C2008/2728, Transcript of Proceedings [2008] AIRCTrans 865 (30 December 2008)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 19592-1

SENIOR DEPUTY PRESIDENT HAMBERGER

C2008/2728

s.170LW - pre-reform Act - Application for settlement of dispute (certified agreement)

Liquor, Hospitality and Miscellaneous Union
and
Chubb Security Australia Pty Ltd T/A Chubb Security Personnel
(C2008/2728)
Chubb Protective Services and Liquor, Hospitality and Miscellaneous Union, Australian Capital Territory Security Employees Certified Agreement 2004

(ODN AG2004/2311)
[AG834228 Print PR946770]]




Canberra

9.28AM, MONDAY, 8 DECEMBER 2008

Reserved for Decision

PN1

MR W ASH: I appear on behalf of the LHMU.

PN2

MR P KITE SC: I seek leave to appear on behalf of the respondent together with my learned friend MR S MEEHAN.

PN3

THE SENIOR DEPUTY PRESIDENT: I assume there's no problems with that?

PN4

MR ASH: No.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes, leave is granted. Mr Ash?

PN6

MR ASH: Your Honour, the LHMU has made a section 170LW application to settle a dispute. The dispute concerns the application of the overtime clauses of a certified agreement, being a pre reform certified agreement. The agreement is the Chubb Protective Services and Liquor, Hospitality and Miscellaneous Union Australian Capital Territory Security Employees Certified Agreement 2004. The LHMU is contending that the application of clauses and subclauses 14.1(d) and 14.2 of that agreement require that overtime be paid after the completion of the ordinary hours in a roster cycle. The roster cycle in question is an eight week roster cycle, and the LHMU contends that after the completion of 304 hours, being ordinary hours, if a guard works 336 hours for instance in an eight week roster cycle 32 hours will be payable as overtime and will be payable only after being the hours in excess but only after 304 hours have been completed, have been worked. That's probably all by way of introduction, your Honour. We've filed a fairly substantive outline of submissions.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Kite, were you going to make some preliminary, or do you want to go straight into your witnesses? I don't know what you are proposing.

PN8

MR KITE: Perhaps I'll do my best to confine myself to the estimate given to your Honour's associate. If I can just say this. It appears to us, and ..... (9.31.37) fairly stated that the issue before your Honour is whether there is anything in the agreement that requires the completion of 304 hours before overtime can be worked. That's it in essence. We don't understand it to be the argument of the union that that's the position. The hours they're looking at are the hours on the permanent roster which are necessary to cover an eight week cycle of two by 24 as it were. So you've got two officers covering a site 24 hours a day over an eight week cycle. The proposition advanced is on that roster you calculate the ordinary time for the first 304 hours worked, the last 32 is overtime.

PN9

But the argument being advanced to support that is that you can't work overtime by the expiration of 304 hours. It's undoubtedly, and we understand it's the union's position as well, that employees regularly work overtime outside those rostered hours and are paid for it during the course of the cycle as additional shifts or additional time or at another location. If they work four hours here it's overtime even though 304 ordinary hours hasn't elapsed. If that's the position there can be no argument that it has to be the last 32 hours. It comes down to that. If the Commission pleases.

PN10

THE SENIOR DEPUTY PRESIDENT: Okay. Mr Ash?

PN11

MR ASH: Your Honour, I call Mr Gil Anderson.

PN12

THE SENIOR DEPUTY PRESIDENT: There are no other witnesses in the room? No, good, okay, thanks.

<GIL ANDERSON, AFFIRMED [9.34AM]
<EXAMINATION-IN-CHIEF BY MR ASH

PN13

MR ASH: Mr Anderson, when did you work for the LHMU and in what capacity?---I was the ACT branch secretary for the LHMU from 1994 until 2007.

PN14

Did you have any involvement during that period of time with LHMU members in the security industry?---Yes, I did.

PN15

Were you involved in any discussions or negotiations or individual site agreements between approximately 2001 and 2003?---There was a minimum involvement because there were agreements, not with the union, they were non union agreements, but Chubb management informed me of their intention and provided me with a copy of the agreement, yes.

PN16

And so you were aware of the contents of those individual site agreements?---Yes, I was.

PN17

What was your understanding of overtime arrangements in those individual site agreements?---My recollection is that there was voluntary additional overtime which was a clause which was inserted in each of the agreements. This provided that a particular guard could volunteer to do extra overtime at ordinary rates of pay rather than at overtime rates. There was a limitation on this of course. I cannot recall what the limitation was.

PN18

Were you involved in the negotiations for the agreement in question, that is the certified agreement, the union agreement in 2004?---Yes, I was.

PN19

What was your involvement in those negotiations?---I led the negotiations on behalf of the branch.

PN20

Are you able to take the Commission through your recollection of those negotiations, any particular discussions around overtime I suppose?---I cannot recall any discussions on overtime. This was however four, five years ago. The negotiations were fairly unremarkable to my recollection at that time. The union was involved in a number of enterprise agreement negotiations.

PN21

Were you aware or was there any mention made of any sort of what Chubb has referred to as industry practice of allocation of overtime? Was there any mention of that during negotiations or any discussion about it?---I cannot recollect any mention of the industry practice in relation to overtime, though I was of course aware of the industry practice in relation to overtime in respect to the application of the award provisions for the payment of overtime.

**** GIL ANDERSON XN MR ASH
PN22

Are you able to explain the purpose behind or what the LHMU intention behind the insertion of clause 6 of the agreement, being the objects of that agreement, or the objects of the agreement, objectors of this agreement, are you aware of any intention on behalf of the LHMU behind the insertion of that clause?---The words on the objectors were supplied by the company. At that time they were pretty well standard in enterprise agreements. We didn't see they had any great significance on the working with agreement for our members, so we agreed to the objectors because they were fairly unremarkable.

PN23

Do you recall when you first raised this issue in relation to the payment of overtime with Chubb and why you raised the issue?---Yes. I raised the issue, I believe it was in 2004. It was some month, from my recollection, after the certification of the agreement. Again my recollection is that there was a delay in the certification, the actual certification of the agreement because the Commission required certain changes to be made to the agreement because the Commission had gone through it fairly in detail. I wrote a handwritten fax to the manager of Chubb at that time asking that the - well, first of all I think in that fax I stated the union's interpretation of the overtime, the 32 hours overtime, and asking if that was the company's interpretation. I also made a suggestion of how the overtime could be paid. I did this in the spirit of recognising that there were some operational or logistical difficulties in the payment of that overtime. That's why I made a suggestion that it be paid weekly, two hours at time and one half and two hours at double time. I wasn't married to that proposal or anything. I simply made that suggestion in the spirit of cooperation with the company in properly implementing the enterprise agreement.

PN24

Thank you. Chubb contend in their submissions that if clause 14.2, that is the overtime clause, was to apply as the LHMU suggest it should, that there would be a conflict between the application of clause 14.2 and the application of the voluntary overtime clauses. When you were negotiating did that cross anyone's mind or did you see there to be any conflict between those two parts or clause of the agreement?---Well, it certainly didn't cross our minds on the union's side of the negotiating table. We didn't see any conflict in that simply because voluntary overtime is what it says, it is voluntary overtime. The 2004 agreement doesn't envisage voluntary overtime. What it envisages is in fact compulsory overtime, that is, there's an eight week roster which is on a four on and four off basis and if you were on that roster you are required to work the overtime. So the two things did not come into conflict because they were entirely separate.

PN25

Are you able to explain to the Commission why there was minimal if not perhaps no correspondence between, or very minimal correspondence between 2004 and 2006 on this issue?---Simply because after the initial approach by some members seeking clarification on how the union believed the overtime should be paid there was no member that was asking us to pursue the matter as an individual claim on their behalf. Given that the matter was put to one side until 2006 when a number of members did approach the union.

**** GIL ANDERSON XN MR ASH
PN26

And when those members approached the union did any of those members mention to you that any Chubb manager had explained to them the practice of allocation of overtime to Sundays?---The members explained to me what the company's position was. I cannot recollect any of them telling me that a manager had explained to him why that was the company's position.

PN27

If the Commission pleases.

PN28

THE SENIOR DEPUTY PRESIDENT: You haven't actually formally tendered the written statement. I mean, you may have covered all the same points, I'm not sure, but I don't know whether you want to tender it or not.

PN29

MR ASH: I don't have a clean copy, your Honour.

PN30

THE SENIOR DEPUTY PRESIDENT: I've got a copy, but did you want to formally tender it?

PN31

MR ASH: I would like to tender it.

PN32

THE SENIOR DEPUTY PRESIDENT: Were there any objections?

PN33

MR KITE: No.

EXHIBIT #LHMU1 STATEMENT OF GIL ANDERSON

PN34

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Kite?

<CROSS-EXAMINATION BY MR KITE [9.43AM]

PN35

MR KITE: Mr Anderson, you're very familiar with the security industry?---Yes.

PN36

And you're aware that it's a low margin and a highly competitive industry?---I am.

PN37

And you're aware that because of the nature of the industry employers are particularly careful about how they approach labour costs?---Yes, I'm aware of that.

PN38

Because essentially the services provided are labour intensive?---Yes.

PN39

And you appeared on the certification of the various site agreements in 2002 on behalf of the union, correct?---I actually cannot recollect.

PN40

Do you recall appearing and seeking to be bound to those site agreements or at least one of them?---Yes, I now recollect that we did appear simply to be bound, yes.

PN41

And do you recall the application to certify the agreements was heard by the Commission and you were invited to make submissions about the certification process?---I cannot recall.

PN42

Do you recall agreeing with the submissions advanced on behalf of the employer?---I cannot recall it but I should imagine I would have.

PN43

I'm happy to show you the transcript if you would like, and I suggest to you that that's the position, if you could look at the transcript. In any event you did appear and made an application on behalf of the union to be bound by the agreements?
---Yes, that is the case.

PN44

And that application was successful so the union was a party to those agreements?
---Yes.

PN45

I'll just show you the transcript of proceedings before Commissioner Tolley on 17 December 2002 and direct - you'll see at paragraph 2 your appearance, and at paragraph 20 your application to be bound, and at paragraph 22 your adoption of the employer's submissions?---The paragraphs you mention were paragraph - - -

PN46

Paragraph 2?---Paragraph 2, yes, I see.

**** GIL ANDERSON XXN MR KITE
PN47

Paragraph 20, your application to be bound?---Yes.

PN48

And the Commissioner indicates that's a matter not yet to be dealt with, and your submissions on the certification, and at paragraph 22 you make those?---Yes, I make the point that we have nothing to add, that's correct, yes.

PN49

Now, you're aware that because of the low margin nature of the industry even on the eight hour daily roster or daily work pattern overtime was allocated to Sundays?---Yes, I was aware of that, yes.

PN50

That's standard practice in the industry?---It was for many years, yes.

PN51

And still is?---I should imagine it is in relation to awards, be set into a local award. The rosters have been written by the roster clerks so that the overtime does fall on the Sunday. It's not allocated to the Sunday, it falls on the Sunday.

PN52

What's the difference between allocated and falls?---Right. Well, the difference as I see it is this. That you write a roster, the 38 hours finishing line is crossed on the Sunday, hence that's when the overtime falls. In the case of the 2004 enterprise agreement where it's an eight week roster the figure is 304 hours and it's not a matter of allocating it, it's a matter of where that overtime falls. So from the union's point of view these are two completely different things. One is the industry practice based on using - writing a roster based on the award where the rostering clerk actually contrives that the overtime falls on the Sunday. It's completely different from the 2004 enterprise agreement where you're contriving that the overtime falls at a time it doesn't fall. The overtime falls in the 2004 agreement when you pass the 304 hour mark.

PN53

Well, that's your argument?---That's our argument, yes.

PN54

It wasn't the position you adopted in 2004 where you suggested overtime be paid on the basis of four hours per week?---Yes, that is, as I said previously, that was done in the spirit of recognition that there could be some operational difficulties - administrative I should say, the administrative difficulties in paying the overtime. And we've had always over the years a reasonable working relationship with Chubb and as part of that relationship I said, well, look, if it's easier for the company to pay it - well, I didn't say if it's easier. I made the suggestion, it's a suggestion from me. I wasn't particularly tied to that suggestion, I was just trying to be reasonable about the thing.

**** GIL ANDERSON XXN MR KITE
PN55

But you don't suggest your suggestion is consistent with what you say the agreement requires?---No, it's strictly not consistent. Strictly not consistent.

PN56

The second object of your suggestion I suggest to you was to ensure pay equity between the employees?---There was that administrative issue but it was a short to medium term issue because over the whole cycle there would be pay equity.

PN57

Well, not if you operate on the basis of the first 304 hours being ordinary time and any time after that overtime?---I mean in the longer cycle.

PN58

It won't make any difference anyway will it? It doesn't matter how long the cycle runs, if you start on line four as opposed to line one you'll be locked into that cycle until you change rosters?---My understanding of the roster was that people actually changed lines.

PN59

Well, they rotate through the lines?---Yes, they rotate through the lines.

PN60

One day on a weekly basis, correct?---Yes.

PN61

You commence line one, you're then line two the next week, line three the week after, line four the week after that, line five?---Yes.

PN62

But if you start on line four the first week of your cycle is line four, line five is your second week, line six is your third week and so on?---Yes.

PN63

And you will stay on that roster as long as you continue to work in that position?
---As will every other person in the roster.

PN64

But your 304 hours is going to finish at a different time to everybody else?
---That's correct.

PN65

And it will do so indefinitely?---That's correct.

PN66

So one person is going to have his overtime fall regularly on Sundays and another is going to have his overtime fall regularly on a Monday, Tuesday or Wednesday?
---Yes. But I make the point, the majority would be falling on a day other than Sunday.

PN67

Maybe the majority will but there will be some employees who get paid significantly less than others simply by reason of the day on which they started or the line on which they started in the roster?---Yes.

**** GIL ANDERSON XXN MR KITE
PN68

And that will be so forever, correct?---I can't say whether it's correct or not. I've not looked at the roster in something like five years so I'm not in a position to either agree or disagree with you.

PN69

You recall you had a meeting with Chubb at the beginning of 2007 to discuss this issue and the related issue of the former employee, Mr Preston?---Yes, I do.

PN70

And having discussed the issues about Mr Preston you raised the issue of the 32 hours overtime?---Yes.

PN71

And Mr Mackersey and Mr Myers said to you, look, that's the way we've always done it, you know that, and you said that's true, I know. Is that right?---Yes, and I was referring to the industry practice in paying in accordance with the award, not paying in accordance with the 2004 enterprise agreement.

PN72

But you knew through the period 2004-2006 that Chubb was allocating the overtime, the 32 hours, to Sundays and Saturdays?---Yes, I knew that because our members told us.

PN73

And you knew that prior to the making of the certified agreement?---No, I didn't.

PN74

Didn't you know it was the practice under the site agreements?---This was a separate agreement. This was an agreement that provided for many things that the site agreements didn't provide for.

PN75

But the site agreements provided for the introduction of two things; 12 hour shifts and with the eight week cycle related to that, correct?---Again, I cannot recollect.

PN76

I'll show you a copy in a moment. And the second thing was the voluntary additional allowance?---Yes.

PN77

Which you indicated earlier you could recollect was in the agreement?---Yes.

PN78

I'll just show you one of the site agreements. These are annexed to Mr Samios's statement. That one's mine. I'll show you one for the High Court of Australia which is on pages 14 to 25 of Mr Samios's statement.

PN79

THE SENIOR DEPUTY PRESIDENT: Sorry, for some reason my copy is slightly - Mr Samios's statement hasn't been separately - I'm just trying to find it.

**** GIL ANDERSON XXN MR KITE
PN80

MR KITE: Does it have numbers at the top right hand corner?

PN81

THE SENIOR DEPUTY PRESIDENT: Yes.

PN82

MR KITE: Pages 14 to 25.

PN83

THE SENIOR DEPUTY PRESIDENT: Okay great, thanks, yes, I've got it.

PN84

MR KITE: Only the annexures are numbered, not the statement itself.

PN85

THE SENIOR DEPUTY PRESIDENT: This is the High Court agreement, yes, I've got it.

PN86

MR KITE: The High Court agreement. You've been having a look at that, Mr Anderson while we've been finding it for his Honour. On page 18 we see the top right hand corner the numbers?---Yes.

PN87

There's a part 3, hours of work?---Yes.

PN88

Ordinary hours of work and the introduction of the 304 56 day cycle?---Mm.

PN89

And in 10.3 a maximum of 12 hours per day?---Yes.

PN90

And then clause 11 deals with voluntary additional hours?---Yes.

PN91

So they were the two significant matters that the site agreements introduced in variation of the award, correct?---Yes, that's correct.

PN92

And that provided for the introduction of 12 hour shifts in the ACT for Chubb?
---Yes.

PN93

Now, you have members working under these agreements?---Yes.

PN94

And of course the union was a party to all this?---Yes, but we were not involved in the negotiations for the agreement. We were simply a bystander if you like that sought to be bound.

PN95

No doubt when you sought to be bound though you made some investigations about what the agreement involved?---Yes, we made investigations and consulted with our members.

**** GIL ANDERSON XXN MR KITE
PN96

Did you continue to consult with your members after the agreements were put in place?---Well, that's normal work of a union. Yes, we did.

PN97

And I want to suggest to you, you became aware that Chubb was adopting the current system of rostering the 32 hours of overtime on Sundays and Saturday/Sunday under those agreements?---Yes.

PN98

And that the introduction of the certified agreement in 2004 which extended the operation of the 304 hour 56 day cycle of 12 hour shifts generally across the ACT was intended to operate in the same way?---That may have been the company's intention. The union was never happy with these, you know, but that's - they weren't happy. The 2004 agreement gave us an opportunity to have some input on how we believed the various clauses should be and how they should be implemented and we took that opportunity.

PN99

So in your statement you say that you can't recall any conversations about overtime at the time of negotiating the agreement?---I cannot recall any - yes, that's correct.

PN100

Because it wasn't an issue, is that right?---Well, it may not have been an issue. The union was happy with what clause 14, the overtime clause, said. We were happy with it, it was clear, why should it be an issue?

PN101

And you knew that Chubb understood it to operate in the same way as its previous site agreements?---No, we did not know that. How would we know that?

PN102

Because you knew they were not trying to introduce change in that respect?---How did - I'm afraid I don't follow your reasoning.

PN103

You don't follow me. Did you say to Chubb, look, we don't like the way your site agreements work so that your 32 hours overtime is allocated to Sundays and we want it clear in this agreement, that if you adopt this practice it will be contrary to the agreement?---No, I don't recollect us saying that to Chubb.

PN104

But you knew that was Chubb's practice at the time of making the agreement?
---Look, that was Chubb's practice at the time of making the agreement. The words were crystal clear in clause 14.2 and we agreed on it.

PN105

The words in 14.2 indicate that overtime will be in accordance with the award, correct?---In terms of the penalties paid, yes.

**** GIL ANDERSON XXN MR KITE
PN106

And then they give an example, is that right, about the 304 hours and the 336 hours?---As I said, I've not looked at that agreement in some time, for some time, so I couldn't say yes or no on that one.

PN107

But you know that the agreement also provides for a 76 hour roster cycle, a 114 hour roster cycle, a 152 hour roster cycle, do you recall that?---No.

PN108

You don't?---I'd need to see the clause again. As I say, I've not looked at that clause for some time.

PN109

It's on page 11 of the agreement?---Thank you. Yes, I have that in front of me now, yes.

PN110

You'll see 14.1 provides for the various forms of roster cycle?---Yes. In fact it's an extension of what's been in the award for many years, the extension being subclause (d).

PN111

Which is consistent with the same agreements that have been put in place for the two years prior to that?---Yes.

PN112

And then 14.2 provides in the first sentence that hours in excess of the ordinary hours will be paid in accordance with the overtime provisions in the award?
---Yes.

PN113

And then there was an example given?---Yes.

PN114

And you will understand I take it that the example is just one example of ways in which rosters may be implemented?---Yes.

PN115

And the roster as I understand it is the process by which the employer in this industry meets the notification requirement under the award?---Yes.

PN116

Which is in clause 7 of the award. The employer is not required to maintain a roster but is required to give notice of when employees are required to work?
---Yes.

PN117

Seven days notice?---Yes.

PN118

So the practice under the award for overtime, as you understood it, was that overtime was allocated to Sundays?---Yes.

**** GIL ANDERSON XXN MR KITE
PN119

And clause 14.2 in the first sentence says overtime will be paid in accordance with the award?---I would say that that was custom and practice, it wasn't what the award said. In fact for a number of years I had made the point that, you know, this was simply something that the rostering people did. It was not - it was a contrivance, that's the point made, over many years. It became a bit of a standing joke between the union and Chubb management, just simply contrivance, oh my goodness, it fell on a Sunday.

PN120

Not just Chubb but other employers?---Indeed, yes, other employers.

PN121

It was a way of keeping costs down wasn't it?---Yes, I should imagine it would be.

PN122

And it was a way of allocating overtime to employees to ensure that they got the additional work, not casuals, correct?---Yes, that's correct.

PN123

There was a mechanism that allowed for an increase in their take home pay at some cost to the employer but nevertheless an advantage to the employees?
---Yes.

PN124

At least for those who wanted to work overtime?---Well, that's a different matter isn't it? In the 2004 enterprise agreement it wasn't voluntary overtime. If you were on that agreement you were on that eight week roster and the overtime was compulsory.

PN125

The voluntary additional hours clause is clause 16 which is on page 13?---Yes, I've got it.

PN126

And it makes provision in the first part of it for the making of voluntary additional hours agreements?---Yes

PN127

An employee can volunteer for such an agreement?---Yes.

PN128

And the effect is that they will be given priority for additional hours?---Yes.

PN129

And instead of being paid on overtime they're paid at ordinary time plus 15 per cent?---Yes.

PN130

Up to a maximum of double time for the Sunday?---Yes.

**** GIL ANDERSON XXN MR KITE
PN131

As is apparent from what's said at the end of clause 16.9.2 on the following page?
---Yes.

PN132

But clause 16.8 provides where there isn't enough employees volunteering Chubb will allocate the overtime at ordinary overtime rates?---Yes.

PN133

And there is an obligation on employees to work reasonable overtime is there not?
---That's correct, yes.

PN134

So the agreement provided in its terms and recognised in its terms that in addition to those employees working voluntary additional hours there might be directed overtime, clause 16.8?---Yes, there'd be directed overtime to be paid in accordance with the award, yes.

PN135

And that overtime didn't need to come after 304 ordinary hours?---I don't follow your reasoning.

PN136

Well, let's say you were rostered to work 36 hours this week on your normal roster, right?---Right.

PN137

And an extra shift becomes available on the fourth day because someone's off sick. You're not on a voluntary additional hours agreement, but the employer is short of employees available to do that shift and directs you to do it. You would do that shift and be paid overtime for it, correct?---Yes.

PN138

And it does not matter whether in the cycle you've reached 304 hours or not, you've got to be paid overtime for it?---That's because it's additional to the roster.

PN139

Additional to the roster?---Yes.

PN140

So if Chubb adopted the practice of rostering employees only for 304 hours and directing the employees to work the Sunday as overtime shift, you wouldn't have a difficulty?---I would not have a difficulty but Chubb would. Operationally it wouldn't be possible.

PN141

Why wouldn't it be possible?---Well, there would be hours to be worked that didn't follow the Sunday.

PN142

But that's going to happen anyway with the directed overtime?---Yes, but if I'm directed to work on a Thursday I'll get overtime rates.

**** GIL ANDERSON XXN MR KITE
PN143

Chubb will simply roster its employees to work the 304 hours and then not roster Sundays but direct people to work overtime on Sundays. Would there be any difference in practice from the employees' point of view?---I'm sorry I don't follow your reasoning.

PN144

Well, you've indicated that the reason this 32 hours is payable as, or can't be paid as overtime, is because it's within the first 304 hours in the cycle?---Sorry, the 32 hours in question is 32 hours over the 304, making it 336.

PN145

You say it's the last 32?---Yes, the last 32.

PN146

So that those shirts that Chubb has recognised as falling within the first 304 as overtime shifts are not properly so recognised?---No, they wouldn't be under the 2004 agreement. If I work my roster, my eight week four on four off roster, within the 304 hours I get paid at ordinary rates. If I'm required or directed by my employer to work an extra shift over and above the 304 hours then that should be paid at overtime rates.

PN147

So to avoid the issue that you raise Chubb just rosters employees for 304 hours making sure that none of them are rostered on Sunday and directs them to work Sunday shifts as overtime?---I suppose they could do that, but I'd need to see it on a whiteboard to be convinced that it was operationally possible.

PN148

The key from your point of view is the fact that the 32 hours are built into the permanent roster, they're treated differently from additional shifts that employees are asked to work during a cycle?---Yes.

PN149

Whereas the roster is just a means of notifying employees when they're required to work, correct?---Yes, it's meeting the requirement of the award and seven days notice. But I'd suggest to you how the industry works it's a lot more than that. It's not simply just the requirement by the employer to give the workers seven days notice, it's the whole operational thing of the service that Chubb is offering to their client.

PN150

Indeed, they need to provide the service?---Yes.

PN151

And they've got to work out a mechanism to deal with that?---Yes, indeed.

PN152

And they will need, in terms of their service provision, allocate employees to the hours necessary to deliver that service?---Yes.

**** GIL ANDERSON XXN MR KITE
PN153

In a 24 hour seven day roster, 168 hours a week, correct?---Yes.

PN154

And they can do that a number of ways. They can have permanent staff doing 38 hours a week up to 48 hours a week ordinary time?---Yes.

PN155

They can do it by rotating eight hour rosters, they can do it by rotating fixed eight hour rosters, they can do it by rotating 10 or 12 hour rosters or fixed 10 or 12 rosters, correct?---Yes, there's a whole range of options open to them.

PN156

And they can do it by engaging casual staff to fill in the gaps, correct?---Yes, they can, yes.

PN157

And they will do it by the most cost effective method?---Not just the most cost effective method. Both the most cost effective method and the method that means we can deliver the service to the client, because the fact of the matter is, in the industry many clients prefer that there are not - that the number of casuals used is minimised. That's a common requirement, particularly in Canberra where there are a number of public buildings and government departments.

PN158

But within the strictures of what the client operates or requires, Chubb and its competitors seek to do so in the most cost effective way?---Well, like any business, yes.

PN159

And labour costs are the overwhelming component of their costs and, as we have discussed, the industry has for years adopted practices that allocates overtime to Sundays?---Yes, that's correct, under the award, yes.

PN160

Because of that cost effective element?---Yes.

PN161

It's double time either way?---Yes, that's right.

PN162

Just have a look at the front of the agreement and you'll see the certification?
---Yes.

PN163

It was in May, 17 May?---That's correct, yes.

PN164

And at that stage it was your position that the overtime issue wasn't an issue because it was perfectly clear?---That's correct.

PN165

No need to raise it with Chubb at all?---No.

**** GIL ANDERSON XXN MR KITE
PN166

But on 24 May you wrote to Mr Samios about that issue?---Yes.

PN167

You mentioned a handwritten fax. Can I show you this document?---In fact it wasn't handwritten, I stand corrected.

PN168

That's the fax you had in mind?---That's the fax I was referring to, yes.

PN169

I just wanted to clarify with you there isn't another one?---Yes, I was wrong.

PN170

Well, if it was so crystal clear in May why are you writing on the 24th expressing concerns about the way that it operates?---Because I'd been approached by some of our members who informed me that they were not being paid in accordance with the agreement.

PN171

And that hadn't happened between 17 May and 24 May?---The rosters were actually introduced before 17 May, before the actual certification. The certification was held up for the - as you can see Commissioner Deegan's decision there on the certification there are a number of matters that she wants attended to, so the agreement was - or the hearing, as you can see, the original hearing was on 1 April. The agreement had been implemented before the actual formal certification.

PN172

Just so his Honour knows that document we're talking about, it's annexed to Mr Myers's statement as RM6, your Honour, at page 26.

PN173

THE SENIOR DEPUTY PRESIDENT: I'm not quite sure, is this the number on the top right hand corner?

PN174

MR KITE: Yes.

PN175

THE SENIOR DEPUTY PRESIDENT: What was it, 20?

PN176

MR KITE: Yes, 26.

PN177

THE SENIOR DEPUTY PRESIDENT: Yes, I've got it, yes, thank you.

PN178

MR KITE: And that's the time that you made your suggestion of averaging four hours per week?---That's correct.

**** GIL ANDERSON XXN MR KITE
PN179

As I've indicated, it had two advantages, one was ease of administration and the second was pay parity between employees, is that right?---Yes. The pay parity from my recollection wasn't the major thing, it was easily an administrative kind of thing.

PN180

But you certainly wanted to ensure that the employees were treated equally as far as possible?---Yes.

PN181

You certainly didn't want someone in the roster cycle earning significantly more or significantly less than his colleagues were working the same shifts?---No.

PN182

And I think you agreed with me that your suggestion was not strictly in accordance with the proposition that you've now advanced about the first 304 hours being ordinary time?---No, it wasn't.

PN183

The four hours is identified most simply because the employees average 42 hours a week over the eight week cycle, is that right, 336 hours?---Yes.

PN184

And so four hours in excess of 38 on average is the way you arrive at your four hours overtime per week?---Yes, I should imagine. That was the way for which that - - -

PN185

Can I ask your Honour to go to page 28, and I'll provide the witness with a copy. This is a letter dated 2 July from you to Mr Connell - 2004 I should say?---Yes.

PN186

That was done by reference to a particular roster, but you're making the point there that depending on what line and cycle you are you'd be paid significantly differently under the 304 and 32 at the end basis?---Yes.

PN187

So you are proposing in the interests of equity and simplicity again four hours per week on average?---Yes.

PN188

So clearly at that stage, at least by July, parity of earnings was a matter of importance?---Yes.

PN189

And you'll agree with me that the way that Chubb does it, that is, by rostering particular shifts in the eight week cycle as overtime shifts, and given that every employee passes through those shifts once in the cycle, achieves parity of earnings?---Yes, I guess it does.

**** GIL ANDERSON XXN MR KITE
PN190

And at page 30 is Mr Collins's response to you?---I see, yes.

PN191

Do you recall receiving that response?---Yes, I do recall receiving that response.

PN192

And that was really the end of the matter so far as you were concerned until the end of 2006?---Yes, it was, as I explained earlier, because no members came wishing to pursue the matter until 2006.

PN193

But I take it you explained it to the employees that had come to you at that time making inquiries about how the system worked?---Yes.

PN194

What Chubb's response was?---Yes.

PN195

And they were at least satisfied enough not to pursue it further?---Well, I don't know but I suppose that's a reasonable assumption to make.

PN196

Well, they didn't ask you to do anything more about it?---That's correct.

PN197

So the inference is they were satisfied with the explanation that they got?---At that time.

PN198

I asked you some questions earlier about the meeting in February with Mr Myers and Mr Mackersey and others?---This was the meeting that had two items on the agenda, the Preston matter and the overtime matter?

PN199

Yes?---Yes.

PN200

Well, look, certainly the Preston matter was on the agenda. It's clear that you raised the second matter during the course of the interview or discussion?---Yes.

PN201

And Mr Mackersey and Mr Myers pointed out to you the difficulties that flowed from your suggestion of 304 hours, the first 304 being ordinary time and the last 32 being overtime?---Yes, I recall there were many difficulties.

PN202

Including pay inequity?---Well, I cannot recall as there were many, many issues. However I might say the main issue was that the company hadn't provided for that in the prices they'd given the clients, that was the main issue.

PN203

And they indicated to you there was a difficulty with those employees taking annual leave?---Yes, they did raise something about annual leave, yes.

**** GIL ANDERSON XXN MR KITE
PN204

Because if their annual leave happened to coincide with the last 32 hours in the roster they wouldn't be on annual leave, they wouldn't be at work?---Yes.

PN205

They wouldn't be paid?---My recollection is that the annual leave thing was a bit of a furphy from our point of view.

PN206

Was it?---I cannot recollect the solution we put up. I can remember the leave thing, yes.

PN207

Well, the fact is, if it did coincide they wouldn't be required to be at work on ordinary time for those last 32 hours because it would be overtime on your analysis?---Yes, that's correct.

PN208

So you wouldn't need to take annual leave. If you're absent from work you're absent from work, you're just not doing overtime?---Yes.

PN209

So you may not get paid at all that week?---Yes, there were all these, if I could call them technicalities. I wasn't surprised the company raised them because the main issue for the company was they didn't want to pay the money, and so of course they would raise all these issues, of course they would.

PN210

And that was an important aspect about clause 6.1 of the agreement wasn't it, the objectives?---Which particular part are you referring to?

PN211

To 6.1, the need to enforce additional flexibility in work practices and roster to enable Chubb to meet its contractual obligations?---The way we interpreted that was that, yes, we were agreeing to introduce flexibility of the 12 hour shifts, that was extremely flexible, you know, because the history of the industry had been that it was eight hours and 10 hours in exceptional circumstances. Yes, there were 12 hour shifts existed but in non union agreements, yes.

PN212

So that was one aspect but, of course, the other aspect was that the 12 hour shifts wouldn't be introduced in a way which caused significant increases in costs to Chubb?---I can't see where that's in here.

PN213

Basically for Chubb to meet its contractual obligations?---Well, my interpretation of it in Chubb meetings, contractor obligations is providing the service to the client. Making a profit is their obligation to their shareholders.

PN214

And if they don't make a profit they won't be able to provide a service to the client and they won't have the work to offer?---I suppose by extension you could put an argument up like that.

**** GIL ANDERSON XXN MR KITE
PN215

Well, you knew that was a matter of some importance to Chubb did you not?
---Look, Chubb told me that it was a matter unfortunately - it was their problem, it wasn't our problem. They are the owners of the company, right, they had become a party to an agreement which provided for 32 hours overtime and then they believed that they hadn't become a party to that agreement, or their interpretation of that clause in the agreement was different from the - of course they put up all sorts of reasons why they couldn't do it.

PN216

Cost being the main one?---Cost, yes.

PN217

And you knew that Chubb was prepared to enter into this 12 hour agreement on the basis that it didn't significantly increase their costs?---It wasn't my business to be concerned with Chubb's costs.

PN218

Well, whether it was your business or not, that's what you knew, correct?---Well, no, I didn't know that.

PN219

Did you know that Chubb's - - - ?---I could assume that, I could certainly assume that, but I didn't know it.

PN220

Chubb didn't make that clear to you?---At the time we were negotiating the agreement, no. The main issue for Chubb when we negotiated the agreement was the flexibility referred to in clause 6.1 that it provided for the company in providing a superior service to its clients.

PN221

At the time of this agreement there were some questions and answers circulated to staff, frequently asked questions?---I can recollect there was a document like that, yes.

PN222

I'll just ask you to have a look at this document which has been produced by the union. I direct your attention to the second question?---Voluntary additional hours, right.

PN223

And you see in there there's a reference to the distinction between those hours and the - - -

PN224

THE SENIOR DEPUTY PRESIDENT: Can we just - I think you may have a copy.

PN225

MR KITE: Yes, I'm sorry, perhaps if we could make that available to his Honour.

**** GIL ANDERSON XXN MR KITE
PN226

There's a distinction drawn between the voluntary additional hours and the rostered overtime?---Yes.

PN227

And it's perfectly clear that overtime will be rostered through the cycle?---Yes. I refer to - this refers to an overtime shift forming part of the roster, yes.

PN228

And I take it you say that just means the last 32 hours of the roster?---Yes.

PN229

Thank you. If that might be returned?---Thanks.

PN230

This is another document produced by the union on Friday. By all means go to the front of the document, Mr Anderson, to remind yourself of what it is and the date on the bottom?---Yes.

PN231

And there are some handwritten notes on the document?---Yes, that's correct.

PN232

Do you recognise that handwriting?---It is my handwriting.

PN233

It's your handwriting?---Yes.

PN234

Was that a working draft that you had at that time?---Yes, it certainly looks like it. It's dated 10 November 03.

PN235

And on the hours clause you've got some additional wording after paragraph (d)?
---Yes, I've written something there. Yes, there is additional wording.

PN236

Do you recall the status of these notes. Were they just notes you made to yourself? Were they notes you made in a meeting?---I cannot recollect, but my normal system of working when I was a union official was to write these notes. They look as though the notes that are suggested improvements, are clarifications to the document in November.

PN237

And you've crossed some words out and got others written above and below?
---Yes.

PN238

Those particular ones obviously didn't make it into the agreement?---No, for some reason they didn't, no.

PN239

It appears that the clause E that you're referring to was to deal with the rostering of the additional overtime?---It would seem it was a stab at that, an attempt by me to deal with that, yes.

**** GIL ANDERSON XXN MR KITE
PN240

Does that prompt your recollection that this was an issue?---My recollection is that I probably want to clarify it further than - in my view it's already pretty clear, 304 hours and there's 32 hours. Perhaps I wrote this back in November 2003 possibly wishing to clarify the clause even further. It would seem, you know, it is some years ago, it would seem that I changed my mind. Why I changed my mind I do not know.

PN241

You've seen in the example and the way the agreement finished up and, indeed, in that draft there's no reference to 32 hours after 304 hours is there?---In the draft there's no reference to the 32 hours, no. No, there isn't, not in this draft.

PN242

And neither in the final agreement?---In the final agreement at 14.2 it actually gives an example where the 336, 32, yes.

PN243

Is made up of 304 ordinary and 32 overtime?---Yes.

PN244

Because it doesn't say that the 32 overtime would come after the 304 ordinary?
---It doesn't say it but I should imagine that I was satisfied with the final 14.2. That's why I decided that my suggestion, or a further subclause (e) I decided against it. But it would seem to me logical that overtime comes after ordinary time.

PN245

Except for additional shifts?---Yes, additional shifts to your roster, yes.

PN246

Could you go back to clause 6.1 in the draft?---Okay, I'm looking at it, yes.

PN247

And there's some words that you've struck through there about maximising and minimising, the minimising the cost to Chubb?---I've underlined them, and it seems that these words - well, it seems these words were not in the final agreement.

PN248

Is that because you - - - ?---In fact the words in the final agreement are quite different from the words in this draft.

PN249

Do you recall negotiating that clause?---No, I don't recall negotiating that particular clause. I can recall that we viewed the objective clauses and enterprise agreements at that time with a certain level of cynicism, yes.

PN250

But looking at your markings there that doesn't prompt any recollection about negotiating the substance of clause 6.1?---No, it doesn't.

**** GIL ANDERSON XXN MR KITE
PN251

But the words underlined indicate that there was a key feature of Chubb's position at least that they would minimise cost?---It would seem that was their intention, yes.

PN252

And by putting it in, that objective, they were making it known to you?---Yes, indeed they did.

PN253

Thank you. I tender that document.

EXHIBIT #CHUBB1 DRAFT COPY OF CERTIFIED AGREEMENT DATED NOVEMBER 2003

PN254

MR KITE: And I'll tender the questions and answers.

EXHIBIT #CHUBB2 QUESTION AND ANSWER DOCUMENT

PN255

MR KITE: And I tender the transcript of proceedings before Commissioner Tolley on 17 December 2002.

EXHIBIT #CHUBB3 TRANSCRIPT DATED 17/12/2002

PN256

MR KITE: Just to assist in identifying CHUBB2, I'll just ask Mr Anderson to have a look at that document. Given that was part of the documentation produced by the union do you understand that to be the cover of a memorandum that went with the questions and answers?---I have no recollection. It wouldn't be our normal practice to distribute a union document through the company channels.

PN257

No, I'm suggesting it's been - this is a document distributed by the company?---I see, it's separate from the document that we put together.

PN258

The questions and answers?---Yes.

PN259

What I'm suggesting to you, it wasn't your questions and answers but the company's?---It was the company's, yes. Well, I'm not familiar with the document but it seems to fit in with the questions and answers document.

PN260

Perhaps it be added to CHUBB2, your Honour.

PN261

THE SENIOR DEPUTY PRESIDENT: Okay, yes.

PN262

MR KITE: I think the other documents that I've shown Mr Anderson are annexed to other witness statements. We'll tender them in due course. If the Commission pleases.

**** GIL ANDERSON XXN MR KITE
PN263

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Ash?

PN264

MR ASH: Thank you, your Honour.

<RE-EXAMINATION BY MR ASH [10.41AM]

PN265

MR ASH: Mr Anderson, can I take you to, I believe it's been marked as CHUBB1, which is the - am I right - the High Court voluntary provisional hours enterprise - - -

PN266

THE SENIOR DEPUTY PRESIDENT: No, that hasn't been formally tendered I think. CHUBB1 was the draft certified agreement.

PN267

MR ASH: Do you still have a copy of that?---Yes, I have.

PN268

You've had a look through that. Is there any mention of overtime in that agreement which is additional to or supplements the overtime provisions of the award? And I'm not talking about the voluntary additional hours, I'm talking above overtime. Is there any mention there you can see at all outside of the - - - ?
---There is no clause headed overtime. I suppose indirectly under ordinary hours of work which is clause 10 on page 18 It does - it does specify the - the ordinary hours of work and it says they shall be 12 per day and 304 hours in a work cycle not exceeding 56 consecutive days ie. eight weeks as per the union enterprise agreement.

PN269

Thank you. You replied to one of Mr Kite’s questions around the industry practice, and the industry practice that existed prior to negotiating this agreement practically, a project that came out of these individual side agreements. You mentioned that overtime was falling on a Sunday under the operation of those agreements?---Yes.

PN270

It was not being allocated to a Sunday?---That’s correct.

PN271

Is it correct that they were weekly rosters?---The rosters under the award or the rosters under the agreements like the High Court agreement?

PN272

Under the enterprise agreement, the division site agreement?---I couldn’t say how the rosters were - were put together. As I say, our involvement in this was very much - very much peripheral.

PN273

Is it correct that the way you saw those rosters operating was that there would be three 12 hour shifts in a week and often the fourth shift, in that same week, if there was one, would fall on a Sunday, being the end of the week, and that would be the shift that would attract the overtime, going over 38 hours in that particular week?---I would assume that that’s what the roster people would do, because that’s what they’ve done for many years under the award.

**** GIL ANDERSON RXN MR ASH
PN274

That was your understanding of the practice at that time?---Yes.

PN275

From that did you have an understanding that the practice would be that overtime would always be allocated to Sundays, regardless of a roster cycle?---The practice under these non-union agreements, yes.

PN276

All right, and when negotiating the certified agreement that is the subject of this dispute, at that time did you think the practice of allocating overtime to Sundays was something - unless it coincidentally fell on Sunday- that would continue; or did you think that 32 hours of overtime would be paid after the expiration of the agreement - - -?---Very much that the 32 hours would be paid. In fact it was a complete contrivance to not pay it when the overtime actually fell.

PN277

I take you to what has been marked Chubb 2, something that I had not seen previously. This is a question and answer document circulated by the company. Mr Kite took you to, I believe, point 2?---I don’t have a copy any more.

PN278

In pointing that out, one of the things that your attention was directed to was “does not affect a roster where overtime is worked as part of the cycle. An example would be where a site is 24 hours per day seven days per week and an overtime shift forms part of the roster”. Now do you take from that, that a roster is created and that roster has, for example if it’s over eight weeks, it has 336 hours on that roster and the overtime is part of that roster? It’s compulsory overtime and it has to be worked; is that your understanding of that point?---Yes, my understanding would - would be that yes, the 336 hour rosters contained compulsory overtime.

PN279

So you don’t see that there’s anything implicit in that point that overtime could be arbitrarily, for instance, allocated to Sundays?---No.

PN280

As part of the roster?---No, I can’t see anything there.

PN281

Thank you, Mr Anderson.

PN282

If the Commission pleases.

PN283

THE SENIOR DEPUTY PRESIDENT: Okay, thank you.

PN284

Thank you very much, Mr Anderson, you may be excused now?---Thank you, your Honour.

<THE WITNESS WITHDREW [10.47AM]

PN285

MR ASH: Your Honour, I call Mr Stuart Murphy.

<STUART CHARLES MURPHY, SWORN [10.48AM]
<EXAMINATION-IN-CHIEF BY MR ASH

PN286

MR ASH: Mr Murphy, when did you commence employment with Chubb?
---February 1999.

PN287

Are you still employed by Chubb?---No.

PN288

When did you cease your employment with Chubb?---October 2007.

PN289

So that’s approximately eight years?---Yes.

PN290

Over that period of time did you work at different sites?---I worked at various sites over that eight years, predominantly defence sites and federal police sites.

PN291

How many sites would you say you worked at over that period of time?---Would be looking at half a dozen defence sites and about the same amount in federal police sites.

PN292

Over that period of time and across all those sites at the times that you worked there, do you recall ever being addressed by a Mr Samios?---Never. Never seen Mr Samios on any of those sites, AFP or defence.

PN293

Do you recall any other discussion with any other Chubb manager, particularly anything in relation to voluntary additional hours or overtime?---No.

PN294

When did you become aware that Chubb were allocating your overtime to Sundays rather than where you felt it should be falling?---It was a gentleman that previously worked for Chubb that brought it to my attention. He first told me that we’re doing 336 hours per eight weeks rotating roster; 304 of those were to be paid at ordinary hours and the other 32 to be paid at double time over
hours - overtime hours; and you know, that got a little bit of - shed a little bit of light on things, but nothing more was sort of said then. He’s since left the company and seek his own court of action - owns means of action there against the company.

PN295

All right, and approximately when was that, that it was first brought to your attention?---First noticed around about the implication of 12 hour shifts at Campbell Park, so it’d have to be around the 2003 mark.

PN296

Right, so that would have been under one of those individual site agreements?
---Yes. Yes.

**** STUART CHARLES MURPHY XN MR ASH
PN297

Did you notice that that practice continued over the rest of the time that you spent at Chubb?---Yes, it - it never - it never strayed from what it was implemented - how it was implemented. The whole fact here is we were never approached - I was never approached on any of those sites. The only time I seen Mr Samios was twice when I went up to headquarters in Lyell Street, Fyshwick. Once for a uniform change and it was just like a meet and greet. You know, it was to shake his hand “Oh, yeah, this is the new manager” and that was it. Never seen him on site.

PN298

Was there any change in the type of rosters that you were provided before this certified agreement came into effect, and the way you were being rostered on the individual site agreements at the various sites you might have worked at during that time?---Since the implication - the implication of 12 hour rosters. Every site used to be eight hours. When the 12 hour rosters came in they never varied. Eight - eight - 12 hours a day, four days a week, rotating roster, days and nights.

PN299

Right?---It was - you know, once they were implemented that’s the way they were and pay - pay conditions never changed.

PN300

Do you recall ever receiving any correspondence or any document from Chubb which may have been a question and answer, a frequently asked questions explanation sheet around the implementation of the certified agreement?--- There was one sent out to us. I recently viewed a copy not long ago that a guard had saved. It would have been one that we would have signed and it would have been counter-signed once it reached management. On it, it would’ve stated that 304 hours would’ve been paid out of that eight week rotating roster at ordinary hours, and it did sate - I viewed the statement that the last 32 hours of that 336 hours all told, 304 hours to be paid over - at ordinary time, 32 hours, the last 32 hours to make that up from 304 to 336 should’ve been paid at double time. Well obviously it wasn’t.

PN301

So you don’t recall any other documents that came up from the company explaining this - - -?---No.

PN302

This ..... ?---No. The big thing that was said about going to these 12 hour rosters is four days on, four days off. That was the big thing about it, you know. That was what was pushed before. There was nothing said about the VOT, which is another issue. It was just four days on, four days off. That was pushed, you know, to make it look attractive to the guards.

**** STUART CHARLES MURPHY XN MR ASH
PN303

Thank you, Mr Murphy.

PN304

If the Commission pleases.

PN305

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN306

Mr Kite.

<CROSS-EXAMINATION BY MR KITE [10.54AM]

PN307

MR KITE: I wonder if Mr Murphy might be shown Chubb 2.

PN308

THE SENIOR DEPUTY PRESIDENT: Yes.

PN309

MR KITE: Have you seen that document before?---No.

PN310

You haven’t?---No.

PN311

You were certainly employed in January 2004?---Yes.

PN312

By Chubb?---Yes.

PN313

You don’t recall seeing that document?---No, I don’t recall seeing that document.

PN314

That’s not the question and answer document you were referring to earlier?---No.

PN315

The one that you were referring to, was that from the union, do you recall?---No, I don’t recall.

PN316

Do you recall approximately when that was distributed?---2004 from memory.

PN317

That can be returned. Thank you, Mr Murphy. You indicated that you were at Campbell Park at the time of the introduction of the 12 hour shifts?---I have worked their overtime shifts. I’ve been employed on other sites. I was at Deacon - 109 Kent Street, Deacon for around about six, seven months. I floated between AFP sites as well. Sometimes I was for quite a few months at AFP headquarters, Weston, Winchester, also - - -

PN318

I won’t test your memory on that, unless you want me to?---Yes, well Campbell Park was only ever overtime shifts.

PN319

Were you a type of relief employee or were you permanently stationed?---I was utilised fairly well because of clearances in both fields. Sometimes it would be people going on holidays. I’d be working at those sites, whether it be AFP or defence, so utilised in all sorts of areas.

PN320

Do you recall the introduction of 12 hour shifts in Chubb’s employment, pursuant to the site agreements in 2002?---2002. I wasn’t working on any sites at that time. There were sites that were starting to be implemented then, but the time - the sites I was working on were eight hours at a time.

**** STUART CHARLES MURPHY XXN MR KITE
PN321

So because you weren’t affected by the 12 hour site agreements you would not have received or attended information sessions about the making of those agreements?---That’s correct.

PN322

Were you aware that there were information sessions leading up to the making of the 2004 agreement conducted by the company?---Yes, I was aware of them being held at Lyell Street, but I wasn’t aware of a statement was being made that sites were being visited, because I never certainly had any visits on any sites, and two - I would be fairly well qualified to state on the matter, because of the amount of sites I’d get around - in between AFP and defence sites which would be roughly half a dozen each - each night. Never been visited by any of the management; had anything explained. Because I used to do a lot of overtime, a lot of time too busy to go into headquarters, you know? If they want to see us they should come out to sites, you know? Because we can be fairly busy in those two fields. People - not everybody’s cleared up to those levels to be able to work on those sites, and they realised that.

PN323

So you used to do a lot of overtime?---Yes, a hell of a lot of overtime.

PN324

That was to increase your take home pay, I take it?---Yes.

PN325

That was a matter of some importance to you?---Yes, these days, current economic circumstances and that.

PN326

I understand?---You know, a bit of extra money everybody likes.

PN327

Absolutely, and it’s common amongst your colleagues to want to work overtime?
---Yes.

PN328

To supplement their income for the same reasons?---Yes, well like I said, in those fields too, clearances are a necessity.

PN329

Yes?---And you know, as soon as you seem to have - there’s enough guards cleared up, there’ll be a few leave and then you’re short again.

PN330

Of course the clearances may restrict the availability of the group of employees who can go to a site on an overtime shift?---Yes, that’s why they should have sent more people out to explain.

**** STUART CHARLES MURPHY XXN MR KITE
PN331

You recall, however, receiving an invitation to attend an information session about the 2004 agreement?---Yes, not personally. Just a letter - letterhead that would have been sent out like you’ve got over there.

PN332

To staff generally?---Just staff generally. It would’ve been dropped of by an inspector and it just would’ve been sat on a desk. Half the people probably wouldn’t have even seen it.

PN333

Right. Do you recall seeing it?---Heard about it.

PN334

Heard about it, but for one reason or another you didn’t attend the information session?---One reason or another it didn’t - I wasn’t working on those 12 hour rostered sites at the time and number two, very busy. But once again, they should’ve came out and seen people. They stated they did but they didn’t.
Not - not any sites I worked on anyway.

PN335

Were you a member of the union in 2003?---No.

PN336

You didn’t raise your concerns with the union in 2003?---No I didn’t.

PN337

Your colleague, who brought this to your attention in about 2003?---Mm mm.

PN338

What was his name?---Adam Casher.

PN339

Was he a member of the union?---I can’t tell you.

PN340

You don’t know if he approached the union with his concerns?---I can’t tell you that either.

PN341

Once this was drawn to your attention you have indicated that you were aware that the same practice was followed consistently by Chubb?---Yes. Yes.

PN342

You were able to see that by looking at your payslip; correct?---Yes, correct.

PN343

So you knew that overtime shifts were being rostered to the Sunday?---Yes.

PN344

Is it your practice to look at your payslip fairly carefully?---Certainly, especially when it concerns Chubb.

**** STUART CHARLES MURPHY XXN MR KITE
PN345

You want to make sure it’s accurate?---Yes I do. A lot of the time you’d be doing overtime shifts and they weren’t paid on that next payslip and then you were chasing them, and sometimes they were paid in the next pay - fortnight pay cycle, which it shouldn’t be. You know, so we had a huge problem there for years and years of, you know, being given shifts by say an inspector, or people in comms. room and then them not entering it into the computer, therefore you’d be doing shifts - you’d get your - you’d get your sheet, you should have 120 hours a fortnight and you got 108. They missed - they didn’t pay you for that 12 hour shift you worked so they had huge problems. Ask any guard that worked for Chubb in the ACT, always problems with pay packets.

PN346

All right, and you, because of your experience, were very attentive to your pay packet?---Certainly.

PN347

You raised issues as and when you found them?---I’ve gone in them - one instance, one morning me and another fellow went in there. He was paid two days later for money that was owing to him. I was still chasing it a week later, you know, and we both handed it to the same person. Apparently mine was put under a pile of papers on a desk.

PN348

But eventually you were paid?---Eventually, yes.

PN349

Whenever an error arose on your payslip, you drew it to the attention of Chubb
?---Well you’re not going to let them - you’re not going to let the company get away with that, are you?

PN350

Well you didn’t?---No.

PN351

No, and they didn’t get away with it?---Hopefully not, no. You know, there
was - there are lots of other issues we can raise but it doesn’t sort of concern here this morning.

PN352

But you’re very attentive to the bottom line of what you’ve worked over the course of a - - -?---Well a fair day’s work for a fair day’s pay.

PN353

Yes, and you want to make sure that you’re paid in accordance with what you believe is fair?---Certainly do.

PN354

Right, and when the 2004 agreement was made you were aware that there was no great promise of increased pay, but increased flexibility by the introduction of 12 hour shifts?---Yes. Yes.

**** STUART CHARLES MURPHY XXN MR KITE
PN355

The advantage to the employees of the 12 hour shifts was you didn’t have to go to work as often?---No, four days on, four days off. That’s what was pushed.

PN356

You saw merit in that?---Some people do, some people don’t, depending on - - -

PN357

What about you?---Me? Yes. Yes.

PN358

Because you didn’t have to meet the cost of going to work five times a week on average?---That doesn’t bother me. I’m only five minutes from work.

PN359

But on balance you preferred the 12 hour shifts?---Yes.

PN360

Your overtime that you worked frequently would often occur prior to you having worked 304 hours in the cycle?---It’d occur along that - you know, like, you could be rung up on a day off, you know, with only a few hours’ notice if someone’s dropped out sick.

PN361

Yes?---Or you could be rung up a couple of days before. You know, if they knew I had days off and I wasn’t doing nothing - the primary interest is the site you’re on.

PN362

Yes?---You look after that primary.

PN363

Yes?---And then if there was - someone needed a couple of days down the track you’d be given notice, but sometimes you’d be given very short notice as well.

PN364

Right, and whatever the notice, that might occur at any point in the cycle?---Yes.

PN365

You would be paid overtime for those additional shifts?---Yes.

PN366

Whether or not you had reached 304 hours?---Mm mm.

PN367

Thank you.

PN368

THE DEPUTY PRESIDENT: Yes, anything, Mr Ash?

PN369

MR ASH: Yes.

<RE-EXAMINATION BY MR ASH [11.05AM]

PN370

MR ASH: Mr Murphy, just for clarification on that last point that you made to Mr Kite. So this was in addition to rostered overtime; you had overtime filled over a normal roster?---Yes, I used to regularly notch up 120 to 140 hours a fortnight.

PN371

So when you say you were working this overtime and it was often at the last minute; was it actually voluntary overtime or voluntary additional hours, or was this overtime?---No, it was overtime. It was my normal hourly rate paid at double time.

PN372

This was overtime in addition to anything else that appeared on your roster?
---Yes. VOT - the people who - well, the VOT was, how could we put it? Various inspectors would come around - certain inspectors had come around the sites and said “Oh, listen you’ve got to sign this or you won’t get any overtime”. A person like me - like, VOT was a much reduced rate to what it - your normal hours were paid at double time. I sat back and thought about this because I like to do a bit of overtime. I thought we’ll see how it goes for a couple of months, and I was still getting as much overtime - because with me with the clearances in both fields I had, you know, it didn’t affect it. But if it was a normal guard on a normal site they would always ring up the people that signed the voluntary additional hours. There is a way to get out of that. It takes about a month to happen; you sign a piece of paper. But yes, the VOT was pushed around by an inspector saying, “Yes, you’ve got to sign this or you won’t get any overtime”. It’s not a nice way to sort of implement something. You know, to say to guards “Oh you won’t get any overtime”. So naturally if you want it, you’re going to sign it. That’s about all I’ve got to say on that matter. I’m pretty passionate about that, you know. Guards should not be ripped off, as it was stated somewhere recently.

PN373

Thank you, Mr Murphy.

PN374

That’s the evidence.

PN375

THE DEPUTY PRESIDENT: All right, thank you. Thank you very much, Mr Murphy?---Thank you, sir.

PN376

You’re excused?---Can I - - -

PN377

Yes, you can go now. Yes.

<THE WITNESS WITHDREW [11.08AM]

PN378

THE DEPUTY PRESIDENT: Yes?

PN379

MR ASH: Sir, I call Mr Michael Wallace.

PN380

THE DEPUTY PRESIDENT: Yes.

<MICHAEL WALLACE, SWORN [11.09AM]
<EXAMINATION-IN-CHIEF BY MR ASH [11.09AM]

PN381

MR ASH: Mr Wallace, when did you commence your employment with Chubb?---In October 2001.

PN382

Are you currently employed by Chubb?---Not at the moment. I finished up on the 14th of November. Yes.

PN383

So you were with Chubb for approximately seven years?---That’s correct. Yes.

PN384

During those seven years did you work at a number of sites?---Yes. Yes.

PN385

In that time do you recall at all being addressed by Mr Samios or any other Chubb manager in relation to the implementation of either an individual site agreement or another agreement?---Yes, at the museum in - it was about November or December, I’m not sure, 2002. Yes, no, I remember.

PN386

December 2002; that would have been an address in relation to an individual site agreement?---Yes. Yes, that .....

PN387

What did Mr Samios say to everyone?---Well it was mainly that - he spoke of the benefits of the 12 hour shifts. He was pushing the voluntary additional hours. Yes, it was mainly that no one would be any worse off. The only mention of overtime was in relation to the voluntary additional hours and the fact that we were doing - at the museum we were on eight hour shifts but we were doing 12 hours on the weekends and on a Saturday we were getting - after we’d done our eight hours we were on overtime on the - when we did a day shift Saturday; and he explained that we would only be on the normal twelve hour - on the time and a half for the whole of the Saturday. They were the only two points in relation to overtime that he addressed, yes.

PN388

So you don’t recall Mr Samios specifically making any reference to the rostering of overtime and that that overtime would be rostered to Sundays?---No. No, there was never a mention of that. No.

PN389

Thank you Mr Wallace. I have nothing further.

PN390

THE DEPUTY PRESIDENT: Thank you.

PN391

Mr Kite.

<EXAMINATION-IN-CHIEF BY MR KITE [11.12AM]

PN392

MR KITE: Mr Wallace, when you attended this meeting with Mr Samios in November, December 2002, towards the end of that year anyway, it was about the introduction of the site agreement at that site?---That’s correct.

PN393

Other guards were present at the meeting?---That’s correct.

PN394

You said Mr Samios indicated to you and the others that no one would be worse off?---That’s correct, yes. He mainly pushed the benefits of the 12 hour shifts and the time we’d have off and how things would run smother and - yes.

PN395

He made it clear that you wouldn’t be earning any more?---He never - he - he - like I said, he was mainly pushing the fact that we would have more time off. He - I can’t remember saying that we’d be earning any more or any - he just said no one would be worse off. Yes.

PN396

I would suggest to you he made it clear to you that you wouldn’t be earning any more either?---No. Well, he didn’t say that, sir. I’m certain, yes.

PN397

What he said the advantage was, of the 12 hour shifts, was the days off?---That’s correct, yes, and the smoother running for the museum because it was a - he was pushing the 12 hour over VOT because we had trouble filling shifts if someone called in sick because it was - you had to be a authorised - like you had to be an authorised officer for the museum, and that - there was only a certain amount of officers. Yes.

PN398

So he was pushing the VOT but he indicated to you that you didn’t have to execute a VOT agreement?---He said that we wouldn’t get any overtime if we did not sign the VOT.

PN399

Well the priority would certainly go to employees who had signed VOT agreements?---That’s correct, and - which that turned out - I mean, that all got bastardised after a while because the original agreement with VOT was that if you put your name down for voluntary additional hours you would be paid at the voluntary additional hours rate, which - that happened for a while but after - I mean, if you didn’t have your name down and they rang up, you would be paid at normal overtime, whereas that got - that only lasted a few months. Whereas they were only paying everyone on VOT if you had signed up for VOT, yes. Yes.

PN400

Well to get VOT you had to sign up for VOT, didn’t you?---Yes. Yes, but the original agreement was that if you put your name down to work voluntary additional hours and they rang you, that - in a book for that week, but that all got changed somehow. Yes.

**** MICHAEL WALLACE XXN MR KITE
PN401

When did it get changed?---Well that only lasted a couple of months I think, and then anyone that had their name in on VOT that’s - that’s all they got paid at. So nearly everyone pulled out then, yes, which you had to give a month’s notice before you could pull out.

PN402

You executed a VOT agreement?---Yes.

PN403

Shortly after they became available?---At the time I signed it, yes, a week or two after that. Yes, and - and I actually stayed on VOT for - I only got out of it about two years ago because I was actually working additional roster - I was doing a five and two roster, which it didn’t really affect me because any overtime I was doing was on the weekends anyway.

PN404

So you stayed on VOT until about 12 months, two years ago?---Yes. Yes.

PN405

You were paid according to your VOT agreement?---Yes. Yes. Yes, and that’s the same as I don’t have a pay claim in with this now because I wasn’t - I wasn’t working a four on four off roster. I only - I went onto a five and two roster shortly after signing - after all them - all they came in. Yes.

PN406

On 12 hour shifts?---On 12 hour shifts yes.

PN407

At the time that you made the site agreement in 2002 it was a condition that anybody who didn’t want to work 12 hours would have been found employment at another site?---No. They were told they’d be moved off site if they didn’t sign the - yes. I suppose it depends on how you look at it, but yes. Yes, they wouldn’t be able to work there. Yes.

PN408

If the site wanted a 12 hour but you didn’t?---Yes. Yes.

PN409

You would be found work at an eight hour site?---Well, I suppose that’s one way of putting it. Yes. Yes.

PN410

Well that was the agreement, wasn’t it?---Well you wouldn’t be working at the museum or if it - if it was - yes, that’s what it amounted to. Yes.

PN411

But the majority of employees wanted to work 12 hours; correct?---Yes. Yes.

PN412

But if the minority didn’t want to work 12 hours they were told that they would be found work at another site, working eight hours?---Well that’s one way of putting it, yes. Yes.

**** MICHAEL WALLACE XXN MR KITE
PN413

Well that was the deal, wasn’t it? There’s no other way of putting it?---Well, they wouldn’t be working at the museum. That’s what it amounted to. Yes. Yes.

PN414

So you didn’t see that as any sort of protection for the employees?---Well I was in complete agreement with the 12 hour shifts actually. Yes.

PN415

You liked the concept of the 12 hour shifts?---Yes. Yes.

PN416

Because it gave you more time off?---That’s correct. Yes. Yes.

PN417

Four days on and four off?---Yes.

PN418

At least on that particular form of roster?---Yes. Yes.

PN419

That was an advantage to you?---It was an advantage to me, yes. Yes.

PN420

I want to suggest to you that at the time that Mr Samios explained the proposed site agreement he actually showed you a 12 hour roster?---He showed us the 12 hour roster, that’s correct.

PN421

He explained to you how it would work?---The hours?

PN422

Yes?---Yes. Yes.

PN423

Including when the overtime would be?---No. That - you’re suggesting that to me but that’s not correct.

PN424

You’re not agreeing with it?---No.

PN425

You were told you wouldn’t be any worse off?---That - that’s - like I say, the only mention of overtime was in relation to VOT and in relation to the fact of - we were doing 12 hours on a Saturday and we were getting paid time and a half for the eight hours and then overtime after that, and that would’ve stopped.

PN426

On VOT?---No, that - that was in relation to our - the eight hour shifts we were working. We were a 12 hour shift on the weekends.

PN427

Saturday and Sunday?---On Saturday and Sunday so we had - and a weekend off every second week. Well on that Saturday and Sunday we were getting paid overtime after the eight hours. That was the only relation to overtime, that and VOT, that was mentioned at that meeting. There was no other mention of any overtime or how we would be paid. I think I’ve made that quite clear.

**** MICHAEL WALLACE XXN MR KITE
PN428

Well I’ll come back and see if I’ve got it clear?---Yes.

PN429

The 12 hours on the Saturday; were they part of your roster?---They were part of our roster, yes.

PN430

Did you work a weekend on and a weekend off; was that - - -?---That’s the way it amounted, and by doing that it - we got - instead of working 21 days we worked 19 hours(sic) in the 28 day cycle on that original roster.

PN431

The Saturday was rostered at eight hours of ordinary time?---Yes.

PN432

Four hours of overtime?---Yes, that’s correct. Well, you’ve got - yes.

PN433

So you got the Saturday penalty and 50 per cent?---Yes, we - yes. Yes.

PN434

For the first hour eights hours?---Yes, and then you got - what, time and a half for two hours or two and a half hours and then the rest was double time. Yes. Yes, which I’ve since found out that you’re meant to be paid double time from midnight, actually, if you do overtime on the weekend anyway. So that was incorrect.

PN435

Midnight on Sunday?---No, midnight on Friday night, yes.

PN436

So if you do overtime on Saturday, after midnight Friday, that’s double time?
---That is under the award. Yes.

PN437

Yes?---Yes. So we were getting paid incorrectly then too.

PN438

Well if you were paid eight hours ordinary time with a 50 per cent Saturday span loading?---That’s correct. Yes.

PN439

And four hours at double time for overtime, that would be right, wouldn’t it?
---And that was - yes, and that was the only mention that our pay would change. Yes. That - like that was - that example for the museum that we wouldn’t - he explained that that would be the only difference in our pay. Yes. Yes.

PN440

How would it be different?---Well on that Saturday we would only get time and a half for the whole day because - - -

**** MICHAEL WALLACE XXN MR KITE
PN441

Because it’s an ordinary 12 hour shift?---Yes. That’s correct.

PN442

If you worked day shift Saturday?---Yes.

PN443

Was the museum a four by four roster under the site agreement?---Afterwards it was, yes. Yes.

PN444

So on that roster, two Sundays - - -?---Like I say, I only worked it for a month and then I went on to a different site and a different roster.

PN445

So you didn’t get a chance - - -?---I was at the meeting that Nick Samios and I think Sue Glaughton was there. I think that was all that was there actually, yes.

PN446

You don’t recall Mr Samios saying on the sample roster this Sunday will be the overtime shift?---There was a sample roster showing us the days we were going to work. There wasn’t any other - there was no figures or anything. No.

PN447

He didn’t say to you “This shift is a Sunday shift”?---No.

PN448

“This Sunday is an overtime shift”?---Definitely not.

PN449

“This Saturday is split between ordinary time and overtime”?---He didn’t - that had nothing to do with the roster. Like, the only time he mentioned Saturday was because we were one of - we were the only ones that were doing a 12 hour shift on the weekends and he explained that for that whole Saturday we would only be paid time and a half, that we worked.

PN450

He explained to you that you would be working 32 hours of rostered overtime
?---No. No, there was no mention on - - -

PN451

No mention at all?---No. No.

PN452

Well you must have known that you were going to work 336 hours and that’s 32 more hours than you could?---Well it was never mentioned at this meeting, sir. That’s what I’m saying. Yes.

PN453

Let’s put that to one side for a second. I understand you say it wasn’t mentioned. You would have known when you looked at the draft agreement that that was the proposal?---Well at the time we were told that whatever overtime that - nothing had changed. That’s what we would be paid under the award.

**** MICHAEL WALLACE XXN MR KITE
PN454

Let’s put aside what you were told?---Well - I’m sorry.

PN455

Let’s look at what you knew. You knew the 12 hour four by four roster would lead to 336 hours of rostered work over eight weeks?---I don’t think anyone realised how many hours we - we were told we’d be only working the same amount of hours and we would be paid overtime under the award, sir. That’s what it amounted to.

PN456

It’s as simple as that?---Yes.

PN457

Told you nothing?---Well that’s - yes, basically.

PN458

Explained nothing?---Yes. Yes, pushing the ..... and the - yes.

PN459

When he put down the four by four roster over eight weeks - - -?---No, he didn’t actually - it was four days, two days, two nights. You go back a day each week and that was about it, sir, I’m afraid.

PN460

He didn’t show the eight week sample?---I can’t remember, sir. No.

PN461

He may have?---I can’t remember - you’re asking me a question. I’m answering it as truthfully as I can, sir.

PN462

Your best recollection is you were told that you would not be any worse off?
---We would be paid according to the award. That’s what I was told.

PN463

I understood you earlier to say that you were told that nobody would be worse off?---In relation to that Saturday we would be slightly worse off, we were told, because we were getting paid overtime whereas that day would be paid at the - the whole day at time and a half.

PN464

But overall you wouldn’t be worse off?---That’s what he referred to, yes.

PN465

So although you may be paid slightly different for a particular day, over the balance of the cycle - - -?---No, for that Saturday, yes.

PN466

Is that right?---Yes, well that’s what he pointed out because that was an anomaly with most of the other sites because we worked the 12 hours. Yes, and we would be paid overtime at the award rate. That’s what - - -

**** MICHAEL WALLACE XXN MR KITE
PN467

Yes, and you checked to make sure that was the way it worked in the month you were there?---Checked what, sir?

PN468

Checked your payslip?---I got two payslips in that time, sir, that’s what I’m saying.

PN469

Did you look at them?---Yes, sir. Yes.

PN470

Were they accurate?---As far as I could work it out, yes sir.

PN471

Did they represent what Mr Samios told you they would represent?---We worked four on, four off. That’s - - -

PN472

You were a duty inspector for a time, is that right?---That’s correct, sir.

PN473

How long were you a duty inspector?---About five years.

PN474

From when to when?---From 2003 till about - well, about early 2003, yes, till about 2007 or whatever. Yes.

PN475

Right, and did you work at sites where the 12 hour shifts were in place, as a duty inspector?---At some of them, yes sir.

PN476

Yes, and did you receive questions from employees at those sites about the operation of the roster?---At different times, yes.

PN477

Did you receive questions about how their pay was calculated?---At different times, yes.

PN478

Did you explain to them how those - - -?---Usually I referred them to the union, sir. Yes.

PN479

To the union?---Yes.

PN480

Did you take the questions to your operations manager, if you didn’t know the answers?---Like I say, I referred them to the union, sir, yes. Unless it was a plain miscalculation. I mean, I don’t profess to know how those things are calculated, you know. That’s not my - that wasn’t my job, sir.

**** MICHAEL WALLACE XXN MR KITE
PN481

So you would simply say to the guys that they should go and talk to the union?
---The union and their - and their pay officer. Yes. Yes. I don’t give anyone advice, sir.

PN482

You don’t explain to them how the roster works?---As best as I - as I can. Apart from that I’d refer them to the union or the pay officer, or their supervisor.

PN483

In explaining to them how the roster worked on the four by four eight week cycle, you would have told them - - -?---That’s not my job actually, sir.

PN484

You would have told them that certain Sundays are rostered as overtime?---No.

PN485

You didn’t tell them that?---No. That - why would I?

PN486

Did you know that was the practice?---No.

PN487

You had never worked that out in your life at Chubb?---Well it - like I say, it didn’t apply to me. That’s not my job. My job was - - -

PN488

As a duty inspector it wasn’t your job to know these things?---No. No. No. I mean, my job was to make sure that everything run smoothly.

PN489

Part of everything running smoothly was that the employees have their questions answered about their rosters?---Yes, and you refer them to the pay officer or the union to sort it out.

PN490

You didn’t sort it out yourself at any time?---No, that’s not my job.

PN491

Nothing further, Mr Wallace?---Thank you.

PN492

THE DEPUTY PRESIDENT: Mr Ash, do you have anything?

PN493

MR ASH: Just one point.

<RE-EXAMINATION BY MR ASH [11.29AM]

PN494

MR ASH: Mr Wallace, so even as a duty inspector you were not aware of the practice of Chubb allocating overtime to Sundays?---Well I was aware of it but it had nothing to do with me as an inspector, no.

PN495

Thank you, Mr Wallace.

PN496

THE DEPUTY PRESIDENT: All right, thank you very much you can step down now?---Thanks, sir.

<THE WITNESS WITHDREW [11.29AM]

PN497

THE DEPUTY PRESIDENT: When are we expecting Mr Drysdale?

PN498

MR ASH: A slight issue there. A summons was served on Mr Drysdale and Mr Drysdale is having an operation today.

PN499

THE DEPUTY PRESIDENT: All right.

PN500

MR ASH: He has directed someone else in the Workplace Ombudsman to appear.

PN501

THE DEPUTY PRESIDENT: Right.

PN502

MR ASH: I believe that person’s name is Belinda O’Keefe. There was going to be Geoff Beaver but he wasn’t intimately involved in the calculations and I wanted to ask some questions around that. Unfortunately both of them are not able to get here until early this afternoon.

PN503

THE DEPUTY PRESIDENT: So is it Ms O’Keefe, did you say?

PN504

MR ASH: I believe it’s Belinda O’Keefe.

PN505

THE DEPUTY PRESIDENT: So this afternoon?

PN506

MR ASH: Yes.

PN507

THE DEPUTY PRESIDENT: That’s all your witnesses, isn’t it?

PN508

MR ASH: That will be all.

PN509

THE DEPUTY PRESIDENT: Yes.

PN510

MR ASH: Yes.

PN511

THE DEPUTY PRESIDENT: Mr Kite, are we able to call one of your witnesses?

PN512

MR KITE: I think I am. I would like to understand what the evidence of Ms O’Keefe is likely to be.

PN513

THE DEPUTY PRESIDENT: Yes.

PN514

MR KITE: If it’s calculations we fail to see the relevance at this stage. The question is one of construction for the Commission.

PN515

THE DEPUTY PRESIDENT: Well I don’t know what the evidence is going to be until I hear it. What can you tell us, Mr Ash?

PN516

MR ASH: Your Honour, I haven’t been able to even have a detailed discussion with anyone from the Workplace Ombudsman and any type of evidence they might give. All I know is that a letter was sent under the name of Mr Ross Drysdale where it’s clear that the Workplace Ombudsman had formed an opinion about how the clause should be construed, and performed calculations on what they saw as the proper construction of that clause, and advised Chubb of that. I also understand in the letter and previous correspondence that the Workplace Ombudsman sought outside or further legal clarification around their interpretation, and that it was confirmed. I wanted to ask questions around what went into that place that ended up producing this letter, also the methodology behind the calculations, which I suppose would give - - -

PN517

THE DEPUTY PRESIDENT: But there were specific claims made to the Ombudsman.

PN518

MR ASH: Yes, that’s correct.

PN519

THE DEPUTY PRESIDENT: So what actually happened to those claims?

PN520

MR ASH: I believe it originally - there may even be someone who is able to speak to this a little bit better than I can.

PN521

THE DEPUTY PRESIDENT: Do you just want to get some instructions?

PN522

MR ASH: Your Honour, could I just be - - -

PN523

THE DEPUTY PRESIDENT: I’ll excuse you for a minute, yes.

PN524

MR KITE: Can I just before that - - -

PN525

THE DEPUTY PRESIDENT: Yes, wait a minute. Yes.

PN526

MR KITE: I’m happy to - - -

PN527

THE DEPUTY PRESIDENT: Yes.

PN528

MR KITE: We wrote to the union about this evidence and to get some idea about what was to be involved.

PN529

THE DEPUTY PRESIDENT: Right.

PN530

MR KITE: We were referred back to two letters under the signature of Mr Drysdale which were in the material served on us by the union. They appear to be firstly a letter dated 25 June 2008 to Mr Myers, general manager of Chubb in ACT.

PN531

THE DEPUTY PRESIDENT: Right.

PN532

MR KITE: And a letter of 25 June 2008 directed to Mr Bebo at the union. It refers to the investigation conducted by the Ombudsman to discussions with Chubb abut the view formed by the Ombudsman, and the clear fact that Chubb disputed that view, and that there is in place the workplace agreement with a disputes resolution clause that allowed the matter to come to the Commission, and recommending that that course be followed.

PN533

THE DEPUTY PRESIDENT: Yes.

PN534

MR KITE: As it has been.

PN535

THE DEPUTY PRESIDENT: Yes.

PN536

MR KITE: And hoping that that would see a resolution of the matter.

PN537

THE DEPUTY PRESIDENT: Yes, I’m sure it will.

PN538

MR KITE: Well we think so. Having regard to that, we wonder what evidence the Workplace Ombudsman’s Office can provide by way of assistance to the Commission. The fact that they’ve got a legal opinion and the fact that they formed a view isn’t relevant to the Commission’s disposition of the matter. The Commission has got the parties here arguing the matter now.

PN539

THE DEPUTY PRESIDENT: Yes. I mean, I don’t want to stop the union being able to argue its case however it wants, within reason. Obviously at the end of the day I’m going to make determination based on the evidence.

PN540

MR KITE: Yes.

PN541

THE DEPUTY PRESIDENT: Probably I’ll have rather more extensive evidence before me, I suspect, than the Ombudsman would have had in conducting their investigation. But I must say if the union thinks that there’s some light the Ombudsman’s investigation will be able to cast on it, I don’t have a problem with - you know, I issued the summons.

PN542

MR KITE: Yes.

PN543

THE DEPUTY PRESIDENT: I don’t have an objection to - - -

PN544

MR KITE: Well no doubt the Commission will note that we have an objection to relevance.

PN545

THE DEPUTY PRESIDENT: Sure. Well what do you say, Mr Ash? I mean, I just wonder whether we should just have - okay, we’ve got to decide how to proceed today.

PN546

MR KITE: Yes.

PN547

THE DEPUTY PRESIDENT: You’re saying that Ms O’Keefe won’t be available until early this afternoon; you can’t be more specific?

PN548

MR ASH: No, I can go and make a phone call now.

PN549

THE DEPUTY PRESIDENT: Right, okay. I’m quite keen obviously to keep on pressing on.

PN550

MR KITE: Yes, I’m able to call Mr Myers.

PN551

THE DEPUTY PRESIDENT: So you’re happy to call him?

PN552

MR KITE: Yes.

PN553

THE DEPUTY PRESIDENT: And we’ll deal with Ms O’Keefe when the matter arises.

PN554

MR KITE: Yes.

PN555

THE DEPUTY PRESIDENT: But you’re happy to have Mr Myers now and then we’ll get to Ms O’Keefe at some stage when she arrives, after Mr Myers presumably.

PN556

MR KITE: Yes.

PN557

THE DEPUTY PRESIDENT: I’m just wondering whether we should just have a five minute adjournment anyway. Yes, we’ll just adjourn for five minutes and then we’ll go to Mr Myer’s evidence.

<SHORT ADJOURNMENT [11.35AM]
<RESUMED [11.47AM]

PN558

THE DEPUTY PRESIDENT: Mr Kite?

PN559

MR KITE: If your Honour pleases, I call Richard Edward Myers.

<RICHARD EDWARD MYERS, AFFIRMED [11.48AM]
<EXAMINATION-IN-CHIEF BY MR KITE

PN560

MR KITE: Mr Myers, your business address is 9 Lyell Street, Fyshwick?
---That’s correct..

PN561

In the ACT?---That’s correct.

PN562

You’re currently the general manager of Chubb Protective Services Pty Ltd in the ACT?---That’s correct.

PN563

You began with Chubb on 1 September 2005?---That’s correct.

PN564

You have made an affidavit in connection with these proceedings?---Yes I have.

PN565

You have got a copy of that with you?---Yes I have.

PN566

You have read it recently?---Yes I have.

PN567

Are there any corrections or amendments you would like to make?---No.

PN568

To the best of your knowledge and belief does the affidavit and the annexures remain true and correct?---Yes they are.

PN569

That’s the evidence.

PN570

THE DEPUTY PRESIDENT: Mr Myers’s statement is Chubb 4.

EXHIBIT #CHUBB4 WITNESS STATEMENT OF RICHARD EDWARD MYERS

PN571

MR KITE: Thank you.

PN572

THE DEPUTY PRESIDENT: Mr Ash.

<CROSS-EXAMINATION BY MR ASH [11.49AM]

PN573

MR ASH: Mr Myers, is it correct and your understanding that in week 3 of these eight week rosters that if a guard works a shift commencing at 8 pm on a Saturday evening and finishing at 8 am on a Sunday morning, overtime is allocated in such a way that it’s considered that they worked the first four hours of that Saturday/Sunday shift, the first four hours in the evening, at ordinary time followed by eight hours of overtime on the Sunday morning; is that correct?
---You’ll have to give me a roster so that I could refer to it, if you could, please?

PN574

I’m not sure if I actually have such a thing.

PN575

MR KITE: Just while Mr Ash is dealing with that, your Honour, we notice that the Commission’s copy of RM 1 is in black and white not colour, although Mr Myers’s statement refers to colours.

PN576

THE DEPUTY PRESIDENT: All right, yes.

PN577

MR KITE: Could we provide it in colour?

PN578

THE DEPUTY PRESIDENT: Yes, thank you.

PN579

MR ASH: You will note, Mr Myers, that towards the last day on that roster you’ll note that next to the column Ordinary Hours it states four, and next to the column Overtime it states eight?---Yes.

PN580

That’s a Saturday going into Sunday roster; is that correct?---I’m just adding up the other ordinary hours.

PN581

Sure, yes. This is a roster that was provided to the workplace?---This is actually a timecard.

PN582

Is it? Sorry?---Yes.

PN583

I apologise?---It’s not a roster as such but - yes.

PN584

It should be even more accurate?---Yes. Yes, it’s paying the - the first four hours of the 1930 shift at ordinary and paying the last eight hours at - at an overtime rate.

**** RICHARD EDWARD MYERS XXN MR ASH
PN585

Would you be surprised to learn that that has happened in week 3 of an eight week roster cycle?---The - the actual rotation - what makes up week 3 and - or any of the weeks depends on the construction of the actual roster. Because, I mean, it rotates so any week can be week 1. It just depends on how that’s constructed. So it depends on which roster you’re talking about. If you’re referring to one of the exhibits or - - -

PN586

Well we can stay to that timecard?---There’s nothing - there’s nothing on here that tells me that that’s week 3, no, or any week. I can’t tell by looking at that.

PN587

No, that’s not so much the question that I was asking. I was questioning whether or not you would be surprised if it was in fact week 3. But I don’t quite understand your point about it would depend where it is in the cycle. I understand this to be an eight week roster cycle where 336 hours are worked?---Yes. That’s correct, but each week - each week is different. It’s constructed differently. They work on different days of course and different shifts, and you can have - I mean, the roster that I have here, the colour roster that was just handed up, is, you know, weeks 1 to eight can be that way but, I mean, week 1 could be week 5.

PN588

I understand I think?---Yes, because this actual roster, this roster here is what is used to cost an actual job. It’s a costing roster, so this particular - it’s indicative of an eight week roster but at various sites, for instance at - the roster can - it can look differently. I mean, there are rosters that - on this where the format - where line 5 it says “Officer 5” that is number 1 because it starts on a Monday.

PN589

Right?---So any week can be number 1. This - it’s just an example so you
would - when you’re asking me what is week 3, you would have to give me some reference point to say yes or no. I can’t answer that as week 3 because I’m not sure what week you mean. I’m not being evasive it’s just - - -

PN590

No, that’s fine?---That’s just - - -

PN591

But in any case you confirm that on that timesheet that four hours, from 8 pm till 12 midnight on Saturday, were paid at ordinary time and the following eight hours at overtime?---From 1930 , yes. From 1930, yes.

PN592

At overtime?---Yes, that’s correct.

**** RICHARD EDWARD MYERS XXN MR ASH
PN593

And the previous shifts worked to that on that particular timesheet are the previous shifts at overtime, any of them?---No, not on this sheet.

PN594

Is there any subsequent shift paid at overtime?---No.

PN595

In your statement or in your affidavit, rather, Mr Myers, from paragraphs 43 through till, I think, 44 certainly, you raise different alternatives to a rostering practice?---Yes.

PN596

Is there any reason, if there has been a dispute between - certainly between the union and Chubb over the application of the overtime clauses with - I don't know, with the union contending that the payment has been made incorrectly. If there are these alternatives here, why is it that Chubb hasn't - or has Chubb given consideration to implementing these different arrangements?---So, why haven't we done it yet?

PN597

Not so much that, but what sort of thinking have Chubb engaged in around alternative rostering practices?---I suppose the issue, and it's spelt out there, the bottom line is that if - no, sorry, going back in time when there were 8-hour shifts and people would have worked either 40 hours, so five eight hour shifts a week or they would have, over a four week rotation, there would have - in some rosters there was a rostered day off which basically brought the average back to 38 hours, as we're obligated to give a permanent employee under the award, 38 hours work. The - there is always the possibility of going back to that, either on an eight hour -
eight hour rotation through the use of an RDO or maintaining the 12-hour rotations and also utilising one or two RDOs in the cycle, which basically returns those rosters back to - I suppose the object would be to return them to a 38 hour week or as close as you could get.

PN598

Is there a benefit to Chubb - we've heard there's a benefit to security guards working 12 hour shifts, four on/four off. Is there a benefit to Chubb with the
12 hour four on/four off rostering practice as well as to the guards?---Well, there certainly are. I mean, the first benefit is, is that the - is that the guards, and not only in this industry, other - in other places, they like working the 12 hour shifts. So that's the, you know, that's also a benefit to the company as well, the fact that the employers like that. Probably the biggest benefit from an operational point of view is that there are - you need - you need slightly less people and by that I mean on an eight week 12 hour rotation there's 32 hours additional time over and above the 38 - the 38-hour average, so you would need to take - to absorb that in ordinary time, you would need one officer - one additional officer to work two shifts. So, basically, you would need - you would need one officer for every two sites roughly. I mean, it would be slightly different than that, so that is the advantage to the company operationally, is you would need slightly less people.

**** RICHARD EDWARD MYERS XXN MR ASH
PN599

And have Chubb done any costings of that sort of arrangement with eight hour shifts and another person there - - -Yes.

PN600

- - - or another two?---Yes.

PN601

And is the result that that would cost Chubb more than the current practice?
---Well, probably the other reason that I hadn't got to, that - sorry, the reason that we haven't - haven't introduced either of these two is that - is that it's cost neutral anyway and the reason - and that's why we, you know, we haven't done a great deal of work on this is because there's no real need to at this point in time, however, they're the alternatives should, you know, should a decision go, you know, against the company. The - sorry, can you ask me - could you ask - could you repeat the question?

PN602

I as asking about whether or not Chubb had formed any costings around
these - - -?---Yes, we have and they are the costings that we currently pay, at the moment paying the overtime against the Sundays. That pays the same as the award, as if we had the eight hour shifts with the RDO. It's very close, it's not exactly the same but it's within, you know, a couple of dollars over the full eight week cycle.

PN603

So, are you suggesting that - no, that's fine, I understand that. I'll take you to something slightly different. You mentioned in your affidavit at paragraph 46 that the first time you became aware that the union was taking an issue in the way that Chubb was allocating overtime, that was in early 2007?---Yes, that's correct.

PN604

Can you explain how you came to hear that position?---We had a meeting with Gill Anderson in the Fyshwick office. It was in relation - it was an unrelated matter to do with an individual guard. Towards the end of the meeting - well, actually right at the end of the meeting Mr Anderson raised the issue with me that - he said there was an issue had been raised with him in relation to us paying - the company paying the additional hours, the overtime against the Sundays and the conversation followed, as I've - as I've detailed in paragraph 49, that basically
Mr Anderson understood that that's how we'd being paying it, that he wasn't terribly over the moon about it but there was nothing that he could do, or words to that effect.

PN605

Was there any discussion about the fact that this had been raised on previous occasions prior to that early meeting or that early 2007 meeting?---No.

**** RICHARD EDWARD MYERS XXN MR ASH
PN606

And there was no suggestion from Chubb at that meeting as to how this should resolve, aside from this is how we're doing it?---I'm not sure. I'm not sure what you mean.

PN607

Well, Mr Anderson raised that there was an issue at that meeting?---That was the first - - -

PN608

Certainly from one guard's perspective?---No, the guard - the guard that the meeting was called for was an unrelated disciplinary matter. This was raised at the end of the meeting.

PN609

I understand?---Yes.

PN610

Separate to what the main agenda was?---Separate issue, yes.

PN611

And when it was raised, what was the response from yourself?---As I've detailed here, I've basically said that that's how we, you know, that's how we pay the overtime and that's how we'd always paid it and I basically said to them - said to Mr Anderson that he knew that and he said that he did know but that he doesn't agree with it and he believes that at that point there wasn't anything he could do about it.

PN612

So, you say that that's the way that you've always paid overtime. When did you commence - - -?---On September 1, 2005.

PN613

Right, so from September 1, 2005, that's the way the overtime was - - -?---On
12 hour rotational shifts, yes.

PN614

And are you aware whether or not that has been the case in the three to four years prior to 2005?---Yes, I am aware of that through - through looking at documentation that was maintained in my office from previous general managers and also from several conversations I had with my predecessor and his predecessor before that who still work with the company, and I'm aware from those conversations and the documentation that the overtime had been paid against Sunday since - in some cases since late 2002.

PN615

Were there any changes to the actual rostering after the implementation of
12 hour shifts at these particular sites? Let's look at sites that have the 12 hour shifts implemented prior to 2004?---Right.

**** RICHARD EDWARD MYERS XXN MR ASH
PN616

I'm talking about individual site agreements by reason of that. From that point in time to when you commenced in 2005, which you suggested was normal, between that period of time were there different rostering practices than there are now or are the rostering practices identical from 2002 for 12 hour sites?---In you mean the actual formation of the roster or - - -

PN617

Yes, the formation of the roster and the allocation of the overtime to, as you say, pay the overtime against the Sundays, that's been exactly the same through that entire period of time?---In relation to the payment of overtime against the Sunday it's the same.

PN618

And for these individual sites that had 12 hour rosters implemented, were they on eight week rosters, eight week cycles, as the guards are?---Not always. I mean, the variations across - across all of our sites on different forms of rosters is, you know, a quite, you know, there's lots of variations basically, I'm saying, so a - where's there one officer required 24 hours a day, seven days a week, the roster rotation is usually just on four weeks, so it's - the eight week cycle is when there's two officers required, so - - -

PN619

I would suggest to you, Mr Myers, in some of those individual sites there wasn't a strict practice, as there is now, of allocating overtime against the Sunday, but in fact the overtime was falling on the Sunday fairly regularly, almost coincidentally, and that then there was a change in early 2002, 2000 - sorry, 2000 to 2003 to very, very consciously allocate the Sunday - allocate the overtime to those particular Sundays?---I'm a little confused now. So, you're saying when the individual site agreements were brought in, the 12 hour individual site agreements - - -

PN620

Yes?--- - - - there was a number of them from late 2002, early 2003, that's when the 12 hour rostering came into being and from that point forward, the documentation that I've viewed and the conversations I've had indicate that the overtime was paid against the Sundays from that point forward. Now, prior to that, I don't know.

PN621

Mr Myers, have you had any conversations with any Chubb guards since you've commenced employment with Chubb from 2005 onwards around - where there have been any queries or general discussions when you have done site visits around this practice of allocating overtime to Sundays?---Sure, yes.

PN622

Have you - - -?---Yes, yes.

**** RICHARD EDWARD MYERS XXN MR ASH
PN623

How would you go about explaining that to a particular guard when you're explaining this practice of allocating overtime against a Sunday?---Right. How would I explain it?

PN624

Yes, pretend I'm the guard?---Basically the - the 8-week roster, so there's two guards required 24 hours a day, seven days a week, it makes up two guards 24 hours a day in an eight week - well, sorry, two guards 24 hours a day is 336 hours a week. To be able to facilitate that you need - you can do it with any number of officers but the best way to achieve that is through eight officers because it gives them the minimum of 38 hours a week and in a - in a fortnight each officer averages eight hours additional to the 38 hours a week.

PN625

So, as far as I calculate 7 times 24, meaning the hours per week, as being 268 and not 336?---No, 168 and if you have two guards it's 336.

PN626

Three hundred and thirty-six?---Yes.

PN627

Total hours, I understand that?---Yes.

PN628

I apologise for interrupting?---No, fine.

PN629

It is quite confusing - - -?---Absolutely. I've explained it probably 50 times and it's still hard but, yes. The - but, look, there's 336 hours in a roster rotation with eight guards. Basically that gives 304 hours of ordinary time, which is 8 times 38, that's your 304 hours ordinary time, and then there's 32 additional hours. The 32 additional hours in this format, it was decided going back before my time and continued in 2004 with the agreement, that those 32 hours would remain within the 8-week cycle instead of introducing another officer. So, I mean, that would be possible, as I indicated before. So, when you have eight additional - when you have eight officers and there's 32 hours time overtime, over and above the 38 hours that we're obligated to pay a permanent employee, that gives an average of eight hours per fortnight, because it's a fortnightly pay period. So, the eight hours on average is paid throughout the cycle. Now, the company decided, going back in time, however it was to formulate the roster so that the overtime was paid against the Sundays and the reason for that is, is that the - is so that the payment was - the total payment to those eight officers was not detrimental to the company in terms of - in terms of the aggregate amount paid out. So, basically, the eight - if you do what I've just described and pay it how I've described, it is the same as getting, as far as the eight officers are concerned, as you would be paid under the award, the same total.

**** RICHARD EDWARD MYERS XXN MR ASH
PN630

I think I'm almost clear on how that's all going to work. You worked in the security industry prior to your present employment with Chubb?---Yes.

PN631

Did you ever work in basically where you may have been paid overtime?---You're going back some time when I was in the police force, yes.

PN632

And would have you understood then overtime to be hours in excess of your normal hours that would occur after you'd done your normal hours?---Yes, that's correct.

PN633

And if someone had have said to you at that point in time, the way we're going to roster is that your overtime, those extra hours that you are doing - - -?---Yes.

PN634

- - - they're going to always occur on a Sunday where the penalty is identical to the overtime penalty. What would you have said to someone who said to you at that point in time - - -?---Right.

PN635

- - - that that's what we're going to do?---Well, the 14 years I spent in the New South Wales police they didn't pay - they didn't pay double time on Sundays anyway.

PN636

Right, OK?---It was rolled up into - it was rolled up into your annual leave, so I didn't - I've never got paid double time on a Sunday in any case or time plus 100 per cent, so - - -

PN637

But did you ever get paid overtime?---If I worked hours over and above my eight hours per day.

PN638

I understand. Thank you, Mr Myers, I have no further questions.

PN639

HIS HONOUR: Mr Kite.

<RE-EXAMINATION BY MR KITE [12.12PM]

PN640

MR KITE: You were asked some questions about alternatives and you've indicated that they are effectively cost neutral to the company?---From the way we're paying them now that's correct.

PN641

What's the effect on the employees of the alternative processes?---Unfortunately the 32 hours that I spoke about in the eight week roster, the 32 hours over and above the obligation of the 38 hours per week would be removed.

PN642

And I think in your statement you indicate that on average it works out about seven and a half per cent increase in their take home pay - - -?---Yes.

- - - for working the overtime?---For working the additional hours of overtime, yes.

PN643

So, if those additional hours are not worked as overtime by those employees and another employee is brought in, effectively that seven and a half per cent is transferred to the additional employee?---That's correct.

PN644

Thank you.

PN645

HIS HONOUR: Thank you.

PN646

MR KITE: Might Mr Myers be excused.

PN647

HIS HONOUR: Yes, you're excused now?---Thank you.

<THE WITNESS WITHDREW [12.13PM]

PN648

HIS HONOUR: Well, how would you like to do it now?

PN649

MR KITE: I'm happy to call Mr Samios, he's available.

PN650

HIS HONOUR: Yes, okay.

<NICK SAMIOS, SWORN [12.14PM]
<EXAMINATION-IN-CHIEF BY MR KITE

PN651

MR KITE: Mr Samios, you're currently the general manager of Queensland Child Protective Services?---I am.

PN652

You have been in that position since about May 2004?---That's correct.

PN653

And prior to that you were in the position of general manager, ACT, from June 2002 to May 2004?---I was.

PN654

You've made an affidavit in connection with these proceedings?---I have.

PN655

Do you have a copy of it with you?---I haven't.

PN656

I'll make this one available. You've read it recently?---I have.

PN657

Are there any corrections or amendments that you wish to make?---There isn't.

PN658

And to be the best of your knowledge and belief the matters set out in your affidavit and matters annexed remain true and correct?---They are true and correct.

PN659

Thank you, Mr Samios.

EXHIBIT #CHUBB 5 STATEMENT OF NICK SAMIOS

PN660

HIS HONOUR: Mr Ash.

<CROSS-EXAMINATION BY MR ASH [12.15PM]

PN661

MR ASH: Thank you, your Honour. Firstly, your Honour, would I be able to enter that timesheet as an exhibit?

PN662

HIS HONOUR: Okay. Do you have a problem with that being - - -

PN663

MR KITE: We haven't seen it but - - -

PN664

HIS HONOUR: You haven't seen it.

PN665

MR KITE: I think it's described as a time card.

PN666

HIS HONOUR: Tim card, I think, is - where are we up to?

EXHIBIT #LHMU2 GUARD'S TIME CARD DATED 20/06/2004.

PN667

MR ASH: Mr Samios, you mention in your affidavit that you attended a number of sites around the time that these individual site agreements were being agreed to and implemented?---Yes.

PN668

Are you able to explain to the Commission the purpose of those visits as well as the type of thing that you would have said to the guards about the changes that were being implemented?---The purpose of the changes were to make sure that we freed up officers on a number of sites where there were staffing issues. What I did was I visited the sites with Patrick Ryan initially. Patrick discussed what the changes were that we wanted to make and what the variances were in relation to the award, in particular concerning 12 hour shifts and also voluntary additional hours. I explained to the officers who were present that - what the roster would be, that by going to a 12 hour shift didn't mean that they were going to be working eight hours ordinary, four hours overtime or ten hours ordinary, two hours overtime. The overtime was going to be worked over a 336 hour cycle. I also discussed with them that if - or where they were moving from an eight hour roster, 24 hour roster, that the pay would be similar and that they would not suffer any loss and also that within seven days of those visits we'd go out to a secret ballot, if the ballot got up that we would implement those rosters once they were ratified in the Commission, and if there were officers who felt that the site they were working on, that they didn't want to work on that site because of the 12 hours, that we would find another site and not force them to work any 12 hour shifts.

PN669

And my understanding that that is in its entirety what you said to guards and explained to guards - - -?---In general, and if there was any questions or answers I filled any of those.

**** NICK SAMIOS XXN MR ASH
PN670

Did any of the guards ask a question in relation to the allocation of overtime?
---No.

PN671

And you didn't proffer any information about the allocation of overtime?---No. I was satisfied that what I told them would clarify that matter, given that they'd had the roster pre us attending the site to discuss the roster.

PN672

Right?---And then moving forward there was seven days where they could have consulted other workmates, friends, LHMU, whoever.

PN673

So that when you say the roster, you mean their actual roster or was this a sample roster that you - - -?---The sample roster.

PN674

Is there a copy available of the - was it the - was it one particular sample roster that was used - - -?---Yes.

PN675

- - - for all these discussions?---Yes, it was the one that rotates through an eight week period.

PN676

Is a copy of that able to be made available?

PN677

MR KITE: I'll provide a copy of RM1.

PN678

MR ASH: Are you familiar with this particular roster? I'll let you have a look as well. Thank you, Mr Samios, I just would like you to take me to where it would be clear from this that guards could expect that overtime would be allocated to Sundays?---Well, if you look to the right where it says "Double time."

PN679

Yes?---That would indicate to me where the overtime shift would fall.

PN680

Right. Next to double time there, it's corresponding with what appears to be on this roster as Sundays or partial Saturday, partial Sundays, that's right, those correspond, so the green corresponds, being Sundays?---Yes.

PN681

And that's next to "Double time"?---That's right.

PN682

Is it correct that the penalty, the normal penalty, not an overtime penalty on Sundays is double time?---That's right.

**** NICK SAMIOS XXN MR ASH
PN683

HIS HONOUR: Can I just ask a question here? So, are you saying that a document like this was given to the staff when you were doing these explanations?---Yes, the roster, yes, your Honour.

PN684

So it was actually in this form, it was actually - because you've said in your statement that you actually specifically stated that you would explain how the overtime shifts would fall on the Sunday is - or, you know, sometimes on the Saturday?---That's right.

PN685

So you actually presented a document like this?---Yes.

PN686

Is that what you're saying?---Yes.

PN687

Thank you.

PN688

MR ASH: Mr Samios, I don't seek the word "overtime" anywhere on this particular roster?---It was indicated to the employees where the overtime fell.

PN689

Which happened to correspond with the double time, which happened to correspond with the Sundays where the penalty is double time?---That's right.

PN690

That could be confusing, would you agree?---No, because I stated to them when the overtime fell.

PN691

Right?---They were going - they weren't going to be penalised from going from the eight hour roster to the 12 hour roster.

PN692

We heard the previous witness state that you said that there maybe some disadvantage on a Saturday where you'd be paid eight hours ordinary time previously before moving to the 12 hours - eight hours at ordinary time and then two hours at time and a half and the two hours of double time had previously been paid and now they were moving to 12 hours of ordinary time, so on a Saturday, for instance, you would be slightly worse off but on the whole - - -?---On the whole the money would be - would remain the same.

PN693

I understand that. So, if penalties alone were paid to these guards and no overtime was paid whatsoever, so, if we simply don't even worry about rostering overtime to Sundays, let's just pay penalties. Think about that. Would there be any difference to the income of those guards?---Well, you'd be working over the prescribed 38 hours, so you couldn't pay them all penalty rates.

**** NICK SAMIOS XXN MR ASH
PN694

I'm sorry, I didn't quite follow?---Well, there's 336 hours over an eight week rotation.

PN695

Yes?---If you're saying if the officers were paid penalties, well, you can't.

PN696

I'm sorry, just imagine - leaving aside that overtime has to be paid when you go above the ordinary hours, leave that aside and let's just pay penalties for work performed on a Saturday or a Sunday or on particular periods of the day where there might be an expand penalty, let's just stick to penalties and let's forget about overtime, would guards on this sort of roster be taking home any less?---Again, are you saying that they can work 42 hours?

PN697

Yes?---Without - without penalty?

PN698

And.....?---Look, on first thoughts it would be the same but I'd have to sit down and have a look at that calculation.

PN699

Mr Samios, were you involved in the negotiations - sorry, no, I withdraw that. I have no further questions of Mr Samios, your Honour.

PN700

HIS HONOUR: Thanks, Mr Kite.

<RE-EXAMINATION BY MR KITE [12.24PM]

PN701

MR KITE: Looking at that sample, that wasn't the document that you showed, as I understood your evidence, that wasn't the document, the actual document that you showed them at the time?---That wasn't.

PN702

Yes?---No.

PN703

Is that right?---Yes.

PN704

You showed them a roster of the - - -?---The roster, yes.

PN705

And pointed out where the - - -?---Yes.

PN706

MR ASH: I object, your Honour, slightly leading.

PN707

MR KITE: That's an interesting objection.

PN708

HIS HONOUR: Yes, okay?---Your Honour, the roster was shown and handed out and it had a calculation underneath of what the officers were going to be paid.

PN709

Right?---And it was indicated to them where the overtime was going to fall.

PN710

Right, so you're saying it did show that the overtime would fall on the days that you've - - -?---Yes, it was - it was - - -

PN711

It was clear that it wouldn't be at the end of the 304 hours?---No. Well, it couldn't, your Honour, because at that time the roster we were using was showing 36, 36, 36 towards the end of it which would complicate matters.

PN712

Right, so it showed it falling within the - - -?---Yes.

PN713

- - - within the cycle on the Sundays?---Yes.

PN714

Mainly on the Sundays?---Yes.

PN715

Yes, all right.

PN716

MR KITE: I just wanted to make sure that your Honour understood it wasn't that document.

**** NICK SAMIOS RXN MR KITE
PN717

HIS HONOUR: Yes.

PN718

MR KITE: Now, Mr Ash asked you whether if penalties were paid, rather than overtime - - -?---Yes.

PN719

- - - whether the employees would be paid any more or less and paid in the cycle and you indicated your first impression - view, it would be the same?---Yes.
That, of course, assumes that there is no overtime in the system at all?---That's right and that's why it's difficult to sit here and answer that question given that I'm working to a 38 hour week and obviously there would be some overtime allocated.

PN720

If the 32 hours of overtime came at the end of the roster - - -?---Yes.

PN721

- - - rather than being allocated to specific shifts - - -?---Yes.

PN722

- - - what would be the effect on the costs to Chubb?---Well, the costs would increase significantly and make us uncompetitive in the marketplace and that's - that's something that needs to be considered that when the overtime is allocated it was to advantage both parties that the employees were working four on/four off, coming less to work and also that there was no disadvantage to Chubb, and in particular with the - our competition having an advantage over us.

PN723

Thank you, Mr Samios. Thank you, sir. Might Mr Samios be excused?

PN724

HIS HONOUR: Yes, Mr Samios, you're excused. Thank you very much.

<THE WITNESS WITHDREW [12.27PM]

PN725

MR KITE: We've got one witness on the way and another one at a medical appointment.

PN726

HIS HONOUR: Well, we might break now then. When do you think you will actually have somebody - well, if we break for an hour ..... will that be enough time.

PN727

MR KITE: It should be enough time by two o'clock.

PN728

HIS HONOUR: All right, well, we'll - - -

PN729

MR KITE: Probably half past one.

PN730

HIS HONOUR: Well, we'll resume at a quarter to two. We'll adjourn till 1.45.

<LUNCHEON ADJOURNMENT [12.28PM]
<RESUMED [1.37PM]

PN731

HIS HONOUR: Mr Kite.

PN732

MR KITE: If the Commission please, I call Mr Mackersey.

<PHILLIP WAYNE MACKERSEY, SWORN [1.37PM]
<EXAMINATION-IN-CHIEF BY MR KITE

PN733

MR KITE: Mr Mackersey, your business address is 9 Lyell Street, Fyshwick?
---Correct.

PN734

In the ACT, and you're an operations supervisor with Chubb Protective Services Pty Ltd?---Correct.

PN735

You've been in employment with Chubb since 17 February 2003 and in your current role since July of 2003?---That's correct.

PN736

And you've made an affidavit in connection with these proceedings?---Yes.

PN737

Do you have a copy of it with you?---Yes.

PN738

You've read it recently?---Yes.

PN739

Are there any corrections or amendments that you wish to make?---No.

PN740

And to the best of your knowledge and belief the content remains true and correct?---Yes.

PN741

Thank you, Mr Mackersey.

EXHIBIT #CHUBB 6 STATEMENT OF PHILLIP WAYNE MACKERSEY
<CROSS-EXAMINATION BY MR ASH [1.38PM]

PN742

Mr Mackersey, you state in paragraph 11 of your affidavit that in your role if a shift that has become available because of some sort of employee absence, perhaps sick leave or otherwise, if that's available then the first thing you do is see if there are any guards who have signed the voluntary overtime appendix available and, if not, it would be rostered to another guard who would be paid at, I believe you stated paid at the overtime rates in accordance with the award. Can you explain to me what being paid in accordance with the aware means in this context?---It simply means that we're paid under the award conditions which state that anybody that's on overtime gets paid - if it was during the week it would be two hours at time and a half and the remainder of the shift at double time, if it was on a Saturday or a Sunday it would be all at double time.

PN743

Right?---Simply, yes.

PN744

So, for example, if it happened to fall on a Tuesday then that guard would be paid overtime and this would be overtime that's - if his shift isn't on that roster, so he'd be paid overtime, time and a half for the first two hours and presumably ten hours at double time and that would sit above anything else on their roster and be paid accordingly?---Correct.

PN745

You also state that prior to commencing employment with Chubb you had some significant - for, I believe, 15 years you worked for the APS?---Yes.

PN746

Whilst working for the APS, did you ever work overtime?---Correct.

PN747

Can you explain to me how overtime was calculated and paid when you were at the Australian Protective Services?---It's two hours at time and a half and the remainder of the shift at double time.

PN748

Was overtime ever rostered into your roster when you were with APS?---Yes.

PN749

Was it rostered in such a way that the overtime would be allocated to Sundays?
---Yes.

PN750

It was? You state, I suppose in part from that response and other things, that Chubb had adopted the practice in 2002. You started in 2003 but you know that they adopted the practice in 2002 of allocating overtime to Sundays. Do you know, in your experience, whether any other security operators in this industry in this area also have adopted the practice of allocating overtime to Sundays?---No.

**** PHILLIP WAYNE MACKERSEY XXN MR ASH
PN751

You don't know any that do or you don't know at all?---I don't know at all.

PN752

HIS HONOUR: You're just saying - sorry, just to be absolutely clear, you are saying you just are not aware of it?---Correct.

PN753

You're not saying you know that they don't?---Yes.

PN754

You're saying you just don't know?---Yes, I just don't know.

PN755

All right, fine, thanks.

PN756

MR ASH: However, it is true that the Australian Protective Services do that?
---Do - I'm sorry?

PN757

When I asked you before about whether or not the APS had a practice of allocating overtime to Sundays you said yes, so in the broad security industry we include the APS, and they are an example that you do know, also follow this practice, is that correct?---The APS follow the practice of rostering overtime on Sunday, yes.

PN758

And that is overtime that is not extra but part of the roster, is that correct?
---Correct.

PN759

Thank you, Mr Mackersey, that's all, thank you.

PN760

HIS HONOUR: Do you - - -

PN761

MR KITE: Nothing arising.

PN762

HIS HONOUR: Mr Mackersey, you are excused now, thank you?---Thank you.

<THE WITNESS WITHDREW [1.43PM]

PN763

HIS HONOUR: Good progress.

PN764

MR KITE: I call Laurie Richard Davis. I can tell your Honour while we're waiting for Mr Davis that Mr Ash has required us that he won't require Mr Rendle for cross-examination.

PN765

HIS HONOUR: All right.

PN766

MR KITE: So we have arrangements in place for him to be - - -

PN767

HIS HONOUR: Yes, so he's not going to have to - - -

PN768

MR KITE: So he's not going to mind.

PN769

HIS HONOUR: Very well.

PN770

MR KITE: We'll get in touch with him and let him know that. The Commission may have to make some arrangements.

<LAURIE RICHARD DAVIS, AFFIRMED [1.44PM]
<EXAMINATION-IN-CHIEF BY MR KITE

PN771

MR KITE: Mr Davis, your business address is 9 Lyell Street, Fyshwick in the ACT?---That's correct.

PN772

And you're employed as an operations manager with EBA C2 with Chubb Protective Services Pty Ltd?---Yes.

PN773

You began your employment with Chubb on 10 October 2005?---Yes.

PN774

You've made an affidavit in these proceedings?---That's correct.

PN775

You have a copy with you?---I certainly do.

PN776

And you've read it recently?---I have.

PN777

Are there any corrections or additions you wish to make?---No.

PN778

To the best of your knowledge and belief those contents remain true and correct?
---Yes.

EXHIBIT #CHUBB7 STATEMENT OF LAURIE RICHARD DAVIS

PN779

HIS HONOUR: Mr Ash.

<CROSS-EXAMINATION BY MR ASH [1.45PM]

PN780

Mr Davis, you state in your affidavit at paragraph 11 that you regularly conduct meetings with supervisors from each ACT site once a month, you say, is that correct?---That's correct. Actually bi-monthly if you read the statement.

PN781

"As part of my role Mr Cheedam and I conduct meetings with all supervisors from each ACT site once a month." So that's incorrect?---No, it's correct until you read the rest of the context of the statement. It refers that we - we each hold them once a month, but bi-monthly.

PN782

I understand, so you alternate?---Correct.

PN783

To help me, explain when you refer to supervisor, would that include a duty inspector at the site?---Could you clarify that? We don't have duty inspectors.

PN784

I forget the terminology that was used before, but Mr Wallace was for a period of time employed in some sort of supervisory position and I understood it to have been a duty or some sort of - but can you explain to me the titles that people would have that you would actually have these meetings with on site?---The meetings would be held with site supervisors that are the designated senior or supervisory officer allocated to each individual site.

PN785

Is it your understanding that these site supervisors would then go and pass on that information if it was relevant to the employees under them at that particular site?
---Yes, that's correct.

PN786

In that, and previously, that has included any explanation around the allocation of overtime, is that correct?---That's correct.

PN787

And from what period of time would have these briefings taken place around the allocation of overtime?---Every meeting since I've been with Chubb, every month.

PN788

And you commenced in 2005 for every single meeting?---Yes.

PN789

Why was it required to have been on the agenda at every single meeting that you've had, so we're talking almost every - well, every month since 2005?
---Because site rosters change.

PN790

Right?---So obviously it's an ongoing - - -

**** LAURIE RICHARD DAVIS XXN MR ASH
PN791

I'm referring to the specific explanation around the allocation of overtime till Sunday?---There were generic questions raised surrounding rosters. It may not specifically have addressed the overtime issue on every single occasion, however, if you took an overview of every meeting across the board generally it was discussed.

PN792

Is it your belief that the supervisors that you briefed in relation to the allocation of overtime, that they properly understood the way that was operating and were able to explain to that to the guys?---Yes.

PN793

Thank you, Mr Davis, I have nothing further.

PN794

HIS HONOUR: Okay, thanks. Is there anything - - -

PN795

MR KITE: There's nothing arising.

PN796

HIS HONOUR: Okay, thank you very much, you are excused.

<THE WITNESS WITHDREW [1.48PM]

PN797

HIS HONOUR: Now, how are we placed?

PN798

MR KITE: We can tender the statement of - the affidavit of Mr Rendle.

EXHIBIT #CHUBB 8 STATEMENT OF MR RENDLE

PN799

MR KITE: And that's certainly our witnesses and I think our evidence.

PN800

HIS HONOUR: Yes. We've still got the - what's the story with the person from the Ombudsman's office?

PN801

MR ASH: I've just been given a mote and they're on their way.

PN802

HIS HONOUR: Right.

PN803

MR ASH: And the note that I received a little while ago says 15 minutes.

PN804

HIS HONOUR: Very well.

PN805

MR ASH: So, I would say very soon.

PN806

HIS HONOUR: Just in terms - I mean, I understand you've already made some preliminary comments about the relevance of this potential evidence - - -

PN807

MR ASH: Yes.

PN808

HIS HONOUR: - - - but I don't know whether you want to add anything about this, if there's anything more you can say at this point?

PN809

MR ASH: No, I don't think so, your Honour.

PN810

HIS HONOUR: No, look, I'll tell you my inclination, to be honest, would be to allow the evidence such as it is, and it's a bit difficult to tell, isn't it, quite what it's going to be.

PN811

MR ASH: Yes.

PN812

HIS HONOUR: And I'll make a decision about the appropriate weight to give to it and I think that's probably the best way of handing it. Certainly that would be my inclination at this stage. So, what I suggest we could do is actually adjourn for, I suppose, 15 - well, for 15 minutes until the person is here and then resume, or - - -

PN813

MR ASH: I think they may possibly already be here.

PN814

HIS HONOUR: Do you want to just - - -

PN815

MR ASH: .....

PN816

HIS HONOUR: Sorry, I misunderstood you.

PN817

MR ASH: That's okay.

PN818

HIS HONOUR: How are we going to handle submissions, have you got any particular preferences? I mean, you've done an outline of submissions and we've heard the evidence, but I presume you'll want to make further submissions on the basis of that. I mean, I wonder whether - we've sort of got tomorrow set aside. We could do it tomorrow morning is what I was thinking if that's - - -

PN819

MR ASH: Yes.

PN820

HIS HONOUR: Unless there's a problem with that or even - well, this afternoon might be a bit hard, I think.

<BELINDA JOY O'KEEFE, AFFIRMED [1.51PM]
<EXAMINATION-IN-CHIEF BY MR ASH

PN821

MR KITE: Ms O'Keefe, were you involved in an investigation against Chubb Security in relation to the underpayment of overtime? I believe that's how it characterised at the time?---I was involved in a sense that I was asked to perform calculations. I wasn't an inspector at the time.

PN822

Did you have any knowledge or involvement in or were you aware of any opinion that was formed by the Workplace Ombudsman around the construction of the clause that was in question?---No.

PN823

In performing the calculations that you performed, can you explain to the court as and is maybe connected to an interpretation or an opinion of the Workplace Ombudsman, can you explain the methodology that was adopted for those calculations?---I was given a copy of the CA and I was given the records that we had. Basically from those records I then calculated from the CA what they should have been paid and then compared that with what they were paid.

PN824

So, in doing so, when you say you had a copy of the certified agreement in front of you, someone in that office has formed an opinion about what they should have been paid, is that correct, and that was not done by yourself?---I was given the instrument, I then read through that instrument and then applied what I interpreted from that instrument should have been paid.

PN825

Are you aware of any other advice that was received from any other employees that were post Ombudsman that looked at the interpretation of that clause?---I couldn't say.

PN826

So, can you take me through exactly - I understand that there a significant number of calculations performed by the Workplace Ombudsman on the basis of a number of different guards rosters over a period of time from 2004 onwards, can you explain exactly how you went about doing that in a little bit more detail? So, for example, you've looked at the agreement and you'd decided what you thought they should be paid and then you've performed your calculations, how did you go about doing that? Did you use guards' rosters?---I'm not sure of the title of the documents, it looked to be a - like a timecard type system.

PN827

Yes?---There were dates and times recorded, there was also locations recorded. I then took that information and put it into a spreadsheet and performed the calculations.

PN828

From your recollection, is it true that from all of those calculations that you've performed that you found that on the basis of those calculations that there had been an underpayment or that there was a deficit amount over all these guards rosters?---Yes, I believe so.

PN829

Thank you, Ms O'Keefe.

**** BELINDA JOY O'KEEFE XN MR ASH
PN830

HIS HONOUR: Can I just a question? The sort of key issue in this case concerns really how do you determine carefully when the - I have to think how carefully to put this, but in terms of when overtime is payable because, generally speaking, the way that the company estimates what it needs to pay people is based on assuming that over an eight week cycle the overtime is allocated to mainly Sundays. Now, presumably, in your calculations you didn't make that assumption?---No, my interpretation of the clause in the instrument was that all of those - all of those amounts had to be adhered to, so not just - - -

PN831

What do you mean, sorry?---Well, in the - from memory, in the instrument there was a list of times, so X amount of hours in a two week period, X amount of hours in a four week period, X amount of hours and so forth - - -

PN832

Right?--- - - - up unto an eight week cycle.

PN833

But certainly the employees that we've been discussing in this matter have all been on an eight week cycle and there's no question that the number of hours they're actually rostered to work is less than - sorry, is more than their ordinary hours and therefore there is some period of overtime?---Yes.

PN834

The question then is what days does that overtime fall on. Now, the company has basically, in the way it's paid people, it's basically said that the work largely falls on Sundays and because the way the award provides for payment on Sunday it means you don't get anything extra, you just get the Sunday rate, you don't get an overtime rate on top. You presumably didn't use that methodology when you were doing your calculations?---No.

PN835

Why not?---My interpretation of that part of the clause was, like I said, all of those things had to be adhered to and the fact that they were being paid in a fortnightly cycle, I felt that they - that the overtime should have been applied to a fortnightly cycle.

PN836

Can you just take me through that a bit more, I'm not totally with you.

PN837

MR KITE: Can I ask a question?

PN838

HIS HONOUR: Yes, well, perhaps Mr Kite can pursue this.

<CROSS-EXAMINATION BY MR KITE [1.57PM]

PN839

MR KITE: So, when you saw the instrument, it provides for 38 hours per week in a cycle not exceeding seven days, 76 hours per week in a cycle not exceeding 14 days and so on?---Yes.

PN840

Up to 304 over an eight week cycle under the agreement, correct?---Yes.

PN841

I understand from your evidence that you've just given that you took the view that there was a need to comply with each of those requirements?---Yes, that was my interpretation.

PN842

And because the employees were paid fortnightly, you focused particularly on the 76 hours within a work cycle not exceeding 14 consecutive days?---From memory, yes.

PN843

And so you made calculations based upon that form of work cycle?---Yes.

PN844

You didn't read the instrument as allowing the adoption of the system of any one of 76 hours, 114 hours, 152 hours over the appropriate leave extended cycle?
---No, I didn't believe that the clause allowed you to pick and choose which one.

PN845

And so all of your calculations were based on the 76 hour work cycle?---Yes.

PN846

THE SENIOR DEPUTY PRESIDENT: Mr Ash, do you have anything ask in re-examination?

PN847

MR ASH: Yes.

<RE-EXAMINATION BY MR ASH [1.59PM]

PN848

MR ASH: Ms O'Keefe, was anyone else involved in these calculations?---In the performance of the calculations, no.

PN849

I'm sorry, but you're 100 per cent sure that these calculations were performed on the basis that overtime - on the basis of that roster cycle being the 76 hours over two weeks and that was the methodology that was adopted for these calculations?
---Yes.

PN850

But you're also saying that your reading of that clause, how did you perform calculations on the basis of an eight week cycle being 304 ordinary hours in an eight week cycle - - -

PN851

MR KITE: I object.

PN852

THE SENIOR DEPUTY PRESIDENT: Well, you - - -

PN853

MR ASH: I withdraw that.

PN854

THE SENIOR DEPUTY PRESIDENT: Yes.

PN855

MR ASH: Thank you, Ms O'Keefe, no further questions.

PN856

THE SENIOR DEPUTY PRESIDENT: All right, thank you. Thank you, you're excused.

<THE WITNESS WITHDREW [2.00PM]

PN857

THE SENIOR DEPUTY PRESIDENT: That's actually all the evidence then?

PN858

MR KITE: Yes. Does your Honour have copies of the agreement and the award?

PN859

THE SENIOR DEPUTY PRESIDENT: I do, it was attached. Yes, I do. It was attached. The union material includes it all there. Yes, I've got it all, yes. Well, in terms of how do you - well, Mr Ash in particular, how do you want to proceed? I mean we could do some - the question is really do you need the benefit of the transcript to make submissions or not?

PN860

MR ASH: Your Honour, I would probably be able to go ahead and make final submissions if I was allowed to have a brief adjournment before doing so.

PN861

THE SENIOR DEPUTY PRESIDENT: Well, how long do you want?

PN862

MR ASH: 20 minutes.

PN863

THE SENIOR DEPUTY PRESIDENT: Is that all right with you, Mr Kite?

PN864

MR KITE: Yes, your Honour.

PN865

THE SENIOR DEPUTY PRESIDENT: Well, let's adjourn to quarter to three and then we'll have submissions and then we won't need tomorrow I think I can safely say.

<SHORT ADJOURNMENT [2.01PM]
<RESUMED [2.38PM]

PN866

HER HONOUR: Mr Ash.

PN867

MR ASH: Thank you, your Honour. Your Honour, this dispute is confined to the application of clauses 14.1(d) and 14.2 of the agreement. Chubb are contending that at the time of making this agreement it was the intention of the parties that the clause would operate, or the clauses, would operate to allow overtime to be allocated to Sundays so that even though guards were working mandatory hours additional to ordinary hours they were effectively not being paid any overtime.

PN868

The LHMU argues that it was not the intention of the LHMU for the clause to operate in this way. Although it may be accepted that following the implementation of 12 hour shifts at some sites in 2002 by reason of employee individual site agreements, any practices relating to the allocation of overtime to Sundays were not taken into consideration for the union's certified agreement that is the question of this dispute, that is the subject of this dispute. The LHMU understood the purpose, if any, of clause 6 of the agreement to refer to the further implementation of 12 hour shifts over an award that provided for 10 in limited circumstances.

PN869

Although Mr Samios and other witness for Chubb have stated that the practice of allocating overtime to Sundays has been explained to guards, our witnesses who've worked for Chubb for a number of years at various sites do not recall any specific explanation around the practice of allocating overtime to Sundays. As put to Mr Samios, guards would be paid the same if they worked their rostered hours, including the 32 above ordinary hours, and were not paid overtime, merely applicable penalties.

PN870

We ask that the Commission adopt the common sense approach to the application of this clause that overtime is payable on compulsory work performed in addition to ordinary hours and not set a precedent that an employer can manipulate rosters to arbitrarily allocate overtime to Sundays so that the employees are paid less and employers pay less effectively. If it please the Commission.

PN871

THE SENIOR DEPUTY PRESIDENT: Okay, thank you. Mr Kite.

PN872

MR KITE: If your Honour pleases. There are a couple of clauses in the award that I think that I would refer the Commission to as it's part of the context in which one sees the operation of the dispute ..... Clause 4.2 provides that full time employees are people who are engaged for no less than 38 hours per week. You would have heard in the evidence of a couple of occasions reference from, for example, Mr Myers as to the obligation to provide 38 hours work for full time employees. There are of course other forms of employment, part time, casual.

PN873

Clause 4.3 deals with regular part time employees. Clause 4.4, casual employees. Then if I could ask your Honour to go forward to clause 6 which deals with hours of work and 6.11 has become more particularly relevant in light of the evidence of Ms O'Keefe because it provides that:

PN874

The ordinary hours of work shall, at the discretion of the employer, average 38 hours per week over the following work periods.

PN875

And there are then set out a number of alternatives. The evidence from the respondent's witnesses indicates that a number of different types of work patterns are adopted according to client needs. The one of most direct relevance in the instant case of course is the four by four roster worked over an eight week cycle which is actually provided for in the agreement, the 304 hours over 28 consecutive days. But nevertheless, 6.12 - - -

PN876

THE SENIOR DEPUTY PRESIDENT: Did you mean 28 consecutive days?

PN877

MR KITE: No, I'm sorry, 56 consecutive days, 304. Ms O'Keefe's evidence that her calculations were based on 76 hours within a 14 day cycle, with respect, clearly indicate the Workplace Ombudsman's calculations are wrong. Nobody is arguing that this is a 14 day cycle.

PN878

THE SENIOR DEPUTY PRESIDENT: Yes, yes.

PN879

MR KITE: Your Honour can disregard any inference to arise from the ombudsman's opinion. 6.12 indicates that the maximum number of ordinary hours to be worked by any employee shall not exceed 48 in the week. So if we can just pause there, if looking at our sample roster there are four weeks where four shifts are worked, four 12 hour shifts, that's 48. Any extra work in that week has got to be on overtime. But there are a number of shifts, a number of weeks where 36 hours are worked so as to balance out over the cycle to ensure that the four day on, four day off system operates.

PN880

In any of those weeks you could work up to another 12 hours without offending the 48 hour limitation. The point about that is clearly in those weeks, assuming you haven't reached your 304, it would be open to Chubb on what the union's case is to simply allocate an additional shift as ordinary time. There are notification requirements but assume you do it with seven days notice, it doesn't offend the overtime. It will over the course of the cycle if all of the other shifts are worked there will be an excess of course, but as operates with overtime there are a number of limitations on the number of hours that an employee can work. The number of hours in any one day are subject to a maximum. The number of hours an employee can be asked to work - sorry, asking an employee to resume work after less than eight hours break, for example, may require overtime payments.

PN881

So there are a number of incidences that will cause overtime to arise well before the expiration of 304 hours. That's without dealing with the practical question of when does the 304 hours commence and I'll come back to that. 6.13 provides for eight hour limitation except where elsewhere provided and of course 6.14 allows for 10 hour shifts and the agreement allows for 12 hour shifts. But subject to those variations, if you were to work more than the eight, 10 or 12 respectively in circumstances where the 304 hours have not yet been exhausted, you're entitled to overtime.

PN882

6.15 deals with the method of implementation of the 38 hour week. Mr Myers spoke about that in his evidence in terms of RDOs and the mechanisms which may be used as an alternative and the impact of those. I'll come back to that. Overtime and call back in 6.2, overtime is to be paid at time and a half for the first two hours and double time thereafter for hours in excess of ordinary hours Monday to Friday inclusive. I don't need to deal with call back at the moment. Saturday work, clause 6.4, requires time and a half to be paid for ordinary time, double time for overtime on Saturdays and Sunday work, all time worked on Sundays to be paid at the rate of double time and double time is the maximum to be paid.

PN883

So under the award whether you're working overtime or overtime doesn't matter, double time is what you're going to get paid and that of course led to the development of the industry practice which Mr Anderson talked about,
Mr Mackersey gave some recent evidence about, Mr Rendle gives evidence about in his statement, paragraph 18, that it was an established practice to roster eight hours or the overtime under the eight hour system on a Sunday. Mr Anderson said it was a contrivance, he was always made to be at the end of the week anyway. I'll say some more things about contrivances but the fact was - - -

PN884

THE SENIOR DEPUTY PRESIDENT: I'm sure you're going to come back to that but it does seem, I mean you know as a sort of common sense view, there does seem something rather artificial about sticking the overtime on a Sunday. You're going to be rostered to work those Sundays because of the nature of the rosters and they have to have people there on a Sunday.

PN885

MR KITE: Yes.

PN886

THE SENIOR DEPUTY PRESIDENT: Obviously there's no question that it saves the company money by rostering the overtime on Sunday and no-one is making any bones about that.

PN887

MR KITE: No.

PN888

THE SENIOR DEPUTY PRESIDENT: But you know, there is something that seems slightly contrived about it.

PN889

MR KITE: Perhaps I'll deal with it right now.

PN890

THE SENIOR DEPUTY PRESIDENT: Yes.

PN891

MR KITE: There are a couple of ways to look at it, your Honour. Let's assume, and it's really found in the alternatives that Mr Samios and Mr Myers talked about, let's assume that as Chubb did in making its disclosures about the way it intended to work and you'll be satisfied on the evidence that Chubb never hid it from anybody. Mr Samios was absolutely clear in his statement and his evidence to your Honour that he showed the roster and he pointed to the shifts that were going to be the overtime shifts and he had calculations at the bottom showing how it would all work out. So there's no hidden agenda by Chubb.

PN892

It's trying to achieve two things. It's trying to achieve the introduction of 12 hour shifts for employees who want to work those shifts, to meet the needs of clients and to do so without increasing its costs. Now, to do that it's going to roster over 336 hours over eight weeks. It can do that by rostering an employee to work 304 ordinary hours. Some of those hours might be on a Sunday, some might be on a Saturday and they'll carry those span penalties but they'll only work 304 ordinary hours. When it comes to Sunday the employer could say, well no, I'm not going to increase your hours above the 304, I'm going to get another person in, a part timer, a ninth person on the roster, or I've got another person sitting over there who's on a voluntary additional hours agreement who's qualified to do this work, I'll just invite that person to come in and work and even if I haven't got enough VOT people I'm permitted to direct people to work overtime so I just don't roster the Sunday shift, I don't roster it at all.

PN893

But the process that was being sought to be achieved was to ensure that the employees could work the 12 hour shifts and not lose any money and the way they did that was by working the 32 hours overtime on a regular basis through the period. You've heard from Mr Murphy about the desirability of working overtime and that his colleagues like to work overtime. It was a thing that they sought to increase their income and there's been a few references to 32 hours of mandatory overtime. It's not mandatory. They can say I don't want to work them.

PN894

THE SENIOR DEPUTY PRESIDENT: But can you? I mean if you're rostered, there's this eight week cycle and you're rostered to do t his many hours.

PN895

MR KITE: Yes, yes.

PN896

THE SENIOR DEPUTY PRESIDENT: Are you saying that someone could say I only want to 302 hours?

PN897

MR KITE: 304.

PN898

THE SENIOR DEPUTY PRESIDENT: 304, sorry.

PN899

MR KITE: Yes, they could do that. If they wanted to they could have said it at the time because the offer when the site agreements came into place saying 12 hours but if anybody doesn't want to do that we'll find you another location. It was the majority of employees at the location wanted the 12 hour shifts but the minority were looked after. If they didn't want to be involved in that the
company - - -

PN900

THE SENIOR DEPUTY PRESIDENT: I don't know if there are too many sites left in the ACT where there aren't 12 hour shifts.

PN901

MR KITE: But we're talking about 2002.

PN902

THE SENIOR DEPUTY PRESIDENT: Sure at that time there was still some then.

PN903

MR KITE: And indeed Chubb has some that still work on an eight basis.

PN904

THE SENIOR DEPUTY PRESIDENT: Right, okay.

PN905

MR KITE: The four by four on Mr Myers evidence operates on about 40 per cent of the sites.

PN906

THE SENIOR DEPUTY PRESIDENT: All right. There may be other rosters where there's five by two and four by three and so on but there are equally eight hours still around. But in 2002 there were quite a few and indeed we're only looking at 10 sites under the then site agreements so there were options for employees who wanted to go elsewhere. Mr Wallace said he quite liked the 12 hours and that was the point. There were a number of employees who wanted this system but Chubb couldn't do it and keep the employees income at their current level and let the overtime operate willy nilly, which is effectively what's required in this system.

PN907

The overtime just falls as it may, depending on where you start in the cycle. And your Honour will recall the cross-examination of Mr Anderson about that, that if I'm officer 4 in the eight week cycle, my 304 hours are going to exhaust at the same point every eight weeks and then I hit 32 hours of overtime. If that happens to be Saturday and Sunday I'm going to be paid significantly less than the employee whose overtime regularly falls Monday to Friday and that's the system. Once you're there you're locked in forever to produce pay disparity between the same group of people working the same shifts over the cycle.

PN908

THE SENIOR DEPUTY PRESIDENT: But that's not why Chubb do it.

PN909

MR KITE: That's one of the reasons that Chubb does it.

PN910

THE SENIOR DEPUTY PRESIDENT: I mean it was very much about saving costs, wasn't it? I mean rather than trying to get equity - - -

PN911

MR KITE: Chubb could have saved the costs in other ways. Chubb could have got the ninth person on.

PN912

THE SENIOR DEPUTY PRESIDENT: I mean is it that easy to get other people? I mean haven't there been problems in staffing over recent years because they can get another person?

PN913

MR KITE: Well, there are problems from time to time about clearances.
Mr Murphy talked about certain sites where you may have a shortage of a number of people with clearances for a site but there's no evidence to say that Chubb couldn't employ another person, no suggestion of that.

PN914

THE SENIOR DEPUTY PRESIDENT: No.

PN915

MR KITE: Or indeed go to somebody else who is willing to work overtime on that day and just offer them that shift as an overtime shift. So they work their shift, they get paid the same amount. It doesn't cost Chubb anything more and it doesn't cost them anything less. But the employee who would have worked that overtime shift as part of the roster, permanent roster as it's called, is going to lose that overtime shift. Now, if they knew that there were regular overtime built into the system and that enhanced their pay they're accepting that process and indeed Mr Samios' evidence goes further and indicates that the employees knew when the overtime would be rostered.

PN916

We don't want to get too carried away about the roster. The roster is a mechanism for notification and clause 7 of the award is the nearest thing that one can get to a roster clause in these agreements and it requires that the employer post a legible notice at some place readily accessible indicating the hours of commencement and cessation of work and that has to be at least seven days prior. So let's say that Chubb put its roster up for the 304 hours, there are two propositions. There's a roster that Chubb has to fill and there's an employees work roster. The roster that Chubb has to fill is that it's obliged to have security officers in place for the client at particular times throughout the week on a 24 hour, seven day a week, someone there all day. Different people of course.

PN917

But Chubb's got that cycle so you've got Mr Mackersey, he's looking at that. He's got to find people for those shifts. The first way to fill them all is by the roster, a stable roster where you allocate a team of people to do their ordinary time throughout that cycle. Circumstances will arise where they take annual leave, sick leave. Some other circumstances arises where the employee is no available,
Mr Mackersey has to find someone to fill that shift. If it's on a Sunday somebody will come in and work double time. It doesn't matter that it's overtime for that person. It doesn't matter to Chubb and it doesn't matter to the individual if that's the way the roster works.

PN918

So there's nothing artificial about it other than this is a mechanism of saying to the employees, this is the way you work over the next eight weeks, indeed over the next X number of years assuming we maintain the contract and in this cycle you're going to work 304 ordinary hours and 32 hours of overtime, if you're happy to do that we can implement that process. They were happy to do it. So you've got employees accepting and indeed wanting 32 hours of overtime in there. They want more often. Some don't, others do. Certainly a person like Mr Murphy was always looking for additional overtime.

PN919

If they then work additional overtime it depends on when the overtime is. If they're rostered off a Sunday and a shift becomes available and they're rung up and they want to come in there's double time. If it's on a Monday then it's time and a half for the first two hours and double time thereafter. If it's a Saturday it's double time, so there's nothing artificial about it. It is something that was absolutely clear from Chubb's point of view, not a secret it had kept back from itself, to itself. It disclosed it all to its employees and to the union. Mr Anderson's evidence about the negotiations, with respect to him, his recollection was far from perfect and one's not surprised about that for a start because it's several years ago.

PN920

But he couldn't recall any real discussion about overtime. It was crystal clear according to him yet within a week of the agreement being certified he's writing a note to Chubb saying can we talk about the way this 32 hours is operating. Well, if it's crystal clear - - -

PN921

THE SENIOR DEPUTY PRESIDENT: Well, is that inconsistent with it being crystal clear to him if he thought it was so obvious how it would work and then he found that the company had a different view and then he was concerned to sort that out? I mean I'm not sure that that's inconsistent - I mean he may have thought it was crystal clear. I mean to be honest if it was crystal clear we wouldn't be here now. But nevertheless, he may have thought it was crystal clear and then found that, well, how is this actually going to be paid.

PN922

MR KITE: But he knew about the practice prior to. He knew about the site agreements.

PN923

THE SENIOR DEPUTY PRESIDENT: Well, the impression I got was he thought it was going to change. I mean, maybe he was naïve or not, but he seemed to think, well, the words are different. I mean they're not - 12 hour shifts were in the site agreements.

PN924

MR KITE: Yes.

PN925

THE SENIOR DEPUTY PRESIDENT: And I don't think he denied that this was a practice under those site agreements.

PN926

MR KITE: And indeed even in the eight hour system in the industry.

PN927

THE SENIOR DEPUTY PRESIDENT: Yes. But the wording of the relevant clause, I mean it is different, you know, and it may well be that he interpreted, well, now this is how it's going to work. We're actually going to get paid extra if you like for working overtime in a way that you didn't when it was rostered on Sunday and you got paid the Sunday rate but not an additional overtime rate. He thought this was going to be different and isn't that reasonable to think, well, that's why he then said, well, how are they going to start paying this overtime.

PN928

MR KITE: Well, he knew how it was going to be paid. According to him it was crystal clear.

PN929

THE SENIOR DEPUTY PRESIDENT: Well, he knew there was going to be overtime payable. In his view there was going to be this extra money.

PN930

MR KITE: And it was to last 32 hours of the cycle, according to him.

PN931

THE SENIOR DEPUTY PRESIDENT: Yes. And he said it was an administrative issue as to how that was then going to be actually - well, that was my reading of his evidence.

PN932

MR KITE: Well, there's a second letter which makes it clear that parity of earnings was an important matter.

PN933

THE SENIOR DEPUTY PRESIDENT: That was an issue, yes.

PN934

MR KITE: And the suggestion made was absolutely inconsistent with the position that the union is advancing now.

PN935

THE SENIOR DEPUTY PRESIDENT: Yes. He concedes that, yes.

PN936

MR KITE: But with respect, my recollection of his evidence and I don't have the transcript obviously and neither does your Honour, but he didn't expect anything to change. He just thought the wording was clear.

PN937

THE SENIOR DEPUTY PRESIDENT: Very well.

PN938

MR KITE: He knew what the practice. He didn't need to raise it with anybody and your Honour will recall in CHUBB1 his handwritten note about the operation of the overtime which ultimately he said he decided he didn't need to take up because he thought it was clear. He also said that Chubb didn't make anything clear to him about its position of minimising cost and yet when we show the draft agreement and there's notes on it, he noticed that Chubb had raised that issue and they had made it clear to him. So he knew that Chubb was in a circumstance where it wanted to minimise cost.

PN939

THE SENIOR DEPUTY PRESIDENT: Anybody who's had anything to do with the security industry would always know this is always high up on the agenda.

PN940

MR KITE: Exactly right. And the second item is the bottom line of the employees.

PN941

THE SENIOR DEPUTY PRESIDENT: Surely, absolutely.

PN942

MR KITE: The bottom line. Because the two effectively are complete.

PN943

THE SENIOR DEPUTY PRESIDENT: Absolutely, yes, yes.

PN944

MR KITE: And where they meet, they've all got work, where if they don't they haven't got the jobs anyway.

PN945

THE SENIOR DEPUTY PRESIDENT: Yes.

PN946

MR KITE: And that's made clear in Mr Myers evidence. So there was a balancing to be made in the competing interests of the employees and the employer, 12 hour shifts, no extra costs, maintaining their income. So don't bring a third person in or a ninth person in because that will detract from the income of the individuals, the eight. You effectively take the money of their pocket and put it into the pocket of the ninth. In that sense it doesn't matter to Chubb They're just paying an extra. Mr Myers said there is some slight benefit in having less employees than more, but essentially it's cost neutral to them so the process, it gives the employees what they want in that it gives them 12 hour shifts and it gives them maintenance and income.

PN947

Rostering in this particular way allows Chubb to do that without additional cost. So all three objects are met in the way in which that clause operates at that time. None of this was secret. It was all fully disclosed and it coincided with the established practice and it coincided with the industry practice.

PN948

THE SENIOR DEPUTY PRESIDENT: Do you concede that it could have been set out more clearly in the agreement?

PN949

MR KITE: Yes.

PN950

THE SENIOR DEPUTY PRESIDENT: With the benefit of hindsight at least, because I mean there are agreements in other industries in particular where these kinds of arrangements, I won't say identical, but where it is much clearer how overtime will be calculated. I just did have a bit of a look in for example the mining industry where obviously these sort of kind of shift arrangements are not uncommon.

PN951

MR KITE: Yes.

PN952

THE SENIOR DEPUTY PRESIDENT: You know, obviously if it was that clear then we wouldn't be here.

PN953

MR KITE: No.

PN954

THE SENIOR DEPUTY PRESIDENT: Could I just ask while I am making that observation, this may be really beside the point and no-one else has raised it, but in clause 14.2 of the agreement the last sentence actually says:

PN955

In relation to the calculating -

PN956

And there's obviously a word missing -

PN957

overtime, each day's work shall stand alone.

PN958

MR KITE: Yes.

PN959

THE SENIOR DEPUTY PRESIDENT: What does that mean in the context of this agreement, or the kind of arrangements that were in place?

PN960

MR KITE: That question has been put to me a number of times in preparation for this case. It was put to myself by myself.

PN961

THE SENIOR DEPUTY PRESIDENT: Yes.

PN962

MR KITE: And I haven't come up with a satisfactory answer save this, it is a phrase that your Honour no doubt has experienced in many other awards.

PN963

THE SENIOR DEPUTY PRESIDENT: Sure, yes.

PN964

MR KITE: And it relates back to the operation of really the operative of clause 14. The operative part of clause 14 is hours in excess of the ordinary hours paid in accordance with the overtime provisions of the award.

PN965

THE SENIOR DEPUTY PRESIDENT: Yes.

PN966

MR KITE: That's the end of the operative part. In relation to the calculation of calculating overtime each day's worked shall stand alone. So if you work a 12 hour shift and then you work a 13th hour, the 13th hour it doesn't matter where you are on the 304 hours.

PN967

THE SENIOR DEPUTY PRESIDENT: Yes.

PN968

MR KITE: It reinforces the proposition that I'm to your Honour, we are, that it's not the exhausting of 304 hours. The example is simply saying in a 336 hour cycle you're gong to work 304 hours ordinary time and 32 hours overtime and you'll see the use of the conditional tense. If an employee worked hours over an eight week rotating roster 304 hours would be paid as ordinary hours and 32 hours as overtime. It's the conditional things, if this happens then this would be the result because we're looking at an average over eight weeks. But the ordinary time runs out after 304 hours. Anything over that is overtime. Anything in excess of that, it's probably a better way of putting it because it's the words or the example, but equally each day stands alone.

PN969

There is the 48 hour limitation in the award and there maybe other circumstances such as failure to give the minimum break, the failure to give the requisite notice and so on. It's not entirely clear under the notice clause that it becomes overtime if it's not with seven days notice, but one would expect that that's at least one possibility. So the exhaustion of 304 hours is not the key. That's not what the says. It doesn't say after 304 ordinary hours and it's inconsistent with the operation of the award and the agreement in any event because well before the expiration of 304 hours a number of circumstances will arise where an employee is paid overtime.

PN970

Once that's accepted there's no prohibition in this agreement or in the award in asking or giving someone a regular overtime shift. Nor is there any prohibition in putting into your eight week roster cycle a particular shift that will be recognised as overtime. Not only does it achieve all of these results that I spoke about earlier but it ensures pay parity, which is what everybody was trying to achieve. Nobody wanted one employee getting paid significantly less than another for doing the same work on the same roster. But that's the effect of what the union's argument is. It just becomes capricious.

PN971

If I've got the misfortune to start on day 3, you're lucky enough to start on day 7 or week 7, look how much more money you make for doing the same work as I do. Nor if this was the intention would you have such easy mechanisms for getting around it. You simply don't roster, don't put it in the permanent roster. You've got it on your work roster and you've got to fill them. Mr Mackersey might have to make a few more phone calls but it would then be rostered as an overtime shift. It's as though the permanent roster is written in stone. It's if it's not on your permanent roster it must be overtime.

PN972

But everybody knows that in the permanent roster there's rostered overtime. The argument is just where is it, not that you can't do it, just where is it and that deals with the contrivance aspect, the artificiality aspect. Any sense of being misleading is completely discharged by the evidence that your Honour's heard. Mr Samios' evidence, indeed Mr Murphy's evidence, these employees check their payslips and they know what's going on. Mr Ash in cross-examination of
Mr Mackersey I think this afternoon talked about working Sundays overtime as double time, working Sunday as ordinary time as double time. It's not quite right.

PN973

The effect is the same. If you work it as overtime it's double time pay. If you work it as an ordinary shift it's ordinary time plus 100 per cent and that's the way it's shown on the payslips. You'll see that through the evidence. There's a 100 per cent penalty, effectively double time, but no more than that and even the voluntary overtime shift or voluntary additional hours come in at under the agreement the ordinary unloaded rate plus your span, plus 15 per cent, subject to double time being the maximum. So overtime even on a voluntary would come out under the agreement at double time maximum.

PN974

So there's nothing, with respect, artificial or contrived about this beyond the fact that it's been deliberately organised to achieve a number of objects which are fully disclosed and well established, most of which are to the benefit of the employees. If the employees didn't like those additional hours they simply had to say so. It would have led, on Mr Myers evidence, to a reduction in their pay of about 7.5 per cent a week, not that it would have led to a 7.5 per cent reduction for Chubb but simply go to another employee.

PN975

I think, your Honour, we've comprehensively dealt with the rest of the matters in our written submissions including the submissions of the union. There are perhaps a couple of points I should make about those in the light of the evidence. On page 3 of the union's outline it's suggested at paragraph 8 which actually begins the previous page, that had this been Chubb's intention the employees would have been involved - would have been aware of that implementation. The evidence, with respect, needs only one conclusion that they were. They may not have liked it in some cases but it's interesting also to note that no current employee has been called to give evidence in this proceeding, on behalf of the union I should add.

PN976

In paragraph 9 it's said that clause 6 of the agreement is aspirational and objective. That's true but it does give some guidance to the Commission and others in how to read the agreement. It's part of the context. Sorry, your Honour, I was referring to paragraph 9. In paragraph 10 there's this concept that overtime was moved. That seems to be on the basis that the roster has removed it from the last 32 hours to particular days. The evidence has disclosed that it's not moved. In fact, it stays constant. What moves is the employees and because the employees move they each encounter that shift once in a cycle, thus ensuring that it's spread evenly through the group leading to pay parity.

PN977

To the extent that there is any suggestion here that there's some improper in Chubb in doing this, that again is dispelled by the evidence. I've made some submissions already to your Honour about the openness with which Chubb has approached this and the degree of knowledge of the employees of the bottom line of their pay packets and how things are calculated. Mr Murphy, for example, your Honour will no doubt be absolutely clear that Mr Murphy wouldn't let anything get by in terms of his pay packet and when it was remedied and no-one is critical of him for that. He's entitled to do it but it disclose a degree of knowledge and the fact that the payslips talk about 100 per cent penalty as opposed to double time makes it clear.

PN978

In paragraph 11 there's a reference to provocation but it's not clear what that is and I certainly would submit to your Honour there's been no provocation by Chubb in relation to this matter. In paragraph 14 there's a reference to the ombudsman's involvement and I've already submitted to your Honour that nothing can flow from that other than a conclusion that the ombudsman's opinion was in error. In paragraph 20, in dealing with the South Australian case of ..... Brink. We've dealt with this in our written submission. I don't want to deal with it in detail except to say that the basis of the distinction that is drawn in paragraph 20 is not supported by the evidence.

PN979

The evidence is that there was an industry practice of doing this sort of thing and that it was well known. In that regard I'd refer your Honour particularly to paragraphs 19 and 20 of Mr Samios' statement and paragraphs 9 and 18 of
Mr Rendle's. I would suggest to you that nothing in cross-examination touched upon the reliability of those matters. One matter that I should just refer to because we've referred to it in our written submissions and I've touched upon it in oral submissions today, in looking at the hours of work clause and the context of it in the agreement the voluntary additional hours clause enables in clause 16.8 directed overtime to be worked.

PN980

It details with voluntary additional hours. Clearly there is a priority to be accorded to those employees who are willing to nominate for those hours but if there are insufficient such employees available there is provision in clause 16.8 for directed overtime to be paid at normal overtime rates, or indeed the use of a casual employee. So the agreement itself in context contemplates the working of overtime without looking at the 304 hours at all and reinforces the proposition that that's not the key. But even the words, there's no reference to after 304 hours and the conditional tense makes it clear this is merely an example to illustrate to employees that if they do work 336 hours, 304 will be ordinary, 32 will be overtime. If the Commission pleases, they're the submissions.

PN981

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Kite. Mr Ash, do you want to add anything?

PN982

MR ASH: Commissioner, perhaps just in relation to one comment on that last part of the overtime clause where it refers to in calculating overtime each day's worked shall stand alone. Any sort of understanding as to how that may affect anything I would simply say on a particular Saturday and going into a Sunday morning on these rosters there will be four hours from 8 pm till midnight and then eight hours through to 8 am on Sunday morning and the way Chubb are allocating the overtime for that particular shift, and they always do, so we're looking at 12 hour shifts on a Sunday and they are saying that four hours up to midnight on a Saturday are ordinary time and the eight hours after that are overtime.

PN983

I would say if any sort of weight is to be given to that in that clause to the reference to each day standing alone, I would find it almost irreconcilable that you could pay four hours ordinary time followed by overtime for the eight hours after that when this often appearing very early into the roster and we're looking at averaging over an eight week period. I would simply make that comment and I'd say that it would appear a little bit unusual and I put it to your Honour again that we request that you adopt a common sense approach to this dispute.

PN984

THE SENIOR DEPUTY PRESIDENT: All right, thank you, Mr Ash. Well,
yes - - -

PN985

MR KITE: Just to deal with that point, whatever system you're operating you're going to get four hours and then eight.

PN986

THE SENIOR DEPUTY PRESIDENT: Yes, okay. Well, I'm going to reserve my decision so we're adjourned.

<ADJOURNED INDEFINITELY [3.23PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

GIL ANDERSON, AFFIRMED PN12
EXAMINATION-IN-CHIEF BY MR ASH PN12
EXHIBIT #LHMU1 STATEMENT OF GIL ANDERSON PN33
CROSS-EXAMINATION BY MR KITE PN34
EXHIBIT #CHUBB1 DRAFT COPY OF CERTIFIED AGREEMENT DATED NOVEMBER 2003 PN253
EXHIBIT #CHUBB2 QUESTION AND ANSWER DOCUMENT PN254
EXHIBIT #CHUBB3 TRANSCRIPT DATED 17/12/2002 PN255
RE-EXAMINATION BY MR ASH PN264
THE WITNESS WITHDREW PN284
STUART CHARLES MURPHY, SWORN PN285
EXAMINATION-IN-CHIEF BY MR ASH PN285
CROSS-EXAMINATION BY MR KITE PN306
RE-EXAMINATION BY MR ASH PN369
THE WITNESS WITHDREW PN377
MICHAEL WALLACE, SWORN PN380
EXAMINATION-IN-CHIEF BY MR ASH PN380
EXAMINATION-IN-CHIEF BY MR KITE PN391
RE-EXAMINATION BY MR ASH PN493
THE WITNESS WITHDREW PN496
RICHARD EDWARD MYERS, AFFIRMED PN559
EXAMINATION-IN-CHIEF BY MR KITE PN559
EXHIBIT #CHUBB4 WITNESS STATEMENT OF RICHARD EDWARD MYERS PN570
CROSS-EXAMINATION BY MR ASH PN572
RE-EXAMINATION BY MR KITE PN639
THE WITNESS WITHDREW PN647
NICK SAMIOS, SWORN PN650
EXAMINATION-IN-CHIEF BY MR KITE PN650
EXHIBIT #CHUBB 5 STATEMENT OF NICK SAMIOS PN659
CROSS-EXAMINATION BY MR ASH PN660
EXHIBIT #LHMU2 GUARD'S TIME CARD DATED 20/06/2004. PN666
RE-EXAMINATION BY MR KITE PN700
THE WITNESS WITHDREW PN724
PHILLIP WAYNE MACKERSEY, SWORN PN732
EXAMINATION-IN-CHIEF BY MR KITE PN732
EXHIBIT #CHUBB 6 STATEMENT OF PHILLIP WAYNE MACKERSEY PN741
CROSS-EXAMINATION BY MR ASH PN741
THE WITNESS WITHDREW PN762
LAURIE RICHARD DAVIS, AFFIRMED PN770
EXAMINATION-IN-CHIEF BY MR KITE PN770
EXHIBIT #CHUBB7 STATEMENT OF LAURIE RICHARD DAVIS PN778
CROSS-EXAMINATION BY MR ASH PN779
THE WITNESS WITHDREW PN796
EXHIBIT #CHUBB 8 STATEMENT OF MR RENDLE PN798
BELINDA JOY O'KEEFE, AFFIRMED PN820
EXAMINATION-IN-CHIEF BY MR ASH PN820
CROSS-EXAMINATION BY MR KITE PN838
RE-EXAMINATION BY MR ASH PN847
THE WITNESS WITHDREW PN856