RE2007/2618, Transcript of Proceedings [2008] AIRCTrans 18 (10 January 2008)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 17955-1

COMMISSIONER SMITH

RE2007/2618

s.772(2) - Appl’n for orders by Commission about operation of Part 15
Finance Sector Union of Australia
and
Westpac Banking Corporation
(RE2007/2618)

LAUNCESTON

9.40AM, FRIDAY, 14 DECEMBER 2007

Continued from 13/12/2007

PN1855

THE COMMISSIONER: Yes, Mr Goot.

PN1856

MR GOOT: Good morning, Commissioner. Sorry for the slight delay.

PN1857

THE COMMISSIONER: Traffic is terrible during peak hour.

PN1858

MR GOOT: The traffic was terrible. We got held up because a tourist had her bag open on the street caused by a car hitting it. Yes, but enough of that. We want to call Pauline MacDonald who is now available and in court.

PN1859

THE COMMISSIONER: Thank you.

PN1860

MR MATSON: Commissioner, sorry, can I just draw your attention to one thing. Yesterday a document was presented Ms Slater and I believed I’d tendered it, but apparently I handed it up and not asked for it to be marked. That’s that document.

PN1861

MR GOOT: No objection.

PN1862

THE COMMISSIONER: Thank you.

EXHIBIT #M6 DOCUMENT

PN1863

MR GOOT: Yes, Ms MacDonald will take the oath.

<PAULINE ANNE MACDONALD, SWORN [9.42AM]
<EXAMINATION-IN-CHIEF BY MR GOOT

PN1864

MR GOOT: You full name is Pauline Anne MacDonald?---That's right.

PN1865

And you reside at (address supplied)?---That's right.

PN1866

And you’re employed by Westpac?---Yes.

PN1867

And you swore an affidavit on 3 October 2007?---Yes.

PN1868

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

PN1869

I tender that, excluding paragraphs 81, 82 and 83, if the Commission pleases.

EXHIBIT #G4 WITNESS STATEMENT OF PAULINE ANNE MACDONALD SWORN 03/10/2007

PN1870

MR GOOT: Thank you, I have no questions.

PN1871

THE COMMISSIONER: Thank you. Mr Goot. I’m sorry, you swapped you see.

PN1872

MR GOOT: I’m not cross-examining the witness.

PN1873

THE COMMISSIONER: No. Yes, Mr Matson.

PN1874

MR MATSON: Thank you, Commissioner.

PN1875

THE COMMISSIONER: It’s my mud map you see. You changed sides on me.

PN1876

MR GOOT: That was two days ago.

PN1877

THE COMMISSIONER: I know. Yes, Mr Matson.

PN1878

MR MATSON: Thank you, Commissioner.

<CROSS-EXAMINATION BY MR MATSON [9.43AM]

PN1879

MR MATSON: Ms MacDonald, is it correct that you’re no longer employed full-time at Huon?---Sorry?

PN1880

Is it correct that you’re not longer employed full-time at the Huon centre, that you’re now at Myrtle?---I’m not a temporary secondment for a three month period in Myrtle.

**** PAULINE ANNE MACDONALD XXN MR MATSON
PN1881

Okay. Can I take you to paragraph 8(c) of your affidavit and I think you indicate there, there are approximately 257 employees at Myrtle. Is that correct?---That's correct.

PN1882

I think Mr Khan says there was a number something more like 233 in his evidence. Can you explain to me why there might be that significant difference?
---At the time I was employed in Huon so I was giving an estimation based on what I thought was my opinion at the time. And it can fluctuate depending on staffing levels.

PN1883

Sure, all right thanks. Now, can I ask you just in relation to team meetings, can you tell me how often they occur?---Team meetings should occur weekly.

PN1884

And they’re attended what, by the team member and all the members of the team?---Predominantly, yes. There are occasions when they may not be present.

PN1885

And can you tell me about the sorts of matters they discuss?---In team meetings we would discuss matters pertaining to things happening in the centre, team results, there might be something personal in relation to something that was happening to somebody in the team, general business about different updates that may be impacting on the bank that we would review with news stories, things like that.

PN1886

Okay. And it’s right, isn’t it, that the entry by the union wasn’t raised at team meetings to your knowledge?---That's correct.

PN1887

Can I take you to paragraph 50(a) of your affidavit. You say there that you are responding to Ms Pickett’s affidavit. You say in the past FSU representation and issues were often discussed during team meetings, is that correct?---That's correct.

PN1888

And then you say:

PN1889

I understand that this practice ceased because non members raised a concern that their time was being wasted listening to discussion about FSU matters.

PN1890

Is that something that was raised with you?---Not personally, no.

PN1891

Thank you. Would you consider that investigation of underpayments of staff is an FSU matter?---Sorry, could you repeat that please?

**** PAULINE ANNE MACDONALD XXN MR MATSON
PN1892

Would you consider that investigation of staff being underpaid is an FSU matter?
---It could be, yes.

PN1893

Could be? So in what circumstances could it be?---I’d imagine if somebody raised it to a union representative then certainly the union would have the right to certainly look at that.

PN1894

So it’s an FSU if an FSU person raises is? Is that - okay, thanks. Could I take you to paragraph 27(b). There you talk about other relevant updates also contained online. Can you tell me what those might be?---Other relevant updates could be things like daily updates that may be to, for example, a change in interest rates, a change in procedures that they may need to know, the systems that they would have to use and such as that.

PN1895

Aren’t those things normally contained in the bulletin board?---No not always, no. They have a daily update section which is a national area that people would go to that our compliance area would issue information on.

PN1896

Right. So is compliance part of DFS?---Yes.

PN1897

So these are bulletins that come out under the instruction of DFS generally nationally, is that right?---That's correct.

PN1898

So is there any other material that people are expected to read in that 10 minutes that you’ve referred to there?---There could be a number of different things. They could have their own personal things that they’ve been working on in coaching to read through, they could have something pertaining to their team. It would depend or their work load or the type of work that they do as to what they may read.

PN1899

Okay. So the things that relate to their team might have come from their team leader, what in an email?---Possibly, yes.

PN1900

Well how else might it come through?---At a team level it could be more likely, look it could have been something that’s printed off and placed on their desk, it could be on the bulletin board, it could be they could use their time to come and talk to their team leader, they could utilise it to a variety of things.

PN1901

So the 10 minutes minute readings might actually be used for to follow up something to go and talk to the team leader about?---Yes.

**** PAULINE ANNE MACDONALD XXN MR MATSON
PN1902

Yes, thanks. Can I take you then to the next paragraph, to paragraph 28(c) and you talk there about if an employee asks you a question about, for example, systems error:

PN1903

That a customer has called and asked about my typical first response is to say have you checked the bulletin board.

PN1904

So what answer do you normally get?---Some would say yes I have and there’s nothing on there for me and that’s why they’d be seeking my assistance, some would say no and I refer them back to read it.

PN1905

Okay. And how often do the people say no?---Depending on their tenure and depending whether they’ve been in my team or not. Most people would know that, you know, if they come to ask me they should have checked it first.

PN1906

Right. They know they should have but apparently some of them haven’t?
---Could be the case.

PN1907

That happens a bit?---No, not a lot for me, no.

PN1908

Okay. I think you say at paragraph 56(b) and if you look at the second sentence there at 56(b) you also frequently direct employees to look at the bulletin board when they raise a query with you. Is that correct?---Is that 56(b) did you say?

PN1909

That's right?---So what was your question in relation to that again?

PN1910

The question is is that correct? You frequently direct employees to look at the bulletin board?---I do myself, yes that's correct.

PN1911

So is that necessary because some employees just don’t look at the bulletin board?---For me I probably direct in terms of confirmation that they’ve gone there first. It’s a reference point for me to understand where to start to help them problem solve after that.

PN1912

But you still frequently have to direct employees to look at it. That’s what you’re saying there, isn’t it?---Yes, that's correct.

PN1913

Okay. Can you tell me whether team leaders ever approached staff directly at their work stations?---Yes.

**** PAULINE ANNE MACDONALD XXN MR MATSON
PN1914

Can you tell me what sorts of things they might need to approach staff directly about?---See, I would approach somebody directly at their desk for example if I was listening to a call and I’d identified a problem or I felt that the person needed support or if I had to pass on a personal message that had come through to me, like go and see them for those sorts of things. Or if I had to ask them, you know, a question about what they were doing, things like that.

PN1915

Okay. If you had a personal message to pass on, for example, how would you know when to tap them on the shoulder so as not to interrupt a call?---I would usually wait behind them, or if a matter was really urgent usually what I would do is I would tap them on the shoulder because they’d know me and I’d just go like this to indicate a phone call.

PN1916

Yes, okay. So if you decide to wait behind them, let them know you’re there and then so when they finished the call they’ll turn around and talk to you, is that right?---If they know I’m there, yes.

PN1917

Yes. Now, can I take you then to paragraph 63?---Is that 63?

PN1918

That’s 63, that's correct?---Thank you.

PN1919

Have you got that in front of you?---Yes.

PN1920

You see the very last sentence there you say:

PN1921

In that respect I note that at the time I was a member of the FSU.

PN1922

Is that correct?---That's correct.

PN1923

So it’s implicit in that that you quit the FSU, is that correct?---That's correct.

PN1924

Were you annoyed? Was there a reason why you quit the FSU?---Yes there was a reason.

PN1925

So were you annoyed about the union?---No.

PN1926

No. Have you discussed with people in the workplace why you quit the union?
---No.

**** PAULINE ANNE MACDONALD XXN MR MATSON
PN1927

Can I take you then to paragraph 30.

PN1928

THE COMMISSIONER: Paragraph what sorry?

PN1929

MR MATSON: 30. You can see in the italised text there just below the middle of it there’s the interviews about pay discrepancies for Easter Saturday, is that correct?---That's correct.

PN1930

And are you aware that the union was investigating in relation to days other than the Easter Saturday?---No, I wasn’t aware.

PN1931

Right, thank you. Now, we had some considerable evidence about the effort and attention that’s given to forecasting and scheduling and so forth. An enormous amount of effort goes into that, that’s correct?---Yes.

PN1932

And it’s important for the business that people strictly adhere to their schedules, is that correct?---That's correct.

PN1933

So can you tell me what you think Mr Baker might have meant when you said at the bottom of that italised text:

PN1934

You should support the FSU where possible in line with business requirements.

PN1935

Can you tell me what you understood the business requirements to me?---No, I couldn’t comment I guess as to what he may have meant there.

PN1936

You didn’t have any understanding of what he was saying to you?---My understanding would be I guess where the union may request in terms of interviewing people that if it were in line with what our requirements were to take people off the phone we would accommodate, certainly we would accommodate you.

PN1937

Okay. Did you put on any extra staff for that day?---No.

PN1938

Right. So you didn’t anticipate that there’d be an enormous disruption there?---I had no idea what the disruption would be I guess in advance as to how many people may or may not.

PN1939

Right. But if you had thought that there were going to be significant numbers of people being interviewed you would have needed to put extra staff on, wouldn’t you?---That wouldn’t be my role to do that.

**** PAULINE ANNE MACDONALD XXN MR MATSON
PN1940

No. Does the business ever have unusual interruptions? You know, breakdowns, power failures, outages, system upgrades, that kind of thing?---On occasions we do, yes.

PN1941

Can you describe any of those for me?---We may have a fire evacuation or we may have a system that may not work that can cause disruption, yes.

PN1942

Can you think of any examples of that?---Yes. Like we’ve had systems that don’t work or calls that don’t come through. That can cause a major disruption.

PN1943

Sure. Can you think of a recent example?---Probably in the last three months I can think of an example where one of our systems didn’t work that caused a major disruption.

PN1944

Can you tell me what the disruption was, what was the outcome of it?---The disruption it caused was one of the major systems that the staff used to identify people didn’t work which means basically the calls will come in and because the bankers don’t have the system in front of them for support to be able to access customer’s information they would have to advise the customer that sorry we have a technical difficultly and we ask them to call back later.

PN1945

Right, okay. And that was within the last three months?---Yes, I couldn’t give you an exact date.

PN1946

No. Can I ask you just in that instance that you’ve just described, what was the outcome for the business? Does the business lose money?---What it causes at our level is an increase in the number of callers that we have calling back at a time where we haven’t predicted them to call back. So it increases our call volumes at certain periods later in the day.

PN1947

Right. And do you have any capacity to deal with that? How do you deal with that?---Depending on I guess how long the outage has been would depend on the contingency that would be required to deal with that.

PN1948

So if it was for a long period you might put extra staff on the next day kind of thing?---That could be a possibility.

PN1949

Or try and call staff in for the next shift?---It could be a possibility, yes. Like I said, it does depend on the length of the outage and the area the outages occurred in.

**** PAULINE ANNE MACDONALD XXN MR MATSON
PN1950

Yes okay, thanks. Can I take you then to paragraph 54. 54(a) I think you speculate a little on whether people were interested or not in discussing the penalty rates for Easter Saturday with the union. Do you have any basis to know people’s views on this, employee’s views on this?---No, again that was my opinion at the time.

PN1951

Okay. And would you say that that might be an issue that employees might want to discuss with the union if they were approached directly?---They may wish to, yes.

PN1952

Could I take you then to paragraph 57 and there you set out I think the three steps that people need to complete to be paid a meal allowance. You say they need to work more than five hours, completed their online time sheets and selected the meal allowance option. You’re aware that the meal allowance is an Award entitlement?---Yes.

PN1953

So if people hadn’t ticked the box it wouldn’t exempt Westpac paying the allowance, would it?---No it would exempt us from paying it, no.

PN1954

Could I take you to 58(c) and there you talk about the difficulties of time off for phones not being scheduled. So you’d agree with me that it would be better if all interviews or interview activities were scheduled would you? It would be better for the business if all interview activities were scheduled?---That's correct.

PN1955

And it would be better because it would deal with all the issues that you raised in paragraph 46, is that right? You’ve raised there that interruption, I think you speculated about distraction, mistakes and floor waiting times, privacy matters, they could all be overcome by scheduled interviews. So you’ve given some evidence there in your affidavit about how the union’s entry is potentially disruptive. Can you think of any way in which the union assists you to achieve the matters of central importance to the business?

PN1956

MR GOOT: Objection. Relevance.

PN1957

MR MATSON: It goes to the question of willingness of people to identify.

PN1958

THE COMMISSIONER: Identify themselves?

PN1959

MR GOOT: Well, how is that relevant?

**** PAULINE ANNE MACDONALD XXN MR MATSON
PN1960

THE COMMISSIONER: I’m not sure I understood the question precisely. If you’d like to - - -

PN1961

MR MATSON: Well, perhaps I'll go back and ask a couple of questions that might help to explain.

PN1962

THE COMMISSIONER: Sure.

PN1963

MR MATSON: You’ve given some evidence about the importance of scheduling and adherence to the schedule and so forth. Are they matters of central importance to Huon 2?---To schedule?

PN1964

Adherence to schedule in particular?---Yes it is.

PN1965

Okay. And you’ve also given some evidence about how the entry proposed by the union to approach people directly at their work station would be disruptive?
---Yes.

PN1966

So that’s something that’s been communicated effectively to staff, hasn’t it?
---Sorry, I don’t understand what you mean by that.

PN1967

That the union coming in and interviewing people or approaching people at their desk and so on would be disruptive. It had certainly been communicated to the reps?

PN1968

THE COMMISSIONER: Is that a question?---I have not communicated anything to staff along those lines.

PN1969

MR MATSON: Okay. So the message to staff is that adherence to schedule is vitally important for the business, isn’t it?---That's correct.

PN1970

So staff would be apprehensive about taking steps which would take them out of adherence to schedule?

PN1971

MR GOOT: Objection. Cause on the witness to speculate the attitude of staff.

PN1972

MR MATSON: Commissioner, there’s a great deal of speculation in the witness evidence. Well that’s fine, then I'll simply make some note, make further note about that - - -

**** PAULINE ANNE MACDONALD XXN MR MATSON
PN1973

THE COMMISSIONER: No. But as a team leader I think this person can express a view if she wants to.

PN1974

MR MATSON: So I'll ask the question again. That staff would be apprehensive about taking steps that will take the matter against the schedule?---Apprehensive is probably not the word I would use.

PN1975

So what would you say?---I would say that staff would understand that it would impact on the result.

PN1976

Right, okay. So adherence to schedule would be affected by staff taking time out to approach their team leader to go and talk to the union?---It may, it may not.

PN1977

I don’t have any further questions, Commissioner.

PN1978

THE COMMISSIONER: Thank you. Mr Goot.

PN1979

MR GOOT: No re-examination.

PN1980

THE COMMISSIONER: Thank you for your evidence.

<THE WITNESS WITHDREW [10.05AM]

PN1981

THE COMMISSIONER: I think that’s the evidence, isn’t it?

PN1982

MR MATSON: That is.

PN1983

THE COMMISSIONER: You can now address. Mr Matson.

PN1984

MR MATSON: Commissioner, I’m just wondering where to start.

PN1985

THE COMMISSIONER: Do you want to have a break to collect your thoughts?

PN1986

MR MATSON: It might be useful for us to have a break just to make some notes about that last bit of evidence.

PN1987

MR GOOT: Are you sure? We’ve got time, Commissioner, we’re well out of schedule.

PN1988

THE COMMISSIONER: Splendid.

PN1989

MR GOOT: I think so.

PN1990

THE COMMISSIONER: All right. We’ll break for 15 minutes to allow the parties to order their thoughts and their desk. The matter is adjourned briefly.

<SHORT ADJOURNMENT [10.06AM]
<RESUMED [10.27AM]

PN1991

MR MATSON: Commissioner, perhaps I could start by addressing you very briefly on the question that you asked us yesterday to take a look at. I have to say we didn’t have any opportunity to do any research on precedents, but we’re certainly happy to do so and respond further if the Commission so desires. Our view at this point is that there’s no reason evident from the terms of the Act why the Commission should not be empowered to convey its own message to employees or to direct the company or a specific person in the company to forward such a message. We’d say that what the Commission can do is prescribe only by the terms of the Act and the relevant parts of the Act would be the objects obviously set out at section 736 and that expresses only the necessity to balance the interest between the parties.

PN1992

In respect of the company that’s only to protect you from undue interference and harassment and that goes then directly to the ATO Full Bench decision at paragraph 21. I can take the Commission to that if you like, but I think the essence of it is that the provision at 772 should not be read narrowly or broadly, but given its common sense meaning to give effect to the provisions of that division. There’s also a requirement to have regard to fairness between the parties at 772(3)(a) and not to confer rights additional or inconsistent with the rights prescribed under the Act at 772(3)(b). And that then goes again back to the decision of the Full Bench in the ATO matter at that same paragraph 21.

PN1993

MR GOOT: Sorry, the ATO?

PN1994

THE COMMISSIONER: The appeal decision.

PN1995

MR GOOT: The Full Bench, sorry. I’m terribly sorry.

PN1996

MR MATSON: Section 776 also permits the Commission to order anything necessary or expedient to give effect and we note also that section 775 is not exhaustive in that it says that it includes the following sorts of matters that the Commission may deal with in its order. So we can’t see any warrant for otherwise restricting the matters that the Commission could deal with or the manner in which it may choose to deal with them. Having said that, as I say, the union is happy to do some further research on precedent to see if there’s anything that could assist the Commission in coming to a view about that matter.

PN1997

Perhaps I could deal with some matters that arise from this concept of willingness that’s been at the forefront of these proceedings. We’d say that the extent of the breach and the numbers of people to whom it applies is relevant certainly to the Commission’s decision today, but also to any dependency that might be sought and the union may well yet make such an application. Whether employees are willing to participate in an interview in one respect is irrelevant as the union has the right to interview all employees eligible to be members or who are actually members and it’s apparently contemplated that some employees may have relevant information but may not be capable of being directly affected by the suspected breach as the section doesn’t specifically restrict interviews to those people capable of being affected.

PN1998

That’s not necessarily what the union is seeking in this matter, but I think the section certainly goes that broadly. We handed up an alternative order, we say, to deal with much of the concern expressed in the evidence of the other side which we say in respect of disruption at least is unfounded, but it also deals with issues of privacy and scheduling that have been raised in these proceedings. It doesn’t resolve any concerns about employee willingness which again we say is unfounded or not relevant, but that’s not an object or even a consideration raised by part 15 of the Act and we say it would be an error to refuse an order or to narrow an order on that basis. We say it’s not the role of Westpac to act as a filter in discerning who comes to the union to be interviewed.

PN1999

We agree that the business needs to know who will be off the phones and for what period, but we say that can be achieved without requiring individual staff to on their own take positive steps to elect to be interviewed and to approach their team leader to do so. We say that the evidence supports a finding that approaching staff at their work stations doesn’t constitute undue interference or harassment at section 736(a). We also say that the evidence supports the need for an order to be made, as the ANZ Full Bench said repeatedly, substantively implement the statutory right to interview. Does the Commission have a copy of the ANZ Full Bench decision?

PN2000

THE COMMISSIONER: Yes I do.

PN2001

MR MATSON: Perhaps I could take you very briefly to section 2 paragraph 39 of that decision and the very last sentence there talks about any additional condition not evident. Of course this is a - - -

PN2002

MR GOOT: ANZ - what print reference?

PN2003

MR MATSON: PR951766 is the decision.

PN2004

MR GOOT: Yes, 39?

PN2005

MR MATSON: It’s been cited in all of the submissions.

PN2006

MR GOOT: Yes, I’m just, sorry, I’m just searching.

PN2007

MR MATSON: The last sentence there reads:

PN2008

Any additional condition not evident in section 285(c) of the Act might bee seen to detract from the purpose of the provision and exercise of a statutory right of entry.

PN2009

Now of course the statutory scheme has changed a little since this decision, but I'll address that perhaps a little later. At the following paragraph 40 that also ends with the concept of substantive implementation. It arises again at paragraph 48, again in the last sentence:

PN2010

Any arrangements in respect of the right of entry ought to acknowledge that importance and facilitate the purpose of the right of entry.

PN2011

And again at paragraph 58 again the Full Bench exercises the right to interview ought not to be negated by an order of the Commission and should be substantively available.

PN2012

THE COMMISSIONER: So all observations made by the Bench after they refused leave to appeal?

PN2013

MR MATSON: That's correct, Commissioner. But they certainly reinforce the decision at first instance.

PN2014

THE COMMISSIONER: Yes.

PN2015

MR MATSON: We’d also say that to the extent that employees wish to participate, or the extent that they wish to participate is relevant, it’s a matter between the union and the relevant employee. The union can’t be expected to make assumptions that every person that fails to attend has decided not to participate. The evidence indicates that there may have been confusion, wrong assumptions, people got busy, they didn’t understand, they were apprehensive, all a manner of reasons why an assumption that they were not willing must be wrong. The part 15 doesn’t give the employer a role to interpose itself in the process. Its rights are set out in section 736(a).

PN2016

And the employee has a right not to participate. That’s set out at section 748(3) which the union has indicated, of course, in its draft order that it proposes to respect, but it can’t do so unless it can confirm that that is in fact the employer’s view. Commissioner, what I’d like to do is my instructing industrial officer to address some of the questions that arose, briefly address those questions from the evidence.

PN2017

THE COMMISSIONER: Yes, of course. Mr McConville.

PN2018

MR MCCONVILLE: Yes thank you, Commissioner. As Mr Matson indicated in going over the Full Bench decision in ANZ, the intent is to substantively implement the right to interview as set out in the ANZ Full Bench and we say that that includes a number of things. That is willingness of employees to participate in the interview, the mechanism of the notification, the issues of disruption and effectiveness and I'll explain later why I group those together and the matters of privacy which have been raised in these proceedings. As to the mechanism of the notification there is evidence in these proceedings that many staff do not use the bulletin board.

PN2019

The evidence of Firman at paragraph 8, 9 and 10 of her affidavit was reinforced in cross-examination. Firman also said firstly that many staff don’t use the bulletin board, that she uses it only for absences, that she doesn’t attempt to read all of what’s on the bulletin board and she relies instead on heat broadcasts and emails. Now, that’s evidence about what she does and that evidence is undisputed. In cross-examination she said that there was a concern about how the impending entry was communicated to employees. She said there should have been an email as well as communication via the bulletin board and she confirmed her evidence from her affidavit at paragraphs 8, 9 and 10.

PN2020

Leah Smith’s evidence is also of assistance here in that she said that in their work area they use heat broadcasts and email. She also said that she spoke to three staff who did not attend and that they had voiced their concerns about the notification. So staff in her area at least were not aware of the right of entry on the 18th and 19th. That’s the conclusion that needs to be drawn from that evidence.
Ms Firman also commented on the content of the bulletin board announcement in cross-examination and in response to a question from Mr Goot she said that whilst she was happy with the content of the bulletin board announcement, we all heard that clearly, but she also said that lots of people who read it didn’t understand what the meeting was about.

PN2021

And she went further to say that it was one thing to say that the union was coming to exercise a right of entry, but another thing for staff to know about how to go about approaching the issue and the range of issues that might be involved in a right of entry. The alternative communication by email was also addressed in the evidence of both Mr Willson and Ms Slater. Mr Willson’s evidence was that it was not possible to communicate to large groups of people by email and also that it was not effective to do so and the bulletin board was more effective. However when Ms Slater was shown the email that is now marked as exhibit M6 she acknowledged that the centre does have the capacity to email all staff.

PN2022

And when asked if she recalled an all staff email of 28 November she did not say I’ve never sent one, indicating that it is possible, but she did say I sent a lot of emails and don’t remember specifically that email. So that email was shown to her. She pointed out that it was not to all staff but to all service staff and that is a discrete area of some over 100 employees. In fact it was something in the vicinity of 150 that we estimated was the audience that that particular email went to. Now, Mr Goot’s line of questioning and Mr Willson’s evidence point to a view that emails were better for events in the future but the bulletin board was better for real time issues.

PN2023

The reality of the email M6 is that it was actually seeking an immediate response. If I could take the Commission to the fifth paragraph which is on page 2. It states:

PN2024

Please see the attachments below that specify days and times available and send an email advising Janine and Michelle, email Myrtle SA, as a matter of urgency.

PN2025

Now, Mr Goot’s questioning seemed to indicate that this was seeking a response to something that is volunteers for Boxing Day, New Years Day and overnight shifts on Boxing Day and Christmas Day night. And he seemed to be characterising this as saying well, it’s some time off in the future, it’s almost a month away that we actually require this, but the proper characterisation of the email is what I’ve taken the Commission to. That it was seeking an urgent response as a matter of urgency, as the email says. The evidence of Mr Willson also demonstrated that there is a capacity for errors in communication if a party other than the union determined the mechanism.

PN2026

His evidence about what was possible contradicted that of Ms Slater. And in re-examination he said he relied on what Grant Baker told him that Jo Taylor told him about the inspection being about Easter Saturday. So he was really relying on hearsay of Grant Baker in coming to the determination that the union’s entry was about Easter Saturday. Now, that is clearly an error in communication. He interpreted the union’s entry as being more narrow than what the notices and other correspondence attached to the affidavits said and that is that it related to Easter public holidays.

PN2027

He also ignored a direct request from the union to contact the union if he was going to depart from the wording that we suggested in the notification and he confirmed in re-examination that he could only rely on what he was told about how email was and could be used. There was also evidence that there were a range of working patterns, industrial instruments, some confusion over the investigation itself. For example, Mr Wilson said look it’s about Easter Saturday 2007, while Ms Firman said that it’s about Easter Saturday generally and
Ms Woolfrey said that it is about Easter public holidays more generally.

PN2028

Now, still relevant to the notification is the fact that there is no evidence in these proceedings to say that people mistakenly assumed that they were not within the scope of the investigation. And so we can’t know what reasons people had for not attending the interview. There’s speculation, there is suggestions, but we can’t actually know. There is evidence that there are many reasons why people might not have gone to the interview but that does not go to willingness. For example, Firman’s evidence in relation to past years is useful here as is the evidence of Slater, that 31 per cent of staff don’t meet their targets. That’s relevant in the sense that that might be a reason. But again, we don’t know.

PN2029

There is evidence in the proceedings that there is a misunderstanding of the complexity of the industrial instruments applying at the call centres, in particular the affidavit of Firman at paragraph 11 which is unchallenged and the evidence of Smith at paragraph 14 which is unchallenged. Now, we submit that the only restrictions - - -

PN2030

THE COMMISSIONER: Sorry, what was that? Firman at which?

PN2031

MR MCCONVILLE: Paragraph 11.

PN2032

THE COMMISSIONER: And Smith?

PN2033

MR MCCONVILLE: And Smith at paragraph 14. For example, what Firman says is that Westpac, our pay conditions come from the Westpac Employees Award, the Westpac Launceston Call Centre Agreement and a memorandum of understanding about Launceston public holiday rostering arrangements. There were also human resources policies and memos with Westpac about working conditions. And she goes on to say that if staff think they might not be receiving what they’re entitled to they need to speak with an FSU organiser.

PN2034

MR GOOT: That’s a misunderstanding of industrial instruments. Goodness gracious.

PN2035

MR MCCONVILLE: It’s about complexity. There is more than one of them and they operate in conjunction. Now, I said that Smith was at paragraph 14 and she said similarly, she points to the same agreements, she said staff have letters of appointment which can say different things to what’s in the Award or the agreement and some staff think before the enterprise agreement had an expiry date of 30 June 2004 their letter of appointment is their contract of employment. No one has disputed her evidence on that.

PN2036

MR GOOT: How can you? It’s inadmissible.

PN2037

MR MCCONVILLE: Now, having gone through that we submit that the only restrictions on the interview arise from 748(3) in the Act which states that:

PN2038

A refusal or failure by a person to participate in an interview under this section is not to be treated as conduct covered by section 149(1) of the Criminal Code.

PN2039

That particular section of the Criminal Code addresses the powers of commonwealth officers to ask questions and therefore the legislators have seen fit to ascribe a level of importance to the interview process but a step short from saying it is an offence to not answer questions or participate in an interview. Now, that refusal to participate we say needs to be expressed and not inferred to assumed. So therefore the email or the bulletin board announcement as a method of notification does not allow that expression to be made to the permit holder and that expression should be made to the permit holder for us to know that the rights of those employees to not participate are being given effect equally as our right to conduct an interview in the first instance.

PN2040

It is necessary to talk and this enables us to also quantify the breach and identify those persons who are not affected by the breach. Now, from the evidence we don’t dispute the fact that the union has not made claims concerning underpayments. Mr Goot might suggest that that goes to our bona fides in this matter. I'll say something about that later. But we say the issue of there being no claim being pursued is a consequence of the mechanism that was employed. The mechanism for notification and also the method of entry. We say that there is a correlation, if not a causality, between the mechanism of notification employed and the absence of the claim.

PN2041

Why we say that is that the evidence shows that there would be a very small number, six of some 500 employees, six of the 152 that Westpac say worked Easter Saturday and of the 140 that the bank has conceded underpayments in relation to. Six were interviewed. Now, Mr Willson conceded in this evidence - and this is the first time that the union has heard this directly - that there were underpayments in previous years and we did suspect that. Ms Slater similarly acknowledged that. And we don’t want to proceed to remedy and prosecute breaches with a small number of claimants. We want to conclude the investigation, if necessary through further interviews, rather than make peace meal claims.

PN2042

THE COMMISSIONER: Is the ingredient in this the actual resolution of those claims?

PN2043

MR MCCONVILLE: Yes. Ultimately, Commissioner, that is the point.

PN2044

THE COMMISSIONER: Rather than necessarily the prosecution of any claim?

PN2045

MR MCCONVILLE: Absolutely.

PN2046

THE COMMISSIONER: Yes, very well.

PN2047

MR MCCONVILLE: And that goes to the whole point of why we conducted a right of entry in the first place. And it’s our prerogative to get that right and we say the only construction the Commission can make on the absence of the claim is the method of entry was ineffective. We did not give substantial effect to the right to interview. And our bona fides are that we’ve gone to extraordinary lengths to quantify the claim and we’re here because the mechanism was deficient in resolving those issues. And it is self evident that the concession of underpayments in previous years shows that we didn’t get sufficient information from the interview process to be able to resolve the issues that gave rise to the right of entry in the first place.

PN2048

Now, about the mechanism, we need to say something about the importance that Westpac attached to the mechanism of notification and Mr Willson in cross-examination was asked about paragraph 74 of his affidavit.

PN2049

THE COMMISSIONER: Page how many?

PN2050

MR MCCONVILLE: Paragraph 74 and he was asked does the company treat FSU matters like other operational matters, he said yes. And he was asked through email and team meetings, he said yes. And we asked well the FSU is not saying is it really, and he said no. Is the FSU raised in a team meeting or in an email, no. He suggested that communications about FSU matters were equal to operational, that he couldn’t verify when the bulletin board was posted because he wasn’t there, despite his own affidavit that he couldn’t agree to Ms Woolfrey’s request because the process of posting on the bulletin board had started.

PN2051

Mr Khan at paragraph 17 of his affidavit said that he understood that:

PN2052

I believe the message about the FSU’s attendance was loaded on the bulletin board between 12 pm and 1 pm on 16 April 2007.

PN2053

Whereas Smith’s uncontested evidence is that the bulletin board appeared in her work area. So it’s not a question of belief, but it appeared in her work area on Tuesday the 17th, which was one day before the entry. Now, that should all be seen in light of Mr Willson’s own evidence that all I can see is what I’m told and that goes to what is contained in team meetings or email. I think in Slater’s evidence is it more assistance. She gave evidence about the capacity to absorb minor disruptions and that was addressed for the first time by her in introducing the issue of 10 minutes fluff time to these proceedings. And that was mentioned in the context of masseurs coming to work stations.

PN2054

And clearly there is capacity to absorb minor disruptions. As for the importance attached we also had evidence and saw on the site inspection a yellow light like you see on the top of tow trucks and there was evidence given that that flashing light was used in unusual circumstances to let people know that they need to read something on the bulletin board. But in Ms Slater’s evidence the right of entry of the union was unique. There’s no evidence of right of entry at Launceston previously and if something is unique I would say that it is definitely unusual. So I suggest that the company does not attach the same importance to FSU matters as it does to operational matters.

PN2055

As to disruption and effectiveness, and I'll try and be brief because I know my friend is getting anxious - - -

PN2056

MR GOOT: No, I’m not getting anxious Mr Commissioner, it’s just that I was told given a representation was made as to the length of submission on the basis of which I made certain arrangements. I’m happy to undo those arrangements and for my friends to take all day. I don’t want it misunderstood. But I just don’t want to be caught in the middle.

PN2057

THE COMMISSIONER: Yes, I understand.

PN2058

MR MCCONVILLE: The reason why I put forward disruption and effectiveness together is that the objects and intent of part 15 is a balance between those two things and that the permit holders require an effective investigation and that employers want minimum disruption. And the evidence should be seen in the context of balancing those interests and all evidence related that are mentioned in relation to the method of notification is relevant in considering that balance. There’s evidence in cross-examination from both Mr Willson and Ms Slater that a range of people approach staff at their work stations. Ms Slater’s evidence is more specific. She mentioned massages which happen every week, team leaders approaching people.

PN2059

We had our own experience in these proceedings for site inspection which didn’t seem to cause disruption and there was our entry itself. There’s no evidence that the company has been disrupted by any of those events. The capacity exists on the basis of Ms Slater’s evidence that attainment of performance targets does not suffer as a consequence of short interruptions, however she did concede that 100 per cent of staff spending more time on the phones would mean they’d be more likely to reach their targets.

PN2060

THE COMMISSIONER: What weight do I give that? I mean, I listened carefully to the evidence and I think Ms Slater’s evidence was if it gets down to 15 minutes they really haven’t done their job for the last three months.

PN2061

MR MCCONVILLE: Yes, that's right. That's right. Now, Ms Slater’s ..... yes. There is of course the issue of 31 per cent of staff who do not meet their targets.

PN2062

THE COMMISSIONER: Yes.

PN2063

MR MCCONVILLE: So that needs to be given some consideration as well in that that 31 per cent being released for an interview could indeed be an issue. But it’s what I need to put in relation to that. Ms Slater’s evidence also said that staff not meeting their targets needed to apply themselves more diligently and it’s interesting in the context of other evidence that goes to the capacity to absorb short interruptions, e.g. the evidence, for example, the evidence of fluff time. We heard evidence in the proceedings about the Bedford Park entry and there is no evidence that it caused the disruption. There is however evidence that it was a more effective mechanism than what took place at the call centres in this case because there were less employees there, but we got to speak to more of them numerically.

PN2064

We spoke to some 40, whereas in this case we spoke to six out of 500 odd. Now, in terms of disruption I need to emphasise that in what sort in the order the initial approach at the work station would take something from 20 seconds to two minutes. Certainly not more than that. It wouldn’t, we’d say, it wouldn’t affect targets and not cause a major disruption. So in relation to that issue of effectiveness there’s plenty of opinion evidence that the entry was effective, but the fact remains that the union was unable to perform its statutory role because by any measure Westpac’s method was utterly ineffective. As I’ve said, there was no one spoken to other than the six named.

PN2065

It’s interesting in terms of the importance that Westpac attach to it, but Mr Khan gave evidence that there were no specific arrangements and that the company could absorb any pain that came from people being involved in the interview process. I’m assuming he’s talking about disruption there. But what that indicates to us is that clearly Westpac knew that their methodology would lead to a minimum response, minimal response to our right of entry. At the other end of the scale on disruption we say look, there’s minimal disruption. This has never happened before in the system. Mr Willson’s evidence says there were three entries in three years covering some 2000 employees.

PN2066

He couldn’t recall in total the number in the company, but we’d estimate that to be in excess of 20,000 people. So in that sense the sum total of the inspections over the last three years have interviewed something in the vicinity - have covered something in the vicinity - of 10 per cent of Westpac’s staff. And much less than that in the interviews. A total of 46 if you add Bedford Park, based on
Mr Willson’s evidence, and the six in this case.

PN2067

THE COMMISSIONER: It’s an interesting statistic, but I could probably pull one or two IT people out of the Westpac organisation and close it down for a long time.

PN2068

MR MCCONVILLE: Yes. What we’re not able to say is whether staff, whether employees were able to make an informed decision as to whether or not they would be affected by the breach and we say that arises from the mechanism of notification as well. The evidence of further breaches has been admitted and that belies the reliance on Connect that was attributed as the error here. In fact there was a concession that it was a human error that led to Connect not being loaded properly. Now, that should be of concern to the Commission that Westpac took so long to admit the 2007 breaches and only yesterday admitted that there were further breaches and that was in the evidence from Slater, Willson and Khan. Now, finally in terms of this morning’s evidence a number of things were helpful from Ms MacDonald.

PN2069

Firstly, in relation to paragraph 27(b) of her affidavit she was asked how were updates communicated and she said those other relevant updates include things like interest rates and procedures and it actually contradicted Slater’s evidence that that was contained only in bulletin board’s announcements.

PN2070

THE COMMISSIONER: I must confess at the beginning I thought that was of general interest interest rates, and then I realised it was a bank.

PN2071

MR MCCONVILLE: Yes, it is quite topical.

PN2072

THE COMMISSIONER: Quite important piece of information.

PN2073

MR MCCONVILLE: Yes. Another important piece of information here was that the 10 minutes reading time not only involved reading the bulletin board but a range of other things from everyone’s evidence, but in Ms MacDonald’s evidence she said that that could also be used to discuss issues with team leaders. She also said that she frequently directed employees to read the bulletin board and we say that’s consistent with the evidence of other witnesses that they don’t read it frequently and that’s why it’s necessary to direct them.

PN2074

Another important part of her evidence was how to know when to approach an employee. You’ll recall that she said that she could wait behind them and tap them on the shoulder or signal that are you on a telephone call and that staff would turn around if they knew she was there. So it is quite possible to approach people while they’re in the course of work. As I said, there was capacity for miscommunication and Ms MacDonald’s evidence supports that in that she says that she was not aware that the union was investigating other days. And so again the mechanism of notification was deficient. As to whether she thought that it would cause disruption, she said she had no idea what the disruption would be and that there was no steps taken to employ extra staff to cover the contingency that large numbers of people might want to participate in the interviews with the union.

PN2075

As to what the effect that interruptions have on the business Ms Slater said the outcome for the business of interruptions like fire evacuation or something that was unplanned was that it causes an increase in the number of callers and therefore call volumes go up, but you can have contingency plans invoked and that might involve employing extra staff, it could involve bringing in staff early for the next shift, but it depends on the outage itself. It appears that the company contemplated none of those things in respect of the union’s entry. In the orders we have, as everyone knows, we have suggested that we’d like to be able to approach employees directly.

PN2076

We asked Ms Slater if an employee might want to discuss issues of underpayment with us if we approach them directly and she said yes they may wish to. She also agreed that that would be better if all interview activities were scheduled and that it would be better because it would address all of the issues at paragraph 46 of her affidavit. And she was asked about that, the issues around privacy, interruption, et cetera. She agreed that scheduling would assist in those. And finally, in terms of adherence to schedule whether the issue of whether staff would be apprehensive about taking steps that might take them away from adherence to schedule she said well no, it’s not apprehension, I wouldn’t use that word.

PN2077

She said staff would understand that it might impact results and that adherence to schedule by staff might be accepted by the unions. So that’s one of the reasons that it’s possible. But what we say in the summary of all of that evidence is that there is no evidence that what we’ve done has caused disruption, but there is evidence that the method of entry was ineffective. And that is precisely why we are seeking orders over the operation of part 15. If it please the Commission.

PN2078

THE COMMISSIONER: Thanks Mr McConville.

PN2079

MR MATSON: Commissioner, just a couple of things in closing. We don’t propose to trawl through the evidence to identify the many part paragraphs that we say are hearsay, speculation, opinion, argumentative, the relevance on. I simply ask the Commission to be aware of that.

PN2080

THE COMMISSIONER: I won’t rely on them.

PN2081

MR MATSON: Thank you. If I can take you briefly to the ANZ decision at first instance, a decision of yours, Commissioner, PR946294 because we say that in the factual circumstance there are enormous similarities between this matter and that matter. At paragraph 8 - - -

PN2082

THE COMMISSIONER: This is number 2, the Full Bench?

PN2083

MR MATSON: No, this is the decision of first instance.

PN2084

THE COMMISSIONER: When I use the term “walk through” which is an unfortunate term.

PN2085

MR MATSON: Discredited is a term, I think.

PN2086

THE COMMISSIONER: I think it happened immediately after a so-called run through.

PN2087

MR MATSON: It did have some topical element about it, yes. At paragraph 8 the Commission noted the differing requirements that applied under the two sections, but then dealt with entry for inspection and entry for discussions and particularly in that case the union as the applicant drew attention to the requirement which has been carried over from those provisions to these which is different between those two provisions. Section 760 dealing with entry for discussions still retains a wish to participate provision which is notably absent from section 748 dealing with entry for inspections. Paragraph 10 of your decision the Commission rightly noted the public policy interest in compliance and in this case we have already had one lot of back payments as Mr McConville has noted in relation to Mr Willson’s evidence that there’s another lot apparently to come.

PN2088

At paragraph 21 of your decision you identify and dot pointed three matters that have been raised in those proceedings and in effect they’re the same three matters that have been raised in this proceeding, the first one dealing with work continuing unhindered, or what we’ve described today as interruption, privacy considerations and employee preference. And they’re in essence the same three matters that have been drawn attention to by Westpac. You then in that decision went on to deal with those matters and at paragraph 30 I note that in that case ANZ relied heavily on the privacy legislation and that’s not been raised specifically in these proceedings.

PN2089

And I think the Commission dealt with it effectively there and that’s probably why the other side hasn’t raised it. But at the second dot point the union argued that the last 87 years of its operation there had never been any cause for complaint and we can now say that’s still the case, that after 90 years not being one allegation of any breach of privacy by a union official. The third dot point the Commission noted that the agreement contained a provision in ANZ in relation to the confidentiality of all work books and so on. And I don’t need to take the Commission to it, but that same provision exists at clause 29.3 of the Launceston agreement.

PN2090

And I should say also that clause 29, if the Commission has time to review it, reflects an attitude to entry which is considerably more open and indicates a much more of a willingness to have the union present in the workplace generally that reflects the parties when that agreement was made in 2002. And I think it probably runs counter to Mr Willson’s evidence that there’s never been what he describes as walk throughs in the workplace. At paragraphs 31 and 32 you dealt then with the issue of other people in the workplace, outsiders for want of a better word, and indicated that you know, if ANZ could accept undertaking from third parties they could certainly accept undertakings from the union and that’s certainly the case here.

PN2091

I can’t remember whose evidence that was off hand, but I think it was Ms Slater gave evidence that they require a privacy agreement from the people performing massages. And finally at paragraph 42 you found that you couldn’t make any adverse finding against the conduct of the FSU from the two employees who appeared in that matter and there’s certainly no evidence, there’s been no direct evidence led to go to that in this matter. Finally the respondent’s right to observe that there’s been changes to the Act since that decision was issued we say that the changes to the Act are the only material difference between that case and this case. The changes we say are largely not relevant to this application.

PN2092

There are changes to section 736 the objects of the Act and they explicitly set out the balancing of those, the interests between the employer and the union. I should say at paragraph 25 of your decision that I just took you to you addressed that question by saying:

PN2093

In examining this matter a judgment must be made as to where the balance lies between the right conferred by the Act and the conduct of the employer’s business.

PN2094

Which really very effectively paraphrases what’s now become section 736. So I think it’s fair to say that concern was dealt with in your decision. There have been changes to divisions 2 and 3 - - -

PN2095

THE COMMISSIONER: It’s nice to know that decisions influence parliamentary drafts persons, if not policy makers.

PN2096

MR MATSON: Possibly quite directly. There have been changes in divisions 2 and 3. They’re not presently relevant. There have been changes to section 748(5) to (10) in relation to inspections of records at a later time. We’d say they’re not relevant except to the extent that the employer has conceded that they have not complied with the 748 notice served in this proceeding. There have been changes to section 749 and 750 which are not presently relevant. And finally there’s been a change in section 751. That’s actually addressed by the respondent at paragraph 51 of their submissions where they say that the reliance placed by the union on the decision in the ANZ Banking Group is misconceived because of the different statutory regime.

PN2097

Indeed the requirements of 751(3) were complied with by Westpac and the requests of Westpac were reasonable. And this appears to be common ground. And we say that’s true, it’s not in dispute that where the interviews were to be held and that request was made, was complied with and there’s no dispute over that. Which brings us to the end of division 4. So in closing, Commissioner, we say that the changes to the Act haven’t significantly affected these proceeding as against the ANZ decision that we’ve referred to and that the facts and circumstances are virtually identical and an order should issue in the terms sought by the union.

PN2098

THE COMMISSIONER: Well, could I ask you a question directly now so that I can consider it. Is talking to a person at their work station an interview?

PN2099

MR MATSON: We would say not, Commissioner. And I think it was in
Ms Woolfrey’s evidence, I think she probably might have had a bit each way and said that she thought it was part of the interview, but then went non to talk about the formal interview. I think what we’re talking about is the form of - - -

PN2100

THE COMMISSIONER: Communication?

PN2101

MR MATSON: Inviting and communicating to people what the matter is about. In our submission it’s no different in substance to the, for example in the ATO case, the requirement for an employer to give a particular sort of notification. It’s that prepatory stage and we say it’s not actually part of that interview.

PN2102

THE COMMISSIONER: All right, thank you very much. Yes Mr Goot.

PN2103

MR GOOT: Yes thank you, Mr Commissioner. We have provided written submissions.

PN2104

THE COMMISSIONER: Yes.

PN2105

MR GOOT: Which I don’t want to rehearse. We also provide a supplementary submission which I’ve given to Mr Matson dealing with the jurisdictional argument and if I could hand that up.

PN2106

THE COMMISSIONER: Thank you.

PN2107

MR GOOT: And of course the jurisdictional argument arises from the first of the two orders that are sought in the proceedings. The first order is to enable the FSU for the purposes of investigating suspected breaches to approach employees at their work stations during working hours to ascertain whether each employee is likely to be affected by the suspected breaches and is willing to participate in an interview. Now, the difficulty with the FSU’s position is that it is schizophrenic. In fact, it is seriously flawed. Because on the one hand Mr Matson submits to you in his written submissions that this is not an interview as such, it is something that precedes an interview and I think the expression he uses is it is an order that can be made by the Commission as incidental to the powers under the Act.

PN2108

On the other hand Ms Woolfrey and to a lesser extent Ms Taylor both say that what they want to do is actually part of the interview. Now, in the ANZ case the walk through was regarded as part of the interview and that’s a very big difference from what the union say here, the union is that of Mr Matson as opposed to the union Ms Woolfrey. And it should be noted that Ms Woolfrey is not a rep. She is a senior organiser. Ms Taylor is an organiser. So that’s why the union’s approach is schizophrenic. They really don’t know whether this is an interview or a
pre-interview interview. But it doesn’t really matter because it’s impermissible whatever it is.

PN2109

If it’s an interview or if it’s regarded as constituting an interview then it is in breach of the Act. That is there’s no order that the tribunal can make which would because of section 751(3).

PN2110

THE COMMISSIONER: Be inconsistent with the direction of the employer.

PN2111

MR GOOT: Yes, inconsistent with the right under the Act.

PN2112

THE COMMISSIONER: Yes.

PN2113

MR GOOT: And if it - - -

PN2114

THE COMMISSIONER: But I’m sorry, it only arises if the employer’s view would be contrary to that suggested by the Commission because that provides the employer the right to decide those matters, doesn’t it?

PN2115

MR GOOT: No - yes, yes. But then there’s the - - -

PN2116

THE COMMISSIONER: 751(3)?

PN2117

MR GOOT: No, 772(3).

PN2118

THE COMMISSIONER: I’m sorry.

PN2119

MR GOOT: Sorry, 772(3). Because you can’t make order number 1,
Mr Commissioner, because it confers rights that are additional to or inconsistent with rights exercisable under the par. That is the critical difference between the ANZ case and the ATO case in terms of the status of the law. That 772 was not an enactment at the time that you decided the ANZ case or that the Full Bench considered your decision. And that is a mighty restriction on what you can do. And it’s not been addressed by the union in their submissions properly or at all. Now, can I - - -

PN2120

THE COMMISSIONER: What do you say is new, 772(3)(b)?

PN2121

MR GOOT: Sorry, I misled you inadvertently.

PN2122

THE COMMISSIONER: That’s all right.

PN2123

MR GOOT: 772 was, there was something under the old Act in similar terms I think.

PN2124

THE COMMISSIONER: Yes.

PN2125

MR GOOT: It was 785(g) or something. 751(3) is new. And that in effect here enables the employer to make a reasonable request.

PN2126

THE COMMISSIONER: Would you say that section again?

PN2127

MR GOOT: 751(3).

PN2128

THE COMMISSIONER: Yes thank you, that's right. That’s the point that I was making.

PN2129

MR GOOT: The reasonable request, yes. Quite so. Yes, it was 285(g) as I thought.

PN2130

THE COMMISSIONER: Yes. The Commission can’t make an order which is inconsistent with the employer’s decision.

PN2131

MR GOOT: Yes, that's right. Provided that the decision is reasonable. And we say there is no evidence that what Westpac did was not reasonable in the circumstances. Indeed I have been trying, listening to my learned friend this morning - - -

PN2132

THE COMMISSIONER: Well, it doesn’t arise does it in this sense, that nobody said that the room wasn’t any good, it wasn’t the usual sort of arguments I hear that it was a glass room adjoining the manager’s office, the people could be identified.

PN2133

MR GOOT: As I said I was sitting here trying to work out why are we here, what is this case all about. There is no complaint about the arrangements made for the interview. The room, access, dates, times. A strenuous complaint is made about the form of notification and the fact that it is said to be ineffective.

PN2134

THE COMMISSIONER: Yes.

PN2135

MR GOOT: As to the form of notification it was a form that was adopted in good faith by Westpac, namely bulletin board, in the expectation that it would be the most effective way of, consistent with the conduct of the business, of notifying employees and members of the union or not of the visit. It was a form of notification which was expressly suggested by the union in the letter of 16 April, although the word including bulletin board. So it wasn’t the only - the union wasn’t saying the exclusive method. But the union never suggested email or anything else.

PN2136

THE COMMISSIONER: No, but the words were different.

PN2137

MR GOOT: I’m coming to the words. I’m talking about the method of communication. And we are told repeatedly and we’ve heard it again this morning that it was ineffective. Some of the evidence was to the effect that we deliberately tried to thwart the whole exercise by doing this. We are told that the staff were not aware of the right of entry and that the company didn’t ‘take the FSU requests seriously. And the effectiveness was that the union was unable to perform its statutory role because Westpac’s communication was ineffective. You know, all laid squarely at the feet of Westpac.

PN2138

This is a union which takes some pride in its membership of the movement. What did it do? Well, I'll tell you what it did. On Thursday, 12 April it notified right of entry, to take effect the following Tuesday. On the Monday - sorry, on the following Wednesday and Thursday. On the Monday not unreasonable that the Westpac got back to them and said this is what we propose to do and then did it because it was going to happen in a couple of days time and there were all issues with schedules being off. I mean, the union chose the time it was going to exercise right of entry, a matter for it. But we had to act, that is Westpac had to act, in accordance with what it saw as its own interests and having regard to its staffing requirement.

PN2139

The union rolls up on Wednesday. The union did not tell its reps to put up a notice on the notice board specifically dedicated in each centre for that purpose advising of the right of entry. And the reps didn’t do it of their own initiative. That’s the evidence. Not a thing was done by the reps with the exception of
Ms Smith who mentioned it to three people, no doubt explained it in detail and what the reason was and what the issue and not restricted in anyway by Westpac or anyone listening or scripting what she should say. And what was the effect of that? None of those people turned up at the meeting. Westpac are told that the meetings were ineffective.

PN2140

You were told that the meetings were ineffective because of Westpac by a union that did nothing other than demand that Westpac notify, which it did, it staff. What else did they do? Ms Taylor had while she was at the premises bumped into the corridor to a person and did she interview him? No. Why not? Because he wasn’t a member. And so in her affidavit she’d said she put all her papers away and that’s why the interview didn’t take place, but in cross-examination she said if he had been prepared to sign up as a member she would have whipped her papers back out of the bag and interviewed him. And of course the right of entry relates not just to members but to persons who are eligible to become members.

PN2141

So one wonders why we act when the union attitude to its own self help is as it is. The terminology used in the bulletin board announcement. The thrust of the attack by the union on Westpac as to the terminology as we can understand it because Ms Firman and others had no difficulty with the content. Ms Woolfrey did, but when asked to specify what the difficultly was she kept falling back on it was different to what I had suggested. She suggested something which appeared in attachment 3 to her affidavit. We suggested - we in fact circulated information in accordance with annexure 4 to her affidavit. The differences are, the differences that might on first glance be regarded as significant are the words:

PN2142

Concern around our treatment of Easter Saturday -

PN2143

They were the words used by the company:

PN2144

- as opposed to suspected underpayments of Easter pay rates.

PN2145

And within that phraseology the difference really is whether it was Easter Saturday or Easter pay rates generally. We say that’s a difference that is really immaterial. Immaterial for these reasons. Firstly, no one would be fussed about whether it was Easter Saturday or Easter pay rates. Secondly and probably most importantly the union did not suspect a breach of Easter pay rates and they had no basis for suspecting the breach of Easter pay rates because they had no, as opposed to Easter Saturday, as opposed to Easter Saturday there is not a skerrick of evidence that, leaving aside Easter Saturday, anyone had made any complaint at any time or has since in relation to Easter Saturday, Easter pay rates generally.

PN2146

Ms Taylor’s evidence, Ms Smith’s evidence, everyone’s evidence about prior to the inspection was Easter Saturday 2007. Nothing about any other day within the Easter holiday. So that to the extent that Ms Woolfrey in her right of entry talked about Easter pay rates as opposed to Easter Saturday, it was a fishing expedition and it wasn’t a proper notice under the right of entry provisions because there was no basis to suspecting a breach of anything other than Easter Saturday. The affidavits of the union are replete with references to Easter Saturday and only Easter Saturday. And it wasn’t Mr Willson or whoever was the author of this attachment 4, the Westpac document. Didn’t put Easter Saturday in to be contrary or difficult or somehow thwart the union, it was put in because at Westpac having regard to the conversations between the organiser Ms Taylor and Mr Baker overheard by one of the other witnesses, either Ms Firman or Ms Pickett, that was the complaint. It was Easter Saturday. And that’s why Easter Saturday went into the notification.

PN2147

And let me just remind you Ms Taylor’s evidence in March 2007 paragraph 2:

PN2148

Where shift rosters covering the Easter period were issued by Westpac I was contacted by FSU representatives regarding their concern that a number of members had been rostered to work on Easter Saturday -

PN2149

Et cetera, et cetera. And she spoke to Grant Baker and at paragraph 4:

PN2150

The fortnightly Westpac call centre FSU representatives meeting held on
6 March. FSU representatives agreed to approach members to ascertain who had been rostered to work on Easter Saturday and what management had told them.

PN2151

And the report back later in that paragraph again relating to Easter Saturday. And in paragraph 5 it’s all about Easter Saturday. And when she then sets out the terms of the Westpac bulletin board notification dealing as it did with Easter Saturday alone, she makes no comment about it being misleading or incorrect. She comments about other aspects of it. And her, I think the reps were Smith in paragraph 3 talks about Easter Saturday and she understood Taylor had spoken to Baker and paragraph 5 it’s Easter Saturday, et cetera. And I think the other rep was Firman. Paragraph 5 Easter Saturday. I think that’s the only place she refers to it.

PN2152

So there was never any suggestion by anyone on behalf of the union that it was other than Easter Saturday. That information was conveyed to Baker, Baker conveyed it to Willson, Willson put Easter Saturday in the bulletin board. End of story. The next issue in relation to the bulleting board, the next difference I think, was the failure to mention that time would be paid off, I think. That time off would be paid. That was implicit in the document. The witnesses in cross-examination accepted that a fair reading of the bulletin board document indicated that the union had the right, Westpac authorised it and I think Firman yesterday agreed that a fair reading was that it would be paid for. She had no objection of the content.

PN2153

The Commission would not, in my submission, do anything by way of making orders on the basis of the difference between the document that was circulated and the document that was requested to be circulated because essentially, as we have pointed out in our submissions, the two documents were the same in that both alerted people to the nature of the breach and as paragraph 29 of our submissions, the date and place of the FSU officials being present, the purpose for which they would be present, that all staff are entitled to meet with the union and paid time for 15 minutes, et cetera. And the necessity to speak to a team leader to arrange a suitable time to be booked off.

PN2154

Now, of course that notification is one of the things that distinguishes this case from the ATO case because you will remember, Mr Commissioner, that in the ATO case the ATO had declined, refused, hadn’t circulated staff as to the exercise by the union of the right of entry. That’s why order 4 was made in the ATO case, and I'll come to it. And order 4 having been made, order 2 was regarded as having been made in error by the Full Bench. That was the walk through. Here of course the position is entirely different because staff were notified, the union were there, apparently staff didn’t attend the meeting. We could spend the rest of the week or the rest of the month speculating as to why that was. There probably is many reasons as there are members of staff.

PN2155

That is not to say, Mr Commissioner, that in a less hurried environment, and this was a hurried environment, in a less hurried environment additional means of communication to members of staff could be employed. You have heard the evidence of Kim Slater yesterday who accepted that email communication would be appropriate in addition to the bulletin board. No one is saying that the bulletin board ought to be discarded. Not even the union. The union appear to be saying that you could use email as well and the company has no difficulty with that. It wasn’t done on this occasion because for reasons of the time frame it was considered that the bulletin board would be the most effective. And it’s as simple as that.

PN2156

And just dealing with the bulletin board, that’s not an unreasonable expectation by the company. You have seen on the inspection the bulletin board. You’ve seen that it’s fairly clear, you can have each day is listed and you click on the day, you get a page of information. And you can go to another adjacent site and find out who’s missing and why. I mean, that is to say whether there are sick leave tabs or, you know. But it’s extraordinary. The company actually provided time and requires its staff to spend time reading the bulletin board. They’ve got 10 minutes. Annexure B to Ms Slater’s affidavit.

PN2157

And in those circumstances it’s not unreasonable for the company to have thought well this is the best way to do it. And to suggest that 10 minutes is in any way shape or form inadequate is absurd. 10 minutes is a long period of time. We saw on the inspection we could have read that bulletin board in 30 seconds, the day’s events. If you’d gone back to the day you missed or you weren’t there it might have taken another 30 seconds. But it’s not a large period of time when it’s a requirement and when time is provided to do it. The fact that people don’t do it, and there’s no evidence that we knew of that at the time, no evidence at all, but the fact that people don’t do it including reps is something that is regrettable but can’t be laid at our feet.

PN2158

But as I say, the bulletin board was utilised, email could be utilised, but what can’t happen is a walk through and it can’t happen because it is beyond the power of the Commission to order it if it’s part of the interview - sorry, I withdraw that. The other way around. If it’s part of the interview it breaches 751(3) and if it’s not part of the interview it’s beyond power because it would extend the rights impermissibly having regard to 772(3). And that’s the substance of that supplementary submission on jurisdiction. Now, can I deal with the second order because we have said, and this gets to your Honour’s question yesterday, the second order is in these terms:

PN2159

That the officers of the FSU shall for the purposes of investigating suspected breaches make arrangements with the relevant local manager or team leader for each employee who is likely to be affected by the suspected breaches and is willing to participate in an interview in working hours at a time and place to be agreed.

PN2160

Now, firstly we say that if you were minded to make any order, and we say there is absolutely no warrant in the circumstances for an order to be made, but the alternative submission then we have proffered a form of order 2 with which we would consent and it’s in paragraph 4 of our written submissions. And it is - - -

PN2161

THE COMMISSIONER: I take it, Mr Goot, there is let’s take Easter Saturday just narrowly. I’m right in assuming, aren’t I, that the bank would believe it’s in its interests to identify and deal with any suggestion that there was not correct payment for that period.

PN2162

MR GOOT: No question. You’re entirely correct, Mr Commissioner. The bank - it’s true that the issue having been raised the bank has initially in relation to Easter Saturday 2007 realised that it’s breached and it’s told the union and told the union in June at the conciliation, whether it was May or June, that it was in breach and it’s rectifying it and it has rectified it and it’s a dead issue, that 2007. In the course of that, and there’s evidence of this, in the course of that inspection of the documents as per the request of the union, the bank has discovered that there’s a *11.46.23 in some of its record keeping, unfortunate though it is, but it appears nevertheless that there have been breaches and the bank is working to work through it and to resolve it and to make the payments.

PN2163

And I dare say if there is a doubt whether someone is entitled to the payment or not because of the absence of relevant records, I dare say the bank will give the benefit of the doubt to the employee.

PN2164

THE COMMISSIONER: Well, in that context it will need the best information in relation to work performed or not performed so that it can ensure that its staff see it as committed to its industrial instruments and to the application of fairness in the workplace.

PN2165

MR GOOT: Yes, but there’s no suggestion that the staff have a view other than that.

PN2166

THE COMMISSIONER: No, I wasn’t suggesting that. I was saying that’s in the bank’s interest, isn’t it?

PN2167

MR GOOT: It is in the bank’s interest and that bank can do that and will do it or will continue to do it. I’m not suggesting it hasn’t been done to date because it has notified people in relation to 2007 and the notification is in evidence. And there is no difficulty in the bank sharing its intentions and methodologies with the union and there is no - indeed the union seem to be behaving a strange way in this regard. They suspect other breaches but they haven’t mentioned them. There was one witness who gave evidence in her affidavit, I think it was Ms Pickett who gave evidence in her affidavit, quite irrelevant, but she suspected other breaches in relation to TADS, but had sat on her hands about it, hadn’t mentioned it to anyone.

PN2168

I mean, what’s going on? I mean, I seem to recall the days when if delegates or organisers suspected a breach they’d bring it to the attention of the employer and pursue it. There will be no need for any litigation in relation to claims here because the bank - it’s in the bank’s interest to resolve it and it’s trying to do so. And what’s remarkable is that if this right of entry was so flawed so as to give rise to an application for the orders that are sought in these proceedings, why didn’t the union sort of say okay why don’t we put on another right of entry in a timely manner and ask for notification by email, by bulletin board, on the notice board and then we’ll come and see what happens.

PN2169

No, none of that. Wasn’t effective. Bank’s fault. Go to court. We say they shouldn’t be allowed to benefit from that and there's no basis for them to do so. Now, Mr Commissioner, can I just - - -

PN2170

THE COMMISSIONER: Yes, you were turning to paragraph 4 I think of your submissions.

PN2171

MR GOOT: Yes indeed, thank you. We had said that look, we have no difficultly because, this is what we would do, for the union to make arrangements to the relevant local manager, not team leader, local manager for each employee who is likely to be affected by the suspected breaches and is willing to participate in an interview in working hours at a time and place determined by Westpac after consultation with the FSU. Entirely reasonable. No power of veto on the FSU as to the time and place, but a requirement to consult with the FSU before Westpac determines the time and place. And of course what is common ground in all of these bits of paper, that is the FSU side and our side, willing to participate in an interview.

PN2172

The person has to be willing to participate. There can be no compulsion. And that’s a matter for the person to determine. It’s not a matter for the FSU to go up and quiz and question that person, which is what they want to do at the pre-interview interview to see whether they are willing. And we say that to the extent the Commission wishes to do anything positive in relation to this application paragraph 4 is what it should do and that’s our fallback position. Now, because we don’t think there’s a necessity to do anything. And nor would the anti ..... relationships between the parties suggest that there’s a need to do anything. There is no history of recalcitrance on the part of Westpac, vis-à-vis the FSU.

PN2173

And there is no - it seems that there is no difference in opinion between the parties as to the need for employees to notify a team leader before they are released to go to an interview. That seems to me to be common ground, that otherwise it would be impossible if everyone walked off to go to the interview.

PN2174

THE COMMISSIONER: I think it all gets back to what are the ground rules if there’s to be interviews what are the ground rules and everybody understands them.

PN2175

MR GOOT: Yes, that's right. But the ground rules can not include for the reasons that I’ve already addressed both in the written submissions and orally order 1. I don need to rehearse with you, Mr Commissioner, the ATO decision. But can I just indicate - - -

PN2176

THE COMMISSIONER: Well, I hope none of it’s a rehearsal.

PN2177

MR GOOT: Sorry. Yes, now here’s the performance. Can I just indicate the passages which in particular we rely on in ATO Full Bench.

PN2178

THE COMMISSIONER: Yes.

PN2179

MR GOOT: Paragraph 14 where the fact that the ATO was not prepared to facilitate the visit of Mr Lapidos by sending a notification to all staff and providing for a scheduled relief of employees to meet with them in the designated interview was noted. And that’s a huge, that’s the big difference between that and us. Paragraph 15 sets out the orders that were made by the Senior Deputy President. Order 4 was made so as to notify, requiring the ATO to notify each of their employees and we say that’s not necessary here because we did notify all of our employees. Order 2 was the walk through order which the Full Bench said was made in error.

PN2180

Paragraph 21 has been relied on by Mr Matson as to your request,
Mr Commissioner, if you were prepared to do anything could you do certain things and we agree that it would entitle you to do something along the lines that we have nominated but would not entitle you to make an order such as order 1. Paragraph 23 is an important paragraph because it contrasts the position with Westpac’s situation where the Full Bench noted that the relevant employees would otherwise have been unaware of Mr Lapidos’s presence in the designated interview room because of course they hadn’t notified staff. But they go on to say this problem was a problem, was effectively dealt with by order 4. That is to notify staff.

PN2181

In our view for that reason order 2 was unnecessary.

PN2182

And we say the position applies here a fortiori.

PN2183

THE COMMISSIONER: Well, order 2, 17 January 2007, that was prior to the legislation formerly known as Work Choices, wasn’t it?

PN2184

MR GOOT: I think so. No it wasn’t. It was after, after.

PN2185

THE COMMISSIONER: So they didn’t rule on the jurisdictional question, they just said they didn’t need to.

PN2186

MR GOOT: Not, that's right. They didn’t need to.

PN2187

THE COMMISSIONER: Yes.

PN2188

MR GOOT: And paragraph 26 order 2 was made in error. And then the passage there is:

PN2189

Another reason also it seems clear enough that the ASU accepted that the ATO’s requirement that interviews because conducted in the designated room, consistent with that acceptance -

PN2190

And that’s the same here:

PN2191

- consistent with that acceptance it did not seek to conduct interviews at the employee’s work stations but only sought the opportunity to speak to employees there to ask whether they were prepared to attend an interview.

PN2192

That’s the official FSU position here.

PN2193

There is no requirement in order 2, order 3 or else where the interviews be conducted in the room designated by the ATO. Order 2 on its face permits
Mr Lapidos to conduct the interviews at the employees work station. There is some support that that interpretation be derived from the reasons for decision.

PN2194

And this is not what Lapidos sought and for this reason order 2 is effected by error and the same thing applies here. And finally in paragraph 33:

PN2195

The undertaking made on the ATO’s behalf -

PN2196

And that is an undertaking to notify:

PN2197

- appears to us to remove the ..... of the achievement of resolution of the issues.

PN2198

Well, it just doesn’t arise here. And I don’t think I need to supplement our written submissions as to the ANZ decision simply which anyhow most of which is, as you’ve pointed out Mr Commissioner, obiter. But paragraph 39 of course now has to be read in the context of 751(3) where the Full Bench said:

PN2199

Nor is there any warrant for importing a condition that the right of entry for the purpose of interviewing employees during working hours may not be made at the work site. With respect we do not agree with the ANZ contention that the location of interviews undertaken pursuant to section 285(b)(3)(c) of the Act is entirely at the employer’s prerogative.

PN2200

Well, that now has to be red in the context of 751(3) which makes a huge difference. We also rely on 42 and 43 where the Full Bench said:

PN2201

There is no conditional aspect of the legislation in relation to whether the right to interview an employee conferred by 285(b) of the Act might take place. The dispute was not about a generalised unconditional right of power to walk through the appellant’s premises and if it had been then both jurisdictional and discretionary objections could be made.

PN2202

And we say of course that that’s the very - - -

PN2203

THE COMMISSIONER: Basis upon which the legislation ......

PN2204

MR GOOT: I need say no more, unless Ms Brown wants me to? Yes. And can I hand up a copy .....

PN2205

THE COMMISSIONER: Now Mr Goot, you haven’t addressed as yet the question that I put yesterday, whether there was any jurisdictional or other impediment to the Commission issuing some form of explanatory document if it were to move to settle the dispute.

PN2206

MR GOOT: Well, the jurisdictional limit is to be found in 772, depending on what is to be said, otherwise it’s a matter of discretion. And we would say without knowing what it is that you, Commissioner, would want to say, we would say that it’s entirely unnecessary in the circumstances for the Commission to do anything.

PN2207

THE COMMISSIONER: Yes.

PN2208

MR GOOT: This is not one of those situations. If, for example - a big if - a further problem arose in relation to this issue or related issues between FSU and Westpac or a subsequent right of entry visit requiring the parties to come before you and you felt it necessary then to deal with it in some way as you foreshadow, that would be a different position or might be a different position, but we say there’s just no warrant for it at this stage.

PN2209

THE COMMISSIONER:

PN2210

MR GOOT: Now, can I hand up two decisions which are two of some of the decisions which are referred to in our supplementary submission. They are referred to in paragraph 9(b) and 9(d). They are Moranbah North Coal Management Pty Ltd v CFMEU, a decision of the Full Bench of the Commission published in 103 IR 267. And a decision in IES Australia v Communications Conglomerate, alphabet soup, a decision of Commissioner Grainger on 15 July 2003 PR934167 and I give a copy to my learned friend.

PN2211

THE COMMISSIONER: Well on the way.

PN2212

MR GOOT: And I think, Mr Commissioner, I can now resume my seat.

PN2213

THE COMMISSIONER: Thank you. Yes Mr Matson.

PN2214

MR MATSON: Commissioner, there are a few matters that arise from that. We haven’t had an opportunity to read properly the supplementary written submissions and with your leave if there is anything that arises from them we would like the opportunity to put to you something brief in writing. I suspect there may be - we can do that within the next week.

PN2215

THE COMMISSIONER: Yes, okay.

PN2216

MR GOOT: I’ve got no difficulty with that.

PN2217

THE COMMISSIONER: I don’t hold you to the week.

PN2218

MR MATSON: I’m sorry?

PN2219

THE COMMISSIONER: I don’t hold you to the week. It would be nice.

PN2220

MR MATSON: It is before Christmas but I am certainly hopeful with my calendar that I should be able to do something in that time.

PN2221

THE COMMISSIONER: Yes.

PN2222

MR MATSON: In relation to the question asked by the Commission and we gave our clear answer that we see that this is a matter that is incidental that the invitation, if I can describe it that way, is incidental and necessary to the interview and not part of the interview. We would say that Mr Goot referred to the evidence of Ms Taylor and Ms Woolfrey. How they characterise it I should say is, we think, irrelevant which is why I objected to the question at the time. The decision is clearly one for the Commission as to what constitutes an interview. I did mention before that Ms Woolfrey distinguished the invitation from what she called the formal interview and both of them gave evidence that they never thought about the issue before they stepped into the witness box.

PN2223

We say that the Commission can make the order which is set out in order 1 of the draft order. We say that that order is not inconsistent with or additional to the rights granted to the union otherwise and refer again to paragraph 21 of the decision of the Full Bench in the ATO matter. It does arise from a dispute over the operation of part 15 and we note that section 772 is broadly couched in that respect. In relation to the - a great deal has been made of the difference between the wording proposed by Ms Woolfrey and the wording adopted by Westpac without engaging in further consultation. It is clear that the words proposed by Ms Woolfrey were proposed in the context of a major concession and an observation that the whole proposal, even if the words proposed by the union were adopted, would fail to give effect to the union’s right of entry and that’s contained, set out clearly in attachment 3 to Ms Woolfrey’s affidavit where she says:

PN2224

This fails to give effect to the right of the union to interview all employees or members or who are eligible to be members of the union, however in the particular circumstances and given the short time left before the inspection is set to occur we are prepared to comply with your proposed matter.

PN2225

So clearly what the union was doing was conceding that they weren’t going to get proper entry and trying to make the most of it by putting out words that they thought would at least attract some people to the interview, but they didn’t even attract that. The union proposed a mechanism and invited Westpac to raise questions about that and concerns with the union and Westpac determined that it would do something entirely different very late in the piece on the evening of the 16th and didn’t leave the door open for any negotiation about that and that’s clear from attachment 2 to the affidavit of Ms Woolfrey.

PN2226

In relation to the famous incident of the non member where Ms Taylor gave evidence that she didn’t interview him, she also gave evidence that he did not want to be interviewed and she made that abundantly clear. The question of whether the inspection was over Easter Saturday or Easter holidays has been one that’s been trawled over extensively. It’s clear that Mr Goot is accustomed to dealing with very specific circumstances and dealing with evidence in a very specific way, but I think this ignores the realities of dealing with these kinds of issues at this kind of level.

PN2227

And when complaints go to the union it’s normally very unclear precisely what the issue is and it was certainly clear to the union that Easter Saturday was one of the matters that was included.

PN2228

THE COMMISSIONER: But is there material before me that gives rise to a suspicion that there might be other problems during that Easter period?

PN2229

MR MATSON: Well, the time away day is one that is relevant now. The time away day one apparently arises because people work their time away days over that Easter period. So that one alone is an issue. The other one that appears to arise is the question of meal allowances because meal allowances are payable not just on the Easter Saturday but on other public holidays when people work the five hours or more. So I think there is evidence before you that there are good grounds for the continuing suspected breaches.

PN2230

MR GOOT: I don’t want to interrupt my friend, but I have, but I don’t want to - and I want to say this so he has an ability to continue and correct me if he needs to - the time away days, the first word of that in evidence before you is exhibit M4, Ms Pickett, paragraph 7 where she suspects something about time away days but she has not, there’s no evidence that she has reported that to anybody or that she has done anything about it - on the contrary, I cross-examined her about it - and it could not possibly be a basis for a notification in April.

PN2231

MR MATSON: Commissioner, the point that I’m making is that the notification in April was having to deal with a circumstance where it was difficult to communicate with the reps, the reps had to communicate with the organiser, the organiser had to communicate with the lead organiser, the lead organiser had to communicate with the industrial officer and notices needed to be served. I mean, in practical terms it simply wasn’t possible for the people, if I can use this analogy, at the top of the pile to know the scope of what was going on at the bottom. But it’s certainly clear that by the time of the interviews we were starting to get clear impressions.

PN2232

And it’s in the evidence of Ms Woolfrey and Ms Taylor that by the time they started to do those interviews with those few people that they did get to see that their suspicions in relation to broader breaches were beginning to be confirmed, or certainly reinforced. And further than that it’s clear from the evidence of
Ms Taylor at paragraph 17, she says:

PN2233

I can’t work out whether they’ve been paid properly or not, but enough members have questioned their payments for days other than Easter Saturday 2007 for me to be convinced that it’s highly likely that some staff are not paid correctly on at least some of these days.

PN2234

In relation to the second order we say that order 2 follows as a necessary adjunct to order 1 and I don’t think we need to say a great deal more than that. Mr Goot has submitted that Easter Saturday 2007 is now a dead issue. The union frankly can’t even know that at this point. It has no detail of what was discovered or what was purportedly rectified and further than that has no information other than what it’s heard from Mr Willson in the box yesterday in relation to Easter Saturdays prior to 2007 let alone in relation to the other days. I think we’ve dealt with the issue of willing to participate and I’m not going to trawl over that again, except to say that it needs to be expressed to the union that they can’t know whether people are willing.

PN2235

It needs to be an informed decision and it’s bounded only by section 748(3) that Mr McConville referred to. I think in relation to the level of agreement about team leaders being notified it’s certainly true to say that the union agrees that team leaders need to know. I mean, it’s not in our interest or anybody else’s to have unnecessary disruption caused by a team leader not known who are going to be on the phones. That’s completely agreed. What’s not agreed is whether that necessarily needs to be done by the individual or by the individual on their own and that’s why the draft order and the alternative draft order are couched in the terms they are.

PN2236

I’d make just one further note in relation to the Full Bench in the ATO matter at paragraph 26 referred to by Mr Goot, we say that that is distinguishable because the union in that matter, the order I think the Full Bench found was capable of permitting the union to conduct the interviews at the work station, whereas the order in this matter is framed specifically to avoid that implication. Mr Goot then addressed the ANZ Full Bench decision at paragraph 39 and relied on section 751(3) to say that’s not the situation anymore. I must say that that paragraph need only be read in the context of 751(3) if it’s accepted that the interview encompasses the invitation.

PN2237

In relation to paragraph 43 his comments in relation to paragraph 43 of the ANZ Full Bench decision and jurisdiction, we say that we’re not seeking a generalised or unconditional right to walk through the workplace. And as I mentioned before, in relation to further problems the union has no idea whether Easter Saturday 2007 has been resolved, no idea whether Easter Saturday in previous years or what the scope of the problems are there yet and yet to establish the substance of the claims in respect of the other days. With that, Commissioner, I think I can conclude our submissions.

PN2238

THE COMMISSIONER: Thank you.

PN2239

MR GOOT: I don’t want to keep bobbing up, but can I just say that, and I’m sure Mr Matson didn’t seek to mislead the Commission in referring to paragraph 17 of exhibit M2, Joanne Taylor’s affidavit. My submission was that prior to giving the notice there was not a skerrick of evidence that anything other than Easter Saturday 2007 was involved. Ms Taylor does not contradict that. She says since 19 April she’d become aware of things. Well, that’s irrelevant to the knowledge of the union in giving the notice on 12 April.

PN2240

MR MATSON: Commissioner, I should say that I wasn’t attempting to mislead you and I wasn’t in fact addressing the comments made by Mr Goot. I was addressing the question raised by you as to whether there was evidence before you currently that there was grounds for those suspicions.

PN2241

THE COMMISSIONER: Well thank you. Given that you seek some further time you have inhibited me from giving an ex tempore decision.

PN2242

MR GOOT: We can expect one prior to Christmas Eve then.

PN2243

THE COMMISSIONER: No. Look, I thank counsel for their submissions on this. Could I just make this observation. I’m involved in a number of cases where people from the workplace come up and have to give evidence and often that you wonder whether that’s creating any tension when it shouldn’t. There’s a disagreement between you, but it’s not something that’s going to result in death. And so I have been grateful for those who have come and given evidence and I’m sure it won’t affect harmonious working relationships. May I also take the opportunity of wishing you the confidence of the season. The matter’s adjourned.

<ADJOURNED ACCORDINGLY [12.17PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #M6 DOCUMENT PN1862
PAULINE ANNE MACDONALD, SWORN PN1863
EXAMINATION-IN-CHIEF BY MR GOOT PN1863
EXHIBIT #G4 WITNESS STATEMENT OF PAULINE ANNE MACDONALD SWORN 03/10/2007 PN1869
CROSS-EXAMINATION BY MR MATSON PN1878
THE WITNESS WITHDREW PN1980