said I'll give them the benefit of the doubt, I said fair enough. For the two following nights I came back early, I didn’t have any lunch, me and Mr Whitfield had discussed do you believe I should have had my lunch, but I came back early. I didn’t have any smoko, no lunch, come back early to the yard. I went in front of the same supervisor again, the pm supervisor Trevor, I don’t know his last name, and he told me that the roster was full, he had his quota for the night. So I went and clocked off, but I didn’t leave the premises. I stayed there and I hung around and people that came in after did their debrief and parked their truck after mine had already been parked up and approached Trevor, and was asked to work back.

All right?---So I don’t think that’s doing it fair.

In any event whatever process might have been in place for some time there, that’s been corrected now has it?---Only after I had a talk to Mr Fairweather, yes.

Right. I have no further questions, Commissioner.

**** PAUL FARBAEK XXN MR BENNETT

THE COMMISSIONER: Yes, thank you. Anything further, Ms Bow?

<RE-EXAMINATION BY MS BOW [11.36AM]

MS BOW: I just want to clarify, are you saying that during the interim between this new process being introduced and the last two weeks you didn’t get any overtime at all?---Not at night time, no.

No further questions.

THE COMMISSIONER: You’re excused. You may step down, thank you?
---Thank you.

<THE WITNESS WITHDREW [11.36AM]

THE COMMISSIONER: Yes Ms Bow.

MS BOW: May it please the Commission I’d like to call Garry Point. Perhaps it would assist the Commission if I was to give this to the witness on the way in.

THE COMMISSIONER: Yes, thank you.

<GARY POINT, SWORN [11.37AM]
<EXAMINATION-IN-CHIEF BY MS BOW

THE COMMISSIONER: Yes Ms Bow.

MS BOW: Mr Point, is that a copy of the witness statement that was prepared for these proceedings?---Yes it is, yes.

Is that your signature at the bottom of the first page and again on the next page?
---It certainly is.

Do you attest to the contents of this document?---Yes.

Do you wish to make any changes to this document as it is?---No.

I noted that you gave a different address than is in the very first statement here. Have you moved?---No, that’s my mailing address.

Okay. This is your mailing address?---That’s where I live, but my mailing address is - yes, sorry.

Which one is which, just for the record?---Okay. My mailing address is (address supplied). This is my home address (address supplied).

And your residential address is the one contained in the witness statement?---Yes, that's right.

Okay. May it please the Commission I’d like to tender this as evidence in these proceedings.

EXHIBIT #TWU5 STATEMENT OF GARY POINT

MS BOW: Thank you.

THE COMMISSIONER: Yes Ms Bow.

MS BOW: Okay. Now, at the time that the company stopped using the agreed rostering process what happened in the yard?---What do you mean by that? With the overtime?

Yes, what happened with the overtime after that?---After the overtime roster was the supervisor come and asked people if they wanted to work overtime, but it would be certain guys that would be asked every night, including myself. I’d get probably asked a few times more than other people would. A lot of people missed out. And yes, that’s about it really.

**** GARY POINT XN MS BOW

THE COMMISSIONER: So was it just one supervisor that would ask or were different supervisors asking different people?---Well we had one supervisor who would be on the dock where we'd be unloading trucks he was about the only supervisor that would ask certain guys. You'd drive in and as you were unloading your truck the supervisor would come up and ask you if you'd like to do some overtime and like everybody, everyone likes the overtime it just so happens I got asked a lot more than a lot of other people did. There were a few other people that didn't get asked at all.

But it wasn't in accordance with any agreed process?---No, no it wasn't no.

Okay were you in attendance at the yard meeting in August with
Mr Gutsche?---Yes, I was.

Over the rostering process and what did Mr Gutsche say at that meeting?---He said there was no more overtime roster.

That was it no more overtime roster?---No.

Did he make reference to how many people or any other issue or just that there was no more overtime roster?---That's about all I can remember, that's all I sort of can recall was there was no more overtime roster.

Did you ever, you worked a lot of overtime I understand prior to the change in the process?---Yes.

Was there ever any occasion for you to return to the depot to commence your overtime, where you would take over from a casual employee?---Years ago we did. It was just like a if there was a casual doing like driving the fork lift, if I was rostered on to do loading, say a Lismore trailer or a certain trailer that I normally did, if there was a casual there before I got there, the usual way, was to go and approach the casual and say I'm rostered on to this trailer and then he'd go and see his supervisor and the supervisor would either clock them off or they'd send him on to do another job and I'd take over from them.

Did that cause any disruption to the business at all?---No it's always the way it was.

I don't have any more questions.

**** GARY POINT XN MS BOW

THE COMMISSIONER: Yes thank you, yes Mr Bennett.

<CROSS-EXAMINATION BY MR BENNETT [11.42AM]

MR BENNETT: Thank you Commissioner. Mr Point just in relation to that yard meeting that Mr Gutsche addressed, you answered Ms Bow earlier that
Mr Gutsche said that the roster process wasn't going to be used any more?---That's right.

Mr Whitfield's given evidence before you this morning and his recollection was that Mr Gutsche said the 20 man roster process wouldn't used any more?---No.

Now do you know what Mr Whitefield's recollection was does that help you at all do you remember what Mr Gutsche said?---That's all I know that was the rostered program that's all I ever remember.

Your only understanding, what you're saying is that there is only one roster process and that's the 20 man roster, is that what you are saying, no?---Just it's just a roster that's all I know.

I put it to you that Mr Gutsche at least understands it in this way, that there is a fair process for rostering the overtime that is available, that is done on a rolling list?---Yes.

Alphabetically, there is a separate issue which is the union contention that there is if you like a quota of 20 positions that have to be filled on that pm shift, now Mr Gutsche's understanding is that what he said to the yard was the company could no longer continue to have 20 people every night but that it would continue the fair allocation process, the agreed roster process?---Well no, I think he didn't say it that way I thought it was just that there was no more overtime roster and that's the way I remember it.

Right what's the situation now in terms of the rostering of overtime?---Well there is a roster they just sort of just got up on the board now, and probably the last week, two weeks, there's are only about three guys who are on the roster at the moment per night.

There's not that many people who want to regularly work overtime is
there?---Well a few, we've got a lot of guys who are actually on light duties or workers comp they are actually off work for a little while, but they used to work out the back as well. So they're not there at the moment, so that's going to knock the numbers down a little bit.

**** GARY POINT XXN MR BENNETT

But generally you know compared to some years back there's not the same appetite to work regular overtime as there was, would that be a fair comment?---I don't think so, no. I can't really speak for other people but myself I always worked down the back every night that I could and I know a lot of other guys were the same, but we haven't had the chance to work out the back anymore, so we're on the dock, and there's less overtime now. We actually picked up a little bit of overtime in the mornings now because of Christmas rush, so, but that's only at the moment because of the Christmas rush. After January February it's still probably going to die off again. So you've still got guys that will be trying to get on the roster, to get on the dock but because there's no more work out the backyard so you have a split of permanents that work on the unloading of trucks and then you have another lot of guys who'd work out unloading trailers, interstate trailers, so the guys that were loading the interstate trailers, including myself, now we were on the unloading of the PUD trucks, so there's less people on the roster on both things now. So you probably you might get, I was getting every night, every second night, on the roster and now the new roster has come in, it's probably once every two weeks my day comes up next Thursday.

I have no more questions for Mr Point, thank you Commissioner.

THE COMMISSIONER: Yes thank you. Yes Ms Bow?

<RE-EXAMINATION BY MS BOW [11.47AM]

MS BOW: I just want to clarify one point, when you say there's only two or three people getting overtime do you mean only two or three people are putting their name up to want to work?---No.

Or only two or three people are getting picked?---Two or three people are being spoken to who actually work, but there's a list of I don't know exactly how or what their numbers are but they go around and they see how many people are actually on a list to say yes they will work and then they've got a three man that they'll pick, I suppose it will be alphabetically, but yes we only get three a night now.

But they are not just getting three putting their name down?---No, no.

No further questions.

THE COMMISSIONER: Yes you are excused.

<THE WITNESS WITHDREW [11.47AM]

THE COMMISSIONER: Yes, Ms Bow?

MS BOW: I'd like to call Mr Peter Smith. He is not being cross-examined do I need?

THE COMMISSIONER: Not required.

MS BOW: Not required. I'd like to tender that as evidence in these proceedings.

THE COMMISSIONER: Yes thank you.

EXHIBIT #TWU6 WITNESS STATEMENT OF PETER SMITH

MS BOW: Okay our last witness will be John Sallis please.

THE COMMISSIONER: Did you want to go off the record for a moment Ms Bow or?

MS BOW: Just that Mr Grieve has just given me back his original witness statement it wasn’t handed up.

THE COMMISSIONER: Yes, my associate was out at the time, so if you just give it to her when she comes back thanks.

<JOHN ANTHONY SALLIS, SWORN [11.50AM]
<EXAMINATION-IN-CHIEF BY MS BOW

MS BOW: Thank you Mr Sallis, I've handed a copy of the statement signed by yourself, the original statement could you please have a look at it for me? Is that your signature on the bottom of the page and again on the second page?---Yes, it is yes.

Do you wish to make any changes to that evidence?---No, no.

May I please the Commission I'd like to tender that as evidence in these proceedings.

EXHIBIT #TWU7 WITNESS STATEMENT OF JOHN SALLIS

MS BOW: Were you present at the yard meeting with Peter Gutsche in relation to the discussions about the roster?---Yes, I was yes.

What did Mr Gutsche say at that meeting?---I can't quote but the gist of the conversation at the yard was that they wouldn't be following the 20 man roster anymore that's the day it stopped 21 August.

You make a claim in your statement that the company stopped using the roster so it stopped gathering the names?---That was that day, that Tuesday. After Peter Gutsche said that then I just didn't bother doing the roster.

Did anyone instruct you not to do that?---Not directly no. I just took it as what the original directive said that they wouldn't be following it so I didn't do it.

So you weren't directed by the company to stop that?---Not directly no.

Did you ever have any trouble getting names to fill the roster?---Maybe two or three times a month we might miss, we might have a lot of people on rostered days, or holidays or sick days, which cuts the numbers down, but basically I think it wouldn't be more than two or three times a month.

That you would have trouble getting?---Yes, in the beginning when it came to the end when they started cutting numbers down, then a lot of people sort of didn't want to do it because they didn't know whether they were going to be working or not, so it did ease off, down to about 15. When they stopped working out the back they were all going to go on to the docks.

**** JOHN ANTHONY SALLIS XN MS BOW

Okay I don't have any further questions thank you.

THE COMMISSIONER: Yes, thank you. Yes Mr Bennett.

<CROSS-EXAMINATION BY MR BENNETT [11.52AM]

MR BENNETT: Mr Sallis so why did you stop collecting the names?---Well state of the yard and the reason the letter come down to the meeting in the car park they weren't going to use the 20 man roster, so there was no reason to use the 20 man roster.

But that didn't mean that the company wasn't going to continue to roster the overtime that was available using that fair rolling list process, did it?---Well I was never asked to reinstate it, so I assume I done the right thing.

Right?---As far as I knew at that time, there was no- nobody was on that roster that would be working back at night, they'd all been sent home, not that I work at night, but that's the reason as I see it.

Attached to your statement I assume this is the list that you used to use to fill out - that's JS1, how many of those names, regularly worked the overtime?---On that roster most of those would be regular. It just wasn't forcing you to go on the roster, if they didn't want to go on the roster they didn't have to. The ones that didn't want to work at night, well they wouldn't go on the roster.

Right so these were the names that you collected, and is that list there, how, it's not dated, how contemporary is that do you know?---It would be pretty close when the - up to August we had a lot of people leave and moving so, it would be pretty close to the August list I was using it.

I'm a bit confused because I mean there's 60 odd names on that list, but my understanding is there's really out of a yard of about 100 there's only about 25 guys that regularly want to work the overtime?---No, I would put it higher than that.

Would you, but not this whole list of 60?---Not every night, you'd have to go through maybe 40 names to get to 20 depending on the night.

Well?---The people on that list were the ones that said they'd like to work overnight during the week.

**** JOHN ANTHONY SALLIS XXN MR BENNETT

Were there 20 every night?---Not every night, most nights I would say. I would say over a period of say a month, two or three nights you might - we wouldn't get the 20. Generally speaking it was about 20.

Can you just clarify for the Commission the difference between - there's been a couple of witnesses talk about overtime working out the back and overtime working on the dock?---Yes working out the back is in the bulk shed unloading trailers, working on the dock would be helping unloading the PUD fleet, doing the scanning, break downs.

So in the EB or the side agreement the overtime clause that we're talking about, it actually talks about dock work available during the pm for drivers who completed PUD functions?---Don't think I know any more about it.

So you weren't familiar with that?---No.

But in terms of that explanation you just gave, that's the dock work as opposed to the work out the back?---The dock work signifies work on the PUD dock work out there.

I've no further questions.

THE COMMISSIONER: Yes, thank you. Yes Ms Bow?

MS BOW: No questions.

THE COMMISSIONER: Yes, thanks very much Mr Sallis you can go.

<THE WITNESS WITHDREW [11.56AM]

THE COMMISSIONER: Yes does that conclude your witnesses?

MS BOW: That concludes my witnesses thank you Commissioner.

THE COMMISSIONER: Yes, thank you. We'll go off the record for a moment.

<OFF THE RECORD

THE COMMISSIONER: We'll go back on the record. Do you wish to call Mr Morris Victor Janke.

MR BENNETT: I call Mr Janke.

<MORRIS VICTOR JANKE, SWORN [11.58AM]
<EXAMINATION-IN-CHIEF BY MR BENNETT

THE COMMISSIONER: Yes, Mr Bennett.

MR BENNETT: Would you state your full name for the record please?---Morris Victor Janke.

Mr Janke have you made a statement in relation to this matter before the Commission?---I have.

Might Mr Janke be shown the copy that's been filed? Mr Janke would you just check that document you've been handed is that the statement that you've
made?---That is my statement.

Do you wish to make any change to that?---No, not at all.

I'd like to tender that please Commissioner.

EXHIBIT #TNT 5 WITNESS STATEMENT OF MORRIS JANKE

MR BENNETT: I have no questions.

THE COMMISSIONER: Yes, thank you, Ms Bow?

<CROSS-EXAMINATION BY MS BOW [12.01PM]

MS BOW: Mr Janke I note that you were involved in the negotiations of the original agreement and then those that have subsequently carried over, is that correct?---That's correct.

You state in paragraph 18 that in relation to negotiating those that the clause was inserted into the agreement the first time around in 1993. Was that agreement reached freely between the parties?---The agreement was reached freely, yes.

There wasn't any industrial action over any part of that agreement?---No.

So, the both parties just agreed?---Yes.

You say at the end of clause 18 that the clauses remained worded in exactly the same through the three agreements the 1994, 1998 and the 2001 and that that's because the operational needs of the business remained relatively constant during that period. So isn't it true that the company needed to have those people work the overtime, do the operational requirements?---During that period of time, yes.

**** MORRIS VICTOR JANKE XXN MS BOW

Yes, so it's only over the last short period of time where the company has made changes that impact on what it's agreed to ion that agreement is that
correct?---That's correct.

Would you agree that there were processes contained in that agreement that had the necessity arose to alter any provisions in that agreement that it could have been done through a consultative process?---That's correct.

So when you drafted the agreement, and I understand that you drafted the agreement is that correct?---In conjunction with some other people, yes.

Right you made provision that if there were changes down the road that the changes based on operational requirements or productivity could be addressed thro9ugh a consultative committee, through a formal process is that right?---The flexibility of that agreement was in that particular time, it wasn't a process in the early days where this agreed 20 were part and parcel of that arrangement, it was a very flexible arrangement. The arrangement of the overtime was put in, in relation to it was about equality for the people that worked there more than the number of people. It was about the amount of people that we gave the opportunity to equally put the overtime to, not about the amount of people that worked.

But you did put the number 20 and based on the average number of people that had worked in the three months prior, is that correct?---At that particular time, yes.

Right and each time you had the ability to address that, nothing had changed and you still needed that same clause, it worked for the company didn't it?---It did and at that particular time, but that average was over a period of time, where sometimes it was more, sometimes it was less during that particular time.

Over a period of approximately three months I believe you say in your statement?
---For that particular exercise yes.

From that point though, after the 20 was inserted, it suited the company just to keep that in there didn't it?---It did but the - over that period of time, it was 20 people that were used, but that wasn't the crux of that agreement. The agreement was on the flexibility that it gave the workforce to have equal opportunity to work overtime.

**** MORRIS VICTOR JANKE XXN MS BOW

At the time were there any discussions about the company might require less than 20?---During that period of time we did use less than 20.

But during the negotiations when you inserted the clause about going up to 25, was there also discussions about it might go below 20 or was there just the discussions about it might increase?---There was never a discussion about it going below 20 because that was what happened at the time, it was a flexible arrangement.

That's what you needed?---Yes, that's what we needed.

Right and at the time you never really envisaged that you would need less than that because it had been for 12 years over the period of the agreements, sorry nine years over the period of the three agreements you always needed that many didn't you?---It had to be a flexible arrangement because some days you didn't need as many as other days. Some days it was more, some days it less as I stated in my statement.

But you did allow for the provision in the consultative process to address the flexibility, didn't you?---Yes.

Would you say that that process has been abided by in this instance?---I haven't been part and parcel of what's happened today but during this process I was involved with the start of that process.

So in the negotiations the object was that if there was a need to change anything that the consultative committee would be responsible for addressing any of those needs and concerns and changes?---That's correct.

So that was the intention of it?---Yes.

In relation to the casuals in paragraph 24 of your statement you say that - sorry I'm looking at the wrong one. There's a statement in one of them that says that the casual clause was never intended to be applied to overtime, is that correct? Were you involved in the introduction of the casual clause?---Sorry what?

The casual clause, sorry I was wrong when I referred to this. But in paragraph 17(c) where it was inserted into the 1998 agreement were you involved in the negotiation of that clause?---Yes, yes.

**** MORRIS VICTOR JANKE XXN MS BOW

There's a statement before the Commission that that clause was never intended to apply to overtime, is that true and correct? Is it true that the casual clause was never intended to apply to overtime?---That I'm not sure, I really don't understand the question.

THE COMMISSIONER: Can you take the witness perhaps to the exact paragraph.

MS BOW: Yes, Mr Minkas states in his statement at 12, that the new clause dealing with casuals, clause 17 that was inserted in the 1998 agreement was never intended to be connected with the overtime shift arrangements, is that
true?---That's correct.

So why does it refer to overtime in the clause, if it's not intended to impact on the overtime of the permanents?---In the early days we had to try and give each of our casuals that was split shift casuals, a reasonable income because if we only gave them four hours in the morning and nothing in the afternoon and we used all of our permanent employees in the afternoon, we couldn't keep a workforce. So there was an agreement during that period of time over the life of that agreement even, it still happens today whereas casuals are given the opportunity to work a split shift and they are given the opportunity to have a decent income, without impacting on the overtime of casuals - sorry permanents, sorry.

Right?---Now during that period of time all of that worked through a process and that's where the roster then fitted this part of the being, if we didn't have the casuals available we'd then use the permanent staff to backfill that roster.

So if you didn't have the permanents available?---If we didn't have the casuals available. Sometimes casuals could work during the course of the day, not as a split shift, an am and pm, we had an arrangement where casuals could work x amount of hours in the morning, x amount of hours at night. If they worked all of the day as a driver they were then taken out of the overtime roster that night or they weren't allowed to work as part of the overtime that night. This arrangement then gave the opportunity of the permanent then filling that gap and that's why we needed the flexibility in that arrangement.

So, that was for the casuals that worked straight through?---Yes.

**** MORRIS VICTOR JANKE XXN MS BOW

The evidence before the Commission today was that permanents were allocated to the overtime roster first, then it was the split shift casuals, and then it was casuals who had driven all day were added after that, so is it true that - what you're saying is that casuals were first, the evidence before the Commission early was that the permanents were asked first, they were then topped up with split shift of
casuals?---That was at the end of the day. The casuals that we had in the arrangement had to be given a decent income as I said before. If we only worked them four hours in the morning and we allowed the permanents then to take the pm work away from those casuals, we couldn't keep those people. So we had a flexibility of where those guys worked am and pm to give them a decent income and then the permanent was our flexibility above that and that's where this roster system sat in this equation.

Was it common practice - so the split shift casuals, they were only given a decent wage but they weren't given overtime over a permanent they were just given ordinary hours over a permanent, is that correct? Over a permanent getting overtime?---It could have lead to overtime at the end of the shift, it may have lead to overtime at the end of the shift.

Would that be only if you didn't have enough permanents working?---No, because the minimal amount of overtime they did during that process worked in with the business as such. Because in the early days I think I made statement most of our work was completed by seven or 7.30 of a night so it was a minimal amount of overtime, if they worked outside their split shift arrangements.

If they did, but it wasn't really common for the split shift casuals to do overtime was it?---Yes, it was, they worked to the end of the shift, if the work requirement was there the casuals stayed with that shift.

So do you ever recall a permanent PUD driver who was rostered on overtime coming in and relieving a casual?---Sometimes that happened, sometimes that happened not always.

Did that disrupt things in the depot when that happened?---Dependent on the need or the position of where that person went to on to that roster, because yes it could.

That person, meaning the casual or the permanent?---The casual, the casual especially where they had a dedicated role to fill.

**** MORRIS VICTOR JANKE XXN MS BOW

Sorry I'm confused on that one, I'm saying when a permanent came in to relieve a casual, did it disrupt the operation of the business?---No, no.

So when the original rostering process was brought in, were you involved in
that?---Yes.

So when they first came up with the roster - the agreed roster process you were involved in that?---In the early days, yes.

Which part of the company were you working at then?---Quick As Air Comet.

In your statement you say that the process was from the Comet side of the business and you worked for Quick As Air?---Yes.

So it was something that was inherited when they merged together?---It was a process we brought forward for equality of overtime.

You were involved in the original process when it was done at Comet?---No, I wasn't.

You were not involved when it was originally developed?---No.

Only when you inherited it when it came to the merged business?---Well we didn't inherit that - the process of what we took forward was a mixture of two processes. We didn't actually bring the Comet model over it was a new model that was developed for the amount of people that we needed in a new process because it was a completely new process of what we worked.

During the arrangement with the overtime roster did the drivers ever exceed their legal driving hours?---In regard?

With the overtime they worked, did they ever exceed the legal hours they were allowed to work?---In the early days no, because the business was very confined from start of shift to finish of shift.

Okay but in your statement you say that now - at16 you say that we now regularly run from 6 am to 10.30 nobody would work from 6 am to 10.30 would
they?---Yes they do.

**** MORRIS VICTOR JANKE XXN MS BOW

Okay and did that infringe on them having a 10 hour break between their
shifts?---It was always mandatory for people to have a 10 hour break before they started work, always has been mandatory.

So everybody had their 10 hour break even though they were working those hours?---Yes, some of them weren't available for shift start next morning if that happened.

You mean the rostered start or the overtime start?---The rostered - well the rostered start is sometimes overtime.

You can't really roster overtime but so their rostered start time was 8 o'clock is that correct? And they would do overtime prior to that?---Yes, yes.

So when they were having their 10 hour break were they there later than the rostered start of 8 o'clock or were they just not available for overtime in the morning?---No sometimes it happened that they weren't there for 8 o'clock as well.

How often would that happen?---In the early days it was minimal, but towards half way through that agreement there was sometimes, depending on the night if you had a bad night, it could be two, three, four people that you would miss next day.

They wouldn't be there for their ordinary start time?---That's correct.

Would that be when there were unforeseen circumstances or something out of the ordinary and they had to work extra hours beyond the normal finishing?---Yes, that happened yes.

So it wasn't when they finished at 10.30 it was if something unforeseen happened and they didn't get away until midnight or something?---Yes.

So, that they wouldn't be able to make it to their ordinary start?---Yes.

So it wasn't as a normal occurrence just up to the normal finishing time of the overtime?---No.

I don't have any further questions.

**** MORRIS VICTOR JANKE XXN MS BOW

THE COMMISSIONER: Yes, thank you. Yes Mr Bennett.

MR BENNETT: Nothing in re-examination.

THE COMMISSIONER: Yes, thanks Mr Janke, you may step down.

<THE WITNESS WITHDREW [12.17PM]

THE COMMISSIONER: Yes, we'll go off the record.

<OFF THE RECORD

THE COMMISSIONER: We will adjourn until 1.55 pm.

<LUNCHEON ADJOURNMENT [12.19PM]
<RESUMED [2.02PM]

THE COMMISSIONER: Yes, Mr Bennett.

MR BENNETT: Commissioner just before we call our next witness, could I just clarify I think I handed up an incorrect right at the outset this morning. The document that you have there as TNT 2, you marked as exhibit TNT 2, I think is just a different version of TNT 1, that is the 1994 agreement.

THE COMMISSIONER: Yes, I've actually got the 1998 agreement marked as TNT 2.

MR BENNETT: And so what is TNT 2 is the 1998 agreement?

THE COMMISSIONER: 1998 agreement yes.

MR BENNETT: All right perhaps I wasn't mistaken and TNT 1 is definitely the 1994 agreement.

THE COMMISSIONER: The 1994. The respondent calls Robert Minkas who I believe is on the other end of the line.

THE COMMISSIONER: Yes, Mr Minkas are you there?

<ROBERT GARY MINKAS, SWORN [2.04PM]
<EXAMINATION-IN-CHIEF BY MR BENNETT [2.05PM]
THE FOLLOWING EVIDENCE WAS CONDUCTED BY VIDEO CONFERENCE

THE COMMISSIONER: Yes, Mr Bennett.

MR BENNETT: Mr Minkas could you just state your full name for the
record?---Yes, it's Robert Gary Minkas.

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

Do you have a copy of it in front of you?---Yes, I do.

I believe it refers to you as Robert Minkas, but in fact your full name you've just said is Robert Gary Minkas?---Correct.

Is there any other change necessary to that document?---No.

In all other respects you are confident that it is true and correct?---Yes I am.

I tender that Commissioner.

EXHIBIT #TNT6 WITNESS STATEMENT OF ROBERT MINKAS

MR BENNETT: Mr Minkas have you received from our office at some point a copy of an Auscript Transcript of proceedings before Commissioner Grimshaw in 1994 in relation to the certification of the Quick As Air and Comet Express enterprise bargaining agreement 1994?---Yes, I have.

Do you have a copy of that in front of you,?---Yes, I do.

I seek to tender that transcript, it's the transcript that I provided to the Commission by fax during the week.
EXHIBIT #TNT7 TRANSCRIPT OF PROCEEDINGS IN RELATION TO QUICK AS AIR AND COMET EXPRESS ENTERPRISE BARGAINING AGREEMENT 1994

---

MR BENNETT: Mr Minkas just for the record, you are I assume the Mr Minkas referred to in that transcript?---Yes, I am.

**** ROBERT GARY MINKAS XN MR BENNETT

So you appeared in that matter?---Yes, I did appear in that matter on behalf of TNT Australia.

I have no further questions at this time.

THE COMMISSIONER: Yes thank you, yes Ms Bow?

<CROSS-EXAMINATION BY MS BOW [2.07PM]

MS BOW: Mr Minkas you state that you were the person who drafted the agreement, the clause 12 of the agreement is that correct?---Yes.

Who wanted the number 20 in the agreement?---I recollect it was a matter of some discussion between the parties and I can't - I don't think anyone wanted the number 20. There was some debate about what should be an appropriate number and as a result of - there was a discussion between the operational management and the delegates at the time, I was advised that it was the relative number at the time.

Okay and at the time that's what the business required was 20 people to work overtime is that correct?---As operationally required it was up to 20 people, indeed there were instances where that was foreshadowed that given the polling of freight that was actually going through determined at that stage, it may have increased to 25. But equally it was strictly subject to operational requirements, so I think I referred to that in my affidavit to instances where clearly where there's no work that you wouldn't have 20 people on overtime with nothing to do.

So if the union had wanted 10 would the company have agreed to put 10 in
there?---Well I don't think - I'm not sure whether I can answer that, because I don't think that was the way in which the number was arrived at so, it wasn't a question of someone wanting a number, I think it was a question of identifying what was a snapshot of the operational requirements at the time and inserting a definitive number that reflects in arrangements in August 1994.

Okay so in fact the company needed the 20 people at that particular time?---Yes, the operational requirements suggest that 20 people were regularly required to work overtime but again that was predicated on the basis that it was an operational requirement for those people to perform the work when t here was work to be performed and obviously there was people volunteering to - sufficient people volunteering to make up the number of 20.

**** ROBERT GARY MINKAS XXN MS BOW

Was there any industrial action taken at the time those negotiations took place?
---Not - there was industrial action associated with a prior agreement where a flat amount was agreed and there was subsequently industrial action and I believe there was a notification to the Commission. The Commission dealt with the matter and once the Commission dealt with the matter there were negotiations and from those negotiations forward, there was no further industrial action.

So are you saying that industrial action was in relation to negotiating the agreement?---I'm saying there were industrial actions occurred sometime before yes.

Okay so when you were negotiating the industrial agreement there wasn't any industrial action about the negotiations, was there?---Not - there wasn't any industrial action about the negotiation of the 1994 agreement. Once we dealt, on to the straight and narrow and the Commission intervened and we got down to the table and talked negotiations rolled on to a conclusion which ended up before Commissioner Grimshaw.

I'm a bit confused, so you're saying that there was industrial action during the negotiations of this agreement?

THE COMMISSIONER: No I think what the witness said a couple of times was that there was industrial action beforehand, the matter came before Commissioner Grimshaw as I understand it, and then once the parties were before them, then they proceeded to negotiate the 1994 agreement , there wasn't industrial action during the course of the negotiations of the 1994 agreement.

MS BOW: So are they linked? The industrial action and the negotiations, the agreement was that linked?---Well I mean that's a statement of fact that there was industrial action in pursuit of the wage claim, the company and the union arrived at integral operations with the Queensland state branch of the union. The federal official I believe at the time, vetoed the outcome, there was then industrial action, we went to the Commission, it would have been with that history we went to the Commission and as a result of that dispute the notification lodged, we got to a point where this agreement was arrived at. So in terms of history of that matter, the matter I suppose if the matter - if the C number for the dispute I can't remember what that was, that was actually formally tied into the making of the agreement your answer would be yes, technically. If the C number related to a previous dispute wasn't tied into the making of the agreement, I don't know I'd have to ask a lawyer about whether or not you could a technical state of the industrial disputation was there in relation to that before Commissioner Hodder, but I can say to you that there was industrial action prior to the period of making this agreement.

**** ROBERT GARY MINKAS XXN MS BOW

So, did the parties enter into this agreement freely, did you reach agreement freely?---Yes.

Do you recall why it was necessary to put a clause in about discipline for those that didn't work the overtime roster?---Yes.

What was that?---At the time of the making of the agreement there was a requirement for working with the job - after a freight arrived back in the terminal and with the numbers of persons that are required to shift the freight from the pick up and delivery vehicles on to the line vehicles there was need to have people there. The easiest solution to that was to utilise the PUD drivers after completion of their PUD round as they were there on the dock, there in the back of the trucks, their able to assist. So a requirement would have been to work overtime. People had indicated a willingness to work overtime, but on many occasions the people that indicated a willingness to work overtime would fail to meet the commitments to work the overtime. As a consequence the operation was caught short. Of course the 24 hour express freight operation, of course f you are unable to get reliable people at a certain time, you're affecting the service at the other end and thereby affecting the revenue. As a consequence of that some real operational difficulties occurred as a result of people nominating for overtime and volunteering - or then at the last minute deciding they are not going to work and they had had volunteered. So as a consequence of that I think that's the discipline measures that were introduced.

Right so at the time there was definitely a need to - a requirement by the company to have vast amount of overtime, people working overtime?---In the afternoon shift there was the operation the best way to handle the volume of freight that was coming through that terminal at the time for the duration.

Right now you say in clause 11 that the 1998 was just a roll over of 1994 because there hadn't been any change to the operational requirements is that true in the next agreement do you know in the 2001?---No I can't comment on that.

But at that time everything was working fine, the company was happy with the rostering and the number of people that were being utilised and it basically rolled over into the next agreement, is that correct?--- I know the terms and conditions of the next agreement were rolled into, I think there was some major additions put into the agreement I don't believe it related to the overtime clause if memory serves me correctly.

**** ROBERT GARY MINKAS XXN MS BOW

Okay in clause 12 you state that the new clause that was entered into the new agreement the 1998 agreement was clause 17 dealing with casuals?---Yes.

And that it was never intended to be connected with the overtime shift roster arrangements?---yes.

Did you draft that clause?---Yes.

Do you have a copy of that clause in front of you?---Clause 17 you say of 1998.

That's right?---Yes I do.

In 17(c) it says:

The company shall not start casual employees with the intention of disadvantaging permanent employees' overtime earnings.

How can you say that's not connected with the overtime roster?---Well that had to do with the commencement of two shifts of casuals so to place permanent employees I think at that time, as many unions and industrial negotiations at that time, it seemed to be a pre-occupation with the use of casuals as outside hire in operations and my recollection was that there was just a general concern about on the union's part about casualizing it's entire workforce and displacing permanent employees and of course from the company's point of view to casualize it's entire workforce would be a nonsense. So in agreeing that clause it was for the view to I believe to be a genuine philosophical concern of the unions generally about the use of casuals to the exclusion to permanents to the casualization of the workforce.

So at the time it was the intention that you wouldn't be employing casuals to take away the overtime of the permanent employees is that right?---No, the company can also have casual employees with - the intention of disadvantaging permanent employees overtime earnings including commencing two shifts of casuals so as to displace permanent employees that clause was on the plain language of it that indicates that there would not be an intention by the company to disadvantage permanent employees overtime earnings by the commencement of two shifts of casuals specifically. But operationally speaking you can't need a requirement that's not practical to the earnings of the overtime, you obviously going to casuals to meet the operational requirements of the business. The intention of that clause was not to add some stream or give a preference of overtime to casuals. It was there to increase the efficiency for the operations at the time and I don't believe it was directed by the company generally to exclude the use of casuals where in fact it was the permanents could be available to perform the work to other duties for example.

**** ROBERT GARY MINKAS XXN MS BOW

There's a claim before the Commission that having a permanent employee come in and replace a casual at the end of their shift would cause disruption in the organization. Have you ever been aware of that happening where a permanent would come in and replace a casual to do his overtime?---I can't recall that no. So is that a more recent difficulty or is that?

No it's just saying that you couldn't do that, so you're not aware of any time where a permanent employee would come in and replace a casual and complete their overtime?---No I can't recall an instance, yes, that answer your question?

Okay, I don't have any further questions.

THE COMMISSIONER: Yes, Mr Bennett.

MR BENNETT: No questions in re-examination, might Mr Minkas be excused.

THE COMMISSIONER: Yes thanks Mr Minkas, you're excused you may stand down thank you.

<THE WITNESS WITHDREW [2.22PM]

MR BENNETT: The respondent calls Peter Gutsche.

<PETER GUTSCHE, SWORN [2.23PM]
<EXAMINATION-IN-CHIEF BY MR BENNETT

THE COMMISSIONER: Yes, Mr Bennett.

MR BENNETT: Mr Gutsche would you just state your full name for the
record?---Peter Gutsche.

Have you prepared a statement in relation to this proceeding?---Yes, I have.

Might Mr Gutsche be shown a copy. Just take a moment to familiarise yourself with that, is that the document that you signed as a statement in relation to this matter?---Yes, it is.

Do you wish to make any changes to it?---No I do not.

We wish to tender that Commissioner.

EXHIBIT #TNT8 WITNESS STATEMENT OF PETER GUTSCHE

MR BENNETT: Might Mr Gutsche have the statement? Mr Gutsche I wonder if you could just turn to the attachment to your statement (1), it's always difficult to get the sense of these things sometimes, just from the document. I wonder if you might just briefly walk the Commissioner through that manning review presentation?---Sure. Commissioner the first line just describes the process that we went through in terms of the data collection. The background the objectives of the particular manning review and the task so that the particular things that we felt we needed to do in order to have the correct information available for us to formulate a labour establishment.

**** PETER GUTSCHE XN MR BENNETT

The second page looks at key depot operational areas, so if you look at the second slide ion conjunction with the third slide which is an aerial overview of the operation at our Salisbury site each number there refers to an area and an activity and a supervisor. So area (1) refers to our PUD induction area and the supervisor responsible for that at the time was Trevor Surrage and so forth right through to area (9). Over the page we have a break down of our pm tasks, so one of the key activities was to actually collect all of the key tasks that are performed in each area and the time in which they are required to be performed throughout the evening or the late afternoon and the evening of each operation. You can see there, there was in fact I think 83 tasks in total that were identified as being critical to the pm operation. The very next line looks at the pm operational rostering system so that again is just allocating those tasks into a situation where we can place people's names alongside of each task, so we can understand who is performing what task throughout the evening. Following that is a series of slides that look at our throughput processes. So the top graph simply match the volume of items that we are processing over our data weigh stations which collect our cubic and kilogram statistical information throughout the evening which then also drives our on time line, or our line or departures and so forth. The graph underneath simply then maps the labour to that throughput so that we can get an understanding as to how the labour then matches the throughput and how that throughput then is working with the volumes which are arriving into our depot each evening. So that was quite a key part to make sure that our actual labour matched our throughput processing as we go through. If you perhaps have a look at area, it would be area (8) it gives you a bit of an idea of some of the things that we were able to glean from this data. We are looking here at our bulk operation here, our bulk processing area. The top graph you can see has some steady processing through from the hours of around 2.30, 3 o'clock through to around about 7 o'clock or shortly thereafter and you can see that the actual processing of items drops right away at that particular area, but our manning level doesn't follow that same trend. It also shows us that we have lots of capacity within that particular window of time, to process more as we have one of our induction stations operating at around about 20 items per 30 minutes where the other one is well below that so, we certainly have the opportunity to improve productivity in that particular area. We then the next slide just looks at the task that we needed and sort of match the completion to ensure that they were all completed so that we knew that we had everything we required. Perhaps before we look at the review outcomes, if I could just take you to the slide behind the review outcomes, that simply is a timeline which gives us the area that we spoke about earlier the one to nine areas, the supervisor, the location the position type, the status of the employee that would perform that particular task, the time in which that task starts, and when we would require it to finish and the amount of hours that particular task is required to operate over. Then you can see the shaded areas looking at the first one, starting at 1600 or 4 pm it is task 12 of the task list that's being performed in area 1 and that would work through to 1900 or 7 o'clock. That was quite important that particular slide to us because it really showed us when we required the work to be performed and the number of people required to perform that work throughout the evening. Just going back Commissioner to the review outcome. These are some of the key review outcomes that we presented to the employees and delegates at Salisbury. We identified that there are in total what we considered key tasks commencing from 3.30 through to the end of the operation that needed to be performed. The pm labour resourcing is required to be managed across multiple tasks. One of the things that we also identified through this process was that in nearly all cases we had a singular task which was matched to a position. So if there was a task that was required to be performed for three hours it was matched with a particular person doing that task, so we found that we had a lot of job functions performing one single task for the evening when we looked at the time line we could see that we could actually put particular tasks together and have a singular person perform maybe two or three tasks throughout the evening over a longer period of time. That was quite important to the outcome because it also then enabled us to say well okay we can now look at maybe putting more permanent people into the pm operation as opposed to operating a significant number of casuals, albeit that we still have a large number of casuals operating even under this review template. But we were actually able to introduce more permanents into the operation which is something we hadn't been able to do. So we clearly defined the tasks and the areas - sorry the tasks to the areas and the people and the areas to the supervisors, so we now had clear accountability right across the pm operation for what job functions were being performed, by who and who was responsible for them. Quite clearly defined, simple process for our supervisors and managers of that operation to manage. There were a number of casuals - we also identified there were already in existence a number of casuals working well in excess of eight hours, which also gave us a conversion opportunity there to offer those people permanent work. Throughout the process we had around just over 100 employees working throughout the pm operation, we clearly could see that there was a requirement for about 83 people on average required to work that operation, dependent upon volume fluctuations and a number of other things, but that was you know from a standpoint the template that we thought was right, the number was right at about 83 so we certainly believe we had excess people on that particular pm shift and the PUD drivers who nominate themselves - sorry I guess I should say, we took a decision from that that the PUD drivers who would nominate themselves for the pm roster would be allocated and used on the pm shift on as required basis. So it was also identified that when we looked at the time lines of the tasks if we go back to the sheet just behind this particular review outcomes we could see there that these tasks were all commencing from 3.30 in the afternoon or three, 3.30 in the afternoon through to about 4.30, 5 o'clock and then when we looked at the arrival profile of our PUD fleet and we understood when they became clear from their PUD duties that they weren't actually physically available to perform a number of these tasks, simply because their time of availability is between six and 6.30 on average in the pm, some a little earlier than that but generally speaking, that's when the vast majority of our PUD fleet clear their PUD duties and responsibilities, some much later than that, you know 7 o'clock but the greater average is in that window. So the tasks were already well in operation and again that was another reason for us believing that the number of drivers that we were rostering on to that pm shift at that time, was excessive to our needs. The implementation of the labour establishment would result in the reduction of total hours, so we were able to reduce the total operational hours of that pm operation and we also advised that there would be a phased implementation process over a number of weeks in order to get back to this, what we consider our standard template. That's essentially the review outline.

**** PETER GUTSCHE XN MR BENNETT

THE COMMISSIONER: Just on that did many of the casuals convert to permanent?---I think in all we've offered five positions Commissioner there have been some that have indicated their intention to convert, there are some that have preferred to remain as casuals, that said, we have said to them that's fine, we can probably accommodate that but that the role that they're performing would change. So we're working through that process with them now. There are some that have as I understand converted or in the process of converting to permanent but I must also say Commissioner that there have been some, that simply by their very nature would prefer to remain casual.

MR BENNETT: Mr Gutsche perhaps just related to that, are you able to give the Commission some indication of how many PUD drivers there are, permanent PUD drivers?---In total there's just over 100 permanent PUD drivers at the Salisbury site so the exact number is around 101 or 102.

Out of that group do you - are you able to give any indication, or have any understanding of how many of that group have been prepared to work regular overtime?---Since the review?

Or in total, if you know before and since and perhaps you might give both indications?---Before the review there was between 10 and 15 employees who regularly worked on the pm roster, that is more than once a week and quite often nightly. Then there were a number beyond that number beyond 15 who worked spasmodically, probably a similar number around another 15, so there were approximately 30 or so drivers or I would say who were working prior to the review. At the moment my understanding is there are 25 drivers who have signalled to us that they still intend, or would like the opportunity to work overtime when available.

So it's only about 25 per cent?---Correct.

No further questions for Mr Gutsche.

THE COMMISSIONER: Yes, Ms Bow.

<CROSS-EXAMINATION BY MS BOW [2.38PM]

MS BOW: Mr Gutsche, the permanent positions that are on offer, are they full time or part time?---Full time.

**** PETER GUTSCHE XXN MS BOW

All of them?---To the best of my knowledge, yes.

Isn't it true that some of the positions are being knocked back by the casuals, because they are only being offered part time?---Not to my knowledge Karen I don't believe that to be the case. My understanding is certainly of the five positions we identified they were to be converted to five permanent roles. I do know that they have since identified positions, which I'm not privy to, the depot general management have also identified further opportunities for conversion that may be on a permanent part time basis.

Right in paragraph 6 of your statement you refer to a conversation with Mark Lambrias the previous depot manager, when did that take place?---2004, early 2004 I couldn't give you the exact date.

Okay that was quite some time before you decided to make these
changes?---Correct.

Did you ever call a consultative meeting to discuss this with the consultative committee?---I didn't specifically call a consultative meeting to discuss this with the consultative committee. However I did discuss it with the consultative committee which I understand is the delegate, the TWU delegates at that particular site in terms of my intention to review the operation based on my understanding of the pm labour operation that I did.

So you had discussions with delegates but you didn't call a consultative committee meeting?---Not prior to undertaking the review.

Have you since?---Yes.

Of the consultative committee?---Of the TWU delegates.

Are you aware that the committee is actually different than the delegates?---I understand it to be the delegates.

Where did you get that understanding?---From the depot itself.

Does it regularly meet?---Not to my knowledge, no.

So have you ever had a formal meeting with the consultative committee in accordance with the agreement?---When you say in accordance with the agreement sorry, I'm?

**** PETER GUTSCHE XXN MS BOW

The agreement has a consultative committee clause in it?---Yes.

Do you have the consultative committee meetings in accordance with this agreement?---Not myself personally no.

Do you know whether they take place in the depot at all?---It's not my understanding that they do take place.

In clause 10 - okay we've already addressed that. These changes are clearly because of operational changes to the business aren't they?---Yes.

The need to change the rosters is because of the operation? So up until that point when those operational changes took place it suited you to have all of those people available to work overtime? It suited the business didn't it?---I don't know that we could say it suited the business. We hadn't taken a review to suggest otherwise. It was certainly my view that we did not have the right not only labour establishment but that the operational processes themselves were not correct in that pm operation. So my - I would suggest that until that review was undertaken it was impossible to say that they suited us, I think that they were in place at that particular time, and we persevered with them until such a review could be completed.

In accordance with the consultative committee when the review took place, they were supposed to meet to discuss any operational changes or requirements to improve the efficiencies of the business, isn't that true?---That is correct, and as I pointed out earlier my understanding was that by meeting with the delegates that was in fact covering that particular clause off.

Okay why did the company decide to stop using the agreed roster
process?---We've not stopped.

So it never stopped being used?---It wasn't a decision from us to stop using the agreed roster process.

So when you didn't have a list did you seek it or ask where it was as part of the agreed process?---Yes I understand they did the depot did, not myself personally, but I understand the depot did seek to understand where the names of the people who would be available to work the pm shift was.

**** PETER GUTSCHE XXN MS BOW

Do you know who they asked?---Not specifically, no.

Do you think it would have been appropriate to ask the person responsible for putting the list together?---You'd be talking about John Sallis? I would suggest that would be correct.

That that's who would have been approached, or should have been ?---Correct.

So in the event that he wasn't approached the company wasn't really concerned that there wasn't a list for a considerable period of time?---I don't know that he wasn't approached.

The evidence before the Commission here today is that he was never approached, nobody asked him where the list was?---Okay.

So how was overtime allocated during that period?---My understanding is that the list failed to be produced and at that time, the depot management seek through the radio operations those people who would be available to work overtime and for a period of time that was the process used to gather people along with simply requesting of people when they returned to the depot if they were able to assist in the pm operation on a day by day basis. That was the process used initially before what I understand is now the process where we have identified those people through the supervisors. The supervisors have canvassed all the drivers as to who specifically would like to work overtime should it be available. We have that list and now there is an automated system in terms of allocating people to whatever pm overtime duties are available. That's a process that I believe we've started.

So why a new process? Why not just reintroduce the process that's been used for 10 years?---I don't know that answer Karen, I only know that the list stop being produced, I don't know why I don't understand it why I know it's stopped being produced and there is a new process that's now in place.

In clause 19 of your statement it says that the pm - the tasks performed by the pm shift needs to commence at 3 pm and you went through that extensive review and that the PUD drivers don't usually finish until 6.30. wasn't it normal practise that when a PUD driver came in and was working overtime, they would relieve the casual employee that was doing the job that they'd already started the job?---That in some cases, is correct, yes.

**** PETER GUTSCHE XXN MS BOW

Did that cause disruption of some sort to the depot?---Yes, it did it made it more difficult for our supervisors to manage their processes and their labour establishment throughout the night. Managing the transitional period between casual and driver was difficult and so it was, that was something that we didn't seek as being productive having somebody starting a role, working in a position and then having that position overtaken by somebody else, not knowing when that driver would be available so not each driver returns at the same time each night so sometimes you can have that position change over 15, 20, 30 minutes difference each night.

Was that issue ever raised as a problem with either the delegates or the organizers at the depot?---Yes, it was.

So it was raised as being a problem, having people - when was that do you know?
---It was in one of the meetings that we discussed the outcome of this review process as being something that we felt was an issue for us, yes.

So prior to that, prior to the review in all of the nine or 10 years that this has been the practise it was never raised with anyone until that point?---Not to my knowledge, not to my knowledge.

In paragraph 21 you say that there's on average five to eight drivers working overtime on the pm shift?---Yes.

Five of the PUD, the evidence from everyone else is that there's three to five possibly?---Yes.

Do you still believe it's up to eight?---I believe it is. The information that I have is that we regularly have the opportunity for between three to five, but it can rise as high as eight if we have significant absentee in the pm operation with our casuals, yes.

So it wouldn't be an average of five to eight, it would probably be more the three to possibly three to eight, but it's not in the high side it's in the lower side on average, wouldn't it be?---Look the information that I have is that it's five to eight Karen, if it's differing with other people, then it's differing I can only say that from the information that I gathered recently from the labour reports clearly indicated that it was from five to eight. I can only state that I'm sorry.

**** PETER GUTSCHE XXN MS BOW

Have you hired new casuals to work in the evening to fill the gap in the last say, four months?---Not to fill the gap no.

But have you hired new casuals?---Yes.

Within the last four months?---Yes.

What about labour hire have you increased the number of labour hire casuals as well in the last three to four months?---To replace casuals yes.

Would that be to cover the overtime though?---No.

The gap in that period?---No.

So was it always that 80 per cent of the pm shift was made up of casuals?---It has been for a very long time, there is a high ratio of what we term of flex labour, that is a combination of temp labour and company employed casuals.

That would be 80 per cent of the people used on in the evening are casuals or labour temps?---Correct.

You're saying that's been for a long a considerable period of time?---Certainly for the time that I've been here in Brisbane which has been since 2004.

So are you saying that in excess to the 80 per cent the casual employees that make up 80 per cent of the pm shift you also had the PUD drivers working overtime before this review?---Can you?

Well I'm getting the picture here that 80 per cent of the current employees on the pm shift are casuals?---Yes.

And if you haven't increased that you've only been replacing them?---Yes.

Then when you were using the 20 people on the overtime roster from the permanent PUD's was that in addition to these 80 per cent of the casuals?---Yes.

So you've had a downturn in business then?---No.

To no longer require them?---No.

**** PETER GUTSCHE XXN MS BOW

How could you have 80 per cent of the workforce the casuals working in addition to the 20 people that were working the overtime, and no longer need the 20 people if there hasn't been a downturn?---There's been in fact an increase in volume through that depot since the review. The way in which we were able to do that was to commence processing the volume of freight earlier in the afternoon so that we could actually get more volume processed prior to the PUD fleet returning to the depot. Previously we started the pm shift at 4.30 pm you now note that it is between three and 3.30 dependent upon volume so we have an earlier start to that pm operation that was largely driven by compliance to line haul departure times, to meet our legislative requirement as far as the correct driving hours particularly for Sydney and McKay which are long hours and we need to have those trailers.

Wasn't that change also because you made a decision to have the Archerfield depot unload in your depot?---Yes.

So it was an operational decision to make a change that resulted in having to bring the shift a bit earlier?---That certainly played a part in it Karen we had two things. We had that which I agree, we also had a number of new customers commence with us those customers being LG, Panasonic, Pioneer who ship trailer loads of volume with us through that operation all requiring processing. That freight is now available and ready for processing much earlier in the day, so that was another key reason for the change so that line haul compliance, departure compliance, numerous things really drove that change, but that certainly was one of them, yes.

So in light of the changes, are these casual employees now getting overtime?---No not in light of the changes.

But the casual employees now do a lot of overtime?---They do now and did before.

You wouldn't say that they've increased their amount of overtime with these changes at all?---Look not that I know, not specific to the changes. I would say that their overtime has increased but again its volume driven.

So while the permanents have decreased their overtime, the casuals have increased theirs over the same period is that right?---That would be in yes, in clear looking at that I'd have to say that's correct Karen.

**** PETER GUTSCHE XXN MS BOW

Okay in 23(d) of your statement you say that PUD drivers would consistently work excessive hours in the vicinity of 12 or 14 per day?---Yes.

Did you have drivers constantly doing more than that or was that about
average?---No, we had drivers doing that amount of hours regularly, but across the whole 101 drivers or so, not all drivers were working that amount. Most were working, a lot were working between 11 and a half to 12 and a half and then there were those that were between 12 and 15 and so on.

What do they get now?---On average they're working between 11 and 12.

At the time they were doing the long hours, were they - was there a problem getting them to show up for the shift following?---I could say yes, are you asking me if our absentee rate is high?

No I'm asking you if these contributed to a problem with having drivers come in to do their normal day?---I don't know how I could prove that. I don't know how - we have high absenteeism in that yard. That's in the yard itself, as of June this year, each employee in that yard had already used six of their sick leave days, seven of their sick leave days. Does that directly relate to the significant overtime being earned? I don't know.

So have you had a significant decrease in your absenteeism problem your sick leave problem?---It is on the decline, yes.

It is on the decline?---It is on the decline.

Is that significant?---No it's not a significant decline, but it is on the decline.

Is it because you've actually taken action against it or because you've changed the hours? You've instigated discipline action on sick leave haven't you?---We have, we have. That certainly would be a key reason Karen I think it's possibly a combination of the two would be my personal educated view, but I have no way of proving that, very difficult to weigh it up issue for us to actually understand what drives absenteeism certainly, there are a number of factors and - - -

It hasn't made a significant difference?---We've not had a significant drop off yet at this point in time in our absenteeism but we have had a drop off yes.

**** PETER GUTSCHE XXN MS BOW

Did you experience any problems with people having to have their 10 hour break after overtime not showing up for their ordinary start time? So not talking about not doing the overtime in the morning, not showing up in the?---Not that I recall.

So you weren't paying for dead time so to speak?---Not that I recall no.

I have no further questions thank you.

THE COMMISSIONER: Yes, thank you, yes, Mr Bennett?

MR BENNETT: I have nothing in re-examination.

THE COMMISSIONER: Thank you, you are excused you may step down thanks.

<THE WITNESS WITHDREW [2.57PM]

THE COMMISSIONER: It's almost 3 o'clock so Telstra is supposed to ring us any moment.

MS BOW: If I may to be honest, Commissioner I think most of the questions that I was actually going to put to Mr Eastwick have been answered throughout the proceedings today so I'm not really sure that it's necessary to talk to him. We've cleared up the questions that I did have through other witnesses.

THE COMMISSIONER: Yes well if you don't require him for cross-examination, that's fine, when we get him on the line, I'll just tell him.

MR BENNETT: His evidence is sworn, I see no reason to even tender the affidavit through him, I'm happy to just tender it.

EXHIBIT #TNT9 WITNESS STATEMENT OF MR EASTWICK

THE COMMISSIONER: Just as we're waiting for him to come through I'll speak to him, seeing as he's been raised at the early hours.

MS BOW: I do apologise I didn't realise it would resolved.

THE COMMISSIONER: No, no that's all right, there's no problem. In terms of submissions from here then, the parties wish to have the opportunity of seeing the transcript evidence et cetera and putting in written submissions?

MS BOW: I'd be happy to do a written submission Commissioner.

MR BENNETT: I was all set to give submissions orally, but if Ms Bow would prefer that we put in written submissions in writing I don't have any basis to object to that.

THE COMMISSIONER: What sort of timeframe would you need Ms Bow.

MS BOW: It would depend on how quickly the transcript came out, but I would say by the end of next week if we had it.

THE COMMISSIONER: Yes transcript should be available within how many days, normal production. Within the week, so that would enable you to have it in by the end of next week that would be 23 November. What about for you in response Mr Bennett?

MR BENNETT: A week after that would be more than ample thank you Commissioner.

THE COMMISSIONER: 30 November do you want an opportunity to reply to that Ms Bow?

MS BOW: Yes, thank you Commissioner I would like the opportunity.

THE COMMISSIONER: We will just give you a shorter time for that obviously, say 4 December.

MR BENNETT: My only comment about that Commissioner would be of course that the reply needs to be strictly limited to a response to something said in our submissions, otherwise we play ping pong forever.

THE COMMISSIONER: Exactly, that's why I say I'm only allowing a short time because it's not a rerun of the whole thing obviously, just anything raised in the employer's submission that hasn't been dealt with in your earlier submissions. Unless there's something further the parties are at liberty unless you wish to hear me talk to Mr Eastwick.

MR BENNETT: Look we'll attempt to contact Mr Eastwick immediately Commissioner and that should save the Commission the trouble.

THE COMMISSIONER: All right I'm happy just to wait until.

MR BENNETT: He should be dialling in literally now I suppose.

THE COMMISSIONER: Yes, he should be.

MS BOW: Commissioner just to verify was that my submissions by 23 November.

THE COMMISSIONER: Yes.

MS BOW: The respondent by 30 November and my reply by 4 December if any.

THE COMMISSIONER: That's correct.

MS BOW: That's correct.

THE COMMISSIONER: Just tell him he's no longer required for cross-examination thanks. So that's it the Commission stands adjourned.

<ADJOURNED ACCORDINGLY [3.04PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #TWU1 STATEMENT OF HUGHIE WILLIAMS PN17
EXHIBIT #TNT1 1994 AGREEMENT PN43
EXHIBIT #TNT2 1998 AGREEMENT PN43
EXHIBIT #TNT3 2001 AGREEMENT PN43
EXHIBIT #TNT4 2005 AGREEMENT PN43
FRANCIS WILLIAM WHITFIELD, SWORN PN56
EXAMINATION-IN-CHIEF BY MS BOW PN56
EXHIBIT #TWU2 STATEMENT OF FRANCIS WILLIAM WHITFIELD PN66
CROSS-EXAMINATION BY MR BENNETT PN97
THE WITNESS WITHDREW PN164
PETER JOHN GRIEVE, SWORN PN169
EXAMINATION-IN-CHIEF BY MS BOW PN169
EXHIBIT #TWU3 STATEMENT OF PETER JOHN GRIEVE PN174
CROSS-EXAMINATION BY MR BENNETT PN210
THE WITNESS WITHDREW PN273
PAUL FARBAEK, SWORN PN276
EXAMINATION-IN-CHIEF BY MS BOW PN276
EXHIBIT #TWU4 STATEMENT OF PAUL FARBAEK PN280
CROSS-EXAMINATION BY MR BENNETT PN289
RE-EXAMINATION BY MS BOW PN296
THE WITNESS WITHDREW PN299
GARY POINT, SWORN PN302
EXAMINATION-IN-CHIEF BY MS BOW PN302
EXHIBIT #TWU5 STATEMENT OF GARY POINT PN312
CROSS-EXAMINATION BY MR BENNETT PN327
RE-EXAMINATION BY MS BOW PN338
THE WITNESS WITHDREW PN343
EXHIBIT #TWU6 WITNESS STATEMENT OF PETER SMITH PN348
JOHN ANTHONY SALLIS, SWORN PN352
EXAMINATION-IN-CHIEF BY MS BOW PN352
EXHIBIT #TWU7 WITNESS STATEMENT OF JOHN SALLIS PN355
CROSS-EXAMINATION BY MR BENNETT PN364
THE WITNESS WITHDREW PN381
MORRIS VICTOR JANKE, SWORN PN386
EXAMINATION-IN-CHIEF BY MR BENNETT PN386
EXHIBIT #TNT 5 WITNESS STATEMENT OF MORRIS JANKE PN392
CROSS-EXAMINATION BY MS BOW PN394
THE WITNESS WITHDREW PN458
ROBERT GARY MINKAS, SWORN PN468
EXAMINATION-IN-CHIEF BY MR BENNETT PN468
EXHIBIT #TNT6 WITNESS STATEMENT OF ROBERT MINKAS PN476

EXHIBIT #TNT7 TRANSCRIPT OF PROCEEDINGS IN RELATION TO QUICK AS AIR AND COMET EXPRESS ENTERPRISE BARGAINING AGREEMENT 1994 PN479

---

CROSS-EXAMINATION BY MS BOW PN483
THE WITNESS WITHDREW PN515
PETER GUTSCHE, SWORN PN516
EXAMINATION-IN-CHIEF BY MR BENNETT PN516
EXHIBIT #TNT8 WITNESS STATEMENT OF PETER GUTSCHE PN522
CROSS-EXAMINATION BY MS BOW PN531
THE WITNESS WITHDREW PN607
EXHIBIT #TNT9 WITNESS STATEMENT OF MR EASTWICK PN611