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Fair Work Australia Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 63259-1
COMMISSIONER CAMBRIDGE
AG2011/10369
s.185 - Application for approval of a single-enterprise agreement
DHL Supply Chain (Australia) Pty Ltd T/A DHL Supply Chain
and
National Union of Workers
(AG2011/10369)
DHL Supply Chain (Australia) Pty. Limited Enterprise Agreement - New South Wales 2011
(ODN AG2011/10369)
[AE886825 Print PR511593]]
Sydney
10.07AM, WEDNESDAY, 21 SEPTEMBER 2011
PN1
THE COMMISSIONER: Can I have the appearances in the matter, please.
PN2
MR O. FAGIR: If it please the tribunal, Fagir, initial O, for the TWU. With me is MISS H. SOURLAS.
PN3
THE COMMISSIONER: Thank you.
PN4
MR M. SECK: May it please the tribunal, Seck, initial M. I appear with MR J. CORLETT. We seek permission to appear for DHL Supply Chain (Australia) Pty Ltd.
PN5
THE COMMISSIONER: Thank you.
PN6
MR A. JOSEPH: Yes, Commissioner, if the tribunal pleases, Joseph, initial A. I seek leave to appear for the NUW with MR S. MUELLER from the union.
PN7
THE COMMISSIONER: Thank you. The matter is listed today for hearing. Are we all ready to run, so to speak?
PN8
MR FAGIR: We certainly are, Commissioner.
PN9
THE COMMISSIONER: All right.
PN10
MR FAGIR: Can I raise a couple of housekeeping matters related to two of the statements filed by us. We have a couple of issues; first is we filed a statement from Mr Kevin Wiki. As of a couple of days ago Mr Wiki was due to attend, and I understand arrangements have been made with his manager for his release. We were told yesterday that Mr Wiki has a personal difficulty connected with illness of his mother and he's not going to be here. Notwithstanding that fact, Commissioner, we seek to rely on Mr Wiki's statement even though he's not available to be cross-examined. We say the difficulties arising from the unavailability of Mr Wiki to be cross-examined should be dealt with as a matter of the weight to be accorded to the evidence. That's the first issue.
PN11
THE COMMISSIONER: Mr Seck, what do you say about this matter of Mr Wiki?
PN12
MR SECK: Commissioner, we object to the tendering of Mr Wiki's statement for a number of reasons. Does the Commissioner have a copy of the statement of Mr Wiki in front of you?
PN13
THE COMMISSIONER: Yes.
PN14
MR SECK: The copy I have, Commissioner, which had been served upon my client is not signed, nor is it dated. I'm assuming that is the same for the tribunal.
PN15
THE COMMISSIONER: Yes.
PN16
MR SECK: So the first issue is that there's a difficulty there because it hasn't been authorised, so to speak, by way of signature of Mr Wiki. The second issue, Commissioner, is that obviously there are a number of contentious issues contained in Mr Wiki's statement, in particular the nature of the duties that he performs as well as the observations that he makes in paragraph 3 regarding DHL's employment of drivers. The tribunal would have noted from reading the outline of written submissions that that is a contested issue between the parties. There's also a contest between the parties about the uniforms worn by DHL drivers and whether or not they're employees of DHL Supply Chain (Australia).
PN17
There are a number of contentious issues, Commissioner, and we would want to test those issues with Mr Wiki and the basis for his knowledge and observations, given the issues which have been outlined in the party's respective submissions. In those circumstances, Commissioner, in my respectful submission given Mr Wiki's unavailability and the absence of any signature on the statement, the tribunal would place no weight on the statement whatsoever and accordingly it should not be permitted to be tendered in these proceedings.
PN18
THE COMMISSIONER: How important is Mr Wiki to your case, Mr Fagir?
PN19
MR FAGIR: Well, we don't think the case will stand or fall on the statement, but it has some significance. Can I just say in terms of the fact of the statement being unsigned, we acknowledge that's an issue and we would propose that we obtain the signed and dated copy and file that within the next couple of days, and only on that basis would we press the tribunal to admit it. It's a strange scenario, but that's our suggestion.
PN20
THE COMMISSIONER: Is there any contest about this question of satisfying that requirement to have a member? Because from what I could gather Mr Wiki is that person, isn't it?
PN21
MR FAGIR: Mr Denetto is that person as well.
PN22
THE COMMISSIONER: Mr Denetto is a member?
PN23
MR FAGIR: I will have to ask him a question about that, I acknowledge that.
PN24
THE COMMISSIONER: All right. So we don't think that - that's not something that Mr Wiki was solely going to provide evidence about?
PN25
MR FAGIR: No, Commissioner.
PN26
THE COMMISSIONER: I'm not sure whether there - I think it's mentioned in the submissions that that question to some extent was being tested, but then I'm not sure to what extent I should have regard for things like the earlier matter before Harrison C where it seems that we satisfied that idea there.
PN27
MR FAGIR: As far as the fact of TWU having a member, Mr Denetto will deal with that issue.
PN28
THE COMMISSIONER: All right. Mr Seck, is just really a question of a matter of weight? If ultimately a statement properly signed and dated of Mr Wiki is produced, albeit that the material in it can't be tested, does that really just amount then to an issue regarding the degree or the weight that the tribunal should place upon that particular statement?
PN29
MR SECK: Commissioner, if there is any weight to be placed on it, we would say it would be minimal or marginal in nature to the extent that the tribunal would not admit the statement because it hasn't been tested on some critical issues and the denial of the opportunity to the opposing parties to test that evidence means that the statement of Mr Wiki has no probative value for the tribunal because if it's a contested issue and DSC is denied the opportunity to test that evidence then I can't see how the evidence can go to anything in these proceedings, Commissioner.
PN30
Clearly what's set out in paragraph 3 are contentious issues. I had quite a few questions to ask Mr Wiki as to the basis for his knowledge and observations. If I can't test that I don't think the tribunal can give any weight to that evidence at all. If you can't give any weight to that evidence then the appropriate thing to do in my respectful submission, Commissioner, is not to permit it to be tendered in these proceedings.
PN31
THE COMMISSIONER: I'm not sure what the significance of all that is because the issues that you talk about are twofold. The fact that he observes drivers in uniforms to some extent is probably addressed by your evidence about the fact that vans and presumably drivers of the contracted parties might well be wearing a DHL uniform, I don't know.
PN32
MR SECK: Quite so, Commissioner. Obviously DHL will be submitting that the direct evidence of its witnesses should be preferred to Mr Wiki's evidence.
PN33
THE COMMISSIONER: That's the question of weight, isn't it?
PN34
MR SECK: It becomes a question of - it is a question of weight but the weight is so overwhelmingly in one way, Commissioner, then it begs the question why even bother to permit the evidence, given that it is so one way? If there was some probative value, Commissioner, in admitting the evidence then I could see the point in that, but where it cannot be tested, Commissioner, then - and it's so one way - then in my submission I think the preferable approach is simply to exclude it.
PN35
THE COMMISSIONER: What if we arrange for him to come and give evidence on another occasion once he's got the thing signed?
PN36
MR JOSEPH: May I be heard on the question?
PN37
THE COMMISSIONER: Yes, Mr Joseph.
PN38
MR JOSEPH: Commissioner, I would support the observations made by Mr Seck. This matter has been set down for a considerable period of time. I appreciate it is said that there are some personal difficulties. There's no evidence of what those difficulties are, but even if we accept that there are personal difficulties for Mr Wiki, Mr Fagir has said that his evidence can be - is not critical, so no application is made for an adjournment or anything of that nature. In those circumstances it seems to me that where the evidence is to the extent that it would be admissible anyway is contested. To allow it in without it being tested is prejudicial.
PN39
I don't know about the tribunal, certainly in the Federal Court there is considerable authority - there is some authority that allows for a tribunal or a court to accept a statement in these circumstances, but in a situation where you would give it little or no weight. I must say - I suppose I'm echoing what Mr Seck says - in those circumstances one wonders what the value of it is. We don't even have a signed copy.
PN40
THE COMMISSIONER: That's what I'm saying. Maybe if it's going to be a matter of contest we wait till we get the signed one. Presumably by then the personal problems might be out the way. It might take all of a half an hour, then we don’t have this trouble. Perhaps we'll just put that to one side for the moment. We'll get on with the rest of the matter and in due course of there's an application made for the statement properly signed and dated to be admitted and that's objected to again, then I think the easiest way is to then just have a short proceeding to deal with that witness.
PN41
MR FAGIR: If the tribunal pleases.
PN42
THE COMMISSIONER: All right.
PN43
MR FAGIR: Commissioner, the second issue, further to something raised by our opponents regarding the statement of Snell; it might just be easiest to deal with that now rather than waiting until we call Mr Snell.
PN44
THE COMMISSIONER: Snell?
PN45
MR FAGIR: Yes.
PN46
MR SECK: Commissioner, do you have a copy of Mr Snell's statement in front of you?
PN47
THE COMMISSIONER: Yes.
PN48
MR SECK: I've indicated to Mr Fagir this morning that DHL Supply Chain (Australia) objects to the entirety of Mr Snell's statement. The basis for the objection, Commissioner, is that Mr Snell is no longer an employee of DHL Supply Chain (Australia) and was not an employee at the time of the making of the agreement. As the tribunal knows, the central question for determination in these proceedings is whether or not employees of DHL Supply Chain (Australia) at the relevant time appointed the TWU as a bargaining representative for the purposes of negotiating the agreement. If that is so then that is the basis for the TWU seeking to be covered by the agreement.
PN49
Given Mr Snell is only giving evidence about a time when he was employed with DHL, which was prior to the making of the agreement - his last day of employment was 24 August 2010 - in my respectful submission Mr Snell's statement would be of no assistance to the tribunal ultimately and it cannot bear on any of the issues relevant for determination in these proceedings. On that basis, Commissioner, DHL Supply Chain (Australia) objects to the entirety of Mr Snell's statement. If it's not admitted as evidence then DHL would not require Mr Snell for cross-examination. If it is admitted and tendered as evidence in these proceedings then DHL would wish to test it. But in our submission the threshold issue is that it doesn’t meet the criteria for relevance in this case.
PN50
THE COMMISSIONER: Mr Fagir?
PN51
MR FAGIR: The answer is simple, Commissioner, the nature of DHL's business is a central factor in this proceeding. Mr Snell's evidence goes to the nature of DHL's business. I think the tribunal would comfortably assume that there's been no major rearrangement between 24 August 2010 and today. On that basis the evidence clearly goes to really the key issue - - -
PN52
THE COMMISSIONER: The broader question about the nature of the work performed and factors such as that?
PN53
MR FAGIR: Yes.
PN54
THE COMMISSIONER: It does seem to me, Mr Seck, that it's not strictly evidence that's going to this question of the time at which the agreement was made. Obviously Mr Snell couldn't be giving evidence in respect of that question, but more the broader question about whether the work in question is something that the TWU has the entitlement to represent.
PN55
MR SECK: The difficulty with that proposition, Commissioner, can I take the tribunal just to the relevant section. It is section 176 subsection (3). The key question for determination set out in that provision, that is the union:
PN56
Cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.
PN57
So there's a temporal requirement that has to be satisfied in two respects, Commissioner. The first is the union has to be able to represent the industrial interests of that employee. I've already address that point because Mr Snell was not an employee who appointed the TWU as a bargaining representative. Secondly and more importantly it must be in relation to the work that will be performed under the agreement. So if one's actually looking at the work to be performed under the agreement then one has to be classified under the agreement. Plainly because Mr Snell ceased his employment prior to the making of the agreement he cannot assist on that issue.
PN58
On the broader issue, Commissioner, as to whether or not Mr Snell can add anything usefully in these proceedings to the nature of DHL's business, if the tribunal looks at paragraph 2 it simply makes a comment that, "DHL contracts with various customers to transport, distribute and store customer products." That's as high as the evidence goes as to the nature of DHL's business. I don't know if that describes anything about the business, quite frankly, it just simply says we contract with various customers to do certain things. In my respectful submission that only is a statement which relates to the time of his employment.
PN59
Given the statutory requirements which are set out under subsection (3) that is an issue which I don't think Mr Snell can usefully add anything in these proceedings given that there is a temporal disjuncture between the time he worked and the time the agreement was made. In those circumstances, Commissioner, in my submission there is no probative value in Mr Snell's statement and the tribunal should decline to permit it to be tendered.
PN60
THE COMMISSIONER: Did you want to say anything about this at all, Mr Joseph?
PN61
MR JOSEPH: No, I don't have anything to add.
PN62
THE COMMISSIONER: I propose to permit the statement in due course and the evidence of Mr Snell.
PN63
MR FAGIR: May it please the tribunal. Thank you, Commissioner. I don't intend to make an opening as such. I just want to say this, we'll talk about the legislation and the technical requirements and the ins and outs of what's happening in due course but at the end of the day this case is pretty simple and it boils down to this question: is DHL's business in or in connection with the transport industry; and are the TWU members of DHL and/or TWU members employed by DHL engaged in occupations in or in connection with transport? The answer to that we say is pretty obvious, and if it isn't now it will be shortly.
PN64
Those against us are running a complicated case. That's how you end up with 20 pages of submissions versus 15 pages of evidence, but they have to. They have to complicate it because otherwise they must fail. Can I start by calling Mr Lester Denetto.
PN65
THE COMMISSIONER: Mr Denetto.
PN66
MR SECK: Commissioner, might the other witnesses be excluded from the - - -
PN67
THE COMMISSIONER: Yes.
PN68
THE ASSOCIATE: Please state your full name and address.
PN69
MR DENETTO: Lester Isadoro Denetto from (address supplied).
<LESTER ISADORO DENETTO, SWORN [10.28AM]
<EXAMINATION-IN-CHIEF BY MR FAGIR [10.28AM]
MR FAGIR: Sir, your name is Lester Denetto?---Yes.
PN71
And your address is (address supplied)?---Yes.
PN72
Sir, have you signed a statement in these proceedings?---Yes.
PN73
Do you have a copy of that statement with you?---Yes.
PN74
It's a statement of one page?---Yes.
PN75
With three paragraphs?---Yes.
PN76
Signed on 9 August this year?---Yes.
PN77
Sir, are the contents of that statement true and correct to the best of your knowledge and belief?---It is true.
PN78
Thank you, Commissioner. I tender the statement of Mr Denetto.
PN79
THE COMMISSIONER: Thank you. Is there any objection to its admission?
PN80
MR SECK: Just one objection, Commissioner. Paragraph 3, the last sentence, "To my understanding" - et cetera. Commissioner, we object on the basis that it doesn’t set out the basis for Mr Denetto's understanding at all, so it cannot be of any assistance to the tribunal.
PN81
THE COMMISSIONER: I would think that the question of his understanding would be something that you might want to test in cross-examination rather than being objectionable.
**** LESTER ISADORO DENETTO XN MR FAGIR
PN82
MR SECK: May it please (indistinct)
PN83
THE COMMISSIONER: The document is tendered and admitted over the objections of Mr Seck and is marked as exhibit 1. Exhibit 1 is described as the statement of Lester Denetto dated 9 August 2011. Exhibit 1.
EXHIBIT #1 STATEMENT OF LESTER DENETTO DATED 09/08/2011
MR FAGIR: Mr Denetto, are you a member of the TWU?---Yes.
PN85
How long have you been a member of the TWU, approximately?---More than two years.
PN86
Thank you, Commissioner, that's the evidence of Mr Denetto.
<CROSS-EXAMINATION BY MR SECK [10.30AM]
MR SECK: Mr Denetto, do you have your statement in front of you?---Yes.
PN88
You work currently at 60 Holbeche Road, Arndell Park?---That's right.
PN89
Have you worked at any other sites with DHL Supply Chain (Australia)?---Yes.
PN90
It's only 227 Walters Road, that's right, isn't it?---I worked at the other Holbeche Road one next to us, 52, is it? 52 Holbeche Road, and I worked at Huntingwood and Walters Road.
PN91
All right. So let's go through each of them. At the time of making this agreement, Mr Denetto, this year, it's true that you've only worked at 60 Holbeche Road, Arndell Park. That's right, isn't it?---Yes.
**** LESTER ISADORO DENETTO XXN MR SECK
PN92
And your times working at all those other locations were at a time prior to the making of the agreement. That's right, isn't it?---Yes.
PN93
So you can't make any comments about the work that which is currently being done at each of those sites. That's correct, isn't it?---I know that the same work is going on at all the sites.
PN94
I'm asking you, you can't make any direct observations - - -
PN95
MR FAGIR: He's just answered that question, Commissioner. He exactly answered the question that he was asked.
PN96
MR SECK: No, he says, "I know." I'm testing the basis for his knowledge, Commissioner.
PN97
You say you know that that work is being done. You can't say based on your direct observations at the time of the making of the agreement or after what work was being done at those other sites. That's correct, isn't it, Mr Denetto?---To my understanding it's the same thing because I worked at all the sites on the same job and the same procedures - - -
PN98
Just listen to my question very carefully, Mr Denetto. At the time of the making of this agreement you can't give any direct evidence based on your observations at that time what work was being done at those other sites. That's correct, isn't it?---I don't know if that's correct or not.
PN99
You were only working at 60 Holbeche Road at the time of the making of the agreement. That's correct, isn't it?---Yes.
PN100
**** LESTER ISADORO DENETTO XXN MR SECK
And you haven't worked at the other sites since the making of the agreement. That's correct, isn't it?---Yes.
PN101
Mr Denetto, your duties currently involve picking and packing orders. That's correct, isn't it?---No. I'm currently doing inventory.
PN102
Okay, so you're currently doing inventory. Pardon me. Is your classification a storeperson?---Yes.
PN103
Have you seen the classification for storeperson under the current enterprise agreement?---Not really.
PN104
When you actually voted on the agreement, Mr Denetto, you actually read the agreement carefully?---I voted against it.
PN105
Okay. When you voted on the agreement - I'm not asking you whether or not you voted in favour or voted against it - you would have read the agreement?---I didn't have enough time to read that agreement.
PN106
You were given access to the agreement beforehand?---Yes, just two days - maybe one day before the voting went ahead.
PN107
And you didn't actually bother reading the agreement before you voted on it?---I tried to read, but there was too much to read in that time.
PN108
Have you seen the classifications under the agreement, Mr Denetto?---No.
PN109
But you would acknowledge the way that you've been classified under the agreement is as a storeperson?---Yes.
PN110
**** LESTER ISADORO DENETTO XXN MR SECK
You say you were doing inventory currently. The performance of inventory involves receiving, picking up and dispatching of stock. Is that right?---No, it's cycle counts.
PN111
Cycle counts. So you're just really doing paperwork at the moment. Is that right?---No, it's mainly on the cycle counting.
PN112
Okay. Can you explain to the tribunal what's involved in cycle counting?---I have to scan all the products that are in our warehouse and see that the count is correct according to the labels on them.
PN113
And that's the substantial majority of your duties and responsibilities at the moment?---Yes.
PN114
Commissioner, no further questions.
PN115
THE COMMISSIONER: What sort of products are we talking about here?---It's mostly pharmaceuticals. All the stock that we have, and document stock.
PN116
So your job is to check that, is it?---Yes, check all the pallets in the warehouse and see that the stock is right according to the labels on them.
PN117
Is this barcoded?---Yes.
PN118
Yes, all right. Mr Joseph, do you have any questions?
PN119
MR JOSEPH: Just one moment. No questions, thank you.
PN120
THE COMMISSIONER: Any re-examination, Mr Fagir?
PN121
**** LESTER ISADORO DENETTO XXN MR SECK
MR FAGIR: No, Commissioner.
PN122
THE COMMISSIONER: Thank you for giving your evidence. You're released and discharged.
<THE WITNESS WITHDREW [10.36AM]
MR FAGIR: Commissioner, I call Mr Thomas Snell.
PN124
THE ASSOCIATE: State your full name and address.
PN125
MR SNELL: Thomas Arnold Snell, (address supplied).
<THOMAS ARNOLD SNELL, SWORN [10.37AM]
<EXAMINATION-IN-CHIEF BY MR FAGIR [10.37AM]
MR FAGIR: Sir, your name is Thomas Snell?---Yes.
PN127
And your address is (address supplied)?---Yes.
PN128
Have you signed a statement for the purpose of these proceedings?---Yes.
PN129
Do you have a copy of that with you?---Yes.
PN130
That's a statement of one page, three paragraphs?---Yes.
PN131
And that was signed on 5 August this year?---That's correct.
PN132
Are the contents of that statement true and correct to the best of your knowledge and belief?---Yes, they are.
PN133
Commissioner, I tender the statement of Thomas Snell.
PN134
THE COMMISSIONER: The statement is tendered. There were earlier objections to that. I don't think we need to renew those at this stage. The document is admitted over the objections earlier raised. It will be marked as exhibit 2.
PN135
MR FAGIR: Thank you, Commissioner, that's the evidence for Mr Snell.
PN136
THE COMMISSIONER: Just deal with the exhibit. Exhibit 2 is described as the statement of Thomas Snell dated 5 August 2011. Exhibit 2.
PN137
EXHIBIT #2 STATEMENT OF THOMAS SNELL DATED 05/08/2011
PN138
**** THOMAS ARNOLD SNELL XN MR FAGIR
<CROSS-EXAMINATION BY MR SECK [10.38AM]
MR SECK: Mr Snell, when you were employed with DHL Supply Chain (Australia) you were primarily employed in the position of storeperson. Is that correct?---That's correct.
PN140
And in the position of storeperson you had various duties and responsibilities. That's correct?---Correct.
PN141
You were employed under enterprise agreements during your employment with DHL Supply Chain (Australia). That's correct?---Yes.
PN142
Had you read the various DHL Supply Chain enterprise agreements during your employment?---Yes.
PN143
And you would have read the duties and responsibilities contained for the classification of storeperson under each of those agreements?---That's correct.
PN144
Did those agreements set out accurately your duties and responsibilities?---Yes.
PN145
Your job, Mr Snell, involved stock counting and control?---At certain times, yes.
PN146
You also picked up and dispatched stock within the warehouse?---Yes.
PN147
You were involved in using scanning devices within the warehouse?---Yes.
PN148
You were also involved in liaising with suppliers and customers?---No.
PN149
No?---No.
PN150
**** THOMAS ARNOLD SNELL XXN MR SECK
You also were involved in some basic computer operation in entering these details?---No.
PN151
No? Did you perform some administration duties as well?---No.
PN152
Did you operate a forklift?---Yes.
PN153
Did you use material handling equipment during - - - ?---Yes.
PN154
And were you responsible for housekeeping around the warehouse as well?---Yes.
PN155
You say that you were undertaking loading and unloading of trucks in your statement?---Correct.
PN156
And that was just part of your overall duties as a storeperson?---Yes.
PN157
Simply one aspect. That's correct, isn't it?---There were different duties within the job, yes.
PN158
Mr Snell, can I just take you to your statement. You can just have a look at that. You say that DHL Supply Chain (Australia) has a contract with various customers. It would be true that in your role as storeperson you wouldn't have had a need to read the contracts with the customers. That's correct?---No.
PN159
And you never that the opportunity to sight those contracts, did you?---No.
PN160
So it would therefore be true that you wouldn't know what the contents of those contracts are?---That's correct.
PN161
When you were involved in performing your job you would have seen various vehicles attend at DHL Supply Chain's warehouses from time to time?---That's correct.
**** THOMAS ARNOLD SNELL XXN MR SECK
PN162
And those vehicles would have included vehicles from Star Track Express. Is that correct? It would have included vehicles from McGills Transport?---Correct.
PN163
And it would include vehicles from Tolls as well?---Correct.
PN164
And each of those providers had their own drivers for those trucks. That's correct?---Correct.
PN165
You were therefore aware that those transport companies were being engaged by DHL to undertake transport services. That's correct, isn't it?---Yes.
PN166
No further questions, Commissioner.
<CROSS-EXAMINATION BY MR JOSEPH [10.42AM]
MR JOSEPH: Mr Snell, you say, "To the best of my knowledge the trucks that we loaded and unloaded" - this is paragraph 3 - "were contracted to DHL to transport freight on their behalf." You don't have any actual knowledge of contracts in relation to the transport of freight between - - - ?---No.
PN168
- - - DHL and - - - ?---No.
PN169
No further questions.
PN170
THE COMMISSIONER: Thank you. Any re-examination?
PN171
MR FAGIR: No, Commissioner.
PN172
THE COMMISSIONER: Thank you for giving your evidence. You're released and discharged?---Thank you, sir.
**** THOMAS ARNOLD SNELL XXN MR JOSEPH
<THE WITNESS WITHDREW [10.43AM]
MR FAGIR: Commissioner, I call Michael Aird.
PN174
THE ASSOCIATE: Please state your full name and address.
PN175
MR AIRD: Michael Ian Aird, (address supplied).
<MICHAEL IAN AIRD, AFFIRMED [10.44AM]
<EXAMINATION-IN-CHIEF BY MR FAGIR [10.44AM]
MR FAGIR: Sir, your name is Michael Aird?---That's correct.
PN177
And your business address is 31 Calvert Street, Parramatta?---That's correct.
PN178
You've given a statement in these proceedings?---I have.
PN179
You have a copy of that with you?---I do.
PN180
It's a statement of three pages plus one annexure?---That's correct.
PN181
Signed on 8 August this year?---Yes.
PN182
Are the contents of that statement true and correct to the best of your knowledge and belief?---They are.
PN183
Commissioner, I tender the statement of Mr Aird.
PN184
THE COMMISSIONER: Is there any objection to its admission?
PN185
MR SECK: Yes, Commissioner, just a few paragraphs. The first part of paragraph 5, that's a legal contention, Commissioner. I don't think that's a matter for the tribunal, but obviously - - -
PN186
THE COMMISSIONER: Nothing that I'd need to bother myself with at all.
PN187
MR SECK: No. Paragraph 6 to 15, Commissioner, deal with alleged litigation both before the tribunal and in other courts between the TWU and DHL Supply Chain. For the purposes of the specific question that the tribunal needs to resolve, that is the proper construction of the rules and whether or not work has been performed under the agreement, it is irrelevant in my submission to look at what's occurred in other litigation for other purposes. I don't see how the tribunal would be assisted in knowing what's happened in previous litigation in answering the very specific considerations which are set out under section 176 subsection (3) and in examining the rules of the TWU. On that basis we would object to those paragraphs.
**** MICHAEL IAN AIRD XN MR FAGIR
PN188
THE COMMISSIONER: Yes. I suppose it's really up to a party to decide to run its case how it might choose. I'm not sure that the fact that the material might not be of great assistance is a basis to not take it.
PN189
MR SECK: I certainly understand the tribunal's point, but I suppose there is a touchstone as to what's relevant and what's not relevant.
PN190
THE COMMISSIONER: Yes.
PN191
MR SECK: The tribunal can place whatever weight it feels appropriate on that material in assisting the tribunal's determination. I'll leave it up to the tribunal to give it the appropriate weight necessary.
PN192
THE COMMISSIONER: Yes, thank you. Mr Joseph, do you want to say anything?
PN193
MR JOSEPH: I support those objections, Commissioner, but I'd also object to paragraphs 2, 3 and 4. In essence it appears to be a submission. There's no basis for the evidence or what is put. What is purported to be put as factual matters is set out.
PN194
THE COMMISSIONER: I suppose some of those issues about the detail of the employer's business might be best - there the best evidence might come from the employer as opposed to this witness, but I don't think some of those matters are - some aspects are contentious and others are not. That's not a reason, I don't think, to not allow this witness to say what he believes to be the position.
PN195
MR JOSEPH: There has to be a basis, not an opinion. I know we're not dealing with the rules of evidence here strictly speaking, but for evidence to be worthwhile, Commissioner, there has to be some basis for it.
**** MICHAEL IAN AIRD XN MR FAGIR
PN196
THE COMMISSIONER: I think you can understand that in terms of details about the company's operation it's more likely that the evidence from the company is the one that's going to be preferred in all of this, but I don't know then that this is a reason for excluding this witness's evidence. Thank you.
PN197
MR JOSEPH: Thank you, if the court pleases.
PN198
THE COMMISSIONER: The document is tendered and admitted over the objections that have been made and will be marked as exhibit 3. Exhibit 3 is described as the statement of Michael Aird dated 8 August 2011. Exhibit 3.
EXHIBIT #3 STATEMENT OF MICHAEL AIRD DATED 08/08/2011
MR FAGIR: Thank you, Commissioner. I should say I've got a couple of questions that might deal with some of the matters raised. Mr Aird, can I show you a copy of this document. Can you have a look at that and tell me what it is? ---It's extracts from the DHL web site. It's the DHL Australian web site, which is identified up the top in the web site address. It's extracts from the DHL Australian web site.
PN200
Commissioner, I tender the document that's just been identified by Mr Aird.
PN201
THE COMMISSIONER: Is there any objection to this document?
PN202
MR SECK: No, Commissioner.
PN203
THE COMMISSIONER: Mr Joseph? No? All right. The document is tendered and admitted without objection. This will be marked as exhibit 4. Exhibit 4 will be described as copy of DHL web site information.
**** MICHAEL IAN AIRD XN MR FAGIR
EXHIBIT #4 COPY OF DHL WEB SITE INFORMATION
MR FAGIR: Mr Aird, can I show you a second document. Can you have a look at that and identify that document for me, please?---Yes, this is documentation you provided to me after I instructed you to conduct investigations on line about the nature of DHL's businesses. It simply provides information that they operate as a major transport and logistics company.
PN205
Commissioner, I tender that document.
PN206
MR SECK: Commissioner, I object. There are a number of grounds for the objection. It just refers to DHL, Commissioner. As the tribunal will be aware there are various DHL entities within the DHL group and there's been quite specific and careful evidence which has been set out in Mr Watts's statement about the different businesses that operate within the DHL group. This document I don't think really assists whatsoever in identifying the differences. If the tribunal just glimpsed the document quickly it refers to what happens in Europe, not in Australia. And looking even at the recommended reading on the second page, one is talking about German documents and the references are to German documents.
PN207
So plainly in my respectful submission the document cannot be of assistance to the tribunal based on firstly the failure to distinguish between the various DHL businesses and secondly the geographic application of the document. Besides that, Commissioner, it doesn't identify where the document has come from, the source of the document; even looking at the top, it says, "DHL log book in cooperation with Technical University Darmstadt." My high school German is a bit rusty but I'm pretty sure that's a place in Germany. So in those circumstances I submit the document is completely irrelevant to these proceedings and shouldn't be admitted.
PN208
THE COMMISSIONER: Mr Joseph, do you want to say anything?
**** MICHAEL IAN AIRD XN MR FAGIR
PN209
MR JOSEPH: My objection would be the same. I can't usefully add anything.
PN210
THE COMMISSIONER: Mr Fagir, really to be relevant this would have to be reduced down to something in Australia, wouldn't it?
PN211
MR FAGIR: No, Commissioner, in our view.
PN212
THE COMMISSIONER: No? Fair Work World?
PN213
MR FAGIR: The document gives a definition of the concept of contract logistics from the view of DHL Europe, we accept that.
PN214
THE COMMISSIONER: Right.
PN215
MR FAGIR: But we would say that in (indistinct) easily accepted the definition of contract logistics in Europe and in Australia are substantially or precisely the same.
PN216
THE COMMISSIONER: All right. So this isn't necessarily anything to do with DHL as such, it's to do with the concept of logistics?
PN217
MR FAGIR: Yes, Commissioner, exactly.
PN218
THE COMMISSIONER: All right. I suppose on that basis it may be of some assistance, I suppose. I propose to admit it, but obviously the weight that's attached to it and its relevance is something that I'll have to consider carefully. The document is tendered and admitted over the objections made and becomes exhibit 5. Exhibit 5 is described as copy of definition of contract logistics document.
EXHIBIT #5 COPY OF DEFINITION OF CONTRACT LOGISTICS DOCUMENT
PN219
**** MICHAEL IAN AIRD XN MR FAGIR
MR FAGIR: Thank you, Commissioner. Just one more question.
PN220
Mr Aird, do you know if Kevin Wiki is a member of the Transport Workers Union?---I am aware Mr Wiki is a member of the Transport Workers Union. I conducted a search of our membership database and I'm aware that Kevin Wiki has been a financial member of the Transport Workers Union since October 2008 and ongoing. He remains a financial member as of this date.
PN221
Commissioner, that's the evidence of Mr Aird.
<CROSS-EXAMINATION BY MR SECK [10.55AM]
MR SECK: Mr Aird, do you have a copy of your statement with you in the witness box?---I do.
PN223
How long have you been a union official with the TWU?---I commenced my employment with the TWU in 1995 but I have had some breaks in service. In total I would think a little in excess of 10 years; somewhere thereabouts.
PN224
You describe yourself in paragraph 1, Mr Aird, as a senior official of the TWU. Can you just explain to the tribunal what your role entails?---It's a fairly broad role. I coordinate the allocation of resources; oversight some financial management of the union; manage a number of organisers directly and then oversight a number of organisers indirectly; I oversight bargaining for the union. So it's just a broad management role.
PN225
You don't do any of the direct organising on the ground at various employer sites, do you?---I do because I can't help myself. I mean, I've attended a number of DHL sites so, yes, I do do direct organising.
PN226
You also have a legal degree. That's correct, isn't it, Mr Aird?---I'm an admitted solicitor, yes.
**** MICHAEL IAN AIRD XXN MR SECK
PN227
Do you undertake legal functions within the TWU?---Yes. In a more limited capacity I was a legal officer, but I appear before Fair Work from time to time. I perform much less a legal - a fairly limited role these days, but I do perform a legal role from time to time.
PN228
Can I just take you - you said you've been to various DHL sites, Mr Aird. I think you said some of those are in your statement, so can I take you to that heading after paragraph 5, "Litigation between TWU and DHL Supply Chain." Do you see that? Can I take you to paragraph 7. You say you were involved in a right of entry dispute involving DHL at Matraville?---Yes.
PN229
Just looking at the heading of the agreement, it says, "Logistics management services New South Wales, division of DHL Danzas Air and Ocean (Australia) Pty Ltd, certified agreement 2004." Do you see that?---Yes, I do.
PN230
So the DHL entity you were dealing with in paragraph 7 was DHL Danzas Air and Ocean (Australia) - - -
PN231
MR FAGIR: I object, Commissioner. Mr Seck knows what the answer was and he knows it wasn't as he's just put.
PN232
MR SECK: Hold on, Commissioner, I'm entitled to ask the question.
PN233
MR FAGIR: You're not entitled to put a proposition you know is not true.
PN234
MR SECK: No, it's not. I'm asking him the question. He can say yes or no, Commissioner. I'm just asking him to read it out and tell me what the answer is. I think Mr Fagir has just given the answer away. That's the difficulty. It's not a proper objection, Commissioner?---I was aware the answer was DHL Exel Supply Chain I was dealing with.
**** MICHAEL IAN AIRD XXN MR SECK
PN235
It says DHL Danzas Air and Ocean (Australia) Pty Ltd certified agreement 2004. That's correct?---That was an agreement that was struck at that site at one particular point in time.
PN236
And you were saying the site was being covered by that agreement. That's right? ---It was for a period of time covered by that agreement, yes.
PN237
And the agreement was between DHL Danzas Air and Ocean (Australia) Pty Ltd and the TWU. That's correct, isn't it?---That agreement was between those parties, yes. The right of entry dispute was with DHL Exel Supply Chain.
PN238
You're saying the site was covered by that agreement. That's correct?---Yes.
PN239
And the site obviously had an employer to enter into the agreement. That's correct, isn't it?---Yes.
PN240
Looking at the title of the agreement, it would have been DHL Danzas Air and Ocean (Australia) Pty Ltd which entered into the agreement. That's right, isn't it?
PN241
MR FAGIR: Commissioner, I object. If Mr Aird needs to leave, that's fine.
PN242
THE COMMISSIONER: All right. We'll deal with this objection in your absence, Mr Aird. Just step outside briefly, please.
<THE WITNESS WITHDREW [11.00AM]
MR FAGIR: Mr Seck knows or should know that the employer at the relevant time was not DHL Danzas Ocean and Air, but DHL Exel Supply Chain Pty Ltd. He knows that DHL Danzas et cetera became DHL Excel Supply Chain.
PN244
MR SECK: Where's the evidence of that?
PN245
MR FAGIR: Insofar as he's putting something to the contrary or implying something to the contrary, that's improper and I object.
PN246
MR SECK: Commissioner, I don't think I was putting anything improper at all. I asked him very specific questions about the making of the agreement, who was the employer at the time of the making of the agreement. If Mr Fagir wishes to clarify those issues, that's the purpose of re-examination. He can ask those questions in re-examination if he wishes. It's not a proper basis for objection.
PN247
MR FAGIR: That wasn't the question. The question wasn't who was the employer at the time the agreement was made; it was put to Mr Aird that the employer at the time of the dispute was DHL Danzas Ocean and Air (Australia) Pty Ltd.
PN248
THE COMMISSIONER: But I mean, Mr Aird has got knowledge of all this. I don't think he's going to be a person who's misled by a leading question of this nature. He's entitled to lead anyway, but I'm not sure what the harm is here.
PN249
MR FAGIR: Commissioner, I have nothing to add to what I've said, which is that it's improper to put something to a witness that you know is untrue.
PN250
MR SECK: Commissioner, he can say yes or no to it. He says he had direct responsibility and involvement. If he wants to say, "No, that wasn't the entity," then he can say it and Mr Fagir can ask questions in re-examination if he wishes to clarify any of those issues. I just don't think it's a basis for objecting to a question. I'm leading to a point. I do press the question because there are some further questions I wish to ask about the broader DHL group. So in my submission the question should be allowed and Mr Aird should be required to answer it.
PN251
THE COMMISSIONER: Yes, I'll permit the question.
PN252
MR SECK: Thank you, Commissioner.
PN253
THE COMMISSIONER: Can we get Mr Aird back in, please.
<MICHAEL IAN AIRD, ON FORMER AFFIRMATION [11.03AM]
<CROSS-EXAMINATION BY MR SECK [11.03AM]
MR SECK: Mr Aird, I just want to take you back to paragraph 7 of your statement. You understood at the time of the making of the agreement which is mentioned in paragraph 7 the relevant entity which entered in the agreement as the employer was DHL Danzas Air and Ocean (Australia) Pty Ltd. That's correct, isn't it?---Yes.
PN255
Mr Aird, you also understand that DHL has various companies within the DHL group. That's right, isn't it?---Yes. Can I say in regards to the agreement that there was no contest raised so it didn't have to be investigated. There was no contest raised by DHL Exel Supply Chain that the agreement covered them, so they were simply applying the agreement at that point in time. It wasn't a matter that I had to investigate. They did not dispute that that agreement covered them. Indeed, it was coming to an expiry which is why we were organising the site to try and get a better deal. We were attempting to do that when the NUW and DHL secretly negotiated a deal that (indistinct) voted down and they subsequently registered.
PN256
Your Honour, I object to Mr Aird saying more than what he was asked, but anyway, I'll move on. Mr Aird, can I take you to paragraph 13 of your statement?---Yes.
PN257
You say that you conducted unfair dismissal and an appeal. You understand under the fair - Workplace Relations Act that a union can represent an employee in proceedings on their behalf. That's correct, isn't it?---That's correct. I mean, in that particular case the NUW advised - she was actually a member of the NUW and the NUW advised her that she had - quite corruptly and unethically in my view - advised her that she didn't have a case - - -
PN258
**** MICHAEL IAN AIRD XXN MR SECK
MR JOSEPH: Objection. Commissioner, could you ask Mr Aird to just restrain himself a little and answer the questions. It's not going to help the smooth running of proceedings for him to be trashing my client or other people in little segues that he takes when he's meant to be answering questions properly asked by my learned friend.
PN259
THE COMMISSIONER: I think, Mr Aird, we don't want to use inflammatory language.
PN260
MR JOSEPH: Thank you.
PN261
MR SECK: Mr Aird, do you remember the question I asked you?---About the representation of the DHL employer?
PN262
You understood that the union could represent an employee in unfair dismissal proceedings before the Australian Industrial Relations Commission as it then was. That's correct, isn't it?---Yes.
PN263
And it wasn't the TWU who was the party to the unfair dismissal proceedings but it was the individual. That's right, isn't it?---I think that's correct.
PN264
And therefore the fact that the TWU may have been providing legal representation or industrial representation to that employee was a completely separate issue to its entitlement to represent those employees. That's correct, isn't it?---It might be a separate legal issue, but in my role as chief legal officer I'm not aware on any occasion of us seeking to represent somebody who we didn't have coverage of. I can't recall that happening on any occasion, so - - -
PN265
And that's because the TWU asserts it has coverage over DHL Supply Chain. That's right, isn't it?---We believed Ms Kaur was - became a member of the TWU and was at all times eligible to be a member of the TWU, yes.
**** MICHAEL IAN AIRD XXN MR SECK
PN266
Can I take you to paragraph 15, Mr Aird. There's a reference there to a right of entry dispute at Holbeche Road, Arndell Park. Do you see that?---Yes.
PN267
Were you involved in those proceedings?---Only to the extent that Mr Fagir had carriage of the matter and Mr Fagir reports to me, so I was familiar - I wouldn't say completely across it, but I was familiar - I had an understanding of the proceedings and I was aware they were on foot and I'm aware of the outcomes of the proceedings.
PN268
Mr Fagir would have given you a briefing as to the issues which were raised in those proceedings. Is that correct?---Yes.
PN269
Did you ever read the transcript of the proceedings, Mr Aird, at any stage?---No, I did not.
PN270
Did Mr Fagir give you a copy of the transcript of proceedings?---I don't recall.
PN271
Do you recall Mr Fagir saying to you specifically, "The TWU never raised the question of coverage in the right of entry dispute" - DHL, sorry - "DHL never raised a question of coverage in the right of entry dispute"?---That's my understanding, yes.
PN272
And your understanding was obtained directly from Mr Fagir. That's correct, isn't it?---That's correct.
PN273
Did Mr Fagir ever tell you that he asked - just assume that this is correct - did Mr Fagir ever tell you that he asked questions of a DHL witness about the TWU's coverage over the site?---I don't recall.
PN274
**** MICHAEL IAN AIRD XXN MR SECK
Did Mr Fagir ever tell you that DHL had made the point in oral submissions that it contested the TWU's coverage over the site?---I don't recall.
PN275
Do you recall Mr Fagir stating to you specifically, "That DHL never raised the issue of the TWU's coverage"?---Discussions would have been of a general nature and my recollection is that eligibility wasn't an issue. I wouldn't have gone into specifics about the nature of direct questioning, but broadly my understanding is that eligibility was not an issue.
PN276
Mr Aird, you would have obtained your understanding solely from Mr Fagir. That's correct, isn't it?---Yes, I would think so. I'm just trying to - I may have had some discussions with organisers involved in it, but I think that's probably correct, that my broad understanding would have been from Mr Fagir.
PN277
That statement that you made in the last sentence of paragraph 15 which says, "At no time during the proceedings at first instance or on appeal was any question of eligibility raised." That would have been based on a direct discussion with Mr Fagir where he said, "That issue was never raised"?---Yes.
PN278
Mr Aird, can I take you back to your statement, paragraph 1. You say that, "The TWU, as is well known, has broad coverage in the transport and logistics industry." Do you maintain that's well known, that TWU has coverage in the logistics issue?---Yes, I do.
PN279
And the basis for your assertion is the attachment of the TWU's eligibility rules. That's correct, isn't it?---No. That's part of the basis, but the basis for the assertion is - I think it's general knowledge. I think the transport industry has evolved. Nobody calls themselves a transport company any more, they're all logistics providers or supply chain solution providers or business partners with companies that need supply chain management. Some of our major companies - you know, Toll and Linfox and TNT and Star Track - they don't call themselves transport companies, they call themselves logistics companies. There's been an evolution in the transport industry where essentially - as I said, there isn't any transport companies any more, they're all logistics providers, so I think that's quite well known, that we've covered people in warehouses and in road transport.
**** MICHAEL IAN AIRD XXN MR SECK
PN280
Mr Aird, you would agree that the TWU's rules do not specifically mention logistics anywhere? Yes, or no?---That's my understanding. I'm not aware of logistics being a term that was used when the rules were put in place.
PN281
We've used the word "logistics", Mr Aird. Would you agree that logistics in effect means "the flow of goods from the point of origin to the point of use"? That would be an accurate summary of what is meant by the term "logistics"? ---Can you repeat that definition.
PN282
The management of the flow of goods from the point of origin to the point of use?---That seems reasonable to me.
PN283
And that means it involves the entire supply chain from beginning to end. That's right, isn't it?---I'm not sure how you're defining the entire supply chain.
PN284
All right, let's go through each element. You'd say that part of logistics includes inventory?---What do you mean by that?
PN285
The recording and itemising of goods. Would you agree that forms part of - or constitutes part of a supply chain?---I believe those duties could form part of what a logistics company would do.
PN286
Warehousing and storage; would you agree that's included in logistics?---Yes.
PN287
Material handling?---I wouldn't necessarily include it, but they can perform part of a logistics supply chain management function.
PN288
You would agree that there's no mention of inventory or warehouse and storage in the TWU's rules, wouldn’t you?---I have to - I can't specifically recall the mention of warehousing and storage in the rules.
**** MICHAEL IAN AIRD XXN MR SECK
PN289
To the best of your recollection you don't recall those terms being used. That's correct, Mr Aird?---I don't think those specific terms are used.
PN290
Okay. Mr Aird, you say also it's well known that, "TWU has coverage in the logistics industry." You were involved in a decision before Senior Deputy President Hamberger between Queensland Property Investments and Transport Workers Union, weren't you?---I had some involvement in that matter, yes.
PN291
In fact, I think you were one of the officials who exercised the right of entry into the premises. Is that right?---Attempted to exercise.
PN292
Attempted to exercise the right of entry. And you understood those were contested proceedings before Senior Deputy President Hamberger?---Yes, I did.
PN293
And you - QPI was a distribution facility in Sydney. That's correct, isn't it? ---That's correct, yes.
PN294
You would agree that QPI was involved in logistics. You would agree with that? ---Yes.
PN295
You understand that the decision of Senior Deputy President Hamberger was that the TWU didn't have coverage over Queensland Property Investments distribution facility. That's correct, isn't it?---Yes, and it's a decision we're contesting and taking the matter to the full bench.
PN296
So when you say it's well known, in fact it's not well accepted, is it? When you say in your statement where it says, "Well known that TWU has coverage over the logistics industry," that's not well accepted, is it?---Well, QPI argued that it wasn't a logistics company; they argued it was a retail company.
**** MICHAEL IAN AIRD XXN MR SECK
PN297
You just said that QPI was a logistics - was involved in running - - - ?---That's our view, but they didn't accept that they were a logistics company. They said they were a retail company. They said, "We're part of Woolworths. We're retail goods." They just said - they didn't accept at all that they were a logistics company. They didn't accept the word "distribution facility". So - it says "distribution facility" outside the warehouse when you go out there; it says - big lights - "distribution facility", but they didn't accept that it was a distribution facility.
PN298
What - - - ?---They said they were a retail company.
PN299
You would agree that Senior Deputy President Hamberger accepted it was a distribution facility. That's right, isn't it?---No, I don't agree with that.
PN300
Okay. Let me ask you again, you would accept that there is a contest as to whether or not the TWU can cover the logistics industry based on the QPI decision. That's correct, isn't it?---No, it's not correct. They said they were a retail company. I don't believe there's any contest that we cover logistics companies.
PN301
Mr Aird, I want to take you to paragraph 2 and paragraph 3 of your statement. You would accept that DHL has a number of different business units under the DHL umbrella. That's correct, isn't it?---I've no reason - I understand they have some business units. I'm not particularly familiar with their business unit structure.
PN302
You said you've been to various DHL sites. Are you aware that DHL has a separate business called DHL Express?---I am aware of that, yes.
PN303
Are you aware that DHL has a separate business called DHL Global Forwarding? ---Yes, I am aware of that.
PN304
**** MICHAEL IAN AIRD XXN MR SECK
Are you aware that DHL has a business called DHL Global Freight?---I can't say Global Freight immediately comes to mind, but - I don't recall that.
PN305
In your knowledge of the transport industry as a result of your role with the TWU, Mr Aird, have you encountered DHL having different entities operating different businesses in New South Wales?---Yes. I mean, we obviously - DHL Exel Supply Chain seems to be quite a specific business unit that tends to exclude the TWU. The other units don't do so.
PN306
Right. And you understand that each of those entities operate different businesses. That's correct, isn't it?---I don't know the connections between them, but I don't have any basis to dispute that.
PN307
Mr Aird, can I take you to exhibit 4. Do you have that in front of you - which is the copy of the web site?---Yes.
PN308
Did you print this off yourself?---No, I did not.
PN309
So you haven't been onto DHL's Australian web site to investigate DHL's business for the purposes of these proceedings. Is that correct?---Yes, I have.
PN310
You have? Do you know who printed off these web pages?---My understanding is that Mr Fagir printed off the web pages, but I've been on the web site and spent some time viewing their web site as per my statement.
PN311
These are web pages you're familiar with because you've actually looked at the DHL web site. Is that right?---That's correct.
PN312
Just looking at the top there, you see that it says, "DHL, Express, Logistics, Mail." You see that?---Yes.
**** MICHAEL IAN AIRD XXN MR SECK
PN313
In surfing the site you understood that there were different parts of the DHL business because they had different links. That's correct, isn't it?---Yes.
PN314
And the link here that you've clicked on is Logistics. That's right?---That's correct.
PN315
You see on Logistics it has a whole lot of - on the left-hand side of the first page - a whole lot of different things it does. Do you see that?---Yes.
PN316
And one of them is freight transportation. You would have clicked on that? ---Yes.
PN317
Warehousing and distribution; you would have clicked on that?---I believe I would have, yes. I spent some time on the site reading through it.
PN318
And you would have clicked on Customs, Security and Insurance. That's correct?---I can't honestly recall if I clicked on that one. I mean, I spent - as I said - some time on the site but I can't absolutely confirm everything that I've clicked on.
PN319
But you definitely clicked on Supply Chain Solutions, didn't you?---Look, I spent a deal of time navigating the site, clicked on most of the transport logistics options and having a look around it.
PN320
And you clicked on Supply Chain Solutions. That's right?---Yes, I would have clicked on Supply Chain Solutions.
PN321
One thing which the DHL site doesn't do, you would agree, is to say which company operates which business. It doesn't say that, does it?---Not as far as I'm aware.
PN322
**** MICHAEL IAN AIRD XXN MR SECK
When you clicked on Supply Chain Solutions you had just simply assumed, "Well, that must be the business that's operated by DHL Supply Chain (Australia). That's right, isn't it?---By DHL Exel Supply Chain Solutions - by DHL Exel - - -
PN323
I think the proper title is DHL Supply Chain (Australia) Pty Ltd. So you understood the Supply Chain Solutions had been operated by DHL Supply Chain (Australia). That's right, Mr Aird?---I didn't know if some components may have been operated by other business units, but broadly I understood the services that they offer.
PN324
So it may be, as you say, that some parts of what's set out under the Supply Chain Solutions heading is operated by other parts of the DHL business. That's correct, isn't it?---I couldn't comment on that.
PN325
And that's because the DHL web site doesn’t say that, does it? Doesn't tell you that - which company actually operates which part of the business?---That's correct.
PN326
And you're aware there's no business unit called DHL Logistics. That's correct, isn't it?---I don't know.
PN327
You haven't' heard of a business unit called DHL Logistics beforehand, have you?---No.
PN328
All you've heard of is DHL Supply Chain. That's right? That's the only business you've heard of, DHL Supply Chain - in the logistics area, anyway?---I've heard of that company but, I mean, I don't necessarily consider the others don't operate in a logistics area.
PN329
Mr Aird, you say in paragraph 2, "DHL is like Linfox, Toll or Star Track Express." Do you see that?---Yes.
**** MICHAEL IAN AIRD XXN MR SECK
PN330
When you say, "DHL is like Linfox," are you just referring to DHL Supply Chain (Australia) or are you referring to DHL the group?---DHL Supply Chain in particular because in this particular area where they've - I've just gone blank on the major contract they've picked up. I think - the contracts that they manage. For example, DHL Supply Chain, as I understand it, manage some pharmaceutical brands; I think it might be Johnson and Johnson, but I can't be sure, but they - you know, Linfox do the same sort of work. Linfox for example look after Procter and Gamble and they provide distribution facilities and transport the product on behalf of Procter and Gamble. I know DHL Supply Chain, for example, do that. I've gone blank. I think it's Johnson and Johnson, but I know they've got a major contract with Johnson and Johnson. But the point I'd make is that big corporations - you know, Procter and Gamble, Johnson and Johnson - they provide supply chain and transport management which is consistent with what - it's identical to what Toll and Linfox do.
PN331
Let's talk about Linfox initially. When you're comparing DHL - you say is like Linfox - you're basically saying it's apples and apples. That's what you're saying, isn't it?---No.
PN332
They're comparable. That's what you're saying?---Not across all their businesses. I mean, they've got the major retail contract with Coles and Linfox also have a cash in transit division. But they provide those supply chain services to major corporations. I mean, I think Coles is so massive that perhaps Toll and Linfox stand apart to some extent with the Coles and Woolworths contract, but only because of the size. But generally they provide supply chain services to major corporations. That's what I understand DHL Supply Chain does. The pharmaceutical company was one example I could think of. I have some information on their clients, but I'm just unable to recall them right now. But they go to these companies and say, "We're going to be business partners" - as Linfox and Toll do - "about managing the distribution of your product."
**** MICHAEL IAN AIRD XXN MR SECK
PN333
Let's just go back to the question I asked you. When you say "DHL is like Linfox" you're trying to draw a comparison between DHL and Linfox. That's correct, isn't it?---Yes.
PN334
What you're saying is that they provide the same services. That's correct, isn't it? ---Yes.
PN335
When you refer to Linfox there, Mr Aird, you're referring to Linfox Australia Pty Ltd. Is that right?---Well, I just refer to Linfox. I mean, I don't worry too much about - - -
PN336
All right, so you're referring to potentially a whole group of Linfox companies. Is that what you're saying?---As I said, there are some distinct areas. I mean, cash in transit is one that I highlighted which may be sort of a specific type of industry, but it's still supply chain management. But I'm saying that these companies - Linfox, Toll, DHL - go to major corporations that make stuff and they say, "We'll manage the warehousing, transport and distribution. We'll do the whole supply chain - whole supply chain management for you. We'll business partner with you." So that often big logistics companies, I guess it's so they can manage the whole supply chain management. It's my experience, having talked to DHL managers, having talked to DHL employees, that that's the nature of the business. It appears to me, in my experience, to be entirely consistent with Toll and Linfox.
PN337
Why don't we - let's just focus on Linfox. Are you referring to Linfox group or Linfox Australia? You can answer that question. When you say "DHL is like Linfox" what are you comparing it to there, Linfox group or Linfox Australia or some other entity?---Linfox Australia, I think.
PN338
Okay. I think the TWU has just recently concluded some negotiations with Linfox Australia. That's right?---We have, yes.
**** MICHAEL IAN AIRD XXN MR SECK
PN339
And you've entered into an enterprise agreement?---We have a national agreement with Linfox Australia, yes.
PN340
You understand Linfox Australia owns its own trucks? You understand that Linfox Australia owns its own trucks? That's right?---It owns trucks, yes.
PN341
Yes? And it employs drivers to work on those trucks. You understand that as well?---Well, I've had the mix. Linfox has tended to favour a model that is a high level of direct employees, but not necessarily were they on any particular contract. There can be a difference. So they'll use often mix where they'll have employees, owner-drivers or outside hire, so same as Toll. Toll is far more predominantly outside hire. Linfox is probably around 65 per cent in-house employees; Toll is probably around as low as 45 per cent. Some of them will have sites where they don't have transport. Some sites will be overwhelmingly outside hire. But Linfox has had a stronger rate of employee direct-hire workforce driving the trucks, but I can vary.
PN342
You've said the same applies to Toll but there's a different mix?---Some of Toll Transitions is almost all - I think my understanding is it's all outside hire. So Toll Transitions, which does removalist work - house removals - I don't think there's any employees or owner-drivers, it's all outside hire, is my understanding. And there are sites where they don't provide transport. I mean, Linfox, it can change. They may pick up a contract for a distribution facility and the transport can be outside hire. They can often then bring it back in-house. Sometimes those distribution facilities such as at Procter and Gamble have been TWU over time, such as Snack Foods, they've been NUW. So often when they'll pick up a contract it may be that they don't actually have the transport for periods of time but Linfox have often picked - sometimes they'll pick up a warehouse contract; it won't have any transport, but over time they'll often set up the transport arm themselves. But we've still maintained coverage of the distribution facility workers whilst there's been no transport.
**** MICHAEL IAN AIRD XXN MR SECK
PN343
I just want to show you a document, Mr Aird. There's a copy for the tribunal. Mr Aird, I just want you to just familiarise yourself with the document. Just take as much time as you need. Once you've done that, just let me know. You've read it? You've familiarised yourself with it, Mr Aird?---Yes.
PN344
Do you recognise the document?---I do.
PN345
Is it something you were involved in preparing?---Yes.
PN346
MR FAGIR: Commissioner, I have to say at this stage I don't see the relevance. I hope we get there fairly quickly. I can't see what this has to do with what we're discussing at all at this stage.
PN347
MR SECK: I'll get there quickly, Commissioner.
PN348
You were involved in preparing it. That's right, Mr Aird?---Yes.
PN349
Did you authorise its ultimate publication?---I recommended its authorisation.
PN350
Okay. Can I take you to the third page. Sorry, before I take you there, you understood that this was a flier which was distributed to DHL Supply Chain (Australia) employees during the course of enterprise bargaining negotiations for the most recent agreement. That's correct, isn't it?---Yes.
PN351
Okay?---It may have been broader than that. I don't know if it was just those involved in bargaining, but I understand it was distributed to DHL Supply Chain employees.
PN352
And it was to demonstrate that they shouldn't vote in favour of the current agreement - for what is now the current agreement?---I don't know necessarily that was the purpose. I guess the purpose was to say that - to point out what a reasonable TWU deal looks like and - - -
**** MICHAEL IAN AIRD XXN MR SECK
PN353
Okay. Can I take you to page 3?---Yes.
PN354
You see where it says "Recent NUW/DHL agreement" and there are two asterisks next to it?---Yes.
PN355
Just have a look at the bottom there. There are two asterisks. It says, "DHL Supply Chain NUW Ingleburn Agreement"?---Yes.
PN356
See that? So what you were seeking to do there was to compare the agreements. Is that right?
PN357
MR FAGIR: Commissioner, I still don't see the relevance. We don't seem to be getting there at all. I formally object to these questions.
PN358
MR SECK: I'll come to it, Commissioner, we just need to - - -
PN359
MR FAGIR: Well, when, Commissioner?
PN360
MR SECK: Commissioner, I'll come to it. I'm just taking him through the footnotes, Commissioner. Commissioner will see there's a reference to Linfox there.
PN361
MR FAGIR: We're not going to have some wide-ranging inquiry into TWU agreements and NUW agreements. There's an issue at stake here and we're nowhere near it at the moment and we don't seem to be getting any closer to it.
PN362
MR SECK: Commissioner, we are. We are, with great respect, because there's a comparison which has been made by Mr Aird between DHL and Linfox and I want to just make good that comparison so we know what we're talking about in terms of apples and apples, or is it apples and oranges? So I just need to ask two or three more questions and we'll come to what we need to ask.
**** MICHAEL IAN AIRD XXN MR SECK
PN363
Mr Aird, can you see at the bottom there it says - asterisk - "TWU Linfox Road Transport Distribution Centres National Agreement 2011"?---Yes.
PN364
That is one asterisk next to it. That's right?---Yes.
PN365
If you go to the previous page it says, "Recent TWU agreement." So what's been set out there is the Linfox agreement. That's right?---That's correct.
PN366
And you were trying to draw a comparison between those two agreements?---Yes.
PN367
Can I show you a copy of the Linfox agreement. Mr Aird, you're familiar with that agreement, aren't you?---I am, yes.
PN368
You had involvement in negotiating that agreement?---I did, yes.
PN369
This agreement, Mr Aird, applies to Linfox Australia Pty Ltd. That's correct, isn't it?---That's correct, yes.
PN370
I think you acknowledged beforehand that Linfox Australia Pty Ltd owned its own trucks and employed drivers. That's correct, isn't it?---Is it - Linfox Australia does own trucks and does employ drivers but it can be site but site arrangements, contract by contract arrangements. I mean, the point about our strategy is that we've got a national agreement that's covering Linfox across the country, as we've done with Toll, so they're going to cover a range of contracts where there will be differences in how work is performed.
PN371
Mr Aird, can I just take you to clause 9. Clause 9 says, "This part applies to all employees." Just go to clause 7?---Yes.
PN372
**** MICHAEL IAN AIRD XXN MR SECK
It says, "An employee means an employee of Linfox who's eligible to be a member of the TWU." Do you see that?---Yes.
PN373
Then it sets out in paragraph H(i) and (ii) the scope of the definition of employee. That's correct, isn't it?---That's correct, yes.
PN374
And it's defined, you would agree, by reference to classifications in various awards. That's right, isn't it?---Yes.
PN375
Can I take you to appendix 1, which is page 49. It says, "Classifications in the New South Wales award." Do you see that?---Yes.
PN376
Then just go below that, it says, "Classifications in the modern awards"?---Yes.
PN377
One of the modern awards, you would agree, which is referred to is the Road Transport (Long Distance) Award 2010. That's right, isn't it?---I understand that to be the case.
PN378
There are other awards as well, but amongst the modern awards one of them is the Road Transport (Long Distance Operations) Award 2010. That's right, isn't it?---I understand that to be the case, yes.
PN379
And you understand the Road Transport (Long Distance Operations) Award 2010 covers truck drivers. That's correct, isn't it?---Yes.
PN380
Mr Aird, have you read the current DHL Supply Chain enterprise agreement? ---Have I read the - - -
PN381
Have you read the current DHL Supply Chain (Australia) Enterprise Agreement 2011?---Which one?
**** MICHAEL IAN AIRD XXN MR SECK
PN382
The current one that applies?---They have a number of agreements.
PN383
I'm talking about the subject of these proceedings, Mr Aird?---They seem to be fairly templated across the various certified agreements, so - I can't specifically recall, but I've viewed a number of the DHL NUW agreements which are reasonably consistent.
PN384
You would acknowledge there is no classification for truck drivers under the DHL Supply Chain (Australia) Pty Ltd agreement?---You'd have to give me a look at the agreement.
PN385
This one?---They've had driving functions listed in the agreements that I've viewed.
PN386
I'm asking you a specific question. I'll show you a copy of the agreement.
PN387
MR FAGIR: Commissioner, it's not specific enough.
PN388
MR SECK: I asked him if there were truck driving classifications. I thought it was pretty specific.
PN389
THE COMMISSIONER: We'll take a break while he has a look, I think. That might be the best way to deal with it. So the witness can have a look at the document that he's just been handed while we take a short morning break. We'll resume again in about 15 minutes.
<SHORT ADJOURNMENT [11.43AM]
<RESUMED [12.05PM]
PN390
MR SECK: Mr Aird, you've now had an opportunity just to review the agreement which is the subject of these proceedings?---I went to - I've had just a quick look at clause 13, the classification structure. Is that what you were - - -
**** MICHAEL IAN AIRD XXN MR SECK
PN391
That's the one I was referring to. So you've had a quick read of that?---Yes.
PN392
You would agree that there are no specific truck driving classifications set out in clause 13. That's right, isn't it?---The mobile service representatives appear to be driving classifications of service representatives; level 1, level 2, level 3.
PN393
And on your reading of each of those classifications driving is simply one aspect of a number of functions which are undertaken by those employees. That's correct, isn't it?---That to me seems very problematic. It would be highly unusual for someone to take a truck out for a very short period of time, but - it's listed as one aspect but in substance that seems to be to be - from my experience in the transport industry - pretty problematic.
PN394
Have you ever seen the actual duties performed of a mobile service representative level 2, Mr Aird, at DHL Supply Chain (Australia)?---What I can say is that the duties at classification structure at 13 are entirely consistent with the duties that are covered by the Linfox agreement. If you go to page 59 of the Linfox agreement, Procter and Gamble site, the multi-user site at Merthyr Street, the Franklin site; so those duties that are listed there are entirely consistent with what our distribution facilities workers do at those Linfox sites - entirely consistent.
PN395
Where does it say that the undertake promotional activities and sales in the Linfox agreement?---It doesn't. It's got a fairly sparse description of what a facility worker does, but the nature of those duties - the core nature of those duties - most of the work - I'm not aware of promotional work happening, but basically those broad lists of functions are in my view entirely consistent with what distribution facility workers do at Procter and Gamble, what they do at the Merthyr Street site and what they do at the Franklin site. I mean, they're distribution facility workers.
PN396
**** MICHAEL IAN AIRD XXN MR SECK
I'm asking you, do they do promotional activities as such - - - ?---I'm not aware of them - I would say that I'm not aware of them doing promotional activities. I'm under the understanding that's a mobile service representative site. But certainly we have people who do promotional activities. I mean, it's been in particular an owner-driver focus, for example, where people who are delivering goods for - you know, I've got members at Corporate Express. I know NUW have got members in the distribution facility at Corporate Express, but our drivers there perform promotional activities. It's not maybe specifically listed in their job function, but that's what they do. I mean, you know, if you're delivering beer products, for example, you'll try and get them to buy more and promote the brand. So drivers broadly perform promotional activities. I don't think our people that work in a distribution facility are performing promotional activities, but drivers perform promotional activities.
PN397
TWU doesn't cover commercial travellers, does it? You would agree with that? ---I don't know.
PN398
You are a member of the TWU. That's right, isn't it?---I'm a member of the TWU, yes.
PN399
And you're a senior official of the TWU?---I'm not aware that we have membership amongst commercial travellers. I'm not really sure.
PN400
All right, that's all I needed from you. Do you know if DHL Supply Chain (Australia) owns any trucks?---I don't know that, no.
PN401
Are your observations about DHL Supply Chain (Australia) set out in paragraph 3 concerning the provision of transport services based on the fact that DHL Supply Chain (Australia) directly provides transport services?---They provide transport services?
PN402
**** MICHAEL IAN AIRD XXN MR SECK
Directly?---Yes, I mean - - -
PN403
And that's to be their own trucks?---Well, it engages transport services to do that. When I attended the site - I think it was the Huntingwood site - they were engaging small fleet owners. So I think that was a specific strategy for them to avoid the TWU. They weren't trying to engage owner-drivers, so they were trying to have a relationship with small fleet owners that they were engaging out at the Huntingwood site. But they were engaging the transport services. Outside hire, they were engaged directly to DHL, not to the client.
PN404
All right, so you concede that DHL Supply Chain (Australia) doesn't own any trucks?---I said I don't know.
PN405
You don't know. Can I just show you this, Mr Aird. I'll bring this around, Commissioner.
PN406
THE COMMISSIONER: I can see it from - - -
PN407
MR SECK: I'll put it here. Sorry about that.
PN408
So you recognise those trucks on the road, Mr Aird?---Model trucks?
PN409
Do you recognise those trucks on the road from time to time, Mr Aird?---I've seen trucks in the yellow and the red livery with DHL on them, yes.
PN410
Do you know who owns those trucks?---No.
PN411
Do you know who employs the drivers for those trucks?---I don't know whether - each one I see, whether it's an employee driver or an owner driver or - I mean, as you said, trucks can be covered in the livery but don't necessarily have an employee driver. I mean, are you talking broadly when I see these trucks? I don't quite understand your question.
**** MICHAEL IAN AIRD XXN MR SECK
PN412
I'm asking do you know who employs the employees on those trucks?---When I see a truck in yellow and red livery on the road?
PN413
Yes. Like, similar to that?---How could I?
PN414
You don't know, do you?---I don't understand the question. I mean, if I'm seeing a yellow and red truck on the road, how would I know who the person was or - how would I know anything about it?
PN415
So you would agree it could be anyone who is potentially engaging or employing the driver on those trucks. That's correct?---I don't know. I wouldn't know if I see a yellow and red truck on the road.
PN416
Do you know what truck model that is, just looking at that?---I don't understand your question.
PN417
You know trucks have particular models, right? Yes?---I still don't understand your question, no. If you're referring to the - I mean, our awards classify different gradings for different size trucks. That's a semitrailer.
PN418
Can I show you another one. I won't be too much longer, Commissioner.
PN419
Have you seen those DHL trucks on the road beforehand, Mr Aird?---I've seen trucks in the yellow and red DHL livery.
PN420
And again, do you know who employs or engages the drivers on those trucks?---I don't even know what "those trucks" really means. I don't really understand your question.
PN421
**** MICHAEL IAN AIRD XXN MR SECK
I'm asking you when you see those trucks on the road do you know who actually employs - - -
PN422
MR FAGIR: Sorry, Commissioner, I'm confused as well. We've been given one truck for some obscure reason. We have a slightly different configuration here, and then there are questions about models and it's all very vague, not to mention again, it's just impossible to see where this is going. But let's try and be a bit more precise and try and help Mr Aird out.
PN423
MR SECK: I'm just asking him a specific question, Commissioner.
PN424
When you see those trucks on the road - - - ?---What trucks?
PN425
I'm saying these kind of trucks. He says he's seen - - - ?---If I saw a Toll truck on the road I wouldn't know who driver - whether he was an employee.
PN426
Okay?---I don't understand what - how can I comment on seeing a truck on the road?
PN427
So the answer is no, you don't know who is the employer or who engages the - - - ?---Any truck that I see on the road, I don't know. Any truck I see on the road, I don't know, unless I know the person - unless I can identify the driver and I know the driver, I don't see how I would know.
PN428
Are you aware, Mr Aird, that DHL Supply Chain (Australia) does not own trucks?---No, I'm not aware of that.
PN429
Are you aware that DHL Supply Chain (Australia) engages Star Track Express to provide transport services?---Yes.
PN430
**** MICHAEL IAN AIRD XXN MR SECK
Are you aware that DHL Supply Chain (Australia) engages Toll to provide transport services?---Not as far as I can recall.
PN431
Are you aware that DHL Supply Chain (Australia) engages McGills Transport to provide transport services?---I was aware that, yes.
PN432
Are you aware of that through your own direct knowledge or having read it in statements which have been provided by DHL Supply Chain in these proceedings?---I haven't read any of the statements.
PN433
Okay. So you know that through your own direct knowledge. Are you aware whether or not any of those trucks provided by either McGills Transport or Star Track Express have DHL livery on the trucks?---I don't understand that they do, but I can't be certain about that.
PN434
And you understand that firstly McGills Transport employs its own drivers?---I do understand that.
PN435
And you understand that McGills Transport owns its own trucks?---I don't know that.
PN436
Are you aware that Star Track Express employs its own drivers?---It has employee drivers, yes.
PN437
And it has owner-drivers as well. Is that right?---It does have owner-drivers as well, yes.
PN438
Do you know whether or not Star Track Express owns its own trucks?---What they have; employee drivers, they have owner drivers and they have outside hire.
PN439
**** MICHAEL IAN AIRD XXN MR SECK
Okay. And how about - I think we've asked you questions about Toll beforehand, but let me come back to Toll. Does Toll Transport employ its own drivers?---Toll has employee drivers, it has owner-driver, it has outside hire contractors as well.
PN440
Okay?---So it has the three. I am aware at Toll Contracts - at Toll Transitions is one I'm aware of where they don't have any owner-drivers or employee drivers.
PN441
And you understand also, Mr Aird, that DHL Supply Chain (Australia) coordinates the transport services for their customers by engaging these various transport service providers. That's correct, isn't it?---I understand it provides supply chain management and I understand that much of the actual driving duties is done by DHL engaging outside hire.
PN442
And so can I take you to paragraph 3 where it says - the fourth line, "That is it provides its customers with transport." You're not saying that DHL Supply Chain (Australia) itself provides the transport; it simply engages the parties to provide transport to its customers. That's what you're saying, isn't it?---I think they're engaged by DHL and I just see it as the same as an owner-driver arrangement. I would say that that's DHL providing transport services.
PN443
You would agree that DHL is subcontracting McGills Transport, Toll and Star Track Express to provide those services. That's correct, isn't it?---That DHL - I wouldn't use the "subcontracting", I'd probably use the word that DHL has - engages Star Track and - you've told me Toll, I have no reason to dispute that they provide transport services, but I would have thought in practice that the relationship is between DHL and the client and then on that basis that DHL are providing transport services.
PN444
DHL engages McGills Transport, Star Track Express and Toll under a contract. You understand that, don't you?---I don't know what their contractual arrangements are, but I assume they're not working for free.
**** MICHAEL IAN AIRD XXN MR SECK
PN445
Commissioner, I'm just about to end but I might seek to tender one of the documents. Can I first tender the flier.
PN446
MR FAGIR: I object, Commissioner. The relevance of that document was never established. Never got anywhere near explaining what that has to do with any of this.
PN447
MR SECK: It was established in this way, Commissioner. Mr Aird sought to demonstrate that DHL is like Linfox in his statement. That's set out in paragraph 2. I asked a number of questions to establish whether or not there's any comparability between DHL and Linfox and that comparability in the TWU's own document was against a specific enterprise agreement and there were a number of questions asked about that enterprise agreement. Mr Aird acknowledged that he was responsible in part for preparing this document and in those circumstances I submit the document is plainly relevant.
PN448
MR FAGIR: I'm not about to die in a ditch about this, Commissioner. I still don’t understand what it's got to do with anything. We're in your hands.
PN449
THE COMMISSIONER: I think it's just a matter of what weight I might attach to the document. I don't think it's objectionable such as to refuse its admission. So the document is tendered and admitted over the objections and will be marked as exhibit 6. Exhibit 6 is described as TWU promotional flier. Exhibit 6.
EXHIBIT #6 TWU PROMOTIONAL FLIER
MR SECK: Commissioner, I think the other document was the Linfox agreement.
PN451
THE COMMISSIONER: Do you want me to formally mark that? Isn't that just - forms part of the public record, doesn't it?
**** MICHAEL IAN AIRD XXN MR SECK
PN452
MR SECK: I think that's so, Commissioner, so - - -
PN453
THE COMMISSIONER: I don't think we need to formally mark that, do we?
PN454
MR SECK: No, and I don't think we need to do that - - -
PN455
THE COMMISSIONER: But just for the record I can indicate that I'll retain the document for present purposes. I don't think it needs to be marked as an exhibit. It's a copy of the decision which approved the Linfox Road Transport and Distribution Centres National Enterprise Agreement 2011.
PN456
MR SECK: I don't know if the tribunal wishes to do the same for the agreement which is the subject of these proceedings. I don't think that's necessary.
PN457
THE COMMISSIONER: No, I think we'll accept that that's in the file.
PN458
MR SECK: I think so, Commissioner. Might I just simply mark for identification - - -
PN459
THE COMMISSIONER: You don't want to give me the trucks?
PN460
MR SECK: No. I do want to ask some questions - just very short questions of Mr Watts once we call him just about the trucks, but I think just for current purposes, Commissioner, we might just mark it for identification or - - -
PN461
THE COMMISSIONER: The trucks? Let's just leave the trucks on the table for now.
PN462
MR SECK: Commissioner, I'm in your hands. I think DHL - if they were formally marked in - would probably be very upset with me, so I'm just happy to leave it as they are.
**** MICHAEL IAN AIRD XXN MR SECK
PN463
THE COMMISSIONER: We'll just leave them, yes. All right.
PN464
MR SECK: Commissioner, no further questions.
<CROSS-EXAMINATION BY MR JOSEPH [12.23PM]
MR JOSEPH: Mr Aird, you say in paragraph 2 of your statement, "DHL is like Linfox, Toll or Star Track Express, a contract logistics provider which provides integrated supply chain services." You're saying there, are you, that DHL - rather than getting into apples and apples arguments - DHL is a contract logistics provider. That's your belief?---Yes.
PN466
But you agree, don't you, that you don't actually have any knowledge of contractual arrangements that DHL Supply Chain have entered into with any of their clients?---I'm aware they've got contracts to provide supply chain management services to a number of companies.
PN467
Right. And the material that's in paragraph 3, just for example looking at the second sentence, you say, "The supply chain division describes itself" - and then again in the third sentence, "It specifically identifies itself as providing, for example" - and on it goes. I won't ask you to read the whole paragraph. Would it be correct to say that what's contained in paragraph 3 has been taken from what's in exhibit 4? What you discovered in your Internet searches? Would that be correct?---That's correct.
PN468
All right. And - - - ?---I would say that that wording was taken from the web site, but it's - not all of it, but a fair part of it is consistent with my knowledge, having talked to DHL management and DHL employees as well.
PN469
I see. And you were asked a number of questions about Linfox. In relation to the Linfox agreement you've got paragraph - on page 58 appendix 5 sites - if you had a copy of that there with you - would you agree with me, looking under the heading, "New South Wales-ACT 2007 Agreement Sites" would you agree with me that the majority of those sites that are listed under that heading, the TWU is representing drivers only in relation to those various sites under this agreement? ---The majority of employees represented under this agreement are drivers.
**** MICHAEL IAN AIRD XXN MR JOSEPH
PN470
Yes, all right. Thank you. No further questions, thank you, Commissioner.
PN471
THE COMMISSIONER: thank you. Any re-examination, Mr Fagir?
PN472
MR FAGIR: None, Commissioner.
PN473
THE COMMISSIONER: No? Very well. Thank you, Mr Aird. You're released and discharged. Thank you for giving your evidence.
<THE WITNESS WITHDREW [12.27PM]
MR FAGIR: One final piece of evidence, Commissioner. I just want to tender this document. It is an extract from the Deutsche Post DHL annual report for 2010. The whole report is 252 pages. That's why I produced an extract rather than an entire document.
PN475
THE COMMISSIONER: Once again here I suppose do we need to clarify, we're not dealing with Australia; we're dealing with the world.
PN476
MR FAGIR: No, this is the ultimate parent company of all the divisions and all the various legal entities around the world.
PN477
THE COMMISSIONER: Right, okay.
PN478
MR SECK: Commissioner, I'd simply repeat the same objections I made beforehand in relation to the definition of contract logistics provider. It's obviously at a very general level which applies to the whole world. It doesn’t make a distinction between the various entities and because it's at such a high level I don't know if it necessarily is going to help the tribunal understand what DHL Supply Chain (Australia) does in its business here.
PN479
THE COMMISSIONER: Presumably it fits under this division, though.
PN480
MR SECK: In a broad sense it might, but if I think - as your Honour heard during cross-examination of Mr Aird, various DHL companies might be providing those various parts of the supply chain services, so I don't know whether or not an extract from a report of the global parent company is going to be of sufficient probative value to assist the tribunal. I don't put my objection any more than that, Commissioner, but I just wish to have those points noted.
PN481
THE COMMISSIONER: All right. I think it's a question of weight. The document is tendered and admitted over the objections made. It will be marked as exhibit 7. Exhibit 7 is described as copy of extract from Deutsche Post DHL annual report 2010. Exhibit 7.
EXHIBIT #7 COPY OF EXTRACT FROM DEUTSCHE POST DHL ANNUAL REPORT 2010
MR SECK: Commissioner, I've had chat with Mr Joseph - and he can obviously speak for himself - about Mr Wiki's statement. I just wanted to confirm with Mr Fagir - I assume Mr Fagir still presses the tender of that document.
PN483
MR FAGIR: Yes.
PN484
MR SECK: In those circumstances, Commissioner, to avoid, I think, having to come back on another occasion and deal with what is a very short statement on a very narrow issue, DHL Supply Chain (Australia)'s position is that it is prepared to allow the statement to be admitted as evidence but our submission is that no weight should be given to it; and obviously left in the tribunal's hands as to how much weight the tribunal wishes to place on it in circumstances where neither the NUW nor DHL has been permitted the opportunity to test the evidence contained in the statement. May it please.
PN485
THE COMMISSIONER: Do you want to add anything, Mr Joseph?
PN486
MR JOSEPH: I think perhaps not really, except perhaps to put it slightly differently. My client would formally oppose the tender but would also be opposed to an adjournment, so if you are inclined to allow it in then we will make submissions about the weight to be given to the statement in circumstances where no cross-examination was possible.
PN487
THE COMMISSIONER: Yes. Mr Fagir, were you going to provide a signed copy at some stage? What's your intention there?
PN488
MR FAGIR: Perhaps I can put it this way. We intend to provide a signed copy by the end of this week and perhaps take a bit of a risk, but I think I can put this, if we don't do that then it can be taken that we don't rely on the statement. I just think we have to produce a signed copy. We at least have to do that.
PN489
THE COMMISSIONER: Yes.
PN490
MR FAGIR: I can put it this way; we'll produce a signed copy by the end of this week.
PN491
THE COMMISSIONER: I might indicate what I'll do at this stage, I think, so that this doesn't become too confusing, is I might admit the unsigned version of the statement now and mark it as an exhibit. I can indicate it's being admitted over the objections that have been made by both Mr Seck and Mr Joseph, but in doing so I stress that the absence of the deponent of the statement for the purposes of cross-examination will severely limit the weight that can be placed on the contents of the document.
PN492
MR FAGIR: If the tribunal pleases.
PN493
THE COMMISSIONER: And so that document is marked as exhibit 8. Exhibit 8 is described as statement of Kevin Wiki; unsigned, undated.
EXHIBIT #8 STATEMENT OF KEVIN WIKI; UNSIGNED, UNDATED
MR FAGIR: That completes our evidence, Commissioner.
PN495
THE COMMISSIONER: That's the evidence, thank you. Evidence for DHL - is there any evidence from the NUW at all? I don't think that I've seen anything.
PN496
MR JOSEPH: No.
PN497
THE COMMISSIONER: No, all right. So should we press ahead with that now, Mr Seck?
PN498
MR SECK: I think so, Commissioner.
PN499
THE COMMISSIONER: Yes, all right.
PN500
MR SECK: Commissioner, I call Mr Graham Watts. My instructing solicitor will go out and get him.
PN501
THE ASSOCIATE: State your full name and address.
PN502
MR WATTS: Graham Charles Watts, (address supplied).
<GRAHAM CHARLES WATTS, SWORN [12.35PM]
<EXAMINATION-IN-CHIEF BY MR SECK [12.35PM]
MR SECK: Could you please state your full name for the record?---Graham Charles Watts.
PN504
Mr Watts, what is your occupational address?---Occupational address is 60 Holbeche Road, Arndell Park.
PN505
Mr Watts, you have prepared a statement in these proceedings?---Yes, I have.
PN506
Do you have that statement with you at the moment?---Not at the moment I don't, no.
PN507
We might give you a copy?---Yes.
PN508
Mr Watts, have you read the statement recently?---Yes, I have.
PN509
Do you wish to make any changes, additions or deletions to the statement?---No, I do not.
PN510
Is the statement true and correct to the best of your knowledge and belief?---Yes, it is.
PN511
Commissioner, I tender the statement of Mr Watts.
PN512
THE COMMISSIONER: It's tendered. Any objection to its admission?
PN513
MR FAGIR: No, Commissioner.
PN514
**** GRAHAM CHARLES WATTS XN MR SECK
THE COMMISSIONER: Thank you. The document is tendered, admitted without objection and becomes exhibit 9. Exhibit 9 is described as the statement of Graham Watts dated 2 September 2011. Exhibit 9.
EXHIBIT #9 STATEMENT OF GRAHAM WATTS DATED 02/09/2011
MR SECK: Thank you, Commissioner. With leave can I just ask a few additional questions in examination-in-chief, Commissioner?
PN516
Mr Watts, you see these two model trucks in front of you at the moment?---Yes.
PN517
Can I just take you to the one which is at the far end of the table?---Yes.
PN518
That's - to the best of your knowledge an understanding - a model of an actual DHL truck which operates - when I say "DHL truck", a DHL liveried truck which operates in Australia?---That is correct.
PN519
Can you please explain to the tribunal the model for the truck?---The type of model?
PN520
The type of model?---It's a Pantech.
PN521
Which company owns and operates those trucks, Mr Watts?---Those trucks that DHL have locally - they're running our own by McGills.
PN522
When you say McGills, you mean McGills - - - ?---McGills Transport, owned and operated.
PN523
Do you know who actually employs the drivers on those trucks?---McGills Transport.
PN524
**** GRAHAM CHARLES WATTS XN MR SECK
To the best of your knowledge what is the reason for those trucks being liveried as DHL trucks even though DHL doesn't own or operate those trucks?---DHL don't do a lot of marketing within Australia so that is used as a marketing tool for the DHL business to get out into the marketplace as far as the vehicles are concerned.
PN525
Do you know what uniforms those drivers wear when they drive Pantechs? ---Some of those drivers are wearing DHL uniforms.
PN526
And what is the reason for those drivers wearing DHL uniforms?---Again it's seen as a marketing for the end customers when product is arriving, they're seen as a DHL delivery, as a liveried vehicle and also the driver, even though they're not employed by DHL.
PN527
Mr Watts, you say in your statement that, "DHL Supply Chain (Australia) engages McGills Transport to undertake transport services on its behalf and on behalf of its customers." That's correct, isn't it?---That is correct.
PN528
Are these trucks the trucks which are used - one of the trucks used by McGills Transport in undertaking that transportation of goods?---Yes, they are.
PN529
Can I ask you some questions about the truck next to it, Mr Watts?---Yes.
PN530
Can you please describe the type and model?---Yes. That particular vehicle is a B-double.
PN531
And who owns those trucks?--- McGills Transport.
PN532
Who employs the drivers on those trucks?--- McGills Transport also.
PN533
These are trucks which McGills Transport use in delivering product for and on behalf of DHL Supply Chain (Australia). That's right, is it?---That is correct.
**** GRAHAM CHARLES WATTS XN MR SECK
PN534
Is the explanation you gave previously about why the Pantech is liveried with DHL signage on it the same for the B-double?---Yes, that is correct.
PN535
Commissioner, I have no further questions. I don't think it's necessary to tender those models unless the tribunal thought it was necessary. We might just leave it where it is.
PN536
THE COMMISSIONER: Maybe you should drive them up to the DHL side of the bar table.
PN537
MR SECK: There might be a demarcation.
PN538
THE COMMISSIONER: That's the evidence-in-chief of this witness, is it?
PN539
MR SECK: That is the evidence-in-chief from DHL. I'm not sure whether or not the NUW wishes to ask any questions - - -
PN540
MR JOSEPH: Perhaps I should go first before Mr Fagir - - -
PN541
THE COMMISSIONER: Probably, yes, I think so. No?
PN542
MR FAGIR: I'm not sure what type of questions we're talking about. I don't think you get to cross-examine if you're on the same side.
PN543
THE COMMISSIONER: But you'll certainly want the last opportunity, though, won't you, in respect of you won't want to go after Mr Joseph, I wouldn't think?
PN544
MR FAGIR: No.
PN545
**** GRAHAM CHARLES WATTS XN MR SECK
THE COMMISSIONER: To think logically, Mr Joseph should go next, but - - -
PN546
MR JOSEPH: Yes, of course. That would ordinarily be the case.
PN547
THE COMMISSIONER: Yes.
PN548
MR FAGIR: There's just the question of what Mr Joseph is going to do, if he's going to lead some sort of substantial evidence there.
PN549
THE COMMISSIONER: I'm sure you'll pull him up if it suddenly takes you by surprise and you say you should have been put on notice of it.
PN550
MR FAGIR: Thank you, Commissioner.
PN551
MR JOSEPH: My questions for cross-examination? That's an interesting approach, but anyway, we'll see how we go, Commissioner.
PN552
MR FAGIR: No cross-examination by a party that has the same interests as the witness.
PN553
MR JOSEPH: Can I just proceed - - -
PN554
THE COMMISSIONER: Let's see how far we get.
PN555
MR JOSEPH: - - - these particular issues and Mr Fagir will undoubtedly get up again and object.
<CROSS-EXAMINATION BY MR JOSEPH [12.42PM]
MR JOSEPH: Sir, in your statement you refer at paragraph 38 and 39 to the duties of Mr Denetto?---Yes.
**** GRAHAM CHARLES WATTS XXN MR JOSEPH
PN557
You say the duties that Mr Denetto performs are those classified as a storeperson and you say the same in relation to Mr Wiki. Is that right?---That is correct.
PN558
Am I to take that to mean, sir, that they do some of the duties that are set out under the heading "storeperson"?---Yes.
PN559
Not necessarily all, though?---Correct.
PN560
Can I just ask you to explain very briefly what cycle counts are?---Cycle counts are an activity where a person goes to a particular location within a warehouse and counts a product within that defined space and matches it back against what the system says should be in that place.
PN561
All right. So a particular slot - - - ?---Correct, yes.
PN562
- - - in a warehouse - - - ?---Correct.
PN563
- - - that's what the person does. It's not - - - ?---That is correct.
PN564
Okay. And that's something that's done on a continual basis, is it?---Correct.
PN565
On a day-to-day basis?---Yes.
PN566
Just to ensure what's in the warehouse is what you understand is in the warehouse?---Correct.
PN567
No further questions, thank you.
PN568
THE COMMISSIONER: Good, thank you. Mr Fagir.
**** GRAHAM CHARLES WATTS XXN MR JOSEPH
PN569
MR JOSEPH: Sorry, there is one matter. Sorry about that.
PN570
Just to understand what you're saying in paragraph 18 and 19, DHL Supply Chain warehouses goods - part of what it does is warehouses goods for a variety of clients - - - ?---Correct.
PN571
- - - in the warehouses covered by this enterprise agreement?---Correct.
PN572
The actual transport of those goods is not actually undertaken once they leave the warehouse by DHL?---That is correct.
PN573
In any cases that you're aware of from these warehouses?---No. So all of it is through external parties.
PN574
All right, thank you. No further questions.
<CROSS-EXAMINATION BY MR FAGIR [12.45PM]
MR FAGIR: Mr Watts, you're the general manager of the healthcare consumer operations?---That is correct.
PN576
Do you know why you've been chosen to give this statement as opposed to someone who might have a broader view of the business?---I do have a broader view of the business for some - just on nine years.
PN577
Yes?---And have been involved in a number of the enterprise agreements and involved in a number of the operational aspects across various sites within Sydney.
PN578
Okay, thank you. At paragraph 28 of your statement you say something about the mobile service representatives classifications in the enterprise agreement?---Yes.
**** GRAHAM CHARLES WATTS XXN MR FAGIR
PN579
Have you got that page in front of you?---Yes, I do.
PN580
And you say as far as you're aware your company has never employed a level 2 or level 3 mobile service representative?---That is correct.
PN581
But they're included to provide some flexibility?---Correct.
PN582
Because if one day you decided for some reason that DHL should start operating its own semitrailers or 14-tonne rigids, you'd have the capacity to slot the driver straight in under this enterprise agreement?---That is correct.
PN583
Can we take it then that that event which I've just described is a possibility? That is at some point DHL decide to start using its own heavy vehicles?---At this stage it's too hard to determine a yes or a no answer to that question because it's been a flexibility for the last four years in place that we've yet to use and at this point in time we've got not intent to use that at this stage.
PN584
Okay. I wasn't trying to pin you down on whether you think it will actually happen?---No, that's fine, yes.
PN585
I'm just asking you if it's a possibility?---Everything is a possibility, I suppose, as an option, but at this stage there is nothing within that confines.
PN586
In relation to mobile service representatives level 1, how many of those are employed in your section?---Covered under that agreement, there's about 15.
PN587
And do you know how many there are across the business?---Not offhand, no.
PN588
Can you - - - ?---Hazard a guess? Probably 30, potentially.
**** GRAHAM CHARLES WATTS XXN MR FAGIR
PN589
In paragraph 7 and following you say some things about the structure of DHL globally and in Australia. You say, "Both on a worldwide level and in Australia each business division is autonomous - - - "?---Mm'hm.
PN590
"- - - and operates through separate and distinct corporate group structures, mainly through structures and legal entities." I think that means that each division is legally distinct?---Correct.
PN591
Is each division operationally distinct?---Yes, they are.
PN592
Because if you go along to a customer and bid for a contract with them - I don't know what the process is, but - - - ?---Yes.
PN593
If you went along to bid for a contract would you take someone from Express and someone from Mail along with you to - - - ?---Not necessarily. There is occasions when that may happen, but not necessarily 100 per cent of the time.
PN594
What are those occasions?---So if a customer requires a service from us and the customer inquiries as part of a storage and distribution model as well as a freight forwarding opportunity then there would be an instance where we would get someone from that division as part of that process.
PN595
If someone came to you and said, "I'm a manufacturer. I'm based at point X. I need to set up a supply chain to get my widgets from here to my customer at point Y," would you take along someone from Express and Mail or not?---Not in the first instance we wouldn't, no.
PN596
And in creating and implementing the supply chain do you rely on Express and Mail in the other divisions, or is it something that you can do yourself?---No, we do not rely on the other divisions.
**** GRAHAM CHARLES WATTS XXN MR FAGIR
PN597
At paragraph 13 you talk about the nature of a supply chain and you say, "Consistent with steps through which goods or services pass from a supplier to a customer" - I hope this doesn't sound facetious, but in what percentage of cases are the customer and the supplier physically located together?---It would be a low percentage.
PN598
It would be virtually none, wouldn't it?---There is some occasions where manufacturing points are at the same point, but it is very low.
PN599
So when we talk about a supply chain being the process through which goods pass from a supplier to a customer, those goods or services move over some physical distance, don’t they?---Typically, yes.
PN600
And of course it's too obvious to say that moving goods from one point to another is transporting goods?---The goods are moved through a third party, not necessarily through a DHL business. On a number of occasions there is instances where we do not control that component of the movement.
PN601
And in many instances you do?---Not within the DHL Supply Chain entity.
PN602
You offer an integrated service, do you? Let me be more specific. You say to a customer who says, "I need to set up and manage and supply chain," you turn up and say, "We can do that. If you want to manage your own transport you can, or we can look after that for you." Is that a - if I'm being too vague - - - ?---Yes. We can offer that service, yes.
PN603
And at paragraph 18 you talk about the issue that we've just been discussing and you say some customers arrange their own transport and for others you engage and coordinate Star Track or McGills or whoever it is. When you say "engages", do we take that to mean you contract with the transport company to physically move the goods along the road from A to B to C?---There could be a couple of scenarios. One could be our customer engage that provider directly or we engage the provider to provide services on behalf of our customers.
**** GRAHAM CHARLES WATTS XXN MR FAGIR
PN604
Yes. Sorry to keep jumping around, but at paragraph 14 of your statement you describe the service that you can provide to your customers. You've broken it down there into five categories; planning, sourcing, manufacture and storage, and delivery. Do you see that?---Yes.
PN605
Excuse me for a moment, Mr Watts. Commissioner, I just had a little bit of an issue because Mr Aird took off with the copy of exhibit 4 that he had. I thank Mr Joseph for that. My copy is quite well marked. For the record I'm just passing a copy of exhibit 4 to Mr Watts.
PN606
Do you recognise that as a page from the DHL Australia web site?---Yes, I do.
PN607
If you look along the top there you can see there are headings; Express, Logistics, Mail, Press, Careers, and About Us?---Correct.
PN608
And then on the left-hand side there's a further series of groupings; Freight, Transportation, Warehousing and Distribution, Customer security and insurance, and Supply Chain Solutions?---Correct.
PN609
Then see there's a little arrow next to Supply Chain Solutions which is pointing down. Do you see that?---Yes.
PN610
And can we take it then that the text, "What we do" and the text that's under that falls under the heading of Supply Chain Solutions as far as navigating the web site goes?---Correct.
PN611
And then the text, "Logistics, Process, Outsourcing" et cetera, as far as navigating the web site goes, falls under the heading of What We Do?---Yes.
PN612
**** GRAHAM CHARLES WATTS XXN MR FAGIR
If we look at the body of the web site there seem to be a number of groupings there. In bold there's the word "Plan". Can you see that?---Yes.
PN613
And there's some further information under that. And then in bold there's the word "Source"?---Yes.
PN614
And three is "Make". That's almost at the bottom of the page?---Yes.
PN615
If you turn over the page "Store and Customise" is four?---Yes.
PN616
"Deliver" is five?---Yes.
PN617
And then finally on the last page is "Return", which is six?---Yes.
PN618
And those categories are the categories that are listed in paragraph 14 of your statement, aren't they?---Yes.
PN619
And under each one of these headings are set out the services that you - that is DHL Supply Chain - provide under each of those headings. For example if you look at "Source" you can provide procurement services, you can provide raw materials warehousing, you can provide raw materials transportation, and international supply chain management?---Yes.
PN620
And the same thing applies if we look at the heading of "Make", store, deliver, so on and so forth?---Yes.
PN621
That is, this web site or this page of it sets out the services that you can provide to your customers?---That is correct.
PN622
If you turn to the fourth page of this document, do you recognise this as the page that you get to if you click on - and please tell me if you don't - if you click on the "Transportation and Distribution Management" link under Deliver, you get to this page?---Yes.
**** GRAHAM CHARLES WATTS XXN MR FAGIR
PN623
And then it sets out services that are provided under that heading of Transportation and Distribution Management by DHL Supply Chain?---Correct.
PN624
Mr Watts, are you familiar in broad terms with chain of responsibility legislation?---Yes.
PN625
In the context of road transport?---Yes.
PN626
And you understand that it's not only drivers who have responsibilities under road transport legislation, but packers, consignors also have responsibilities?---Yes, correct.
PN627
Finally, Mr Watts, I just want to list some functions for you and I want you to tell me if this sounds like the type of functions that your employees, for example - the type of things that Lester and his colleagues might do at one of your facilities: receiving at warehouse product from customers?---Yes.
PN628
MR JOSEPH: I'm going to object. Sorry, Commissioner. I think if we're talking about what Lester - and I presume that's Mr Denetto - does, we should ask questions about what Mr Denetto does. If we're talking about what other people do - particular people, given the wording in the legislation - then we should be clearer.
PN629
MR FAGIR: I accept that, Commissioner. I'll start again.
PN630
I want to read out a list of functions and I want you to tell me if these are the functions that are carried out at your facilities by employees overall?---Yes.
PN631
I'll read them all out and I'd like you to answer me at the end. Services include receipt at the warehouse, product from customers; unloading product from supply vehicles; reloading pallets onto supply vehicles; putting away and storing product; standard and special picking of product and assembling orders for despatch; loading delivery vehicles; conduct of stocktake; and other miscellaneous functions. Would you agree with me if I said to you that's a pretty good description of the type of functions that are carried out at your facilities?---Yes, they are.
**** GRAHAM CHARLES WATTS XXN MR FAGIR
PN632
Thank you, Commissioner. They're my questions.
<RE-EXAMINATION BY MR SECK [1.00PM]
MR SECK: Mr Watts, you were asked some questions by the counsel for the TWU about what happens when from time to time DHL Supply Chain is asked to tender for work as a joint bid from various DHL entities?---Yes.
PN634
Do you remember those questions?---Yes.
PN635
If there is a successful bid by the DHL entities to undertake that work, can you explain to the tribunal how those contractual arrangements are structured?---So each of the - if for example a Global Forwarding, Express and a Supply Chain business was awarded the business of a particular customer, each of the respective areas of business that we control are contracted individually. Because they're separate DHL entities they have to contract individually, so Express would contract directly with the customer, the Global Forwarding would do the same, as well as Supply Chain.
PN636
You should have a document in front of you, Mr Watts?---Yes.
PN637
I want to take you to, I think, the fourth page. Mr Fagir took you to this page and you'll see at the top where it says Transportation and Distribution Management. Do you see that?---Yes.
PN638
And there's a reference there in the last line of the first paragraph to "transport management solutions". Do you see that?---Yes.
PN639
Can you just explain to the tribunal what's meant by the term "transport management solutions"?---Transport management solutions basically provides a service for the customer that allows the customer to basically hand the product over to the end customer. It allows DHL to manage that process from point A to point B, so the customer no longer needs to worry about it. They give total control to DHL, DHL then engage a third party provider to carry that product from our warehouse to the end customer, leaving the customer - the manufacturer no issues as far as needing to worry about how it gets there or when it gets there. It is controlled purely by DHL Supply Chain.
**** GRAHAM CHARLES WATTS XXN MR FAGIR
PN640
Mr Watts, you also at the end of your cross-examination were read out a list of different functions which - - - ?---Yes.
PN641
- - - taken overall may be undertaken by employees. When you answered that question can you explain - were you talking about functions undertaken by one employee, or were you talking about functions which are spread across more than one employee?---Those functions are spread across employees, so no employee will typically do a single task for the entire day. So each storeperson or team leader or classification can work across a variety of those tasks throughout a day.
PN642
No further questions, Commissioner.
PN643
THE COMMISSIONER: Thank you. Thank you, Mr Watts. Thank you for giving your evidence. You're released and discharged?---Thank you.
<THE WITNESS WITHDREW [1.03PM]
MR SECK: Commissioner, I note the time. There are no further witnesses that DHL proposes calling. There's, I think, just one document I wish to tender for the tribunal. It's a copy of a transcript of the right of entry proceedings before Harrison C. Commissioner, you'll recall there's a reference, I think, in paragraph 17 of Mr Aird's statement about whether or not any objection had been taken to the TWU's eligibility to enrol as members employees at DHL Supply Chain (Australia). I asked a number of questions of Mr Aird about that and tested his recollection of whether or not he'd read the transcript.
PN645
What I thought I'd do - it's a matter of public record, Commissioner, so it may not be necessary to actually tender it, but I have a copy of the transcript here and I do wish to refer to it in submissions. If the Commissioner considers that it's simply a matter of public record and I can refer to it and take the Commissioner to it at the appropriate time then I don't need to tender it, but - - -
PN646
THE COMMISSIONER: I don't think it needs to be tendered, but I'm happy to take it if you're going to refer to it during your submissions.
PN647
MR SECK: I'll take the Commissioner to it in submissions so it might be appropriate that I hand it up at the appropriate time, then, Commissioner.
PN648
THE COMMISSIONER: Yes, all right.
PN649
MR SECK: May it please. I have nothing further.
PN650
THE COMMISSIONER: So is that the evidence for - - -
PN651
MR SECK: That is the evidence for DHL Supply Chain - - -
PN652
THE COMMISSIONER: DHL. NUW is not putting on evidence, only submissions, so are we at a point where we just have to arrange for the submissions now?
PN653
MR SECK: Yes, and we're happy - - -
PN654
THE COMMISSIONER: This afternoon?
PN655
MR SECK: Yes, Commissioner.
PN656
THE COMMISSIONER: So what if we say 2.15, we'll resume; then all we're dealing with then is the submissions. All right, so we'll resume again at 2.15.
PN657
MR FAGIR: Happy to come back at 2.00 if that's - - -
PN658
THE COMMISSIONER: Beg your pardon?
PN659
MR FAGIR: Happy to come back at 2.00 if that's more convenient.
PN660
THE COMMISSIONER: We might just make it 2.15 so that everyone gets their specified lunch break.
<LUNCHEON ADJOURNMENT [1.06PM]
<RESUMED [2.18PM]
PN661
THE COMMISSIONER: Mr Fagir.
PN662
MR FAGIR: Thank you, Commissioner. I think we're all agreed on what it is we're doing here and there's no need to go through these legislative provisions in minute detail, but obviously DHL Supply Chain has made an agreement with its employees. It's applied for the agreement to be approved by this tribunal. TWU has given notice that it wishes to be covered by that agreement and it's common ground that if the TWU was bargaining representative of employees to be covered by the agreement, that it is entitled to be covered. I think certainly on the evidence today there's no doubt that the TWU has members who will be covered by the agreement and who were employed during the relevant time.
PN663
If those members are validly enrolled the TWU, in the absence of any revocation of its status, is their bargaining representative. If they are not properly enrolled - that is they're not eligible to be members of the TWU - by virtue of section 176 subsection (3) the TWU cannot be their bargaining representative - is not entitled to be covered by the agreement. I think we all agree on that. I think we all agree that the question to be answered in this proceeding is whether the TWU is entitled to represent the interests of its members. That of course requires the tribunal to decide effectively if DHL Supply Chain as a business is in the transport industry or in connection with the transport industry; or if the TWU members who have been identified are engaged in or in connection with an occupation which is in or in connection with driving and transport, including - as we'll come to see - loading and unloading of vehicles and all driving.
PN664
There are several uncontroversial propositions that apply to this process and I'll list some of them because I really think they are uncontroversial. First the task of the tribunal in these matters is to construe the union's eligibility rule and apply it to the facts. Second the question of whether the business of an employer is in or in connection with a particular industry is a question of fact which depends on all the circumstances of the case. That seems like a statement of the obvious, but it's easy to get away from that foundation. Of course other cases are instructive and to some extent analogy can be drawn with other cases, but at the end of the day the question has to be answered by reference to the facts of this particular case.
PN665
The third; eligibility rules - that is union eligibility rules - should be construed broadly. There's High Court authority to that effect, R v Cohen ex parte Motor Accidents Insurance Board [1979] HCA 46; (1979) 141 CLR 577 stands to that proposition, as does the earlier High Court decision in the King v Issac ex parte Transport Workers Union. I might just hand up a copy of that decision while we're at it. I don't need to go to it in any detail at this stage. As I say, the High Court authority is that eligibility rules should be construed broadly. One might add that the object of the Fair Work Act to ensure freedom of association and the right to representation confirms that approach.
PN666
Fourth, an industry or a calling can be described in a number of ways and the fact that an industry or an occupation comes within one description doesn't mean that it can't come within another. The case of Isaac that I've just handed up, especially in the judgment of his Honour Gibbs CJ at paragraph 16, stands for that proposition, as does the decision of the Australian Industrial Relations Commission - I'm going to get this wrong - Harnischfeger of Australia Pty Ltd. I'll hand up a copy of that as well. The fifth; the words "in or in connection with" are words of extension. Again the decision of Isaacs stands for that proposition.
PN667
And finally the TWU eligibility rule is cast in wide terms and is a hybrid industry occupational rule. I think that's very well settled by this point, but in any case the decision in TWU of Australia v Qantas Airways Ltd (1985) 11 IR 145 confirms that. So there are some of the principles that we say would guide the tribunal in this process. I'll first deal with the question of whether DHL Supply Chain is in the transport industry. Mr Watts says in his statement at 13, "DHL provides customised supply chain solutions for its customers." And then he goes on to explain that:
PN668
Basically a supply chain consists of the steps through which goods or services pass from a supplier to a customer.
PN669
Really, in some ways that's the start and the end of the analysis. It can be assumed or it could be taken from Mr Watts' evidence in cross-examination that in a vast majority of cases the customer and the supplier are not physically located in the same place therefore - and no matter what words we use and how much we try to obfuscate about this - the movement of goods from one to the other is or involves transport. It's really a very - I mean, it's trite but it has to be said. As Mr Aird explained, companies these days don't call themselves transport companies. They use fancy descriptions like logistics providers or supply chain companies or whatever you want to call it, but at the end of the day the essential function is the movement of goods from A to B.
PN670
In this case there's no doubt that the goods move ultimately by road and therefore we say even on Mr Watts' most general definition, the business of DHL is - it might be some other things in some respects, but it certainly is the business of movement of goods by road. I should say quickly insofar as there might be some debate about whether DHL is or isn't a contracts logistics provider and what that means, I'll just say this very quickly; exhibit 7 - that is the extract from the annual report - in the first paragraph says this:
PN671
Supply Chain division comprises two business units that Supply Chain and Williams lead. In the Supply Chain business we provide contract logistics solutions along the entire supply chain for customers from a wide variety of sectors.
PN672
That's entirely consistent with the rest of the evidence and we would really have to assume that the annual report is accurate. Then in dealing with some argument about what contract logistics is or involves, exhibit 5 is DHL's own definition of the concept of contract logistics. I don't intend to go through it in depth, but Commissioner, if you look about halfway down the page there's a paragraph headed The Business Model of Contract Logistics:
PN673
Contract logistics providers combine several logistics functions into service packages of increased complexity that are tailored to the needs of the customer or shipper. In this business the logistics services may extend well beyond transport, storage and order processing.
PN674
This is a bit of a roundabout way of approaching it, but it's clear that even on DHL's own view, that the essence of logistics services is transport, storage and order processing. There may be other things as well but that really is the essence of what contract logistics is. If you turn from the macro view to the specific then exhibit 4 really in some ways is the start and finish of this debate. Mr Watts made it clear in cross-examination that the services that are listed on this web site are services that are provided by DHL Supply Chain. I won't read all of them but I'll just look at some examples. One of the headings is Source. I always thought source was a noun rather than a verb, but perhaps I'm wrong about that. I guess it means something similar to procurement.
PN675
Under that heading the services of raw materials transportation - that is delivering raw materials to production or collecting them from a supplier - and international supply chain management, which is managing the flow of goods from low cost production locations - presumably the third world, but you don't know. Under the heading of Make the company offers to set up and move production plants. Under the heading of Inbound Manufacturing it offers to manage the flow of goods into production; you can go on: delivery, transport and distribution management, delivering critical spare parts, home delivery, and E-fulfilment, and reverse logistics - that is transport of returns.
PN676
And down on the final two pages there's a specific breakdown of the services provided under the umbrella of transport and distribution management and they are - virtually the whole list is transport services. So in the face of this list, which is accepted by DHL's witness as being a list of the services provided by the company, it's simply irrational to say that DHL is not a company engaged in the transport industry. I think the way that those who are against us resist this is to say - it really boils down to this, "No, we're not in the transport business because we don't own trucks."
PN677
There are a couple of things here: first Mr Watts says you've got 30 mobile service representatives, which presumably means you have 30 vans - that's not trucks; second and more importantly the question isn't, do you or do you not have trucks? That's not what the rule says. That's not what the authorities say about the transport industry. This isn't some recent development. From - at the latest - the time of the decision of Hungerford J in the New South Wales Industrial Relations Commission the idea that transport equals trucks on the road has been abandoned. I'll hand up a copy of that decision, Commissioner. The media-neutral citation is National Union of Workers New South Wales branch v Toll (1998) NSWIRC 645.
PN678
As is well known, his Honour Hungerford J in the context of a demarcation dispute found that work performed at a Toll facility was work performed in the transport industry. I emphasise at this point that his Honour found - he found two things: he found, one, that Toll was in the transport industry, which was perhaps uncontentious; but he also found that the work performed at the Moorebank facility specifically was work in the transport industry.
PN679
MR JOSEPH: Where's that?
PN680
MR FAGIR: Mr Joseph can have a go in a moment, I think.
PN681
MR JOSEPH: I'm asking if there's a reference to it, rather than having to read through 60 pages, Commissioner. I would have thought that would help everybody.
PN682
MR FAGIR: Can I mention that his Honour described the work performed at - this is page 371 of the report of judgement on the copy that we have - he described the work that was under consideration in that case in these terms:
PN683
Those services at the Moorebank facility were specified in the contract to include receipt at the warehouse of product from Franklins and its suppliers, unloading product from supplier vehicles, reloading pallets of product onto supplier vehicles, putting away and storing product, standard and special picking of product and assembling orders for despatch, loading delivery vehicles, conduct of two stocktakes each year and recycling of cardboard and plastic.
PN684
Commissioner, you might recognise that description as the description that I put to Mr Watts which he confirmed aligned closely with the work that is done by DHL - by its employees as a group at its facilities. As I said, each case has to be dealt with on its own facts. The Hungerford decision was a decision under a different statutory regime and really in the context of a dispute of a different kind which required consideration of various matters that don't apply here, but the point simply is that from at the latest, 1998, the idea that the transport industry equals trucks has been abandoned.
PN685
In its submissions at paragraph 35 the company puts this really extraordinary proposition, "The transport providers" - that is the transport companies that it said are engaged by DHL, "The transport providers are not an indivisible element of the undertaking." Let's just think about that proposition for a moment. The services that are provided by the company Supply Chain will move goods from A to B. As Mr Watts said, total control; customer doesn't have to worry about anything. Somehow that function and all the services that are listed in exhibit 4 it's said can be performed in the absence of transport providers - without transport by road. One only has to think about it for a moment to realise, really, that it's nonsense.
PN686
You can see why it's put, because unless somehow the company can make it good it's going to fail, but that doesn't stop it being a nonsense. It's just self-evident that the work of the transport providers - that is the transport of the goods by road - is, to use the words that his Honour Dixon J used in Theiss Repairs - "is integral to the undertaking". Of course, it's not necessary to find that the TWU is in the transport industry to find that employees of DHL are eligible to be members of the TWU; it's sufficient to find that DHL operates in connection with the transport industry. There's a well-known (indistinct) I'll repeat them anyway. His Honour the chief justice in the Isaac case - the Argyle Diamond case, as it's better known - at paragraph 19 said this, "Labour in connection with the named industries is included" - in the AWU rule in that case -
PN687
It is apparent that this very considerably widens the scope of the rule. Moreover, rules of this kind bear on their face the evidence of the fact that they have not been prepared by skilled legal draftsmen. 6 The industries and callings to which they refer sometimes overlap. The rules should not be restrictively construed.
PN688
His Honour Wilson J in the same case at 25 says this:
PN689
The cases establish that one may be employed in connection with the mining industry notwithstanding that one is merely developing the infrastructure which will be necessary to support the actual mining when it commences and notwithstanding that one is engaged, not in the process of extracting the ore from the mine, but in its subsequent treatment. A sufficient connection may therefore be found in an occupation which takes place either before or after the actual work which itself identifies the industry in question. Just as the erection of houses for the workers who are to work the mines is work undertaken in connection with the industry of mining, notwithstanding that it precedes any mining, so is the preparation of the mine and the extraction of the ore undertaken by way of preparation before embarking on the work of reducing and refining that ore. There is an unbroken series of steps culminating in the production of diamonds, with each step logically connected to the next.
PN690
Commissioner, even if one accepted - contrary to commonsense, we would say - that somehow the work of the transport providers can be separated - is a totally divisible element of the undertaking of providing supply chain solutions - moving goods from A to B - even if one accepted that difficult proposition, it remains the case that there is an unbroken series of steps culminating in the ultimate objective of the exercise, that is the movement of the goods. It's the (indistinct) planning, it's loading a truck, driving the truck, to unloading it, breaking down the pallet, reloading it, driving again, unloading at the other end.
PN691
Of course it's dangerous to draw too close an analogy between cases, but in this case there is clearly an unbroken series of steps similar to that described by his Honour in the Argyle Diamond case. On that basis we say it's clear that DHL operates in connection with the transport industry. Just a final comment on the Argyle Diamond case before I move away from it. I just note the comments of the chief justice at paragraph 17 to the effect that the fact that some of the work was being carried out be contractors - that is legally distinct entities - did not prevent the work from being work connected to the industry of the employer.
PN692
Can I deal now with the occupational aspect of the TWU rule. I probably should have started with this, but the rule itself is attached to the statement of Michael Aird at annexure MA1. On its proper construction the occupational rule extends to:
PN693
Employees working in or in connection with occupations, callings, vocations or pursuits of work in connection with transport including both loading and unloading to and from any vehicle and all driving.
PN694
It's A subclause (1) subclause (a) deals with work in connection with driving and transport, and then subclause (b) refers to all driving. Can I just note in respect of the "all driving" aspect of the rule, lest it be thought that driving referred to is only driving of motor vehicles on the road, the exclusion in clause A subclause (3) (vi), which is at the top of the third page of the ruling, makes it clear that:
PN695
All driving is not so limited. The exclusion is of agricultural machines and implements in use for agricultural pursuits.
PN696
The fact that that exclusion is necessary demonstrates that driving is driving in the broader sense, which would include all mechanised or horse-drawn vehicles including, most obviously, forklifts. So we say on the proper construction of the rule any employee who is engaged in loading and unloading and any employee who drives any vehicle falls within the occupational aspect of the rule. In the present case Mr Wiki most obviously falls within that occupational aspect. It's then a question as to whether the DHL employees who aren't loading and unloading vehicles or operating forklifts are covered by the occupational limb of the rule.
PN697
We say in the circumstances of this case they do. The proposition really is simple; those employees, whether they're preparing pallets to be transported by road, checking pallets that are to be transported, breaking down pallets so that they can be reloaded onto other vehicles and doing the range of related functions are all carrying out those functions; are all performing or engaging in occupations which are in or in connection with the transport of goods by road. I don't mean to make too much of this in case it's going to be decided on this point, but I'll hand out an extract from the Road Transport (General) Act, and attached to the back of it is the RTA summary of the legislation.
PN698
Mr Watts said something about this and he accepted that the chain of responsibility legislation applies to the DHL facility employees. I'd simply note this, the RTA summary document talks about the responsibilities of loaders and packers. And this is well known, but:
PN699
Loaders have a responsibility for ensuring that vehicle load doesn't exceed limits, that is dimension limits and mass limits; they have a responsibility to ensure that the vehicle doesn't become unstable; that the driver doesn't drive in breach of his or her work or rest options; and the driver doesn't drive while impaired by fatigue.
PN700
Similarly packers have a responsibility to ensure that, "Documentation about a vehicle's load is not false or misleading," and then they have responsibilities related to packing and freight containers. I don't suggest that this case is going to be decided by reference to the Road Transport (General) Act but the point simply is that the legislation highlights the connection between the work of loaders and packers and the transport of goods by road. It is there subject to statutory responsibilities in relation to what happens when their loads or pallets or freight containers are transported on the road.
PN701
That's about all I wanted to say, Commissioner. Many of the bases that I've outlined - that is that DHL operates in the transport industry or it operates in connection with the transport industry or that Mr Wiki is captured by the occupational limb of the TWU rule or all DHL facility workers including Mr Denetto are captured by the occupation limb of the rule - on any one of those bases, Commissioner, we say you would find that the TWU was bargaining representative for one or more employees to be covered by the agreement and on that basis it's entitled to be covered by the agreement. Unless I can assist you further, Commissioner, they're my submissions.
PN702
THE COMMISSIONER: On the question of the occupational limb of the eligibility rule, as it's described, surely that just isn't taken or considered in isolation. Surely the occupational limb of the eligibility rule must have some connection - perhaps connection is not the right word to use in this term - but it's got to be considered in the context, I would have thought, of the overall operation that the employer is conducting. Because if you're a driver - clearly a driver of a truck - but you're doing it in a black coal mine in Queensland, you'd be covered by the occupational rule of the TWU - the driver.
PN703
MR FAGIR: Yes.
PN704
THE COMMISSIONER: But you would be in a different union because you're in the black coal industry.
PN705
MR FAGIR: I agree with the first proposition; not sure about the second. You might well be eligible to be a member of the CFMEU or whoever it is and the TWU, but the fact that you're employed by an employer who - if we identified a single function of it, was operating in the black coal industry - doesn’t mean you're outside the TWU coverage. And of course historically there have been in some cases very large numbers of TWU members employed by companies whose sole purpose is not in or in connection with transport.
PN706
The obvious example today - and there's been a movement away from this over time towards outsourcing of the work - but the obvious example today would be a company like Boral which has very substantial fleets in all its operations and I think we would probably all agree that Boral is not - if we had to describe it in one way - we don't in these proceedings - but if we had to we wouldn't describe it as a transport company, we'd say it's a construction material company or a building company or a quarrying company or whatever you like to call it. But there is no doubt that they have large numbers of drivers and those people are eligible to be, and are, members of the TWU.
PN707
Historically retailers might have had a similar setup; not so much now, but certainly in the past. One could go on. The award coverage of those people has always been transport awards. That's the case under the modern award and always has been the case under both federal and New South Wales awards. There have been dedicated - - -
PN708
THE COMMISSIONER: But isn't Boral really moving across a variety of different industries here? This is why I think the question of the context of the industry surely has to be appropriate. It has to be an appropriate consideration. If not, the breadth to which you attach to your rule would see the TWU being entitled to enrol any person who at any time in any industry just got behind the wheel of a vehicle.
PN709
MR FAGIR: That is the case. Perhaps not if they got into a vehicle once a year, but let's take an unequivocal example. If you're a truck driver - if you turn up every day and your job is to drive a truck - then there is no doubt that you are eligible to be a member of the TWU. I mean, in New South Wales for example there was Transport Industry Retail Award which applied to drivers employed by retailers; there was a quarry materials award; there was a coal and wood cartage award, and so on and so forth. It's different now. The modern award obviously covers both aspects, but there's no doubt that - setting aside more controversial areas, but if you are just a truck driver, someone who drives up and down the highway employed by whatever employer - Woolworths, Boral, Toll - - -
PN710
THE COMMISSIONER: The District Council of Strathalbyn?
PN711
MR FAGIR: Commissioner, I fear that that to answer that question would require me to think about whether councils are constitutional corporations and I just want to totally avoid that area. But whatever it is, including councils, to stop being facetious for a moment - including councils - that's not to say you're only eligible to be a member of the TWU but there is no doubt that you are. I don't think that that's a controversial proposition at all.
PN712
It's generally been described as mixed industries or mixed enterprises coverage and federally before award modernisation there was a Transport Workers Award and there was a Transport Workers Mixed Enterprises Award. The one applied to employees of transport companies and the other applied to companies which might have some primary objective other than transport. Can I hasten to say this, even if one did approach it from the perspective of looking at the company overall, that really would take us towards a construction which relied on the industry rule rather than on the occupational rule. But even if we did that in this case the answer would be the same.
PN713
THE COMMISSIONER: I'm putting aside - you argue here both limbs, but I'm just a little concerned that the way in which you approach the occupational rule seems to - it doesn’t seem to have regard for the context of the actual occupation. Why then were truck drivers at the Argyle Diamond mine not in the TWU?
PN714
MR FAGIR: They were entitled to be in the TWU, but because that was a demarcation dispute the commission had to make a decision about whether they should be TWU or they should be AWU. So there was never any doubt that those drivers were entitled to be TWU members.
PN715
THE COMMISSIONER: And similarly in the black coal - the driving of the trucks at Bowen Basin or wherever the hypothetical example I'm using there, I suppose.
PN716
MR FAGIR: Yes, and - - -
PN717
THE COMMISSIONER: So from your perspective you say that you could enrol tomorrow the drivers driving the Haulpaks in the Bowen Basin and then seek to be covered by the black coal industry enterprise agreement that applies.
PN718
MR FAGIR: Assuming that the Haulpak actually drove on a road the answer is yes. This isn't strictly relevant, but I acted for a TWU member who drove a Haulpak around on a mine in the Pilbara a couple of years ago, and as a group for practical industrial reasons those people don't tend to be with TWU, but in this case they were. But as far as eligibility of someone who drives a vehicle on a road, there's no doubt about that. There might be a doubt if it were a very minor part of their function or if they did drive on the road. But setting aside those type of circumstances the coverage is - - -
PN719
THE COMMISSIONER: So my answer is yes. So if you enrol that driver in black coal or whatever other industry the person is in, the process is one then where you say you're entitled to represent the industrial interests of that person and therefore by virtue of the way in which the process operates for approval of enterprise agreements, if you give the F22 notification TWU is then covered by that black coal enterprise agreement.
PN720
MR FAGIR: Yes. Although as a practical matter I would think there would be very few black coal agreements, if I could put it that way, which included driving classifications. That's in the context of awards, for example, Commissioner, you might ask the same question; that is, is that person covered by the black coal award - whatever the proper name is - and the answer would be no because the classifications in that award don't include driving classifications and its application is limited by reference to its classifications.
PN721
I'd suspect as a practical matter things would be the same in respect of enterprise agreements, but as a matter of principle then yes, if the TWU represented a driver in that circumstance who was to be covered by an agreement but would be entitled to go along and be covered by it. Again I'd say this, I might be surprised, but it's not a controversial issue; there have been awards going back further than my knowledge goes back covering what we called the mixed enterprises coverage, which is transport workers who are not employed by dedicated transport companies.
PN722
I should say in considering the context of the work you would in this sense; if we were talking about a warehouse at the back of a Woolworths store and someone was building pallets and whatever else that were just pushed along on a pallet jack and delivered into the store, then there would be - obviously those people wouldn't be covered under the occupational limb because there's not the requisite connection with driving and transport work, but in this case where the whole objective is to get goods from A to B by road, the connection does exist. I'm tempted to make some comments about these model trucks but I'll refrain.
PN723
THE COMMISSIONER: All right, thank you.
PN724
MR SECK: Commissioner, can I just ask for an adjournment just for two minutes?
PN725
THE COMMISSIONER: Yes, if you wish.
PN726
MR SECK: Thank you.
PN727
THE COMMISSIONER: We'll take a short adjournment.
<SHORT ADJOURNMENT [3.01PM]
<RESUMED [3.05PM]
PN728
MR SECK: Thank you for the adjournment, Commissioner. The questions which in my submission need to be addressed by the tribunal are threefold. The first question - and that emerges from the proper construction of section 176 subsection (3) of the Fair Work Act - the first question is whether or not the TWU has been validly appointed as a bargaining representative on behalf of one or more employees whose employment is covered by the agreement and who they represented in negotiations for this agreement.
PN729
The second issue is the proper construction of the TWU's eligibility rules and there are three sub-questions in that; that is whether or not the industry rule applies, and the industry rule has two parts to it, whether or not it's in the transport industry, or in the alternative, in connection with the transport industry; or the occupational rule applies. I'll come back to that question. Lastly - and this is a point which hasn't really been addressed by the TWU - that is whether or not there's an entitlement to represent the industrial interests of the employees in respect of the work under the agreement. And it has to be for those particular persons who nominated the TWU as a bargaining representative. That is an important aspect of what is required under section 176 subsection (3) which the tribunal will need to address.
PN730
On the question of membership, Commissioner, that's dealt with in paragraph 11 of my submissions. The evidence is really of Mr Denetto. I'll have something to say about Mr Wiki very shortly, but as I understand it the TWU relies upon section 176 subsection (1) paragraph (b) of the Fair Work Act, that is the default provisions. There's been no evidence adduced about either Mr Denetto or Mr Wiki appointing the TWU as a bargaining representative for the purposes of negotiating the agreement. The only basis upon which the TWU has sought to assert that it has been appointed as a bargaining representative is under the default provisions. The default provisions under 176 subsection (1) paragraph (b) apply only if the employees were a member of the TWU at the time.
PN731
Mr Denetto gave some evidence on that point. However, Mr Wiki's statement, whilst it addressed that issue, in my submission it didn't allow us to test him on that issue. I'm not saying that necessarily there's which disproves it, but there would be a question of timing, Commissioner; whether or not he was a member at the time. I think Mr Aird gave some evidence on that point. The tribunal would need to be satisfied about membership at the time of negotiating the agreement.
PN732
THE COMMISSIONER: Mr Denetto gave evidence he voted against it. He was a member of the TWU - - -
PN733
MR SECK: He was. Mr Denetto gave that evidence. Mr Wiki obviously couldn't give any of that evidence.
PN734
THE COMMISSIONER: But I mean, you don't need two. One's enough, isn't it?
PN735
MR SECK: One's enough only to the - for this reason, Commissioner, it's an important consideration because if - let's put Mr Wiki aside for the moment, assuming that his evidence shouldn't be given much weight because of the denial of the opportunity to both the NUW and DHL to cross-examine him - Mr Denetto will then have to demonstrate that he performs work which would otherwise be covered under the TWU's eligibility rules. The work which Mr Denetto did, if you recall, Commissioner, was simply cycle counting.
PN736
So if there's a reliance upon the occupational part of the TWU's rules in respect of Mr Denetto's employment then what the tribunal will have to determine is that cycle counting, as described by Mr Denetto, is otherwise caught within the occupational rule of the TWU, because that's what's required. It's not simply one of the classifications under the agreement could be covered under the TWU's rules, it's whether or not Mr Denetto's actual work is covered under the TWU's rules. If the tribunal found that cycle counting is not caught within the occupational rule or occupational aspect of the TWU's rules then it hasn't satisfied a mandatory requirement of section 176 subsection (3).
PN737
That's why it's an important distinction, Commissioner, because the work which Mr Denetto did was different to the work which Mr Wiki did. The failure to call Mr Wiki for cross-examination is obviously going to be a critical issue for the tribunal if the tribunal finds that what Mr Wiki was doing potentially may have been different from what Mr Denetto was doing, regardless of whether or not they were employed in the same classifications. The importance of that I think will be highlighted Commissioner - and we'll make submissions on that point as well - is the question of loading and unloading of vehicles.
PN738
Mr Denetto's own evidence is that he used to load and unload vehicles but he didn't do so in his new job; he was just doing cycle counting. So the question of loading and unloading in respect of Mr Denetto is completely inapplicable. By his own evidence he didn't do any loading, he didn't do any unloading. And that is one part of the rules upon which the TWU relies in these proceedings. I'll deal with that and expand on that point when we come to the question of the occupational aspect of the rule, Commissioner. Commissioner, there can be no doubt that there are two parts to the TWU's rules. There is an industry aspect and there is an occupational aspect.
PN739
The industry aspect I think we all understand, but the occupational dimension of the TWU's rules needs to be seen, as you pointed out, Commissioner, in the particular context of those rules. The submissions which have been made by the TWU are both counter-intuitive and in my submission quite audacious because where does one draw the line, given that potentially - I think in a whole lot of different enterprises - there will be loading and unloading of vehicles and there may be driving of vehicles which is not a predominant part of the industry.
PN740
I wish to expand on that point because I do think the occupational - when one talks about the hybrid nature of the TWU's rules one doesn't look at it in the dichotomist way that you're either caught under the industry rule or you're caught under the occupational rule, because the occupational rule must be informed by the industry which covers those occupations. There is case law to support that point in terms of the way that one construes rules and there's also textual matters under the rules which support a much more narrower construction to limit the occupation to occupations in the transport industry.
PN741
It is true, Commissioner, as Mr Fagir pointed out, that one needs to look at the facts very closely in determining whether or not the specific employees in question - and we're only talking about two, Mr Denetto - and we would say not Mr Wiki, but let's assume for current purposes Mr Wiki - in determining whether or not they're covered under the TWU's rules. The starting point must be, Commissioner, the plain and ordinary meaning of the rules. The rules are located in various places. I have a copy of the full rules here, Commissioner, but you probably don't need to look at the full rules. You really just only need to look at the eligibility rules.
PN742
They're set out I think in the TWU's submissions, they're set out in our submissions and they're attached to Mr Aird's statement. If I can take the tribunal to firstly the industry rule. It's set out in paragraph 14 of DHL Supply Chain's submissions. Actually, Commissioner, I might actually take you just to a slightly more comprehensive set of the rules. Can the tribunal go to page 5 of Mr Aird's statement. If the tribunal sees at the top there's firstly set out a description of the industry in connection with which the union is registered. That's annexure A to the rules. And then annexure B sets out the conditions of eligibility for membership.
PN743
The way that one construes the rules in my respectful submission is to look at the industry set out in annexure A and then read that as setting out the background and context in which one reads the conditions for eligibility under annexure B. If one looks at annexure A, Commissioner, one can see that it says, "In or in in connection with road or aerial transport," and then there's a whole lot of other activities and industries which are described there. And then one goes to the next paragraph, it says, "And in the industry of chauffers, conductors, et cetera." And then there's very specific coverage in respect of production, sale and distribution of gas, et cetera. Those define the industries which cover the TWU and therefore inform, in my respectful submission, the occupational rule.
PN744
Putting that aside for the moment, Commissioner, I think it's accepted that in determining whether or not an employer is in or in connection with a particular industry, one must look at the substantial character of the employer's business. That is plain when one looks at the case law in the High Court. I will take the tribunal shortly to one of the cases which summarises the case law quite neatly on this point. In ascertaining the substantial character of the particular enterprise, Commissioner, one doesn't look at the character of a group of companies, one looks at the character of the employer.
PN745
In my submission there hasn't been an adequate discernment between what DHL Supply Chain does as a business and what DHL does as a group of businesses; in determining that one looks at the ultimate objective of the employer's activities and not the employee activities, Commissioner. That is made good when one looks at the decision of the predecessor to Fair Work Australia, the Australian Industrial Relations Commission in Budget Rent A Car Operations Pty Ltd Brisbane Airport Enterprise Agreement 2004 PR968492. I think that's in a bundle of cases which I'm just about to hand up.
PN746
I've given my learned friends a copy of the bundle of cases, Commissioner. There's only four there so I'm not going to deluge the tribunal with too much. This case, Commissioner, involved determining whether or not customer service representatives and vehicle service representatives employed by Budget Rent A Car Operations were eligible to be members of the TWU for the purposes of an application made by the TWU to be bound to an enterprise agreement; so not dissimilar to the case which is involved here. The full bench in this decision had cause to examine the TWU's rules. It is noted in the decision that there is both an industry aspect and an occupational aspect to the rules. If I can take the tribunal to paragraph 16 on page 5 of the decision. The full bench says this, "Under this branch of the rules - - - "
PN747
THE COMMISSIONER: Hang on a minute.
PN748
MR SECK: Pardon me, Commissioner. It's the second decision in that bundle, hopefully. Sorry, the third decision. I apologise, Commissioner.
PN749
THE COMMISSIONER: All right.
PN750
MR SECK: Page 5, paragraph 16.
PN751
THE COMMISSIONER: Yes.
PN752
MR SECK: You'll see, Commissioner, there's consideration given to the industry aspect of the TWU's rules. The full bench comprising the president, Senior Deputy President Lacy and Commissioner Larkin said this:
PN753
Under this branch of the rules the employees cannot be employed in the relevant industry unless their employer is in that industry. The transport industry must mean the commercial transport industry and involves transport of persons or goods for reward.
PN754
And then there's an application of that particular test to Budget Rent A Car's industry. That's the way that the industry branch of the TWU's rules has been construed by the full bench. That construction was accepted by Senior Deputy President Hamberger in the decision involving Queensland Properties Investments. I'll come to that decision shortly. Commissioner, if you go to the decision in that bundle involving Dyno Nobel Asia Pacific, it's the second-last decision in the bundle, Commissioner. It's a decision which is also referred to by Senior Deputy President Hamberger, PR956868. It contains, I think, quite a useful summary of all the principal High Court cases in this are in how one goes about construing industry rules in union constitutions.
PN755
It starts, Commissioner, at paragraph 17, page 7 of the decision. Commissioner, you'll see the heading there. I just want to take the tribunal just quickly through some of the key decisions because it will inform the proper approach that the tribunal should take in determining this issue. There's a reference to the decision of R v Central Reference Board ex parte Thiess Repairs Pty Ltd. I won't go through the background of that decision, Commissioner, but then there's a quotation of the leading judgment of Sir John Latham. I think the comments made in this case are apposite to the circumstances of the present case before the tribunal. The chief justice said:
PN756
The fact that the operations of one enterprise are carried on in proximity to another enterprise cannot in itself show that the enterprises are part of the same industry. The two companies, Thiess Bros and Thiess Repairs, are separate juristic persons.
PN757
And then just skipping a few lines
PN758
The two Thiess companies have four directors and a manager in common, but this fact has no relevance to the question here to be determined, the answer to which depends upon the character of the industry carried on by the Repairs company and its place in the general industrial set-up.
PN759
Then turning over the page, Commissioner:
PN760
The two companies are, it is true, "closely associated" in general control, management, and a common dependence upon the continuance of work at the open cut. But the fact that enterprise A is "closely associated" with enterprise B does not in itself establish either that enterprise A is engaged in the same industry as B or that enterprise B is engaged in the same industry as A.
PN761
And then if, Commissioner, you go down to the last paragraph which is quoted there in the underlined bit, the true test is stated by the chief justice. That demonstrates, Commissioner, that one doesn't look at the fact that DHL Supply Chain might have a close relationship with other DHL entities in the group. The fact that they might work together; the fact that they might have a common parent; the fact that they may bid for work together does not in and of itself demonstrate that somehow the business of the other DHL entities affects the character of the business of DHL Supply Chain (Australia). That's made clear given that both Thiess entities were clearly owned by the same Thiess parent.
PN762
One then goes to the proper approach which Sir Owen Dixon sets out in the Thiess decision. He sets it out in paragraph 21. The test he applies - and I won't read the whole thing out, Commissioner, but it's whether or not Thiess was part of the operations and an indivisible element or may be regarded as a separate or independent part of the undertaking. How does one determine that? One has to look at all the circumstances and then Sir Owen Dixon on the next page identifies the criteria that one actually looks at in determining whether or not an employer is in a particular industry when you're looking at two related companies. He says:
PN763
The difference must depend upon circumstances, the chief of which must be separateness of establishments in point of control, organization, place, interest, personnel and equipment.
PN764
Those are the kind of factors in my respectful submission that the tribunal needs to have regard to in determining whether or not DHL Supply Chain's business can be infected by other parts of the business. Because the way that has been presented by the TWU is that it's all part of the integrated whole. Mr Fagir may disagree with this but the way that the web site has been presented - and this is the way that Mr Aird described it. He says, "Well, I just looked at the web site. I couldn't tell you whether or not DHL Supply Chain did that work or other DHL entities did that work."
PN765
It's true there was cross-examination of Mr Watt on this issue but ultimately the way the case had been presented in my submission is to say, "Even though they may have been organising other people to do that work and they may be DHL livery and it may be McGills Transport or it may be Toll who are doing that work, it's still DHL who is involved in the transport services." That's not the way that one approaches it in my submission, Commissioner. One has to look at the nature of the activities done by this business, not activities by another business, even if it involves some kind of coordination. I'll come back to that question shortly.
PN766
That's the real question that faces the tribunal in this case. There was a submission made by the TWU that simply because logistics involves the movement of goods from point A to point B that in and of itself necessarily means that DHL Supply Chain - because it's involved in the logistics business - is involved in the transport industry. There are a number of fallacies which are wrapped up in the submission that's been made there, Commissioner. Firstly it's not sufficient to simply apply labels of a superficial kind to the nature of the work which is being performed by DHL Supply Chain; one actually has to look at the actual evidence of what DHL Supply Chain does.
PN767
The question is who engages in the activities? That's the key question, Commissioner. One has to actually look at Mr Watts' evidence in a bit of detail to understand specifically what DHL Supply Chain does. If I can take the tribunal to Mr Watts' statement in paragraph 13 and 14. I think this is the substance of what DHL Supply Chain contends is the nature of the activities performed by the enterprise. Commissioner, you'll see that Mr Watts gives the description that, "DHL Supply Chain provides customised supply chain solutions," and that basically consists of the steps which passes from the point of origin with the supplier to the customer; and then the nature of the services set out in paragraph 14. I won't read all that out, the tribunal can read it for itself.
PN768
That echoes the evidence that was given by Mr Watts in cross-examination when he was taken through the various parts of the Supply Chain Solutions business on the web site. However, simply saying on the web site, "We provide transportation services," really begs the question, what is the nature of the transportation services which are provided by DHL Supply Chain? I think this is one of the key points of departure between those of us on this side of the table and the TWU; namely DHL Supply Chain merely coordinates on behalf of the client transport if asked to do so.
PN769
The client can organise its own transport, but if it wants to make its life easier and it wants someone to provide them with a solution to the problem they said, "We can do that on your behalf. We don't provide the transport services ourselves in the sense that we don't actually employ the drivers or owner-operate the trucks. We engage third-party transport providers to undertake that." We've heard some evidence that the key transport providers are Star Track Express, Toll Transport and McGills Transport. McGills Transport has a commercial arrangement with DHL to have livery on their trucks with DHL signage and have their drivers wear DHL uniform, but it doesn’t change the fact that it's McGills Transport who is actually providing the transport services.
PN770
If one looks at the activities and accept the breadth of the proposition which has been advanced by the TWU then one can easily see how the TWU could cover a whole lot of operations which are ordinarily and historically not considered to be part of the transport industry. Commissioner, I used the wedding planner example in my submissions but I think there are probably better examples that we can use. Can I use this example, Commissioner; imagine a concierge at a hotel. You might have a businessman who is staying at the hotel and he wants the concierge to do a few things for him or her. When I say "businessman" I don't mean that to be gender-specific, but a business person.
PN771
That business person may say, "Look, I need to organise a present for my wife. I bought a present - or husband. Thank you, Mr Joseph. Mr Joseph is quite right. "I need to organise a present for my spouse. I bought a present. Can you organise it to be sent to my spouse at home. He or she lives in another city." Now, the concierge would simply say, "Look, I can organise that for you. Give me the present. I will organise the transport to send it from the hotel to wherever it needs to be sent." Then the business person may say, "Look, I need to catch a taxi and the taxi needs to take me from the hotel to my customer's site." So the concierge says, "Look, I can organise a taxi for you. Don't worry about it, I will organise it." And a taxi is waiting outside and the taxi drives the business person off to wherever he or she needs to go.
PN772
Then there might be some luggage which needs to be carried by someone at the hotel and the concierge says, "Look, I will organise a porter to come up to your hotel room and he or she will take the luggage that you need to take, bring them to the taxi, put in the back of the boot for you so you can not have to carry all that and that will all be organised for you." Commissioner, that is no different in my respectful submission - what a concierge does - to what the nature of DHL Supply Chain (Australia) does in its business. It makes things easy for its clients by organising and coordinating aspects of what needs to be done.
PN773
Part of it is transport and that's what a concierge does. The fact that it might be coordinated and arranged by someone does not automatically in my respectful submission make that person employed in or in connection with the transport industry. When one looks at that example it is plain that there is a degree of absurdity in simply saying, "Someone says they can organise your transport solutions and therefore you're in the transport industry." It would mean, in my respectful submission, that anyone who can organise transport for someone would be employed in or in connection with the transport industry. That would be quite frankly a breathtaking proposition if that was so.
PN774
Can I deal with - and we've already dealt with quite a few of them - some of the misconceptions about DHL's business. Commissioner, Mr Watts's evidence makes clear that there are other DHL businesses which operate within the DHL group. It may be some of these DHL businesses are in the transport industry. There's Deutsche Post Mail, there's DHL Global Forwarding and Freight and DHL Express. That's set out in paragraph 8 of Mr Watts' statement. The commission heard evidence from Mr Watts that they in effect operate as separate entities.
PN775
There might be occasions where DHL business divisions coordinate their activities. Where a client says, "Look, we want a solution which may involve global forwarding including inbound freight or we might need a courier service," and that is presented as a joint presentation, but by and large they operate as independent entities unless the customers require that to occur. The comparison that Mr Aird sought to make in his statement between DHL and Linfox, Toll and other companies was demonstrated in my submission to be very broad-brushed and did not involve the comparison between two like things. It wasn't apples and apples, Commissioner.
PN776
Linfox Australia is a business which employs its drivers, owns its trucks, engages owner-drivers and other third party providers to undertake the transport services. That is in stark contrast to what DHL Supply Chain does, which is fundamentally different. It involves providing a complete supply chain solution but the transport part, it merely coordinates. It doesn’t provide those services. The same could be said about McGills and the same can be said about Star Track Express and Tolls. My instructing solicitor made the point that I asked any questions of Mr Aird about McGills.
PN777
If one applies the list of factors which Sir Owen Dixon set out in Thiess one can see that there are fundamental differences between DHL Supply Chain and the other businesses. There at different places, they engage different personnel, they use different equipment and there are different points of control because they're run as separate entities. In those circumstances in my submission one cannot look at the DHL group as a whole, one has to look very specifically at the nature of the activities undertaken by DHL Supply Chain.
PN778
THE COMMISSIONER: What industry do you say they're in?
PN779
MR SECK: The warehousing and logistics industry if one had to describe it. And it neatly fits in within the NUW's rules because - and Mr Joseph and confirm this - the rules say "storage and warehousing" under the NUW's rules. It doesn’t cover the transport industry in my submission. There might be other companies when based on proper evidence who could be classified as being in the transport industry within the DHL group but it's certainly not in my submission DHL Supply Chain.
PN780
Can I deal with the question of the MSRs, Commissioner. The MSR classifications are set out in clause 13 of the agreement. You would have noted, Commissioner, that just by their title, mobile service representatives - they do suggest the provision of services by the individuals themselves. Now, looking at the list of functions which are carried out firstly by MSR1 on page 15 of the agreement, one can see that there are a whole range of functions engaged in including at second bullet point:
PN781
Promotional activities, sales, delivery schedules to set time frames, cleaning dispenser units, reporting store issues, carrying and selling a limited range of products, recording bank cheques, delivery of route orders, completion of stock collections, paperwork, liaison with customers and suppliers, warehouse activities, loading and unloading, use of technology, forklift operation, and of course driving a vehicle, and undertaking storeperson duties.
PN782
Those are a wide range of activities, Commissioner, and it's been likened by Mr Watts in his statement to a merchandiser. I use the example of travelling or commercial traveller. The fact that someone may, as part of his or her role, drive a vehicle from time to time doesn’t necessarily mean that he or she is employed in an occupation in the transport industry. One has to look at the overall duties and responsibilities and determine their principal function. That requires in my submission a proper characterisation of the job and not isolating bits and pieces of the job.
PN783
Mr Fagir asked a question of Mr Watts in cross-examination reading out a whole lot of functions. It might be there are various functions which are carried out by DHL Supply Chain employees which might be potentially considered aspects which are historically considered to be functions of a transport worker, but one doesn't pick it apart in that way. Mr Watts made this clear in re-examination. He says, "Yeah, there might be one employee who does this function, there might be another employee who does that function." One has to consider the occupation in its entirety. Can I demonstrate how one goes about looking at the occupational aspect of the TWU's rules. I'll just deal with this point quickly, Commissioner.
PN784
There's a decision which is included in that bundle called CSBP Limited v the CFMEU (2011) FCA 972. Can I take the tribunal to page 52. It addresses a number of the questions which were raised by you, Commissioner, with Mr Fagir as part of dialogue. This is a question of the construction of the CFMEU's rules and McKerracher J of the Federal Court said:
PN785
In construing the occupational parts of rules one actually has regard to the industry clause.
PN786
If the Commissioner looks at 178 he says this:
PN787
While it is clear that conditions of eligibility may validly extend beyond the industry in respect of which an organisation is registered, an ambiguity in the eligibility clause may be resolved by reference to the industry clause. Although in Re Coldham the High Court held that the corresponding FEDFA rule was not ambiguous so that resorting to the organisation’s industry rule was unnecessary in the context of considering whether the position of mobile crane drivers was covered by Part One of the rule.
PN788
And then just moving to the next paragraph, 179:
PN789
In my view the words used - both ‘generation’ and ‘distribution of power’ - in the Industry Rule and in the Eligibility Rule are concerned with the production of and ‘giving of’ power.
PN790
And this is in the context of whether or not you just look at an occupational rule by itself. And then jumping to paragraph 181 his Honour said:
PN791
It would be unrealistic to consider eligibility for the purposes of the Eligibility Rule without having regard also to the industry or industries set out in the Industry Rule. If it were clear, for example, that the industry or industries contemplated under the Rules included the work being carried out by Process Technicians, that would support the construction of the Eligibility Rule contended by CFMEU. In my view the industries so described do not support that construction. Viewing the industries as a whole, it is difficult, in my view, to identify the technical work of production of chemicals as falling within any of the description of the industries, let alone within the specific Industry Rule Eligibility Rule.
PN792
Can I then jump just finally, Commissioner, to paragraph 187. There's a reference to a decision of his Honour Gray J of the Federal Court in Re Pavlic; Ex parte Federation of Industrial, Manufacturing & Engineering Employees (1993) 51 IR 31 where his Honour Gray J observed:
PN793
The relevant part of the unions’ industry rules specified ‘engineering’ as the industry. His Honour said that this supported the restriction of the phrase ‘machine operators’ in rule 2A(a) to ‘what might properly be called operators of engineering machines’. Having reached that conclusion, his Honour then applied the primary function test and held that the employee concerned was not covered by the rules as so construed.
PN794
We would commend that approach to the construction of the occupational rule here, Commissioner. That is, one doesn't look at simply the occupation of driving; one has to look at the occupation of driving in the context of the transport industry. It's the industry rule which informs the occupational rule and gives it meaningful operation and will provide limitations upon the persons in respect of whom the TWU could represent. That will address the black coal industry example that the Commissioner put to Mr Fagir. When one looks at the driving of a truck in the black coal industry one would say, "Well, what industry is that truck being driven in?" One would say, "Okay, it's been driven" - for example - "to transport coal from point A to point B on an employer's site."
PN795
If that is the case then one says, "It must be in or in connection with the black coal industry." That is the approach in my submission which would be applied here in construing the occupational rules of the TWU. The example which is used by the TWU is the loading and unloading in the case of Mr Wiki because we know Mr Denetto doesn’t load and unload. His statement makes it clear he doesn't do that.
PN796
THE COMMISSIONER: He used to, apparently.
PN797
MR SECK: Pardon me?
PN798
THE COMMISSIONER: I think he said he used to.
PN799
MR SECK: He used to, but he doesn't do it any more; and that's the key part, Commissioner.
PN800
THE COMMISSIONER: "For a long period I loaded and unloaded trucks."
PN801
MR SECK: And then he admitted - I think then he says, "Now I'm currently working on the inventory team."
PN802
THE COMMISSIONER: Yes.
PN803
MR SECK: So that may have reflected - the loading and unloading may have historically reflected what he did, but in terms of his actual work at the moment, Commissioner, he's doing cycle counting. He said that in the witness box in cross-examination.
PN804
THE COMMISSIONER: I don't think there was any testing of any of this.
PN805
MR SECK: It didn't have to be tested because his answer was clear, Commissioner. I asked him what are his principal duties and responsibilities and he said cycle counting. Paragraph 2 of his statement makes it clear the loading and unloading was in the past. I didn't have to test him on that because that was plain, I think, when you read the statement. Accepting that he doesn't do loading and unloading then there's a difficulty here. What kind of work in conducting cycle counting would otherwise be shown to be an occupation which falls within any part of the TWU's rules?
PN806
Firstly it doesn't fall within the loading and unloading part. But even assuming he does loading and unloading - and this is even the case with Mr Wiki, Commissioner, subject to all the caveats that I've set out previously on his evidence - simply doing loading and unloading as part of your job doesn't necessarily make it the principal function of your job, to adopt the words used by his Honour Gray J in that decision which I just cited. It also has to be limited by the nature of the industry in which the work is performed. That is a fundamental restriction in how one actually construes the TWU's rules.
PN807
One only has to consider the breathtaking nature of some of the examples that one could deploy to see that the proposition is quite audacious. To use an example, one could be driving a golf buggy around a golf course to do various things on the golf course. Does that necessarily mean that person who drives the golf buggy is in or in the transport industry? One could think of many examples, Commissioner, which would demonstrate the absurdity of the proposition that's been advanced and extend potentially TWU's rules into a whole lot of industries which have never been contemplated.
PN808
Commissioner, I just want to deal with the last limb of what's required under section 176 subsection (3) and that is the union - the TWU - "must be entitled to represent the industrial interests of the employees in relation to the work performed under the agreement." If the tribunal sees in those words it's not "an employee" who might be covered under an agreement, it's "the employee". It uses the definite article. So it must be either Mr Denetto or Mr Wiki. One doesn't look at MSRs 1, 2 or 3. There are no employees we know employed at MSR2 or MSR3 and we know there is no evidence demonstrating that the TWU represents anyone in the classification of MSR1.
PN809
So one can discount the MSRs even assuming they're involved in an occupation which would be considered in the transport industry because neither Mr Denetto nor Mr Wiki is employed doing that. What we know is that Mr Denetto does cycle counting. Mr Wiki couldn't be cross-examined but both of them are employed as storepersons. I submit that once one looks at the overall duties and responsibilities of those employees in terms of the work they perform as opposed to isolating and picking apart individual duties as part of their overall role, it demonstrates that the work which both Mr Denetto does and Mr Wiki does is not work which is covered by the agreement as a principal part of their role. In those circumstances I submit the final limb of section 176 subsection (3) has not been satisfied.
PN810
Can I just say a few things about what this case is not about, and I'll be brief. There was a reference to the chain of responsibility legislation, Commissioner. I don't know if it really takes us very far to look at the chain of responsibility legislation because in examining the Road Transport (General) Act liability is not only conferred upon a packer but it's placed upon a whole lot of different people; consignors, operators, consignees, amongst others. If one accepted the breadth of the proposition which had been made by the TWU then consignors, consignees and operators would be in or in the transport industry. It basically covers everyone even if you're simply the recipient of a service. That can't be so.
PN811
There was reference, Commissioner, to the litigation involving the Matraville agreement. That is irrelevant in my submission. There's also reference to unfair dismissal proceedings where the TWU may have represented an employee. That's irrelevant as well. TWU is not acting as a party principal it's simply providing industrial services to an individual. There was lastly reference to the right of entry proceedings before Harrison C and the suggestion that there was no point ever taken that the TWU didn't have coverage. I just wanted to hand up to the tribunal a copy of the transcript.
PN812
I don't think it really takes us very far, Commissioner, but I just wanted to make good that these points were taken. It was just simply unnecessary for Harrison C to address the issues. If, Commissioner, you go to - unfortunately I don't have page numbers on the document I have, but paragraph number 169. If the Commissioner reads there there's a question which is asked by Mr Fagir in cross-examination asking whether or not Mr Lilley suggested the TWU could or could not represent the employees. Mr Lilley, who's the national employee relations manager, says he hasn't turned his mind to the issue. Then if - - -
PN813
THE COMMISSIONER: Is this Mr Lilley being questioned?
PN814
MR SECK: It is. So it goes over the paragraph numbered 323. Pardon me.
PN815
THE COMMISSIONER: Isn't it Mr Keen?
PN816
MR SECK: Sorry, Commissioner, I'm looking at the wrong pages because my one isn't sequential. So if you can jump to paragraph 323. That's my mistake, Commissioner.
PN817
THE COMMISSIONER: 323?
PN818
MR SECK: Yes, paragraph number 323. Commissioner, you'll see that Mr Lilley is being cross-examined there about whether or not he suggested TWU was entitled to represent the industrial interests of the members on the site. So it was an issue there. Mr Lilley says that's something he hasn't investigated. Then, Commissioner, there are oral submissions which are made in these proceedings. I might just turn up the paragraph. Unfortunately the paragraph numbers got lost in my document. If, Commissioner, you go to paragraph 470 - - -
PN819
THE COMMISSIONER: 470?
PN820
MR SECK: Yes, 470, which is at the very last page. Commissioner, you'll see Mr Corlett just makes clear the question of coverage is in contest and he makes the submission that this is really part of a turf war between the TWU and the NUW. There are various other parts of the transcript where it's mentioned, Commissioner. I won't take the tribunal to all parts of the transcript where it's been stated that it's a contest between the parties on this particular issue. Commissioner, unless you have any further questions, those are my submission.
PN821
THE COMMISSIONER: No, thank you. Mr Joseph.
PN822
MR JOSEPH: Yes, thank you, Commissioner. Commissioner, I assume you have a copy of my client's outline.
PN823
THE COMMISSIONER: Yes.
PN824
MR JOSEPH: I'm not going to ask you to read that now obviously, or go to it in detail, but suffice to say my client would rely on it. It would appear, Commissioner, that there is acceptance by all parties of a proper construction of the relevant sections. That is for the TWU to be successful in its application it has to be able to show that it was a bargaining representative for identified individuals at the relevant time. To paraphrase section 176 subsection (3) that means being able to establish that the TWU is entitled to represent the industrial interests of the employee - and in this case we're talking about Mr Denetto and Mr Wiki - in relation to work that will be performed under the agreement.
PN825
That is ultimately the threshold that I think the TWU needs to get over in order to establish that it was a bargaining representative and then certain things flow from that. I don't understand that to be an issue. The importance of that is that as, I think my learned friend said, Mr Seck, really the issue of mobile service representatives classification is a little bit of a red herring. Unless it were to perhaps assist you, Commissioner, in informing yourself perhaps on other questions such as the proper nature of the industry or the substantial character of the business enterprise that the employer is in.
PN826
It can't assist the TWU in saying, "We cover people who drive" - whatever those MSR employees in fact drive because they don't have anybody - they don't say they have any members who fit into the description in section 176 subsection (3) who in fact drive those vehicles; they only have Mr Denetto and Mr Wiki. So that's in essence where the application will be - in effect either succeed or fail in my respectful submission.
PN827
THE COMMISSIONER: But doesn't the agreement - and that's what we're talking about here, being covered by the agreement - in relation to work that will be performed under the agreement at least potentially comprehend that Mr Denetto or Mr Wiki, if we do pull his material in, may be required. They might get a promotion and they might be required to drive an articulated vehicle.
PN828
MR JOSEPH: Lots of things might happen.
PN829
THE COMMISSIONER: Yes.
PN830
MR JOSEPH: Lots of things might happen, but that's pure speculation. That's pure speculation.
PN831
THE COMMISSIONER: But the agreement comprehends that work.
PN832
MR JOSEPH: Yes, but not by those two individuals.
PN833
THE COMMISSIONER: Not at the moment.
PN834
MR JOSEPH: No. But perhaps - - -
PN835
THE COMMISSIONER: Why would we necessarily be confined to looking at the tasks that are currently being performed by members of the TWU?
PN836
MR JOSEPH: If we take that argument a little bit further, Commissioner, that would allow a union to purport to represent people who it can't represent on the basis that at some stage in the future it might be able to represent them and use that as a basis for being a party to an agreement.
PN837
THE COMMISSIONER: Only if the agreement itself comprehends that work, surely.
PN838
MR JOSEPH: Yes, but there needs to be - the purpose in my submission of being a bargaining representative is that there is a relationship between the organisation, the person and the work to be performed by the person under the agreement; not some other work. In my submission that's the only way that these provisions can work because otherwise you would have trade unions purporting to represent and being able to gain an attachment or a status in relation to enterprise agreements or using persons as a vehicle - if you'll pardon the pun - to gain that status for whom they had no ability to represent them. I don't think the section can work any other way.
PN839
THE COMMISSIONER: I think it's talking about - I'll put this as a hypothetical - the work that's comprehended by the agreement.
PN840
MR JOSEPH: But it's the industrial interests of the employee - of the employee.
PN841
THE COMMISSIONER: But why would that be then drawn back to saying, "This only relates to the exact tasks he's doing at the time the agreement is made?"
PN842
MR JOSEPH: Is it? How else would it make sense?
PN843
THE COMMISSIONER: You would look at the agreement and say on a proper examination of the classifications and the work performed under the agreement, does that fit the relevant union's eligibility rule?
PN844
MR JOSEPH: Of the work under the agreement?
PN845
THE COMMISSIONER: Yes. Because - - -
PN846
MR JOSEPH: Not the work being performed by the person who it purports to represent and by whom it gains its status as a bargaining representative?
PN847
THE COMMISSIONER: Some of the agreements are multi-union.
PN848
MR JOSEPH: Yes.
PN849
THE COMMISSIONER: Right. So conceivably you've got to look broader than just - you've got to look at the work that the agreement covers in its entirety, don't you, and then say, "Yes, that union will have the capacity to represent people that do that work. That union might have the capacity to represent this work," and there'd be some overlap perhaps in some instances. But why would you say, "No, that union's role must be confined only to its particular members at that time in terms of what they're actually doing?"
PN850
MR JOSEPH: Because that's what the section says. I must say it may be better for me to take that on notice because it's a - and I'm not saying this at all critically, Commissioner, but I must say I understood there to be a common understanding as to how the provision works at the bar table. I think what you're putting - and I'm not suggesting that you've formed a decided view. I'm sure you haven't - but you're suggesting something a little different that I think may be worthy of a little more consideration.
PN851
THE COMMISSIONER: I'm happy to leave it with the parties and you can make some subsequent submissions if you need to on that concept.
PN852
MR JOSEPH: I'm only saying that for this reason, because this is - I mean, it's a different provision to that which has existed under previous legislation, but there were similar arrangements. There were predecessors to these provisions that allowed trade unions to become parties to what were called non-union agreements under previous - under the Workplace Relations Act in a previous guise there were section - I'm trying to remember which version of the Act I'm talking about because there's been a few - under I think the 1996 legislation there were division 2 section 170LJ agreements which were agreements between trade unions and employers.
PN853
There were also section 170LK agreements which were agreements between employees and employers much like these agreements are, but allowed for unions to become effectively a party if they had a member employed under the agreement who they could represent. I don't know that the question that you've raised has been decided previously so I might take a few minutes.
PN854
THE COMMISSIONER: If you think about it in this way, what if the agreement had in it specific capacity to cover people in a certain area that the union that was the bargaining representative had never - clearly they had no capacity to represent.
PN855
MR JOSEPH: Sorry, can you repeat that, Commissioner.
PN856
THE COMMISSIONER: Take a hypothetical example that an agreement came with a very broad set of classifications and comprehended a wide variety of work and one of those classifications or the work comprehended by one of those classifications was clearly outside of the eligibility rules of the one union that was identified as the bargaining representative and an agreement had been made with; and then having one member there - not necessarily performing the work of this other nature - that union says, "But the work that you're trying to deal with here, we have the capacity to represent the industrial interests of. Therefore we're entitled to be a bargaining representative."
PN857
So the member that they're dealing with is not working necessarily in that function at that time. It's an unusual proposition but to some extent here the MR3 classification might well be analogous to that.
PN858
MR JOSEPH: I must say to accept that interpretation, Commissioner, requires, I think, you to ignore certain words in section 176 subsection (3), particularly the words "the employee". It requires you to in effect interpret that subsection as meaning - if we talk in very simple terms - "Can the TWU in theory represent anybody who might be employed under this agreement?" That is in effect what is being substituted for what is actually said there. I don't mean to misstate what you're putting, but that appears to be the way in which you're suggesting it would be interpreted. I don't believe that the actual words used would support that interpretation.
PN859
I think there's actually a purpose to these bargaining representative provisions. One starts from a proposition where if a union has members - and let's presume that it's members that it can represent at a point in time - that union is the default bargaining representative. It doesn't need a letter to be signed by an individual member to say, "I want you to represent me," that union is the default bargaining representative for that person - for that member. It's that member that's being referred to. It's that person who's the employee in section 176 subsection (3). I think there has to be - if that is the basis on which a union becomes a bargaining representative that has to be, I think, the portal through which a union gains its status as representing persons or becoming a party to the agreement.
PN860
To suggest that you might represent that person in relation to some other work they might do at some stage in the future - I understand the point you're putting but it creates great difficulty in reconciling that with what appears to be the purpose and the structure of the provisions and the particular words used in section 176 subsection (4).
PN861
THE COMMISSIONER: It says, "The work to be performed under the agreement;" not by "the employee".
PN862
MR JOSEPH: If we read the whole thing - I do say something about this in my submission, Commissioner. I'm not trying to be argumentative but I - - -
PN863
THE COMMISSIONER: I don't mind of you are.
PN864
MR JOSEPH: I have to argue. "An employee organisation cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee" - we're still with a particular person.
PN865
THE COMMISSIONER: Yes.
PN866
MR JOSEPH: "- - - in relation to work that will be performed under the agreement." In relation to.
PN867
THE COMMISSIONER: You say by that employee?
PN868
MR JOSEPH: Yes, I believe so, Commissioner. I think the words "in relation to" if we follow that sentence through it's in relation to work to be performed by the employee under the agreement. That is not to say - I mean, I suppose it is not an impossibility that person A who is a member of union B is doing one thing today; it is not impossible that that person might change his or her roles at some stage in the future, but we're purely in the area of speculation then.
PN869
THE COMMISSIONER: But contemplate this; let us try and make a really blatant example; clerks and fitters.
PN870
MR JOSEPH: Yes.
PN871
THE COMMISSIONER: So we're going to make an industrial agreement. We don't employ any fitters, we just make it with the clerks. Everyone is working as clerks but we put the classification of fitter into our agreement.
PN872
MR JOSEPH: I understand your point. I've just helpfully had Mr Morse pass me a note. There's a decision - I don't know how much further we're going to get this afternoon.
PN873
THE COMMISSIONER: I don't think we're going to finish this.
PN874
MR JOSEPH: No, not now.
PN875
THE COMMISSIONER: We've got tomorrow.
PN876
MR JOSEPH: We will tomorrow.
PN877
THE COMMISSIONER: Yes.
PN878
MR JOSEPH: Although someone else - the other advocates may want to throw in their two bob's worth on this question now.
PN879
THE COMMISSIONER: If nothing else I might have given people something to think about.
PN880
MR JOSEPH: I think so. Can I hand up a copy of a decision. It's Inghams Enterprises Pty Ltd (2011) FWAFB 33.
PN881
THE COMMISSIONER: This is the appeal decision?
PN882
MR JOSEPH: It's the appeal decision. I'll hand it up. It's a matter that - people can have a look at it overnight, Commissioner. In essence it deals with - it's a different - - -
PN883
THE COMMISSIONER: This is a different provision.
PN884
MR JOSEPH: - - - different provision of the Act.
PN885
THE COMMISSIONER: This is a different Inghams decision to the one I though - - -
PN886
MR JOSEPH: There is actually two. There's another one. I can give you a copy of the other one too, but I haven't actually had an opportunity to have a look at the other one, Commissioner, in any detail. There is another decision.
PN887
THE COMMISSIONER: This is this most recent one where you can have an enterprise agreement with an individual now.
PN888
MR JOSEPH: What's that, the - - -
PN889
THE COMMISSIONER: That's the most recent Inhams one.
PN890
MR JOSEPH: We're looking at 8 September 2011. That's the other decision I've got copies of, but I must say I haven't looked at - it refers in some detail to that decision that I've just handed you a copy of, which was a decision about an application by the AMWU to seek a protected action ballot in relation to a site that had burnt down - an Inghams site in Melbourne that had burnt down - and that at that point in time - - -
PN891
THE COMMISSIONER: There were no members.
PN892
MR JOSEPH: Sorry?
PN893
THE COMMISSIONER: There were no members of the AMWU.
PN894
MR JOSEPH: No. One of the issues was they weren't able to show that anybody who might be employed in the future - they weren't able to - at the point in time at which they were making - - -
PN895
THE COMMISSIONER: That's a different scenario to what I'm trying to have the parties give some thought to, and that is whether the concept here is one which is talking more about the scope of the work to be performed under the agreement and whether you just have to have a member - there's no doubt you have to have a member - but are we really looking at the test being in relation to the work that will be performed under the agreement to be an examination of the totality of the work to be performed under the agreement?
PN896
MR JOSEPH: I suspect my answer tomorrow morning after some more thought will still be no.
PN897
THE COMMISSIONER: All right.
PN898
MR JOSEPH: But I note the time.
PN899
THE COMMISSIONER: Yes.
PN900
MR JOSEPH: It may be - just bear with me for a moment. If you don't mind - and I'm assuming Mr Fagir will agree with this. He'll say if he doesn't - I think I'd like the opportunity just to - I won't take long otherwise in the morning and then presumably Mr Fagir will ultimately - depending on what Mr Seck wants to do as well on this question - for him to - he can then reply. I don't think I'd be more than about 20 minutes or so in relation to the other things that I wanted to deal with. But I think I prefer to deal with all of the things together.
PN901
THE COMMISSIONER: We won't be able to finish this evening.
PN902
MR JOSEPH: No.
PN903
MR SECK: Commissioner, I would seek leave just to address the tribunal tomorrow on that narrow construction question which the commission has just raised. I won't be very long on that point but I just want to make one or two points about how one goes about properly interpreting those words. So if you - - -
PN904
THE COMMISSIONER: I'd certainly think you're entitled to an opportunity of that nature.
PN905
MR SECK: Thank you.
PN906
THE COMMISSIONER: I must admit it was something that only came to my thinking as the proceedings unfolded today and in particular as I looked at the MSR level 3 classification.
PN907
MR JOSEPH: Yes, quite.
PN908
THE COMMISSIONER: Anyway, we'll leave that all with everyone and we'll resume again at 10 am in the morning.
<ADJOURNED UNTIL THURSDAY, 22 SEPTEMBER 2011 [4.20PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
LESTER ISADORO DENETTO, SWORN PN70
EXAMINATION-IN-CHIEF BY MR FAGIR PN70
EXHIBIT #1 STATEMENT OF LESTER DENETTO
DATED 09/08/2011 PN84
CROSS-EXAMINATION BY MR SECK PN87
THE WITNESS WITHDREW PN123
THOMAS ARNOLD SNELL, SWORN PN126
EXAMINATION-IN-CHIEF BY MR FAGIR PN126
EXHIBIT #2 STATEMENT OF THOMAS SNELL DATED 05/08/2011 PN138
CROSS-EXAMINATION BY MR SECK PN139
CROSS-EXAMINATION BY MR JOSEPH PN167
THE WITNESS WITHDREW PN173
MICHAEL IAN AIRD, AFFIRMED PN176
EXAMINATION-IN-CHIEF BY MR FAGIR PN176
EXHIBIT #3 STATEMENT OF MICHAEL AIRD DATED 08/08/2011 PN199
EXHIBIT #4 COPY OF DHL WEB SITE INFORMATION PN204
EXHIBIT #5 COPY OF DEFINITION OF CONTRACT LOGISTICS DOCUMENT PN219
CROSS-EXAMINATION BY MR SECK PN222
THE WITNESS WITHDREW PN243
MICHAEL IAN AIRD, ON FORMER AFFIRMATION PN254
CROSS-EXAMINATION BY MR SECK PN254
EXHIBIT #6 TWU PROMOTIONAL FLIER PN450
CROSS-EXAMINATION BY MR JOSEPH PN465
THE WITNESS WITHDREW PN474
EXHIBIT #7 COPY OF EXTRACT FROM DEUTSCHE POST DHL ANNUAL REPORT 2010 PN482
EXHIBIT #8 STATEMENT OF KEVIN WIKI; UNSIGNED, UNDATED PN494
GRAHAM CHARLES WATTS, SWORN PN503
EXAMINATION-IN-CHIEF BY MR SECK PN503
EXHIBIT #9 STATEMENT OF GRAHAM WATTS
DATED 02/09/2011 PN515
CROSS-EXAMINATION BY MR JOSEPH PN556
CROSS-EXAMINATION BY MR FAGIR PN575
RE-EXAMINATION BY MR SECK PN633
THE WITNESS WITHDREW PN644
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