|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Fair Work Australia Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 47837-1
SENIOR DEPUTY PRESIDENT O'CALLAGHAN
RE2010/3826
s.508 - Application to restrict rights if organisation or official has misused permit rights
Application/Notification by Fair Work Australia
(RE2010/3826)
Adelaide
9.38AM, MONDAY, 2 MAY 2011
Continued from 28/04/2011
PN1322
THE DEPUTY PRESIDENT: Good morning. Mr Stanley, I've had the opportunity to look at that video. As I understand it, it falls into three parts. The first part appears to be the Lateline broadcast. The second appears to be a video taken of a loading and dispatch area. The third to be a video taken of the actual processing plant. Have I correctly summarised the three parts?
PN1323
MR STANLEY: Yes.
PN1324
THE DEPUTY PRESIDENT: I've not missed anything?
PN1325
MR STANLEY: No, that's all there is.
PN1326
THE DEPUTY PRESIDENT: Do you want to take me to any other part of that video?
PN1327
MR STANLEY: No, I'm not.
PN1328
THE DEPUTY PRESIDENT: The only question that occurred to me in the course of looking at it is that, as I understand it, a video of some type had or has been posted on the NUW web site. I'm not sure that I can reach any conclusion on the basis of the material that I've now seen as to what, if anything, was posted on the NUW site.
PN1329
MR STANLEY: That can be perhaps a matter that I can discuss with my learned friend and we'll see whether we can reach some agreement about that or I might explore that in the course of cross-examination of the union's witnesses.
PN1330
THE DEPUTY PRESIDENT: All right. Thank you. Is there anything further you want to say before closing your case?
PN1331
MR STANLEY: Yes. There's just one other document I wanted to tender. I tender a letter from the Fair Work Ombudsman to Mr Grant Onley, the national HR manager of Baiada enterprises.
PN1332
THE DEPUTY PRESIDENT: Mr Rozen, I take it this is tendered without dispute.
PN1333
MR ROZEN: I've just been handed it. I wonder if your Honour would just give me a moment to read it.
PN1334
THE DEPUTY PRESIDENT: Yes. I will read it too.
PN1335
MR ROZEN: No objection to anything.
EXHIBIT #B23 CORRESPONDENCE FROM THE FAIR WORK OMBUDSMAN DATED 21/12/2010
THE DEPUTY PRESIDENT: Is that all, Mr Stanley?
PN1337
MR STANLEY: Sorry, it is, your Honour. That's the case for the company.
PN1338
THE DEPUTY PRESIDENT: Mr Rozen.
PN1339
MR ROZEN: Thank you, your Honour. Your Honour, what I propose to do this morning is to call Mr Snelson first and then call Ms Pearce, both of whom have been requested by the company to be available for cross-examination. I had a brief discussion with my learned friend the last time we were all together and he indicated that he thought he may well not finish his examination of those witnesses this morning. Of course we're not sitting this afternoon. On that basis we have organised for Mr Richardson to be available tomorrow. I'm instructed that his flights are such that he should be available probably, at the earliest, at 1 pm tomorrow. What I was going to suggest in those circumstances, sir, depending on the timing, is that it might be appropriate, subject to your Honour, to break for an early lunch tomorrow and then to have - perhaps about midday and depending where we're up to with other witnesses and then proceed with Mr Richardson's evidence at that time, which hopefully will mean that we will conclude his evidence tomorrow.
PN1340
The position as far as the remaining two witnesses are concerned - Mr Roberts and Mr Donnelly - is that we've ascertained that they are both available to come to Adelaide and give evidence on 19 May, being the date that your Honour has organised. We would ask that your Honour set aside that day, as discussed on the previous hearing date, so that their evidence can be taken on that day here. Subject to anything that your Honour wishes to raise with me about any of those matters, I would seek - - -
PN1341
THE DEPUTY PRESIDENT: I'm in your hands, Mr Rozen.
PN1342
MR ROZEN: Of course.
PN1343
THE DEPUTY PRESIDENT: You might need to remind me about tomorrow's arrangements, depending on how we proceed.
PN1344
MR ROZEN: Certainly, your Honour. We can - - -
PN1345
THE DEPUTY PRESIDENT: I might carried away with the excitement.
PN1346
MR ROZEN: I'm sorry, your Honour?
PN1347
THE DEPUTY PRESIDENT: I may get carried away with excitement.
PN1348
MR ROZEN: We wouldn't want to do that to your Honour. It can be dangerous. I would just call Mr Snelson, your Honour.
PN1349
THE ASSOCIATE: Can you please state your full name and address.
PN1350
MR SNELSON: Tony Keith Snelson, 46 Greenhill Road, Wayville.
<TONY KEITH SNELSON, AFFIRMED [9.44AM]
<EXAMINATION-IN-CHIEF BY MR ROZEN [9.45AM]
MR ROZEN: Mr Snelson, for the record, is your full name Tony Keith Snelson?---Yes.
PN1352
Your work address is 46 Greenhill Road, Wayville, in South Australia?---Yes.
PN1353
You're employed as an organiser with the National Union of Workers?---That's right.
PN1354
You've held that position since April 2010?---Yes.
PN1355
Mr Snelson, for the purposes of this hearing, did you prepare and sign a witness statement dated 21 January 2011?---Yes.
PN1356
Do you have a copy of that with you in the witness box?---Yes.
PN1357
If you turn to the last page, is that a statement of 79 paragraphs?---Yes.
PN1358
On that last page, page 10, is that your signature that appears at the bottom of the page?---It is.
PN1359
Have you had an opportunity to read through the statement before coming along to give evidence today?---Yes.
PN1360
Are the contents of the statement true and correct?---Yes.
PN1361
Is there anything that you would wish to change at this time?---No.
PN1362
I tender the statement.
**** TONY KEITH SNELSON XN MR ROZEN
EXHIBIT #N2 STATEMENT OF MR SNELSON
MR ROZEN: There's one matter that I wish to explore briefly with you, Mr Snelson. Could you turn to page 5 of the statement, paragraph 33?---Yes.
PN1364
You have that. Do you see there that - perhaps I can place this in context. In this part of your statement you're talking about a walkthrough of Baiada premises at Wingfield on 18 October 2010 and you explain that during the process you used a small USB video recording device to record footage of production line activities. You say, "I did this to assist the NUW's investigation as to whether company employees were being properly classified under the award. In particular, I wanted a record of the number of birds killed or the number boned or filleted as line speed and the work being performed by company employees would determine their correct rate of pay under the award." That's what you say in paragraph 33 of your statement?---Yes.
PN1365
Your Honour, I want to hand to Mr Snelson a copy of the Poultry Processing Award 2010, which I've got a copy of here. I think we just have the one copy at the present time. I don't suppose your Honour has a copy of it there.
PN1366
THE DEPUTY PRESIDENT: I don't normally carry them around in my pocket, Mr Rozen.
PN1367
MR ROZEN: I'm grateful to my learned friend's instructor. Thank you.
PN1368
THE DEPUTY PRESIDENT: I take it this is a copy printed from the FWA web site, is it?
PN1369
MR ROZEN: Yes, it is, your Honour.
PN1370
**** TONY KEITH SNELSON XN MR ROZEN
THE DEPUTY PRESIDENT: I wouldn't normally mark those sort of documents but you can proceed.
PN1371
MR ROZEN: Thank you, your Honour.
PN1372
Mr Snelson, could you please turn to page 27, schedule B?---Yes.
PN1373
MR STANLEY: That's got to be different from - - -
PN1374
MR ROZEN: Different page numbering?
PN1375
MR STANLEY: Yes.
PN1376
MR ROZEN: May I ask your Honour to locate schedule B, without being too concerned about the pagination.
PN1377
THE DEPUTY PRESIDENT: Just bear with me for a moment.
PN1378
MR ROZEN: Certainly, your Honour.
PN1379
MR STANLEY: 28.
PN1380
THE DEPUTY PRESIDENT: Yes, I have schedule B.
PN1381
MR ROZEN: Do you have that, Mr Snelson?---Yes, that's right.
PN1382
Are you familiar with the classifications in schedule B?---I am, yes.
PN1383
Were you familiar with them prior to undertaking an inspection on 18 October?
---Yes.
**** TONY KEITH SNELSON XN MR ROZEN
PN1384
Are you able to assist his Honour with an explanation of what it is you were seeking to film by reference to the classification structure
set out in schedule B?
---Yes, certainly. Before the entry into the factory we'd had - or I personally had many conversations with workers outside who were
talking about the work that they performed that they were doing. Some of them were talking about their pay in relation to those
duties; others were talking about not being sure how they were paid and talking about being paid per bird or by the line speed.
So the reason for taking the film was so we could have evidence of the work of each of the stations around the factory, what duties
were being performed, what tasks the workers were carrying out, which would then allow us to align those positions to positions in
the award and to check their rates of pay. In addition, because some workers were saying that they were being paid by bird or by
the line speed, we wanted to get an idea of the line speed. Although line speed isn't specifically a provision of the award, it
would help us to assess what workers have been paid previously.
PN1385
Is the nature of the classification structure in schedule B such that higher skill levels and greater responsibility place an employee into the various levels that we see identified there, levels 1 through to 6?---Yes, it's pretty common for these awards that the classification level rises with the skill performed and the responsibility and supervision that the worker carries out.
PN1386
If I could ask you about, please, Mr Snelson - actually before I do that, your Honour, what I'm proposing to do is to tender the affidavit that Mr Snelson made for the purposes of the hearing before Hampton C. I don't know if strictly I need to do that or if your Honour can be taken to be aware of that material. I'm quite content to tender it and have it so that it's on the record here.
PN1387
THE DEPUTY PRESIDENT: I haven't looked at the proceedings before Hampton C.
**** TONY KEITH SNELSON XN MR ROZEN
PN1388
MR ROZEN: I think that answers my question then, your Honour.
PN1389
THE DEPUTY PRESIDENT: At this stage I'm not aware of any request that I do so.
PN1390
MR ROZEN: No, there certainly hasn't been one from our side, your Honour. I just wasn't sure what the position was.
PN1391
THE DEPUTY PRESIDENT: Yes.
PN1392
MR ROZEN: Could you have a look at this document, please, Mr Snelson. We have a copy for your Honour and a copy for our learned friends. Mr Snelson, are you able to identify this document, please?---Yes. Yes, it was the affidavit I made prior to that hearing before Hampton C.
PN1393
It's an affidavit that you swore on 12 October 2010?---Yes.
PN1394
Have you had an opportunity to read through this affidavit since you made it, before giving evidence here today?---Yes, I have.
PN1395
Are the contents of this affidavit true and correct?---Yes.
PN1396
I tender that, your Honour.
PN1397
MR STANLEY: No objection.
EXHIBIT #N3 AFFIDAVIT OF MR SNELSON DATED 12/10/2010
MR ROZEN: Thanks, Mr Snelson. If you could just stay there, please. I understand some questions will be asked of you by Mr Stanley.
**** TONY KEITH SNELSON XN MR ROZEN
<CROSS-EXAMINATION BY MR STANLEY [9.53AM]
MR STANLEY: Mr Snelson, you've been an organiser with the NUW since April of last year. Is that correct?---That's right.
PN1400
When did you commence organising at Baiada?---Since I started. I think it's 10 June.
PN1401
THE DEPUTY PRESIDENT: I'm sorry, Mr Snelson, you might need to either speak up or turn around - - -?---Sorry.
PN1402
- - - a little bit; I couldn't hear you?---I will try to speak - I've got the flu at the moment so I'm struggling. I think it's 10 June, since I started.
PN1403
MR STANLEY: Do you have your statement in front of you?---Yes.
PN1404
Could you turn to paragraph 2. You refer to that - - -?---It was July, sorry.
PN1405
Commenced in about July?---Yes.
PN1406
What is it, 10 June or - - -?---No, it's July.
PN1407
What made you think it was 10 June?---I hadn't looked at that date on the statement and, as I've just said, I'm a bit fuzzy. I've got the flu and I'm on medication. So I will check my statement.
PN1408
It's a pretty specific date, 10 June, isn't it? What was it that made you think it was 10 June?---I don't know. It's just a date that popped into my head. There's no reason for it. Nothing specifically happened on 10 June.
PN1409
**** TONY KEITH SNELSON XXN MR STANLEY QC
You say in the second paragraph of your witness statement that's now exhibit N2 that you were directed to serve as an organiser responsible for the Adelaide Poultry site in about July 2010. Who directed you to do so?---My lead organiser, Dave Garland.
PN1410
Who had been the organiser previous to that?---I think it was actually on the rounds for Tim Palmer but I'm not absolutely sure.
PN1411
So there was no handover to you. You weren't directed to go and talk to the previous organiser about what was happening there?---We were a relatively new team. Two of the team of four came in only as of April the previous year - five, sorry. One of the team came in later than that. So we were a reasonably new team. So we talked about work sites as a group regularly.
PN1412
My question was: were you directed to talk to the previous organiser by way of handover or something of that kind?---Well, no. As I said, there wasn't any specific handover but we'd been operating as a team where conversations about all our workplaces - every workplace on our book - had been common practice for about the past four to five months.
PN1413
What are you telling his Honour; that there was nobody specifically allocated to the Adelaide Poultry site as an organiser prior to you being directed to serve in that capacity?---I'm telling you that there was probably someone who was allocated that site but I don't think that there had been a lot of attendance at that site, not that I can recall from my being at the NUW.
PN1414
Might it be that you were directed to serve in this capacity at some point after 20 July?---No, I won't say that. It was earlier.
PN1415
How do you know that?---Because I recall it was earlier in July when we were going through a process of reassigning our workplace. I wasn't only assigned Adelaide Poultry; I was assigned Inghams, Gourmet Chickens, Aldinga Turkeys. I took over the role as organiser for the poultry industry.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1416
When you were directed to serve in this capacity, what did you do about undertaking your duties as the organiser responsible for the Adelaide Poultry site?---I went through the files of Adelaide Poultry and those others that I mentioned. I looked at what activity had occurred, referred to our national system as to what records were on there and then started, as part of the team, to work out what that entailed as to what would be entailed in relation to work site visits - whether we'd have right of entry. So it was planning for going out to that work site.
PN1417
What contact did you have with the company?---Up to then, none.
PN1418
After you commenced serving in your capacity as the organiser at the Adelaide Poultry site, when did you first make contact with the company?---I think that was when Mabior had been terminated or was about to be terminated.
PN1419
So in the middle of September?---Yes.
PN1420
So from sometime prior to 20 July, when you say you were appointed, until the middle of September you were the organiser for the Adelaide Poultry site and you had no contact with the company?---No.
PN1421
Do I take it then that prior to the middle of September there had been no complaints brought to your attention by your members at the Adelaide site of any difficulties that they were having as far as underpayment of wages was concerned?---We'd had some conversations with workers over the phone who were making general inquiries. Prior to Anyuon Mabior's dismissal, I spoke to some workers in September.
PN1422
How did you do that?---Personally, face to face with them.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1423
Where?---In the office.
PN1424
How did they come to be in the office?---Well, either as a result of their phone conversation or as a result of some other conversation they came in and saw me.
PN1425
When they came and saw you, what did they say to you?---They told me about concerns they may or may not have had.
PN1426
Presumably they didn't tell you about concerns they did not have?---Well, that's just a term of speech. They told me about concerns they had then, if you want to put it that way.
PN1427
What concerns did they tell you they had?---In relation to wages in relation to what they had been paid.
PN1428
What did you do about those concerns that they expressed to you?---Gave them advice as to what they could do and then said that we would consider that the next day. In relation to any member who approaches us, our first advice to them is that they need to raise it with their employer.
PN1429
Did you follow up with them whether they raised it with their employer?---I think that lead into - - -
PN1430
Did you follow up with them whether they raised it with their employer?---Some of them.
PN1431
What did they tell you?---No.
PN1432
They hadn't raised it with their employer?---No, they were very uncomfortable to do so.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1433
Did you then raise it with the employer?---What happened next was that Anyuon was dismissed and Anyuon's case took precedence.
PN1434
But you'd done nothing prior to the dismissal of Mr Mabior about raising any of these concerns you say that employees at Adelaide Poultry had raised with you about underpayment of wages?---I'd spoken to the workers concerned and gave them advice as to what they could do and, as I said then, the time line was that Anyuon Mabior's case took over.
PN1435
What was Liz Pearce's role in relation to organising at Adelaide Poultry?---Liz is an organiser with the NUW in South Australia, the same as I am. Her role with Adelaide Poultry was very minimal. She was brought in to assist me with the right of entry.
PN1436
I understand from what you've said earlier that you would sit around as the organising team and you'd - - -?---Yes.
PN1437
- - - discuss what you were doing. Before Mr Mabior's case came up, did you discuss with Ms Pearce these complaints that you'd been receiving from Adelaide Poultry employees about underpayment of wages?---It would have been discussed in general terms in meetings, yes, but not with Liz specifically; it would have been with the whole group.
PN1438
Including her?---Yes.
PN1439
What did you discuss should be done about that situation?---I don't think we discussed what would be done. I think it was just general discussion about what was going on. As the organiser, what steps would be taken would come down to me in relation to those individuals.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1440
There was insufficient concern prior to Mr Mabior's dismissal for you to take any action with the company in relation to these complaints?---We have a large number of work sites on our books. Because of the size of our workforce and our team who unfortunately are put in that same circumstance where they get service from the union when there is an urgent need for them to get that service, we can't unfortunately service all our workplaces where there are few members. We don't have the resources.
PN1441
You say that you have limited resources?---We certainly do.
PN1442
And that limits your capacity to service sites at which you have a limited number of members?---Certainly.
PN1443
Prior to Mr Mabior's dismissal, those limited resources, what, had prevented you from getting in contact with the company about the complaints that you'd been receiving regarding underpayment?---There hadn't been an urgent need to. That would happen later when and if I'd spoken to those workers, but at that stage there wasn't an urgent need to.
PN1444
Before today, have you had the occasion to discuss your evidence with Ms Pearce?---Yes.
PN1445
What have you discussed with her?---Well, we've discussed the contents of what's in there over several meetings since Anyuon Mabior's dismissal.
PN1446
You've had discussions as to what happened on various occasions?---Some occasions. I wouldn't say we've had discussions about what happened on all occasions.
PN1447
**** TONY KEITH SNELSON XXN MR STANLEY QC
But you've had discussions with her about what happened when you were exercising the right of entry on 18 and 19 October last year?---Some general discussion; not any great detail, no.
PN1448
You understood you were going to be giving evidence in this matter?---Yes.
PN1449
You understood that the events surrounding the exercise of the rights of entry on 18 and 19 October were very important?---Yes.
PN1450
Didn't you discuss with her what happened on those dates concerning the exercise by the two of you of rights of entry to ensure that the two of you were saying the same thing?---I don't think that's factual. I think the fact is that we both sat down and wrote our statements separately and then presented those statements as we were asked to.
PN1451
Before you sat down and wrote out your statement, did you discuss with her what had occurred on those two occasions - on those two dates, rather?---As I said, during our normal meetings - and we meet as a team twice a week - we have discussed what occurred during that right of entry and what work needed to occur following that right of entry. It's normal planning and process for our operations.
PN1452
Are you telling his Honour that apart from those normal exchanges that occur in relation to organising activities where you might meet as a team and talk about what activities that you've been undertaking as an organiser, you and Ms Pearce have not sat down and compared notes for the purposes of the evidence that you're going to give in this matter about the events of 18 and 19 October last year?---As I've said, the only conversation we have has been in a general sense. I would not even know now and would swear that I don't the contents of Liz Pearce's statement.
PN1453
**** TONY KEITH SNELSON XXN MR STANLEY QC
Is it your evidence that she hasn't discussed the matter with you for the purposes of preparing her statement?---As I've said, the only conversation we have has been during team meetings about what needs to be done at that work site or general conversation about what occurred.
PN1454
Can I take you to paragraph 3 of your witness statement, which is exhibit N2?
---Yes.
PN1455
You see there you refer to the company dismissing Mr Mabior on 23 September last year?---Yes.
PN1456
Can I suggest to you it was in fact 16 September?---Yes, you're right.
PN1457
Can I suggest that after 16 September last year you visited the work site at Adelaide Poultry over the course of the four weeks that followed almost on a daily basis?---That would probably be correct.
PN1458
You did so in the presence of other union organisers?---Yes.
PN1459
Can I suggest to you that over that period of time there were frequently four or five union organisers present at the work site?---At times, yes.
PN1460
And that that occurred on a regular basis over the course of those four weeks?
---I don't know whether we had four or five there over four weeks but there was numbers more than two maybe.
PN1461
Can I suggest to you that the limited resources that the union had available didn't seem to be a problem from 16 September onwards?---Well, that's true because the importance of Adelaide Poultry had risen. When workers are unfairly treated and dismissed, the union has a responsibility to respond to that need of its members.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1462
Can I suggest to you, Mr Snelson, that every time a union member is dismissed, even in circumstances where it's considered by the union to be unfair, the union doesn't devote that level of resources to that member's case?---I think you may be generalising. Since I've been with the NUW, we certainly have.
PN1463
At the meeting at which Mr Mabior was dismissed by the company you were present?---Yes.
PN1464
I suggest to you that at that meeting you said to Mr Hu, after he told Mr Mabior that he was to be dismissed, that the union would conduct a campaign?---No, that's not true.
PN1465
I suggest to you that you told Mr Hu that the union would target the company's customers?---That's not true, no.
PN1466
The fact is that following that meeting the union did conduct a campaign against the company, didn't it?---Following that meeting what occurred was that union officials went out to the work site to inform other workers at that work site of what had occurred and to seek support from those workers for their colleague.
PN1467
I put the question to you again. After that meeting, the fact is that the union did conduct a campaign against the company, didn't it?---I think you have to define what do you mean by "campaign". If you are saying did we go out there and attempt to recruit other workers at the workplace to support their colleague, then yes, we did.
PN1468
You have some difficulty with the definition of "campaign", do you, Mr Snelson?
---Campaign is such a broadly used word. Campaign basically means go through a process, a series of stages to go from the point where
you are now to the point where you want to be at the end of that process.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1469
You feel uncomfortable about me referring to a campaign being conducted, do you?---No, like I said, if you want to call that a campaign, I don't have a problem with that but the intention was only on this termination was to go out and recruit support from his colleagues to support him in his case. That is a campaign. A campaign is about organising workers to put pressure on their employer around the circumstance of a termination.
PN1470
Could Mr Snelson be shown this document, please. On 13 April this year you gave evidence in Fair Work Australia in the proceedings brought by Mr Mabior under section 394 of the Fair Work Act concerning his dismissal?---Yes.
PN1471
Would your Honour just excuse me for a moment. Sorry, your Honour, can I just ask for a five-minute adjournment just while I sort myself out?
PN1472
THE DEPUTY PRESIDENT: Yes, I will adjourn the matter briefly.
PN1473
Mr Snelson, with the exception of any discussion you might have with Mr Rozen, please don't talk about the matter with anyone else during this time. I will adjourn the matter for a short time.
<SHORT ADJOURNMENT [10.16AM]
<RESUMED [10.24AM]
PN1474
MR STANLEY: Thank you, your Honour.
PN1475
Mr Snelson, I apologise. I might have suggested to you you gave evidence on 13 April this year and in fact it was 12 April. I want to ask you some questions about your evidence. Unfortunately the pages of the transcript are not numbered but each question has its own distinctive number. If you look to the first page, you will see at the top of the page there is a number in the left-hand corner, PN2898. Do you see that?---Yes.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1476
Then every question thereafter has its own distinctive number which follows?
---Yes.
PN1477
Can I ask you to turn some way in to a question which is PN3213. You will see it at the top of a page?---Yes.
PN1478
Do you have that?---Yes.
PN1479
Do you see that this is a transcript of part of the evidence that you gave?---Yes.
PN1480
Do you see you're being asked questions by Mr Short - - -?---Yes.
PN1481
- - - who was counsel for the company in that matter?---Yes.
PN1482
You will see at the top of the page Mr Short put this question to you, "So would you agree that following Mr Mabior's dismissal the NUW organised a campaign at the site?" Your answer was, "Following Anyuon's dismissal, the NUW went to speak to workers outside of Adelaide Poultry about Anyuon's dismissal and support for Anyuon." Do you see that?---Yes.
PN1483
Then he asked, "Would you agree that the NUW organised a campaign?" You answered, "No, I wouldn't." Do you see that?---Yes.
PN1484
Can I take you to your witness statement, which is exhibit N2. Do you still have that? Can I take you to paragraph 4?---Yes.
PN1485
Do you see in paragraph 4 of your witness statement, exhibit N2, you say, "Following that event" - that event being the dismissal of Mr Mabior - "the NUW organised a campaign at the site"?---Yes.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1486
You agree that that's in your statement?---Yes.
PN1487
You accept, don't you, that that's a statement that was prepared by you in January of this year?---Yes.
PN1488
Some three months before you gave evidence in Fair Work Australia in relation to Mr Mabior's dismissal?---Yes.
PN1489
You accept, don't you, that there is a glaring inconsistency between the evidence that you gave to Fair Work Australia and what you're saying in paragraph 4 of the witness statement that's now been tendered in this matter?
PN1490
MR ROZEN: Your Honour, I object to that question. It's not fair to the witness because my learned friend should, in fairness to him, draw his attention to the following paragraph in the transcript, which is 3215.
PN1491
THE DEPUTY PRESIDENT: Mr Stanley.
PN1492
MR STANLEY: I'm happy for the witness to have regard to PN3215.
PN1493
Can you go back to - - -
PN1494
THE DEPUTY PRESIDENT: Perhaps could you rephrase the question in that context.
PN1495
MR STANLEY: Can I take you back then to that page we were looking at in the transcript, Mr Snelson?---Yes.
PN1496
Do you have that page?---Yes.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1497
I took you to the answers you gave in 3213 and 3214?---Mm'hm.
PN1498
Then in 3215 the question was put, "That's not the language you would use?" and your answer is, "I would say what happened was that we organised to speak to workers about Anyone's dismissal and support and while we were in the process of talking to workers they raised numerous other issues - if you want me to go through those issues, I'm quite happy to do so - and following those issues being raised, we then embarked on what you call a campaign"?---Yes.
PN1499
I suggest to you that there is an inconsistency between the evidence that you give in the hearing in Fair Work Australia concerning Mr Mabior's dismissal and the evidence that you're giving in this matter as to whether a campaign was organised following Mr Mabior's dismissal?---My response to that is similar to the conversation I had with Mr Short and as I said to you earlier, a campaign is a series of events that starts off at where we are and leads to where we want to be. Every time we have enterprise bargaining in the workplace we campaign around that bargaining agreement. Every time a worker is mistreated in the workplace, we campaign around that worker's mistreatment. In relation to Mr Mabior and my statement, the campaign referred to a campaign where we go to Adelaide Poultry and we would seek - or we would have conversation with those workers and seek the assistance of those workers in getting Mr Mabior reinstated. So that's the term about campaign. Mr Short was alluding to the fact that we went out with the intention to lodge some sort of campaign against Adelaide Poultry at that stage, which is incorrect. When we had the campaign against Adelaide Poultry, it was only after we'd had numerous - I don't know how many but in the high numbers - of statements stating that workers were being mistreated and weren't being paid correctly.
PN1500
I suggest to you that the position is that the day following Mr Mabior's dismissal you attended at the premises of Adelaide Poultry at Wingfield in company with another three organisers from the union?---Yes.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1501
That was part of a campaign, wasn't it?---It was a campaign to seek support for Anyuon Mabior, yes.
PN1502
So that campaign took place immediately upon Mr Mabior's dismissal?---Yes.
PN1503
It didn't have to await you receiving numerous complaints from employees of Adelaide Poultry that they were being underpaid?---Yes.
PN1504
You accept that?---Yes.
PN1505
So what you said earlier about the campaign only starting after you'd received numerous complaints isn't true?---Well, I suggest it is true.
PN1506
It cannot be the case, Mr Snelson, can it, that the campaign didn't commence until you'd received numerous complaints from employees sometime after Mr Mabior's dismissal? That campaign was already underway from the moment he'd been dismissed?---I'm not sure what you're asking but I'll say again what occurred was when Mr Mabior was dismissed myself and three other organisers went to Adelaide Poultry to campaign - if that's the word that we're using - which meant that we would talk to other workers from Adelaide Poultry, we would seek their views, we would seek their assistance in how we could resolve Anyuon Mabior's dismissal by them engaging in some sort of action with us. In relation to ongoing campaigns about the company and their ongoing treatment of workers other than Anyuon Mabior, that did not occur until after we'd actually been speaking to workers for several weeks.
PN1507
When did that campaign start?---After several weeks of us speaking to workers, where we were outside campaigning about Anyuon and his dismissal.
PN1508
**** TONY KEITH SNELSON XXN MR STANLEY QC
How long did the campaign in relation to Mr Mabior last?---I think that campaign is still going on because Mr Mabior is still going through the process.
PN1509
So, what, the two campaigns just merged into each other, did they?---Well, again, I think it's the use of that word "campaign". Campaign is a process of action for us to reach a result.
PN1510
I will come back to where we started on this. I suggest to you that at the meeting at the company on 16 September 2010 when Mr Mabior was dismissed you said to Mr Hu that the union would start a campaign?---That is incorrect.
PN1511
So it's coincidental that the next day a campaign started, is it?---A campaign in support of Anyuon Mabior, yes, to get him reinstatement.
PN1512
And you deny that you told Mr Hu that you would start a campaign?---I absolutely deny that I told Mr Hu that we would start the campaign.
PN1513
The fact that a campaign started the next day was purely coincidental?---Well, as I said, the use of the word "campaign" is something that you will hear every day in every union office around the country. It's a process of achieving a goal. We wanted Anyuon Mabior to be reinstated so, yes, there was a campaign to recruit other workers to assist in that process.
PN1514
But you didn't actually threaten Mr Hu with a campaign?---I certainly did not.
PN1515
You say you didn't threaten that the union would target the company's customers?---I certainly did not.
PN1516
It was just a coincidence that that's what subsequently happened.
PN1517
**** TONY KEITH SNELSON XXN MR STANLEY QC
MR ROZEN: Your Honour, I think he's been asked this question now three times. He's answered the question, in my submission.
PN1518
THE DEPUTY PRESIDENT: Mr Stanley.
PN1519
MR STANLEY: Your Honour, it's the second time I've asked this question and I didn't get an answer the first time.
PN1520
THE DEPUTY PRESIDENT: Yes, I will allow the second repeat.
PN1521
MR ROZEN: If your Honour pleases.
PN1522
MR STANLEY: So you say it was just a coincidence that subsequent to this meeting in which you say you didn't threaten Mr Hu that the union would target the company's customers, that's what happened?---I said to Mr Hu there were several options for us. Those options were for us to take an unfair dismissal, to take action under general protections, to talk to interested workers at the workplace and to talk to interested workers outside the workplace.
PN1523
I suggest to you, Mr Snelson, that before you saw Mr Hu that day you were aware that the union had planned a campaign against the company?---You can put it to me but it's not correct.
PN1524
I suggest to you that before you attended that meeting with Mr Hu on this occasion, you knew that that campaign would include the union targeting the company's customers?---Again, that's incorrect.
PN1525
In paragraph 4 of your witness statement, exhibit N2, you say that, "Following the dismissal of Mr Mabior the union organised a campaign at the site"?---Yes.
PN1526
**** TONY KEITH SNELSON XXN MR STANLEY QC
You were significantly involved in organising that campaign?---Yes.
PN1527
Whose decision was it to organise this campaign?---The decision of any actions of union officials is always the senior - in the sort of general term - the senior official in the branch, which is the lead organiser, Dave Garland, but decisions are made by general branch secretary, Sam Roberts.
PN1528
I come back to my question and ask you to be specific rather than general. In this instance, whose decision was it to organise this campaign?---It would have been Dave Garland.
PN1529
THE DEPUTY PRESIDENT: I'm sorry, Mr Snelson, I didn't - - -?---Dave Garland.
PN1530
Thank you.
PN1531
MR STANLEY: How did Mr Garland communicate that decision to you?
---Again, following Anyone's termination we met as a team and discussed what action we would take next. That action was to go to
the work site and to try and seek some support from workers at the workplace to get Anyuon reinstated.
PN1532
When did that meeting take place?---Immediately after Anyuon was dismissed.
PN1533
The day before Mr Mabior's dismissal weren't you present at the work site of Swires?---I certainly was, yes.
PN1534
You understand that Swires is a company that has a business relationship with Baiada?---Yes.
PN1535
And more particularly with Adelaide Poultry?---Yes.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1536
You went there, I suggest, and spoke to members of the NUW at Swires about the situation at Adelaide Poultry?---About Mabior, yes.
PN1537
At that stage Mr Mabior hadn't been dismissed?---That's right.
PN1538
I suggest to you that you also spoke on that occasion with management at Swires?---I can't recall speaking to management actually; I don't think I did.
PN1539
Didn't you suggest to management that they should re-examine their business relationship with Adelaide Poultry?---I can't recall that conversation occurring. I don't think I spoke to management. This was a lunchtime meeting with members.
PN1540
How was it that you were talking to the employees of Swires about the position of Mr Mabior and what was happening at Adelaide Poultry on 15 September if no decision had been taken to organise a campaign around Mr Mabior's dismissal until following his dismissal, which occurred the next day?---I think the reason for me being at the meeting on the 16th was the fact that Mabior was already concerned that he had been and was unclear about that. You know, the only reason the meeting on the 16th was occasioning was because I wanted to be there. So the conversation about what was happening with Mabior was on the basis that he believed he was to be dismissed or had been dismissed. The conversation with workers was about highlighting alleged injustice, mistreatment and racial discrimination, which is something that we do on a regular basis. At that meeting I also spoke about our Ark Tribe and I think I also spoke about another workplace where we were having similar difficulties.
PN1541
What was the purpose of going to Swires in the first place on that day?---It was a regular visit.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1542
See, I suggest to you that you were attending at Swires that day again for the purpose of the campaign that had already been decided upon by the union against Baiada?---Swires is one of our highest density workplaces in South Australia. It was a regular visit that was pre-arranged and at those regular visits we talk about current issues. Anyuon Mabior was a current issue.
PN1543
Could I take you to paragraph 7 of your witness statement, exhibit N2. Just so you understand the context of this paragraph, this is your evidence concerning the preparations that were made to bring an application to Fair Work Australia pursuant to section 519, seeking a certificate exempting the union from having to give notice of the exercise of its right of entry?---Yes.
PN1544
You understand that. You say in paragraph 7 that, "Roberts, Pearce and I were concerned that if the company had prior notice of our intention to exercise right of entry at the site it would destroy relevant records and victimise workers at the site who had raised these matters with me and other NUW organisers"?---Yes.
PN1545
What evidence did you and Pearce and Roberts have that if the company had prior notice of your intention to exercise right of entry it would destroy relevant records?
PN1546
MR ROZEN: Your Honour, I wonder what the relevance of this is to this hearing. It could take us a long way off the track.
PN1547
THE DEPUTY PRESIDENT: Mr Stanley.
PN1548
MR STANLEY: Your Honour, firstly, it's in this witness's witness statement. The contents of the witness statement is not determined by my client but by the union. The union seeks to put these matters before the tribunal. So the starting point is that I'm entitled to test them. Secondly, it's clearly a matter that goes to the credit of this witness.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1549
THE DEPUTY PRESIDENT: Yes, I will allow the question?---In relation to those comments, firstly Anyuon Mabior's case was based around some evidence that had been allegedly destroyed.
PN1550
MR STANLEY: What was that evidence?---It was evidence of some printed material and a file on a computer on site.
PN1551
What was the evidence that had been destroyed?---That it was no longer in existence.
PN1552
Whose evidence was it?---It was on our member's evidence.
PN1553
So apart from Mr Mabior's evidence, what other evidence was there?---We'd heard statements from workers in relation to some WorkCover issues; that they hadn't been processed or information had gone missing. I think it was more in relation to the second part of that issue, where workers may have been coerced or harassed in relation to our right of entry prior to us being involved. So it was a mixture of those two things.
PN1554
Can the witness be shown exhibit N3, please. Do you see this document - - -?
---I don't know what N3 is, sorry. They're not marked so - - -
PN1555
Exhibit N3 is the affidavit that you prepared - - -?---My statement - - -
PN1556
- - - Mr Snelson, at 12 October last year. Do you have that?---Yes.
PN1557
This was an affidavit of yourself that was prepared for the purpose of bringing the application pursuant to section 519, seeking an exemption from the notice requirements?---Yes.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1558
If I take you to page 3, do you in paragraph 17 you say you're very concerned that advanced notice of the entry given by an entry notice may result in the destruction or alteration of employee records?---Yes.
PN1559
That affidavit was sworn by you to support the granting of the exemption certificate, wasn't it?---Yes.
PN1560
Where in that affidavit do you refer to these allegations by Mr Mabior of the alteration of records?---I don't.
PN1561
Why didn't you refer to that allegation?---Because it was said in that statement in a general sense. I didn't think it was necessary to mention one incident.
PN1562
You understood that the granting of an exemption certificate pursuant to section 519 was something unusual?---The process of granting of that is outside my knowledge unfortunately. I was asked to prepare an affidavit and the rest was up to the legal team.
PN1563
You understood that the legal team was looking for evidence that would support the granting of an exemption?---Yes.
PN1564
And that relevantly was evidence that the company might have been destroying or altering or had destroyed or altered records in the past?---Yes, but with all due respect if there was any concerns around that, wouldn't it have been asked at the time?
PN1565
I don't understand that answer, Mr Snelson. You understood that the legal team was looking for evidence that in the past the company may have destroyed or altered records?---I made an affidavit. I put in that affidavit what I thought was required. It hasn't been challenged at any stage so until now I didn't know the information in there wasn't adequate.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1566
You didn't make any reference in that affidavit to the matters concerning Mr Mabior that you've just referred to in your evidence now, do you?---As I said in the affidavit, I made the statements that I believed was required. I wasn't told otherwise.
PN1567
You didn't make any reference to these matters concerning Mr Mabior?---As you can see, it's not in there. So obviously I didn't.
PN1568
You would have made reference, I suggest to you, to those matters if you thought that they were relevant to the application to obtain an exemption certificate?---I made the application stating what I thought was necessary.
PN1569
You didn't think it was necessary to refer to these matters concerning Mr Mabior?---I can't say anything, other than I made the affidavit based on what I believed was necessary.
PN1570
See, you said a moment ago that what you were really concerned about wasn't the destruction of relevant records but the victimisation of workers.
PN1571
MR ROZEN: Your Honour, he didn't say that at all. What he said was that it was a mixture of those two things.
PN1572
THE DEPUTY PRESIDENT: My recollection is the witness referred to a mixture.
PN1573
MR STANLEY: I beg your pardon, your Honour?
PN1574
THE DEPUTY PRESIDENT: My recollection is the witness referred to a mixture.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1575
MR STANLEY: I don't disagree with that, your Honour. My recollection is that the witness suggested that it was predominantly the question of victimisation of workers.
PN1576
MR ROZEN: That's not my recollection.
PN1577
MR STANLEY: The transcript will - - -
PN1578
THE DEPUTY PRESIDENT: The transcript will be a good memory check for us all.
PN1579
MR STANLEY: Is that the position, Mr Snelson?
PN1580
THE DEPUTY PRESIDENT: I might get you to just phrase the question more completely to the witness.
PN1581
MR STANLEY: Is it your evidence that your predominant concern was victimisation of workers rather than the destruction of records?---No, I think it was both.
PN1582
You don't make any reference in your affidavit to the risk of victimisation of workers, do you?---Sorry, I will have to read this to make sure that you - - -
PN1583
Yes, take your time?---No.
PN1584
So notwithstanding there was a mixture of your concern about destruction of records and the victimisation of workers, you don't refer at all to the victimisation of workers in this affidavit?---No.
PN1585
**** TONY KEITH SNELSON XXN MR STANLEY QC
I suggest to you in fact you didn't have any evidence that in the past the company had destroyed relevant records?---I had information I was told by one of our members that I have some considerable belief in.
PN1586
Is the extent of that evidence the statements made to you by Mr Mabior?---And some statements from other workers that, you know, they have had problems in relation to records around WorkCover and other things.
PN1587
What problems?---Well, in relation to getting copies of documents and whatever else, and documents going missing.
PN1588
What was the specific allegation?---General statements, so I can't give you specifics.
PN1589
Where is any reference to that in your affidavit?---There's not. As I said, what's in the affidavit is what I believe was necessary.
PN1590
You prepared this affidavit to support not only the grant of an exemption certificate but also an order allowing the union to inspect
non-member records?
---Yes.
PN1591
You understood that was the purpose of the affidavit?---Yes.
PN1592
In that regard you say in paragraph 10, referring to a pay slip that you will see from paragraph 8 is exhibit A to your affidavit - - -?---Yes.
PN1593
- - - that that showed that the relevant employee was being paid 25 cents an hour less than he or she should have been paid?---Yes.
PN1594
You know now that's wrong, don't you?---I haven't looked at that since, to tell the truth. I haven't looked at that exhibit.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1595
I suggest to you that the evidence from the pay slip that the employee was being paid an hourly rate of 15.58 is evidence that the employee was being correctly paid in accordance with the award?---My role was to gather information from workers on what we believed were alleged underpayments of wages or incorrect rates of pay or incorrect classifications. Once I gathered that information, the processing of that information was passed on to our industrial team to do that work. It's not my job.
PN1596
You're the one who's swearing the affidavit - - -?---Yes.
PN1597
- - - Mr Snelson, weren't you?---On the basis that the belief was those people were being underpaid, yes.
PN1598
How did you form that belief?---On the basis that we believed that they should have been more highly paid or higher classified.
PN1599
How did you form that belief?---By looking at the wage slips, talking to the employees about the work that they perform and the hours that they do and comparing that to the award and what they should be paid.
PN1600
If you'd done that, surely you would have seen that the relevant rate was 15.58 an hour, I suggest?---Well, our view at the time was that the worker was being underpaid.
PN1601
You say "our view". Was it your view? You were swearing the affidavit, Mr Snelson?---My view.
PN1602
What was the basis of your view?---That on the information that I had there and the discussion with the worker was that they were being underpaid.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1603
Is this the position: you didn't understand the award that you were supposedly responsible for?---I certainly do understand the award.
PN1604
You then say in paragraph 10 that, "There was no identification of the PAYG withholding of tax or any other deductions"?---Yes.
PN1605
Just look at exhibit A. That's the pay slip that you're referring to, isn't it?---I don't have "exhibit A" marked on anything actually.
PN1606
I beg your pardon?---I don't have "exhibit A" marked on anything. Sorry, yes. Yes. I've got it, yes.
PN1607
Can I ask you to have a look at this. I'm going to provide you with a bundle of documents if I could, please, Mr Snelson. What I've provided to you, Mr Snelson, is a copy of the documents that have been discovered in this matter by the NUW have been documents in the union's possession relevant to this matter?---Yes.
PN1608
Do you understand?---Yes.
PN1609
Can I ask you if you still have in front of you annexure A to your affidavit - - -?
---Yes.
PN1610
- - - which is exhibit N3? You will see that there's a yellow flag at the top of one of the pages in the bundle of documents?---This one?
PN1611
Yes?---Yes.
PN1612
Can I just ask you to turn to that?---Yes.
PN1613
**** TONY KEITH SNELSON XXN MR STANLEY QC
Could I invite you to compare that document with annexure A?---Yes.
PN1614
We can't see the name of the employee because that's been redacted - blacked out - but I suggest to you that annexure A and the flagged document that I've just directed your attention to are the same document?---The top part, yes.
PN1615
Your Honour, I would invite the union, if there's any question as to whether it's the same document, to provide an unredacted copy of the document to your Honour.
PN1616
THE DEPUTY PRESIDENT: I haven't yet managed to locate the document to which you referred the witness. My documents don't have the benefit of a yellow slip.
PN1617
MR STANLEY: No. Your Honour, I note the bundle came to you in the same order as it came to me.
PN1618
THE DEPUTY PRESIDENT: Perhaps I will get my associate to show it to Mr Rozen too. Mr Rozen, I'm just anxious you're looking at the same document that we're looking at.
PN1619
MR ROZEN: Yes, thank you, sir.
PN1620
MR STANLEY: Sorry, your Honour, I handed up an individual copy of that.
PN1621
THE DEPUTY PRESIDENT: Yes, I understood that.
PN1622
MR STANLEY: I invite the union, if there's any question as to whether it's the same document, for the union to bring that to your Honour's attention.
PN1623
**** TONY KEITH SNELSON XXN MR STANLEY QC
What I want to suggest to you, Mr Snelson, is this: the union had in its possession the document that appears in the bundle discovered by the union but you exhibited only part of that document to your affidavit and then alleged that there was no identification of the PAYG withholding of tax or any other deductions in relation to the pay slip which is exhibit A to your affidavit?---I can only respond to that by saying if this is what we annexed here, that's what we have. There certainly wouldn't have been that bottom component. I've been a union official for 22 years. I wouldn't make such ridiculous statements if I'd had that information in front of me.
PN1624
The fact is that the evidence is that that document was in the union's possession, Mr Snelson, because it was discovered by the union?---Without seeing the document in its entirety, all I can say is that that statement is based on that information that is on that annexure.
PN1625
Can I take you back to your affidavit, exhibit N3. Can I invite you to turn to paragraph 14 on page 3 where you refer and attach
another pay slip as exhibit C?
---Yes.
PN1626
Then in paragraph 15 you swear that that pay slip does not record any PAYG withholdings. Do you see that?---Yes.
PN1627
Then if you look to exhibit C you will see the pay slip?---Yes.
PN1628
Can I then direct you back to the bundle of documents discovered by the union and you will see a few pages earlier from the one I was previously taking you to there's another page with a yellow flag?---Yes.
PN1629
That might be just the page earlier in the bundle?---Yes, it is.
PN1630
**** TONY KEITH SNELSON XXN MR STANLEY QC
Can I invite you to compare that page with exhibit C?---Yes.
PN1631
I suggest to you again that the two documents are identical, and I again invite the union to provide your Honour with evidence if that's not the case?---Again, the top half of the page.
PN1632
The top half of the page in the bundle of documents discovered by the union appears to be the same document as exhibit C - - -?---Yes.
PN1633
- - - to your affidavit. See, again I suggest that document was in the union's possession and contrary to what you swear in your affidavit, the pay slip did record the PAYG withholdings?---Again, I will say the same as I did for the previous one, is that the document I would have had would have been the document as it is in the attachment.
PN1634
Are you able to provide any explanation to his Honour as to how the documents exhibited to your affidavit appear only to be partially complete?---No. Only the fact that if that information was on there, then I certainly wouldn't have signed an affidavit saying that it wasn't.
PN1635
Can I take you back to your affidavit, exhibit N3. In paragraphs 11, 12 and 13 you're referring to another possibly, exhibit B?---Yes.
PN1636
Just so we understand it, what you're saying in paragraphs 11, 12 and 13 is that this pay slip is a pay slip for the same employee as exhibit A?---Yes.
PN1637
You don't allege, do you, that the employee was being underpaid in respect of the period covered by exhibit Because, do you?---Sorry, could you repeat that?
PN1638
You don't allege or assert in this affidavit that the employee concerned - whose pay was evidenced by the pay slip which is exhibit B - was being underpaid for that period covered by that pay slip?---No, I think exhibit B refers only to the fact that we noticed that the employee had changed.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1639
How is that? How has the employee changed?---Well, the status of the employee, sorry. I will just check.
PN1640
So you mean the status of the employee?---I'm just checking. Yes, it was in relation to the status of the employee, whether they were casual or permanent.
PN1641
You do note, don't you, in paragraph 12 of the affidavit that the hourly rate that was paid to the employee over a year earlier appears
to be higher, substantially higher, than the hourly rate that was being paid to the employee over a year later?
---Yes.
PN1642
You understood, I suggest, Mr Snelson, that the explanation for that is because the casual loading was simply incorporated into the hourly rate prescribed on the pay slip?---No, I didn't understand that, otherwise it wouldn't have been in here.
PN1643
You're referring to the fact that the employee's status appears to have been changed from a permanent to casual?---Yes.
PN1644
There's nothing on the pay slip that's exhibit B that says the employee is permanent, is there?---It's common practice that if someone is casual it identifies them as casual under casual loading.
PN1645
I come back to my first point. There's nothing on the pay slip in exhibit B that says the employee is permanent, is there?---Well, in the absence of it stating anything otherwise, without showing casual loadings or any reference to casual, then they would be permanent.
PN1646
Mr Snelson, you're an experienced union organiser?---I certainly am.
PN1647
**** TONY KEITH SNELSON XXN MR STANLEY QC
You have been a union organiser for well over 10 years, haven't you?---22 years.
PN1648
It doesn't take an industrial genius to look at the pay slip and work out that as this employee's hourly rate of pay appears to have gone down in a year from 17.70 to 15.58, that there's something unusual about that?---There certainly was.
PN1649
You didn't allege that the employee was being underpaid, did you?---No.
PN1650
You well understood that all that the two documents reflected was the fact that the hourly rate of pay set out in the pay slip which is exhibit B merely incorporated the loading, the casual loading?---I think what it's stating is that in the one pay slip it indicates that the worker was not casual because it doesn't indicate anywhere that they are casual and then later on the were definitely identified as being casual. So in my mind there had been some change in the employment of that worker.
PN1651
Why was that? You actually identify the fact that the hourly rate of pay in paragraph 12 is more than the employee was currently paid for ordinary hours. You well understood, I suggest, Mr Snelson, that all that the two pay slips reflected was the fact that the earlier pay slip had merely incorporated the casual loading into the hourly rate?---I had no way of knowing that. What I was shown was a pay slip by a worker who said this was the rate they were being paid in the past. They didn't know what their status was. They couldn't tell me whether they were a permanent or casual, which is common for many of those workers, and they said that their rate of pay had dropped. My role as a union organiser is to investigate that and there were inconsistencies that needed to be investigated.
PN1652
If you'd investigated it for more than five minutes, you would have been able to do the calculation and recognise that 17.70 merely represented the hourly rate plus the casual loading?---Well, it's not only the rate of pay. It's the status of the employee that's more important. They were not identified as being casual. Now, if this person had gone through a process where they were permanent and then they were casual, then we would have definite concerns about that.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1653
I suggest to you that you latched on to that in a cynical way to support an allegation that there was something dodgy going on in the company?---You can suggest what you want to. My job as a union official is to investigate inconsistencies in workers' pay.
PN1654
Can I take you back to your witness statement, which is exhibit N2. That's your witness statement in this matter. You say in paragraph 5 that you've had discussions with employees about Mr Mabior's dismissal and in the course of those discussions employees of the company had conveyed their concern about their treatment?---Yes.
PN1655
You say that on the basis of these discussions you formed the view that there were real issues and questions about the company's compliance
with the general protection provisions of the Fair Work Act and the Poultry Processing Award?
---Yes.
PN1656
You say in paragraph 6 you discussed those concerns with other officials of the NUW?---Yes.
PN1657
Which officials?---It would have been during normal team meetings so it would have been with all of the officials of the branch and also with Sam Roberts and probably Paul Richardson.
PN1658
Did Mr Roberts and Mr Richardson attend these team meetings?---No.
PN1659
Well, how did you discuss it with Mr Roberts and Mr Richardson?---Well, we'd have phone conversations with them and that information is portrayed through my lead to them.
PN1660
**** TONY KEITH SNELSON XXN MR STANLEY QC
So is his Honour to understand that you had telephone discussions with Mr Roberts and Mr Richardson about these concerns?---There would have been telephone conversations but predominantly it would have been from lead.
PN1661
THE DEPUTY PRESIDENT: I'm sorry, your?---My lead organiser.
PN1662
Thank you.
PN1663
MR STANLEY: So you mean by that that you spoke to Mr Garland about these matters and then you assume Mr Garland spoke with Mr Roberts and Mr Richardson?---I don't assume. He told me (indistinct)
PN1664
You say in paragraph 6 that as a result of those discussions a decision was taken by Mr Roberts for you and Liz Pearce to enter the site?---Yes.
PN1665
How was that decision conveyed to you?---That would have been through my lead, through Dave Garland. It's the general branch secretary's decision as to what action we take of that nature.
PN1666
How did Mr Garland convey this decision to you?---He would have told me verbally.
PN1667
What did he tell you?---He would have told me that - - -
PN1668
I'm sorry, not what would he have told you; what did he tell you?---He told me that, sir, we would make an application for the orders that we eventually sought and that we would be going to - if we got those orders, to do a time and wage check, in short.
PN1669
How do you know then that that was Mr Roberts' decision?---Because Dave Garland would have told me so.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1670
Did he tell you so?---Everything that we do is the decision of our general branch secretary.
PN1671
It's not an answer to my question, Mr Snelson. Did he tell you that?---I can't swear that he would have but I can't see any alternative than he would have.
PN1672
Might he not have made the decision off his own bat?---I don't think so. I don't think Dave would have the authority to do something like that.
PN1673
Is this the position: what you say in paragraph 6 is just an assumption on your part?---No, what I say in paragraph 6 is what is normal operational procedure for a union; that when we make decisions of that nature, the decision is made by the general branch secretary.
PN1674
You say that as a result of the discussions you'd had with other officials at NUW, a decision was taken by Mr Roberts for you and Liz Pearce to enter the site for the purpose of investigating suspected contraventions of the Fair Work Act?---Yes.
PN1675
Is it the position that Mr Roberts, as you understand it, made a decision that an application would be made to Fair Work Australia for an exemption certificate pursuant to section 519 and orders pursuant to section 483AA?---Yes, that's right. I think those are them, yes.
PN1676
And that if those orders were made and that certificate granted, then you and Liz Pearce would exercise those rights of entry?---Yes.
PN1677
After Mr Garland had this conversation with you about making an application to Fair Work Australia for orders and a certificate, you obviously became involved in the preparation of that application?---By way of preparing my affidavit, yes.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1678
And you attended at Fair Work Australia?---I did, yes.
PN1679
Before Hampton C? Yes? The answer to that is - - -?---Yes, sorry.
PN1680
You were present at Fair Work Australia when that order was made?---Yes.
PN1681
So what happened after that?---I think there was a decision that said the decision would be made following that hearing. Once that was made, we made preparations for - once we got the go-ahead, we made preparations for going into the factory and getting the information required.
PN1682
You say that's what happened. Who made that decision after the hearing at Fair Work Australia?---Who made the decision as to what information was required?
PN1683
I take it you just didn't go off to Baiada premises on 18 October off your own bat, Mr Snelson?---Certainly not. There was some planning that went into that before we went.
PN1684
When were you first alerted to the fact that you were going to be the one who would exercise the right of entry pursuant to the orders that had been made by Fair Work Australia?---I knew that when we made the application.
PN1685
You knew that because of something Mr Garland said to you?---I knew it because I was the organiser who had carriage of that workplace at the time.
PN1686
That doesn't necessarily mean that you're going to be the one who would be going into the premises, did it?---I'm one of the senior officials in the branch. It would be appropriate that I take on that responsibility.
PN1687
**** TONY KEITH SNELSON XXN MR STANLEY QC
I'm not contesting whether it was appropriate or not for you to do so, Mr Snelson. I'm just trying to establish when you first knew that you were going to be doing so?---I think I said I knew at the time of making the application.
PN1688
You had to wait and see whether you got the orders first?---That's right.
PN1689
Once those orders were made, what discussions did you have as to how those orders would be implemented?---There was numerous conversation and meetings about that process that involved meetings with Dave Garland and Liz, phone hook-ups with our industrial team, information from the general branch. So there was a whole range of meetings that came up with a plan as to what information was required.
PN1690
Who did you have those discussions with?---I think I just said to you it was Dave Garland, who was the lead. Liz was involved. I think other team members were involved. We discussed most things in a team at the branch office. Paul Richardson would have been involved. Sam Roberts would have been involved at some stage and maybe other members of the industrial team. It's a whole process that came up with gathering information or what information we needed to gather at the time.
PN1691
What was discussed about that?---That's a very broad question. We discussed what records we'd need to require, what other information we'd have to gather, what we would need in relation to time and wages, what other evidence we may need to acquire, how we would get that evidence and the process of getting that evidence to our general branch which is in Melbourne, where it would be dealt with by the industrial team.
PN1692
Who identified the information that you would be seeking?---Well, again, that was part of that process of planning it, was to identify what information we would require. It's not uncommon with right of entries. That certainly wasn't my first right of entry. I've done it a number of times before with the LHMU. So it's generally the same type of information.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1693
My question: who identified the information that you would be looking for when you were exercising the right of entry on this occasion?---That actually came from brainstorming of that entire group as in what was required. So if one member of the team missed something and another member reminded or put onto the agenda, then it would go on the agenda. So it wasn't an individual thing by me. It was a process of identifying, as part of our planning process, what information we needed to gather. I can't say who came up with what.
PN1694
What record did you make of what documents or information you were seeking?
---I think the information was put into a letter that was provided to Mr Hu.
PN1695
Was that the only record that was made of the information that you were seeking?---It was the only information that - I didn't make any information. I didn't have any notes or anything regarding that, no.
PN1696
Who was making a note of what information would be sought?---I don't know.
PN1697
You're having all these brainstorming sessions to work out what it is that you're going to look for when you exercise this right of entry. Surely someone was making a note of what it is that you'd be after?---As I said, right of entry is not difficult. It's something that unions have been doing for a very long time and I don't think the information changes a great deal from one workplace to another.
PN1698
Then why were you having all these brainstorming sessions if everyone understood what was the requirement?---You're saying "all". I said "we had brainstorming". You know, how many of those occurred I don't know. It was planning. We plan for everything we do.
PN1699
Surely when you're planning you make a record of what it is that you're going to look for?---Yes, and that was drafted up into the document that was given to Mr Hu. It was the typical stuff that is required for a time and wage investigation.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1700
How many occasions have you made secret films in the course of your exercising rights of entry?---Once.
PN1701
Which was when?---Which was during - well, twice actually - during the two of the entries into Adelaide Poultry.
PN1702
So you'd never done that before?---No.
PN1703
So that was unusual?---Yes.
PN1704
It wasn't part of the run-of-the-mill exercise of a right of entry by you?---It was something I hadn't done before, that's right.
PN1705
Whose decision was it to do that?---That came out as part of the process as to gathering information.
PN1706
What do you mean, it came out of the process of gathering information?---Well, one of the things that we needed to be assured of was that we had all the information that we required to make determinations about whether the work being performed, the tasks being performed, was consistent with the classifications of workers and the pay that they were receiving.
PN1707
Whose decision was it, Mr Snelson?---It's always the general branch secretary's decision as to what we do.
PN1708
What's the point then of having these brainstorming sessions?---Because the work is done and then presented to the branch secretary, who makes the decision as to yes or no. He has the overall say.
PN1709
**** TONY KEITH SNELSON XXN MR STANLEY QC
So whose idea was it then to take the film?---I think it was actually Dave Garland's.
PN1710
I see.
PN1711
THE DEPUTY PRESIDENT: Sorry, Mr Snelson?---Dave Garland, I believe.
PN1712
MR STANLEY: What did he say?---In relation to?
PN1713
In relation to taking this film?---He thought it was an idea for us to get some visual record and we'd get it checked out as to whether we were able to do that or not.
PN1714
Did Mr Garland suggest that this was something that they'd done previously?
---No, I don't think that conversation happened.
PN1715
You're not aware of it ever being done previously?---No, not off the top of my head.
PN1716
No?---I haven't heard of it before.
PN1717
Not in your 22 years of experience as a union organiser have you ever known this to be done?---No, going back to the start of my experience, the technology wouldn't have been available.
PN1718
Nonetheless, do you accept that in your 22 years of experience you've never done this before?---No.
PN1719
In your 22 years of experience you've never known this to be done by any other union?---Not that I've known.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1720
Did Mr Garland suggest that this was something that the NUW had done previously, before you joined them?---No.
PN1721
Do you know how long the NUW has been organising in the poultry processing industry?---I've got no idea.
PN1722
Many years?---Probably.
PN1723
When Mr Garland suggested this, was there any opposition expressed to that course of action?---No, it was suggested and he said he would find out more about it.
PN1724
Do he report back to you about what else he'd found out about it?---When we made - or before we made the decision to make the video footage, it was reported back that we had received legal advice from an outside law company saying that - - -
PN1725
You don't need to tell us what the legal advice was?---Well, you asked.
PN1726
So you received some legal advice?---Yes.
PN1727
Did he indicate whether he'd discussed this matter with Mr Roberts?---As I said, I believe everything he's discussed with Mr Roberts.
PN1728
No, I didn't ask you that, Mr Snelson?---Yes.
PN1729
Perhaps if you could just answer the questions I ask. Did he indicate that he'd discussed the matter with Mr Roberts?---To the best of my knowledge, yes.
PN1730
**** TONY KEITH SNELSON XXN MR STANLEY QC
You indicated he'd discussed the matter with Mr Donnelly?---I don't think so.
PN1731
Was anything said at any of these meetings to suggest that Mr Donnelly was aware that this was going to occur?---I don't think there was a great deal of conversation at our level as Mr Donnelly or what he thought or didn't think.
PN1732
Was there anything said at these discussions to consider that Mr Roberts was aware that this was going to occur?---Yes.
PN1733
What was said?---Mr Roberts had organised for the legal advice and had given the go-ahead.
PN1734
When Mr Garland first suggested that you should do this, what did he say?---I think it was just in the general terms that it came out that it would be good if we had some visual evidence of work that was being performed.
PN1735
Where did he say this?---It would have been in the office.
PN1736
Where in the office?---Probably in our boardroom.
PN1737
Who was present when he said this?---Probably all of the team. I can't say that 100 per cent guarantee but it probably would have been all the team.
PN1738
Including Liz Pearce?---I can't say definitely but I would assume so.
PN1739
Is that all he said about why he wanted to do this?---Yes.
PN1740
How long before the actual exercise of the right of entry was this decision made?
---Relatively close.
PN1741
**** TONY KEITH SNELSON XXN MR STANLEY QC
Was it taken before or after you'd obtained the orders from Fair Work Australia?
---After.
PN1742
So that involves a period of I think less than a week?---Yes.
PN1743
How was this filming done?---It was done with a handheld USB video device.
PN1744
You will have to explain to me what that is because I don't know what a handheld USB video device is?---Well, it was a pen with a video camera.
PN1745
A pen?---Yes.
PN1746
Where did you obtain this from?---It was provided to me by Mr Garland.
PN1747
By whom?---Dave Garland.
PN1748
How did you operate it?---It was a simple push button.
PN1749
Did somebody instruct you on its use?---You push the button and you point it at what you want to film and you push the button to turn it off.
PN1750
I didn't ask you what the instructions were. I asked whether someone instructed you on how it was used?---Dave showed me but I also read the little instruction thing that came with it.
PN1751
Apart from what you told us Mr Garland said about why you would do this, was there any other discussion about why you would want to make this film?---No.
PN1752
On how many occasions did you take film?---Two.
PN1753
**** TONY KEITH SNELSON XXN MR STANLEY QC
Do I understand you first took film during the course of you exercising a right of entry on 18 October last year?---That's the first day, yes.
PN1754
On the Monday?---Yes.
PN1755
After you've taken this film with the USB video recording device, how do you download the film?---The top comes off and it plugs directly into a computer, a USB connection.
PN1756
After you'd finished the inspection on 18 October, which I think was sort of late in the afternoon, did you go and view that film?---No.
PN1757
So you hadn't viewed that film prior to exercising a further right of entry at about 2 o'clock the next morning?---I hadn't actually viewed the film until it appeared on the Internet site.
PN1758
Had you given the device to anybody else to enable them to see the film before you exercised the right of entry again the next morning?---I think Dave had it back. I can't be 100 per cent sure but I think Dave had it back. Look, mate, I can't remember, to tell the truth, because we were planning to go there again in the early hours of the morning. I don't think so actually because there wouldn't have been any time but I can't remember.
PN1759
Might it be that you gave the device to Mr Garland when you returned from the first site inspection on Monday, 18 October?---I honestly cannot remember. It would have been late in the day and, as I said, we were due back on site in the early hours of the morning.
PN1760
During the course of that second inspection, in the early hours of the next morning - Tuesday, 19 October - that you took the second lot of film?---Yes.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1761
After that inspection in the early hours of the morning, you came back again later that day?---Yes.
PN1762
And you undertook a further tour of inspection of the plant?---Not the complete tour but yes.
PN1763
Do I understand your evidence to be that you didn't take any film on this third inspection?---I didn't even take the device with me.
PN1764
Why not?---Because we had all the footage we required.
PN1765
How did you know that?---Because I was the person taking the footage and I knew where I'd filmed and where I hadn't.
PN1766
What was the point then of going back for a third inspection?---Because there was some information that we hadn't gotten. The whole purpose of the right of entry was not to take footage, it was about gathering information. The taking of footage was only one part of that process.
PN1767
How is it, if you hadn't viewed the film until after it was uploaded onto the union's web site, you knew after the second visit that you had all the film that you required?---Because I was the person taking pictures and I knew where I'd taken the film of and I knew that all the areas had been covered.
PN1768
You'd never used this device before, had you?---It's not difficult.
PN1769
How did you know it even worked?---Well, it had been tested before it was given to me obviously.
PN1770
**** TONY KEITH SNELSON XXN MR STANLEY QC
You may think that's obvious but that's - - -?---It's an electrical - - -
PN1771
How did you know that you had any film at all?---These devices are so common now. You know, most of your cameras now has a recording process that you press the button and it records, you press it and it stops. There's not much that can go wrong with them.
PN1772
How did you know that you had any film at all when you went back for that third visit?---I didn't. I could have given it back and there could have been nothing on it but I believed that I'd taken all of the footage in the appropriate places that were required and didn't believe there would be any problems with the device doing what it was supposed to do.
PN1773
Are you sure you didn't take film on that third tour of inspection?---I'm absolutely sure.
PN1774
Why are you so absolutely sure?---Because the pen was in the office and I was, you know, at Adelaide Poultry.
PN1775
What did you do with this device after you returned from the second visit?---I handed it to Dave Garland.
PN1776
When did you do that?---Immediately.
PN1777
What, 4 o'clock in the morning?---Well, immediately I went to the office the next day of course. What I did at 4 o'clock in the morning was went home and had some sleep.
PN1778
So when did you then go into the office next?---I can't remember the exact time but it would have been somewhere between 8.00 and 9.00.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1779
When did you see Mr Garland?---Sometime after entering the office between 8.00 and 9.00.
PN1780
When you saw him, what did you say?---I can't remember exactly. I would have given him the information that I'd got. I would have given him the pen and said, "This is the film I've taken."
PN1781
Was that the first time you'd seen Mr Garland since you'd exercised any of the rights of entry?---No, I'd seen him during the rights of entry when I'd been on a lunchbreak outside.
PN1782
So he'd been present outside in the carpark, had he?---At times, yes. Well, not in the carpark; on the street.
PN1783
This was on the 18th?---It would be probably over both days.
PN1784
You recall giving him the device?---Yes.
PN1785
Thinking about it now, now that you can recall giving him the device, what did you say to him?---"Here's the recordings."
PN1786
Did he ask you, "What's on it"?---Again, I can't tell you verbatim what he said but I'm sure he would have asked something like that.
PN1787
What did you say?---I would have said - - -
PN1788
What did you say?---As I said, I can't recall verbatim but I would have said, "The information that you require," which is the footage of operations at the plant.
PN1789
**** TONY KEITH SNELSON XXN MR STANLEY QC
Did he say anything in response?---I'm sure he would have but again I couldn't tell you verbatim what.
PN1790
So you had nothing to do with the decision to make this film?---No, apart from the general discussions about whether it was a good idea or not a good idea or what it would gain or what it wouldn't gain us, and that was just in the planning stage.
PN1791
Who was involved in the discussions about the use of this device, apart from you and Mr Garland?---As I said, it would have been discussed across the branch. So all the officials, I would say, would have known about it. Sam Roberts would have known about it.
PN1792
Who was involved in discussions with you about it?---Those people that I just mentioned. I was part of that general discussion.
PN1793
So who discussed the use of the USB device with you? Just tell his Honour who it is?---Dave Garland, Liz Pearce, Tim Palmer would have been involved, probably Mark Whenan. It was general discussion during our meeting process and our planning process - and Sam Roberts.
PN1794
So when did Sam Roberts have a discussion with you about the use of the USB device?---Again, I can't give you times or dates but it was discussion through him or was relayed through Dave Garland to me.
PN1795
No, I'm not interested in what was relayed to you. I'm interested in what discussion you had with Mr Roberts?---As I said, I can't give you times and dates.
PN1796
Was it on the telephone or in person?---It would have been on the telephone.
PN1797
What was discussed between you and Mr Roberts?---Again, it would have been a hook-up. It wouldn't have been with me personally. It would be part of a hook-up briefing.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1798
Was there more than one of these concerning the use of the USB device?---There may have been one or two.
PN1799
What did Mr Roberts say about it?---Well, we were just discussing the process of getting the information. There was no discussion as to whether or not it would occur. It was confirmed to occur. My job was just to do it.
PN1800
I'm still not clear. What did Mr Roberts say about the use of this USB device?
---As I said, the discussion was about what information - - -
PN1801
I'm not interested in the discussion. I want to know what Mr Roberts said?
---Well, I'm trying to tell you. Mr Roberts would have been part of a general discussion about what information we were aiming to
gather by using the video recording device. Other than that, I don't know what you're asking me.
PN1802
What did Mr Roberts say about the use of this device?---I can't tell you verbatim, other than that he had general discussions with me about what we needed to record.
PN1803
This was something that you'd never done before?---Yes.
PN1804
As far as you were aware, it's something that had never been previously done by any union?---Yes.
PN1805
So it was a pretty big deal, Mr Snelson?---It certainly was, yes.
PN1806
Such a big deal that it could only have been authorised by the general branch secretary?---Everything I do is authorised by the general branch secretary.
PN1807
**** TONY KEITH SNELSON XXN MR STANLEY QC
That's not true, is it, Mr Snelson?---Yes, it certainly is true. I'd get my arse kicked if I didn't.
PN1808
I don't want to get into a debate about that. You may act with the authority of the general branch secretary but he doesn't authorise
everything you do, does he?
---When it's on matters of importance that's certainly going to reflect on the NUW, yes.
PN1809
That might be right, yes. When it's a matter of importance then. This was a matter of such importance - - -?---Yes.
PN1810
- - - that you wouldn't have done this without the express authority of the general branch secretary?---That's right, and I was told he had authorised for us to do this and the discussions we had on the phone were about the how, about the mechanics.
PN1811
So it would have been a matter of some moment to you as to what he said about this?---Well, as I said, I can't remember whether he told me that we were doing it. Whether Dave passed that on to me not, you know, I was doing it. It was something that was authorised by the branch secretary. It was something that had been checked out. It was something that was within the bounds of what we were able to do and discussions portrayed as to how.
PN1812
In the course of these discussions was anything said beyond what Mr Garland had said about why it was being done?---The discussions as to why we would use the device was so we could film the activities of workers at their workstations, the duties that they were performing, the tasks that they were doing, the speed of the line, the processes that were being carried out, so it would assist us with identifying the work and classification of those workers and may assist us with understanding the workings of that factory.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1813
You understood, didn't you, that you were exercising a right of entry pursuant to orders that had been made by Fair Work Australia?---I certainly did.
PN1814
And that you were able to exercise that right of entry for limited purposes?---Yes, for gathering information in relation to the alleged bridge.
PN1815
Do you need to see those orders again?---No.
PN1816
You're familiar enough with them. What aspect of the orders was the line speed relevant to?---As I said, it wasn't only the line speed that was - - -
PN1817
I'm just asking you about the line speed. What aspect of the orders was the line speed relevant to, Mr Snelson?---Well, it's not (indistinct) It was in relation to what - - -
PN1818
It would be easier if you answer the question, Mr Snelson?---It would be easier if you let me. It was in relation to workers saying that they were being paid in a certain manner and we were there to investigate time and wages, how people were being paid. Now, if people were suggesting that they were being paid by the numbers of chickens being produced or the speed of the line, even if that is incorrect in association with what they should be paid in the award, at least it would allow us to ascertain that they were being paid what the employer said they should be paid because - - -
PN1819
Again - - -?---Let me finish.
PN1820
Sorry?---Some of the workers were actually telling us that they didn't know what they were being paid and that they received a set sum per week based on something like line speed or production.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1821
Could the witness be shown this document?---Yes.
PN1822
Just looking, do you recognise that document?---Yes.
PN1823
It's the order made by Hampton C pursuant to section 483AA. Do you recognise that?---Yes.
PN1824
What part of those orders was the line speed relevant to?---I would say it would relate to base rates of pay. It would certainly relate to casual loadings if they were being paid per bird as to what loadings they would - or per line speed based on top of that. I would say it was in relation to anything that was based on their pay or what they were being paid or the loadings associated to those. Whether it's correct or incorrect in association with the award, it's still a process that needs investigation.
PN1825
You understood, didn't you, Mr Snelson, that your right of entry pursuant to the terms of this order was limited to investigating the matters that were the subject of the order made by Hampton C, didn't you?---My rights of entry was based on gathering information required pursuant to this right of entry. What I could or couldn't do was actually information that was provided to me by our industrial team as to what information I can and can't get and what I should and shouldn't get.
PN1826
You accept, don't you, that line speed is irrelevant to the rates of pay prescribed by the Poultry Processing Award?---I accept that, yes.
PN1827
So filming the line speed could form no part of any investigation in relation to alleged contraventions of the award by way of underpayment of wages?---The line speed was one of a series of things that I mentioned but the filming of line speed was to ascertain what workers were currently being paid so we could then proceed with actually correcting that.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1828
I put the proposition to you again. The line speed was irrelevant to any question of a contravention of the Poultry Processing Award
by way of underpayment?
---I think it was very relevant in determining what they were being paid, comparing that to the award to what they should have been
paid.
PN1829
You've just agreed, Mr Snelson, that line speed is irrelevant to the rates of pay under the award?---That's right, but at least if we could prove that they were being incorrectly paid and what they were being paid, then we could correct that by putting that information next to the award and seeing what they should have got.
PN1830
That answer, I'm afraid, makes no sense to me, Mr Snelson. I will give you another opportunity to provide one?---I can't put it in any different way.
PN1831
I suggest to you, Mr Snelson, that you did not, when you entered those premises on either 18 or 19 October, believe that that film that you were taking was in any way relevant to the determination of whether there had been a contravention of the Poultry Processing Award by way of underpayment of wages?---I disagree. I believe it was totally relevant.
PN1832
I suggest to you that Mr Garland had never said to you that he wanted the film taken for that purpose?---Again, you're totally wrong.
PN1833
Less than half an hour ago, Mr Snelson, you told his Honour the terms of the conversation that you had with Mr Garland about why he wanted you to take this film and you didn't say that it was about determining whether or not there had been an underpayment in accordance with the award?---No, I didn't. I said it was about determining what work was being performed, what tasks were being performed, the number of birds being processed and the line speed.
PN1834
**** TONY KEITH SNELSON XXN MR STANLEY QC
Yes?---I didn't go any further than that, no.
PN1835
Can I take you back to paragraph 33 of your witness statement, exhibit N2?---Is that the - - -
PN1836
Yes. My learned friend Mr Rozen took you to this paragraph this morning. Do you recall that?---Yes.
PN1837
You say you "used this device to assist the union's investigation as to whether the company's employees were being properly classified under the award"?---Yes.
PN1838
"In particular I wanted to record the number of birds killed"?---Yes.
PN1839
What part of the film recorded the number of birds killed?---The number of birds passing any point on the line would record the number of birds killed.
PN1840
How was the number of birds killed relevant to whether an employee was properly classified under the award?---Again, it was in relation to what we'd been told as to how workers were being paid.
PN1841
Mr Snelson, you said in your statement you were investigating whether employees were properly classified under the award and for that purpose you wanted to record the number of birds killed. My question is: how is the number of birds killed relevant to whether the employee has been properly classified under the award?---Well, I think this statement is not a total of everything that occurred. I think it's an overview. If I put everything that occurred in there, this document would be several pages. I thought the idea of this process of sitting in the witness box was to allow you to expand on that.
PN1842
My question is: how was the number of birds killed relevant to whether an employee was properly classified under the award, which
is what you've said?
---I think I answered that in the previous question where I said line speed and the number of birds killed is how we'd been told that
some workers were being paid. Although it's not covered by the words per se, it would still identify what they were being paid so
we could compare that to what they should have been paid.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1843
Mr Snelson, by 18 October you'd been present at the premises for a month?---Yes.
PN1844
Almost on a daily basis?---Yes.
PN1845
Talking to hundreds of employees, didn't you, Mr Snelson?---Yes.
PN1846
Surely in the course of that you'd undertaken some rudimentary investigations into the terms of the award?---Yes.
PN1847
You understood that the award, as you've told us - that the number of birds killed or the line speed is irrelevant to how a person is paid under the award?---But what I'm saying is, to identify what they were being paid we needed to have that information too. We can only ascertain how they're being wrongfully paid if we know how they're being paid.
PN1848
Your right was to investigate whether there had been underpayments in accordance with the award. That was the basis upon which you'd obtained orders from the tribunal?---Yes.
PN1849
None of this was relevant to that, I suggest to you?---That's your view; it's not mine. My view is it's all relevant.
PN1850
How would the number of birds boned or filleted be relevant to whether an employee was being properly classified under the award?---Likewise some of the people who were boning and filleting - and you must understand at this time we and they didn't know whether they were Adelaide Poultry employees or some other subcontractor employee - they were telling us that they were being paid by the number of birds that they boned or portions that they boned or cut.
PN1851
**** TONY KEITH SNELSON XXN MR STANLEY QC
You weren't entitled to investigate underpayments made by contractors or labour hire companies, were you?---No.
PN1852
You were only entitled to investigate underpayments in relation to Adelaide Poultry employees, weren't you?---That's right.
PN1853
I suggest to you not a single Adelaide Poultry employee had told you that they were being paid on the basis of the number of birds
killed or boned or filleted?
---As I said to you, there was a number of employees who spoke to us who didn't know who they were employed by. The only information
that they had was that some person had taken them on.
PN1854
I suggest to you that at no time prior to 18 October had any inquiry been made of the company as to whether or not it paid its employees on the basis of the number of birds killed or boned or filleted?---That investigation had occurred in relation to workers and members that we'd interviewed outside of the factory.
PN1855
At no time prior to 18 October had any inquiry been made of the company as to whether or not it employed persons on the basis that their payment was determined by the number of birds killed or boned or filleted?---No.
PN1856
Why not?---Because we didn't believe that we'd be given that information honestly.
PN1857
Why not?---Because our previous relations with the company hadn't provided us with information.
PN1858
That's just not true, is it, Mr Snelson? You have no reason to say that?---Well, I do have reason to say that. It's consistent with what I know since I've been at the NUW.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1859
Give us one instance where the union approached the company for details of the basis upon which people have been paid and the company hasn't been forthcoming with that information?---No, I wasn't saying that. I was saying that the information we - you know, discussions we'd had with the company before had been such that there wasn't trust between us and then, you know, dealing with this in a manner that we believed they would.
PN1860
I suggest to you the reason that you hadn't gone and made any inquiries to the company as to whether or not any of its employees were being paid on the basis of birds killed or boned or filleted is that you well understood that that was irrelevant to the way in which the company paid its employees?---The process occurred that we'd spoken to numerous people outside of the workplace who had indicated numerous ways that they believed that they were either wrongly classified, being wrongly paid, wrongly employed, and based on that evidence it was necessary for us to enter the company in the manner that we did to gather the information that we required.
PN1861
After you handed this information over to Mr Garland, did you have any further involvement in investigating these allegations of underpayment?---That was handed over to the legal team, the industrial team.
PN1862
So can you say what use was made of the film when you're investigating underpayment of employees at Adelaide Poultry?---No.
PN1863
As far as you're aware, no use was made of that film?---Well, I suppose you could say as far as I'm aware every use was made of that film. I don't know, I can't answer.
PN1864
Can I take you back to your witness statement, paragraph 10?---Yes.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1865
When you first met Mr Hu on the morning of 18 October last year you say you told him that the union would already have been in contact with Ms Takla?---That was my understanding, yes.
PN1866
What was the basis of your understanding?---That when I entered the workplace and presented the rights of order information to Mr Hu, that Paul Richardson would have simultaneously or beforehand contacted Sonia Takla.
PN1867
Yes, but what was the basis of your belief that that was going to occur?---Because that's what I was told would be occurring.
PN1868
Who told you that?---Dave Garland.
PN1869
In the course of that morning, in discussions with Mr Hu, you advised Mr Hu that you were entitled to conduct an inspection of the plant?---Yes.
PN1870
Didn't he query whether that was so, having regard to the terms of the orders?
---He may have. Yes, I think he did.
PN1871
Didn't you tell him that you were entitled to do so pursuant to the provisions of the Fair Work Act?---I told him that I had been informed that this is what our entitlement was and should he have any difficulty then he should seek advice, or words to that effect.
PN1872
You say in paragraph 14 of your statement that after you've had this discussion Mr Hu returned to where you were waiting?---Yes.
PN1873
And I think that was the boardroom?---Yes.
PN1874
**** TONY KEITH SNELSON XXN MR STANLEY QC
And told you that employees would be brought to you in the boardroom so that you could interview them?---Yes.
PN1875
You expressed concern about that process?---Yes.
PN1876
But that he insisted that that's what occur and you reluctantly agreed to this?
---Yes.
PN1877
You then say in paragraph 15 that you then waited a long period of time before an employee, who you later learned was Hassan Barry, was escorted to the boardroom?---Yes.
PN1878
Who escorted Mr Barry to the boardroom?---It would have been Nick Markou.
PN1879
How did he know who to bring?---Well, he was bringing anyone who was available. We weren't choosing who came.
PN1880
How did he know? Surely you'd given him some indication - - -?---No.
PN1881
No?---You will have to ask Nick Markou how he chose who to bring.
PN1882
See, I suggest to you that that's not the way things occurred at all, Mr Snelson; that you insisted that you and Ms Pearce had a right to inspect the premises, that Mr Hu queried that. He said he would seek some advice?---Mm'hm.
PN1883
He came back sometime later and said he'd obtained advice and that you would be permitted to inspect the premises and that arrangements were then made for you to do so?---That was after we'd spoken to Barry and I believe maybe one other person, and then we were waiting for one other person that had gone on lunch and time was passing and - - -
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1884
That's - sorry?---We believed it was more appropriate for us to speak to people at their workplace.
PN1885
I suggest to you that you're mistaken about that and that in fact you didn't interview Mr Barry until the next day?---No, he was the first person we interviewed.
PN1886
I'm not disputing he was the first person you interviewed in the boardroom. I'm just suggesting that that didn't occur until the following day?---Unless I'm mistaken, that's my understanding, is that he was the first person.
PN1887
I'm not disputing necessarily that he was the first person, Mr Snelson. What I'm putting to you is that that didn't occur until the following day?---No, it's my recollection that he was the first person we spoke to before we went on any tours.
PN1888
I suggest to you that in fact you went on a tour before anyone was ever brought to you for you to interview them?---Well, I suggest to you that someone is remembering things incorrectly because we spoke to a person in the boardroom before we commenced any tours. There may have been a second person - that I'm not sure of - and we were waiting for another who Mr Markou had told us was on lunch and we'd have to wait for them to return.
PN1889
When did you first meet Mr Markou?---That day.
PN1890
In what circumstance did you first meet him?---When he was introduced to assist us, I think.
PN1891
Was that when he brought some equipment for you to wear on the inspection?
---No, he brought Hassan Barry to us in the boardroom earlier.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1892
Sir, I want to suggest to you that it wasn't Mr Markou who had brought Hassan Barry to you at all but Chris Sinkovic?---No, it wasn't.
PN1893
Do you accept that you didn't meet Chris Sinkovic until Tuesday, 19 October?
---I think I'd met Chris Sinkovic outside but she was going under another name of Rose in the carpark.
PN1894
Can I suggest to you that you didn't have any dealings with Ms Sinkovic inside the premises until Tuesday the 19th?---That's correct.
PN1895
I suggest to you the reason you were so insistent upon undertaking an inspection of the premises was because you wanted to take this film?---It was one of the things that was on our list of things to do, yes.
PN1896
Before you undertook an inspection, you were informed by both Mr Hu and Mr Markou that you were prohibited from taking any photographs or - - -?---No, there was no induction. There was no orientation. There was no discussion in relation to taking of photographs.
PN1897
You're quite adamant about that, aren't you?---I am, yes, because most workplaces that we go into, before we step foot into the workplace we have to undertake an induction, a safety induction, and that didn't occur.
PN1898
I'm not so much concerned about that. I'm suggesting to you you're quite adamant that you weren't instructed by either Mr Markou or Mr Hu before you went on that first tour of the plant on 18 October that you were not to take photographs?---Yes.
PN1899
You're adamant about that because of course what you then did would have been contrary to that instruction?---I'm adamant because it didn't occur.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1900
See, your intention was to take this film secretly, wasn't it?---Yes.
PN1901
Your intention was to conceal from the company that this was being done?---Yes.
PN1902
Your intention to conceal from the company knowledge that this was being done was because you believed that the company would not permit it?---That's right, or it would have caused some problems on our investigation, yes.
PN1903
I suggest to you you thought the company wouldn't permit it because that's exactly what the company told you?---No, that's not correct.
PN1904
You say that the first time the company raised that matter with you was before the commencement of the third tour?---Yes.
PN1905
So the company raised it with you before the third tour but not before the second or the first tour?---That's correct.
PN1906
Coincidentally, you weren't taking film on the third tour?---I thought that was unusual too, but yes.
PN1907
You say at paragraph 18 of your witness statement, exhibit N2, that prior to embarking on a walk through the site Hu didn't direct you or Pearce not to take photographs - - -?---That's right.
PN1908
- - - it's a criminal activity?---Yes.
PN1909
Nor did he state that such conduct was prohibited?---Yes.
PN1910
In paragraph 23 you say that - again, prior to that tour - Markou did not tell you or Pearce that you could not take in cameras or other photographic devices?---That's right.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1911
What would you have done if they had said that to you?---We would have probably have had to have left the device behind if we had wanted to continue our tour but it didn't arise.
PN1912
Why would you have left the device behind if you never intended to disclose to the company that you were doing this?---Well, if they had asked us specifically not to take photographic or video footage inside the plant then we would have taken consideration of that.
PN1913
Was that something that you discussed before you came onto the premises that day?---Yes, as to what we would do. The plan was to take the footage as part of our legitimate investigations. To take that footage - we wouldn't have been able to take that by requesting that we take it. So we got the information and we got the okay that it was legally okay for us to do that.
PN1914
You say you wouldn't have been able to take that footage by requesting you do so?---I didn't say we wouldn't have been able to. I said we probably wouldn't have. We would have wanted to continue the right of entry and got whatever information we can.
PN1915
What reason did you have for thinking you probably wouldn't have been granted permission to do so?---I didn't say I didn't think we would get permission to do so. I said that was the plan if it was raised. I didn't think that would be a problem.
PN1916
You didn't think there would be a problem?---No.
PN1917
Then why did you think that if these statements had actually been made you would have had to have left the pen behind?---Well, we're professionals. We actually consider everything that may occur and what we would do if it did.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1918
Mr Snelson, why would you think that if these statements had been made to you, you would have had to have left the pen behind if in fact you thought you would have been granted permission?---I haven't really put a lot of thought into that question actually. It was something that was required to do, was to record the footage. It was something that we'd got the okay to do legally and it was something that if there was a problem then that would be assessed at the time.
PN1919
You say in paragraph 21, "After Pearce and I were dressed in the safety coats and boots, we took a photo of each other using
Pearce's phone in front of a wall poster in the boardroom while we were wearing Adelaide Poultry protective clothing"?
---Yes.
PN1920
You say, "We then looked at the pictures on the phone and laughed about it"?
---Yes.
PN1921
Mr Hu then entered the room and you showed him the pictures?---Yes.
PN1922
He stated that he did not want you to take pictures?---In there, yes.
PN1923
Sorry?---Yes.
PN1924
And he asked you to delete them?---He asked us to delete those pictures, yes.
PN1925
You then deleted those pictures?---Yes.
PN1926
Or Ms Pearce did?---Yes, after some assistance.
PN1927
You knew from that very moment that photographs weren't permitted within the plant, didn't you?---He did never say photographs weren't permitted in the plant. He said he didn't want us to take pictures. He also said he didn't want us to enter. He also said he didn't want us to do time and wage checks. He also said he didn't want to give us information that we required. He said a whole lot of things that he didn't want us to do. He didn't never say it was prohibited.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1928
So, what, it was the absence of the word "prohibited"?---Yes. He said he didn't want us to do a lot of things.
PN1929
Not only did he say he didn't want you to take them, he required you to delete them, didn't he?---He said "would you" and we said, "We don't have any problems deleting them."
PN1930
Mr Snelson, you knew from that moment on, if there had been any doubt what the position was, that you were not permitted to take photographs
inside the plant?
---The information that I'd been provided with by way of our legal advice was that we could take those pictures in the plant.
PN1931
You knew that the company was not permitting you to take photographs within the plant?---The company at no time said that we weren't permitted to take photographs in the plant.
PN1932
I will put this to you again. You knew, if there had been any doubt about it, from that moment on the company was not permitting you to take photographs within the plant?---I said that if it was to become something that was going to restrict our right of entry and became an issue then we would have had to consider dropping that, but it didn't become an issue.
PN1933
Of course it became an issue. You knew from that moment that the company was not permitting you to take photographs?---We hadn't been told that we weren't permitted. He said he didn't want us to take photos.
PN1934
And he required you to delete them?---He asked us to delete.
PN1935
Are you seriously telling his Honour on your oath that you did not understand from that point on that the company was not permitting you to take photographs within the plant?---I'm telling his Honour on my oath that I was required to do a job that was - - -
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1936
Answer the question, Mr Snelson?---I'm answering the question. Please let me answer. Can I answer?
PN1937
If you will answer the question?---I will answer the question but you must let me answer the question in my way.
PN1938
THE DEPUTY PRESIDENT: Mr Snelson, there will be an opportunity for what we call re-examination - - -?---Yes, sir. I'm trying to answer the question.
PN1939
I will get the question repeated for you. I just need you to answer the question?
---Thank you.
PN1940
MR STANLEY: It may not be precise but I will do the best I can. Are you telling his Honour on your oath that from that moment you did not understand that the company was not permitting you to take photographs within the plant?---I am telling his Honour that I was not directed not to take photographs.
PN1941
That's not an answer to my question, Mr Snelson. My question is this: are you telling his Honour on your oath that from that point you did not understand that you were not permitted to take photographs by the company?---I still believed it was a legitimate part of my role on the advice that I'd been given and I hadn't been prohibited from doing it.
PN1942
I won't press the question again. That's the best answer you're going to give, is it, Mr Snelson?---That's the only answer I can give.
PN1943
How many pictures were taken?---Two.
PN1944
Two?---Yes.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1945
What, one of each of you?---One was taken by me and one was taken by Pearce on Pearce's camera.
PN1946
Do you still have in front of you the transcript of the evidence that you gave before Fair Work Australia?---Yes.
PN1947
Can you turn to question PN3253, please. It's towards the back?---I will but I don't need to because I know what you're going to ask me.
PN1948
THE DEPUTY PRESIDENT: Mr Snelson, I need you to turn to that paragraph?
---Sorry, what was it?
PN1949
MR STANLEY: 3253?---3253. Yes.
PN1950
If you go about two-thirds of the way down that page you will see you were asked a question, "But you clearly" - this is PN3261 - "But you clearly understood that the company didn't want you taking any pictures, didn't you?" Do you see that question?---Yes.
PN1951
And you answered, "No"?---Yes.
PN1952
That's in the context of being asked questions about this conversation with Mr Hu?---Yes.
PN1953
When he came across photographs being taken in the boardroom?---Yes.
PN1954
Then if you go to the bottom of the page, at PN3265 you say, "His actual words were, 'I don't want you to take pictures in here'"?---Yes.
PN1955
**** TONY KEITH SNELSON XXN MR STANLEY QC
Then you were asked, "Yes. And he asked you to delete the pictures that had been taken. Is that right"?---Yes.
PN1956
And you answer, "A picture. There was only one picture ever taken"?---Yes.
PN1957
Which is it, Mr Snelson? You've just told us that there were two pictures?---I took a picture, Pearce took a picture. At the time of making that statement I hadn't read my statement for some considerable time. I didn't or wasn't aware that it would be raised in evidence at Anyuon Mabior's unfair dismissal because it's not relevant. I asked for a copy of my statement at the time so I could refer to it and was refused. So I had no opportunity to revise my statement and given that I wasn't expecting that, I made a mistake. It was an error. I was referring to me taking one picture.
PN1958
That's not what you say, is it? You don't say it was just you taking one picture. You say, "There was only one picture ever taken"?---As I said, it's an error. Considering on the basis that I wasn't aware I would be answering those questions, hadn't had the opportunity to review my statement, had been refused the right to review my statement, then it was an error. I can say nothing more or less than that.
PN1959
That's not exactly what you say. Now you're saying you were just referring to the picture that you took. See, you were asked at
- just go back to that page. Halfway down the page, at PN3259, the question is put, "Do you remember before you went inside"
- that means inside the plant - "that you and Liz Pearce took some photos?" So it was put to you that you and Liz Pearce
had taken some photos?
---Yes.
PN1960
And Dada Hu said he didn't want you to take pictures. You deny that. You say, "No, there was only one picture ever taken"?---As I said, the circumstances were that I wasn't expecting to be answering those questions, hadn't read those statements, was referring to a memory of something that occurred a considerable time ago, under the heat of the moment on the stand I made a mistake. Personally, I don't think it was fair that I wasn't allowed to read my statement but that's just my judgment.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1961
We're not interested in what you think is fair or unfair, Mr Snelson?---All right.
PN1962
Perhaps if you can just confine yourself to answering questions. When you came back for the second inspection the following morning, you understood that the work you would be inspecting was work that was being performed by contractors, not Adelaide Poultry employees?---No, we were aware that there would be some Adelaide Poultry people starting during that time period.
PN1963
But overwhelmingly the work that was being performed was being performed by contractors?---Predominantly, yes.
PN1964
So whatever film you took, it wasn't going to be of much assistance in investigating complaints of underpayment by Adelaide Poultry, was it?---Well, as I said earlier, at the time we didn't know who were Adelaide Poultry employees and who weren't. What we believed we were recording was work of Adelaide Poultry.
PN1965
That's not true, is it? You knew by that morning that the work that you would be observing was predominantly work performed by contractors rather than Adelaide Poultry employees?---I couldn't say that. I don't know who the Adelaide Poultry employees were.
PN1966
See, you were taking films for a purpose other than a legitimate investigation of - - -?---I think if you - - -
PN1967
- - - an underpayment of wages in accordance with the provisions of the Poultry Processing Award?---I think if you view the footage it shows predominantly work that is being performed at various stations.
PN1968
**** TONY KEITH SNELSON XXN MR STANLEY QC
In relation to these tours, Mr Markou indicated to both you and Ms Pearce at various time that you were only permitted to speak to employees of Adelaide Poultry?---Yes.
PN1969
And he objected when on occasions Ms Pearce attempted to speak to workers who Mr Markou identified were not Adelaide Poultry employees?---I wouldn't say he objected. He made one comment once.
PN1970
It was an objection, wasn't it?---I wouldn't have called it an objection. It was more of a comment.
PN1971
I suggest that you disregarded the instructions that he was giving to you in that respect?---Again, you may suggest that but what actually happened was that we agreed the process with Mr Markou that we would ask people if they were employed by Adelaide Poultry or other, and if they indicated other then we would move on.
PN1972
Prior to the commencement of the third tour later on the 19th, you say in paragraph 50 of your statement that after Mr Markou spoke to you about not using photographic or electronic devices you replied, "No, other than my phone. You know about my phone"?---Yes.
PN1973
I suggest to you you didn't say that at all?---I did.
PN1974
You say in paragraph 53 that in the course of discussions with employees neither you nor Pearce ever asked whether they were happy
with what they earned?
---That's right.
PN1975
I suggest that's not true?---It's something I wouldn't say. If I asked any worker in any workplace whether they were happy with what they earned, the answer would be no.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1976
Have you seen the witness statement filed in this matter by Mr Francisco Argueta?---No.
PN1977
You haven't?---Not that I can recall.
PN1978
Have you seen the witness statement filed in these proceedings by David Bernhardt?---Not that I can recall.
PN1979
Can I tell you this: he says that - - -
PN1980
THE DEPUTY PRESIDENT: Can you clarify it by who you're referring to when you say "he".
PN1981
MR STANLEY: I'm sorry, yes. I'm sorry, your Honour. Thank you.
PN1982
Mr Argueta says that at some point he was working in the production plant and he was asked by Mr Sinkovic whether he would accompany him to the meet with two persons from the union. He met with two people from the union, a male and a female, in the course of which the male union official asked him, "How long have you been working here?" He said, "Eight years." The official asked, "Are you employed by a contractor or the company?" and he answered, "The company." The official asked, "Do you know if your rates are fair?" He answered, "I don't know." The union official asked, "But are you happy?" He answered, "Yes"?---As I said, it's something - - -
PN1983
And - - -?---Sorry.
PN1984
I suggest to you that he's deposing to a conversation that he had with you.
PN1985
**** TONY KEITH SNELSON XXN MR STANLEY QC
MR ROZEN: In fairness to Mr Snelson, your Honour, it ought be clarified that Mr Argueta appears to be talking about something that happens after November 2010. It's certainly not at all clear that he's saying it happened on the dates that have been the subject of the cross-examination to date.
PN1986
MR STANLEY: I don't accept the validity of my learned friend's proposition, if your Honour pleases.
PN1987
THE DEPUTY PRESIDENT: What about paragraph 5?
PN1988
MR STANLEY: I said that.
PN1989
THE DEPUTY PRESIDENT: Yes.
PN1990
MR STANLEY: He's just talking on another occasion. There's no reason to think that the affidavit has been organised chronologically.
PN1991
THE DEPUTY PRESIDENT: I see. Mr Stanley, I will allow the question but I do need to tell you I am unclear about the date upon which that alleged discussion occurred.
PN1992
MR STANLEY: Your Honour, I accept that and the witness is obviously unable to do any better than he did.
PN1993
THE DEPUTY PRESIDENT: Yes.
PN1994
MR STANLEY: Can I suggest to you that Mr Argueta is deposing there to a conversation that he had with you on 19 October?---Okay.
PN1995
Do you remember speaking to a Mr Argueta?---Yes.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN1996
Can I suggest to you that you had the conversation in the terms that I've just suggested to you?---I disagree. The conversations that we were holding with all workers inside the factory or within the boardroom were consistent with asking their name, how long they had been there, their classification, whether they had breaks. So the questions were consistent. There wasn't any questions of, "Are you happy?"
PN1997
Can I suggest to you that Mr Bernhardt has given a witness statement made on 16 November 2010 in which he says that about three weeks before then two people from the union were shown through the company's premises by Mr Markou. "When these people were shown through my work area they introduced themselves to me as being from the NUW. I was working alone. One of the people from the NUW said words to the effect that the NUW was at the company to help employees. This person asked my name and position, how much I earned and whether I was happy with how much I earned"?---No, as I said, we wouldn't ask whether you were happy with how much you earn because the answer from most of our members in any of our workplaces would be no. It's a question that I just wouldn't ask.
PN1998
After the third tour was over, you asked if you could undertake a fourth tour?
---Yes.
PN1999
Mr Markou wasn't prepared to agree to that?---No.
PN2000
But said as an alternative that he would bring any further employees you wished to speak to you so that you could speak to them in private?---Yes.
PN2001
You say in paragraph 57 of your witness statement that Liz Pearce said in this context, "What if I come along with you when you were asking employees so they don't feel pressured about their decision. We're already compromising by allowing you to bring employees who want to see us into the boardroom." Do you see that?---Yes.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN2002
I suggest to you that Ms Pearce didn't say that?---That's my recollection that's what she said.
PN2003
You say in paragraph 62 that after lunch you were situated in Mr Markou's office and Mr Markou started to bring employees to you?---Yes.
PN2004
I suggest to you that that just didn't occur. Mr Markou never brought the employees to you, it was always Ms Sinkovic?---My recollection is that he brought the employees to us.
PN2005
I suggest to you that during the course of discussions with Mr Markou and Ms Sinkovic you got angry, went red in the face, shouted?---No.
PN2006
I suggest further that when you spoke with Mr Argueta, you asked him whether or not he'd heard about someone getting sick from the gas the company uses?---No, I didn't ask that question.
PN2007
You say in paragraph 74 of your witness statement that you treated all information provided by company employees on a confidential basis?---Certainly.
PN2008
You didn't pass information obtained from one company employee to another company employee?---I certainly didn't.
PN2009
Have you seen a witness statement of Mr Mayur Patel?---I may have; I can't swear.
PN2010
Mr Patel says that in mid-October last year he was "approached by Ms Sinkovic while working in the plant and told that union people are here and want to meet with you. If you want to talk to them, it's up to you. If you don't want to meet with them, that's also okay." He decided to meet with the NUW people. He met with two people in the boardroom. There was a male and a female. In the course of that meeting he said to you that he was happy about where he was and about his work. "The people in the company cooperate and they're here to solve my problems"?---Yes.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN2011
He says some two or three hours later, after he'd finished this meeting, he met with one of his Indian friends from within the plant. This person said to him, "'Why did you say you were happy with the company and all of those things?' My friend used the same words I used when I was speaking to the union officials." Can you offer any explanation as to how that could have occurred?---No, I can't. I've been a union official for 22 years. I would never pass on information from something one member has said to another member. We're very, very careful about confidentiality. I do not ever breach it.
PN2012
These weren't necessarily members of yours, were they?---It works the same, whoever the person is.
PN2013
How else do you think that could have occurred, Mr Snelson?---You will have to speak to those persons and asked them how that occurred because I wouldn't do it.
PN2014
You say in paragraph 79 that you and Pearce passed on all information that you gathered over 18 and 19 October, including material provided by the company, employee statements and video footage to Roberts and other NUW senior officials on a confidential basis?---Yes.
PN2015
Just firstly, when did you hand it over to Roberts?---Well, I didn't. I handed it over to Dave Garland, who is my senior.
PN2016
Why did you say you handed it over to Roberts?---Because everything goes to Roberts as the branch secretary.
PN2017
What other NUW senior officials did you hand it over to?---Dave Garland.
PN2018
That's one official. Who are the other officials you handed it over to?---Well, that's two. That's senior officials.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN2019
You didn't hand it to Mr Roberts, we've just established that. You said you "handed it to Roberts and other senior officials". Who were the officials?---I think you're reading the information too literally. I handed it over to Dave Garland, who is my lead, then he did whatever he did with senior officials.
PN2020
How literally should I read it?---As it's written. I handed it over to Garland who would have passed it on to Roberts.
PN2021
You don't make reference to Garland, do you?---Well, he's a senior official.
PN2022
He's a senior official. You refer to "Roberts and other senior officials"?---That's just language. Sorry if it - - -
PN2023
How do you say you handed it over to them on a confidential basis?---On the basis that it was information that was for us to ascertain the claim and it wouldn't be public information.
PN2024
Did you say to Garland, "Here's this information. You've got to keep it confidential"?---On a confidential basis as I'd spoken to no-one other than them about it. It's just a closure of the statement.
PN2025
What do you mean when you say you handed it to them on a confidential basis? How did you maintain the confidence?---Meaning that I hadn't spoken to anyone else about the information that I'd gathered.
PN2026
Prior to you visiting the plant at Wingfield on 18 October for the purpose of exercising the right of entry pursuant to the orders made by Hampton C, what contact did you have with personnel from the ABC?---I've never had any contact with personnel from the ABC.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN2027
Never?---Never.
PN2028
Are you sure about that?---Yes.
PN2029
Can you take up the transcript again of the proceedings in Fair Work Australia?
---Yes.
PN2030
Can I ask you to turn to - - -
PN2031
THE DEPUTY PRESIDENT: This is the proceedings before Steel C, is it?
PN2032
MR STANLEY: Yes, I'm sorry, your Honour. The proceedings in relation to Mr Mabior's unfair dismissal claim.
PN2033
Can you turn to PN3073?---3073, yes.
PN2034
If you look down just beyond halfway. Can I direct your attention to PN3080?
---Yes.
PN2035
Do you see there you were asked, "Now, you're also aware of a Lateline program that raised criticisms of Baiada that appeared on ABC national television?" and you answer, "Yes"?---Yes.
PN2036
You were asked, "Featured on the 'Free the Lilydale chicken workers page' it's got the YouTube footage of Anyuon Mabior's interview." Answer, "I believe so. I haven't looked for it on the Facebook page"?---Yes.
PN2037
Question, "Didn't you yourself organise for Anyuon Mabior's interview with the ABC to come about?" Answer, "I certainly did"?---I said, "I certainly did not."
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN2038
You accept that that's not the evidence as it's recorded here?---I can see it's not but I said, "I certainly did not." I don't know whether you can go back and check that transcript but that's what I said. I have never been in contact with ABC.
PN2039
Did you see the Lateline program that was broadcast from 21 October?---Yes.
PN2040
Do you agree that depicted in that program is vision of you and Ms Pearce entering the premises on 18 October in accordance with the orders that were made by Hampton C?---Yes.
PN2041
How is it the ABC was present there on site that day and able to film the two of you entering the premises?---I've no idea.
PN2042
The ABC weren't maintaining a permanent presence outside the plant, were they?
---I just said I've got no idea.
PN2043
It's not an answer to my question, Mr Snelson. Could you just answer the questions that are put to you, please. The ABC wasn't present there permanently outside the plant, were they?---I wasn't looking to take note of whether the ABC were there on other occasions, so I have no idea.
PN2044
I suggest to you that the union had tipped the ABC off that the right of entry was going to be exercised by the union on this occasion?---I can't answer that question; I have no knowledge.
PN2045
So you've had these discussions about all this planning about what was going to go on, so you knew that Mr Richardson was going to be phoning Sonia Takla at the same time that you were going to be entering the premises?---Yes.
PN2046
**** TONY KEITH SNELSON XXN MR STANLEY QC
But you had no idea that the ABC was going to be there at that stage to film you entering the premises?---My role was to the right of entry into Adelaide Poultry and to gather the information that was required in the manner that we've discussed. Outside of that, I have no idea.
PN2047
You say there had been no mention at any of these planning discussions about the ABC being present on site?---No.
PN2048
You say that no-one had suggested that, "We could organise for the ABC to film you going in"?---Not while I was present, no.
PN2049
You were aware that the ABC was taking an interest in the campaign, weren't you?---A lot of people were, yes.
PN2050
As far as you were aware, the union had contact with the ABC for the purpose of enabling the ABC to cover the campaign?---As far as I'm aware, yes, but that's not a component of my job.
PN2051
Who was responsible for doing that in the union?---In the union office it would be Dave Garland and whoever he needs to discuss that with.
PN2052
Were you aware of the video that you'd taken being supplied by the union to the ABC?---No, my job was to gather the information that was required and to pass it on.
PN2053
Did you have a discussion with Mr Garland about making that film available to the ABC?---No.
PN2054
Did you have a discussion with any other official of the union about making that film available to the ABC?---No.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN2055
The video recording device that you used when you entered the company's premises, that did more than record vision, didn't it?---I don't know actually.
PN2056
You've seen the web site that the union has?---Yes.
PN2057
You've seen the web page concerning the "Free the Lilydale chicken workers campaign"?---Yes.
PN2058
You've noticed, haven't you, that you're able to download on that web page the film that you took?---Yes.
PN2059
You've downloaded that film and viewed it?---I viewed it, yes.
PN2060
On that you can hear people talking, can't you?---You can hear noise actually. I don't know whether you can hear people talking.
PN2061
I suggest to you that you can hear conversations that have been connected?---I don't know. I haven't watched it or listened to it that intently. I know you can hear machinery but I couldn't tell you whether you could hear conversations or not.
PN2062
I suggest to you you can hear conversations. Did you obtain the permission of the people you were speaking to to record those conversations?---I did what I was required to do and what I was told to do.
PN2063
Can you just answer the question, please, Mr Snelson?---No.
PN2064
No, you didn't obtain their permission?---No.
PN2065
**** TONY KEITH SNELSON XXN MR STANLEY QC
In the course of the four weeks that you were camped outside the company's premises and you say you were the recipient of these complaints by workers of breaches of the Act or the award, what steps did you take to verify the accuracy of those claims?---We took statements. We were gathering information, checking them off from our information and I think the seeking clarification was the basis of the right of entry.
PN2066
Is this the position - you tell me whether I'm misrepresenting what you've just told his Honour - apart from seeking to inspect records pursuant to the right of entry, nothing was done during the course of those four weeks to verify the accuracy of those complaints that were being made to you?---We gathered information. We'd got wage slips that had been provided and our belief was that the best way for us to gather accurate information was to do the time and wages check. We didn't believe that we would get that accurate information by asking for it from the company.
PN2067
When you obtained pay slips from company employees you were able to tell from their pay slips whether they were a company employee or an employee of a contractor?---Not on all pay slips, no.
PN2068
Why not?---Some didn't have that marking, some people didn't get pay slips.
PN2069
The pay slips you've exhibited clearly exhibit those pay slips as pay slips of a company, don't they?---Yes.
PN2070
There's no reason to think that the company pay slips did anything other than identify them as pay slips of employees of the company, is there?---That's right, yes.
PN2071
So if there were pay slips that didn't identify the worker as an employee of the company it would have been a fair inference that they were not employees of the company?---I suppose, yes.
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN2072
Individual letters were sent by the union to company employees inviting them to attend union meetings?---Yes.
PN2073
Addressed to those employees?---By name, yes.
PN2074
And by address?---I can't recall, I didn't do that.
PN2075
Can I suggest to you that the material that you gathered in the course of exercising your right of entry were used for the purpose of preparing those letters?---As I said, I didn't prepare those letters.
PN2076
Who did?---Another official.
PN2077
Which official?---I think it was done in association with Dave. I think it was Tim Gunstone, I think.
PN2078
THE DEPUTY PRESIDENT: I'm sorry, Mr Snelson?---Tim Gunstone, I think, sir.
PN2079
MR STANLEY: In the course of the campaign against Baiada, have you had contact with Safe Work SA?---No.
PN2080
Have you had contact with the Fair Work Ombudsman?---No.
PN2081
Sorry, is that a convenient time, your Honour?
PN2082
THE DEPUTY PRESIDENT: It suits me, Mr Stanley. I take it you're still not available this afternoon?---No, I'm sorry.
PN2083
**** TONY KEITH SNELSON XXN MR STANLEY QC
So we will adjourn on that basis until tomorrow morning.
PN2084
MR STANLEY: Thank you.
PN2085
THE DEPUTY PRESIDENT: Would 10 o'clock be a convenient time?
PN2086
MR STANLEY: Thank you.
PN2087
MR ROZEN: It would be for me. We would be quite happy to start a little earlier, if that's suitable.
PN2088
THE DEPUTY PRESIDENT: 9.30 start?
PN2089
MR STANLEY: I can start at 9.30.
PN2090
THE DEPUTY PRESIDENT: All right. We will start at 9.30.
PN2091
Mr Snelson, you're still sworn in as a witness?---Yes, sir.
PN2092
I need to ask you not to discuss the matter with anyone other than your legal representative over that time?---Yes, sir.
PN2093
Mr Rozen.
PN2094
MR ROZEN: Your Honour, could I just raise one matter arising out of the evidence given by Mr Snelson today and that is, can I clarify whether there is any way of verifying the accuracy of the transcript of the proceedings before Steel C?
PN2095
THE DEPUTY PRESIDENT: There may be, Mr Rozen. We can generally access a - - -
**** TONY KEITH SNELSON XXN MR STANLEY QC
PN2096
MR ROZEN: A tape, I thought.
PN2097
THE DEPUTY PRESIDENT: Yes, the actual recording. You will need to leave that with me and my associate will do some research on it today. I can't guarantee that it's available or that it will necessarily help us.
PN2098
MR ROZEN: I just thought I'd raise it now because I know sometimes these things get deleted fairly shortly after they're recorded.
PN2099
THE DEPUTY PRESIDENT: They're normally kept for some time but I won't put a guarantee on my answer at this stage. I bow to a far greater or more efficient authority on that issue.
PN2100
MR ROZEN: Perhaps I could liase with your Honour's associate about that.
PN2101
THE DEPUTY PRESIDENT: Why don't we leave it on the basis that if my associate is able to ascertain any relevant information about the recording then she will liase with both you and Mr Stanley, or the appropriate persons, by way of an email.
PN2102
MR ROZEN: Yes, we're grateful, your Honour.
THE DEPUTY PRESIDENT: I will adjourn the matter until 9.30 tomorrow.
<THE WITNESS WITHDREW [1.02PM]
<ADJOURNED UNTIL TUESDAY, 3 MAY 2011 [1.02PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #B23 CORRESPONDENCE FROM THE FAIR WORK OMBUDSMAN DATED 21/12/2010 PN1336
TONY KEITH SNELSON, AFFIRMED PN1351
EXAMINATION-IN-CHIEF BY MR ROZEN PN1351
EXHIBIT #N2 STATEMENT OF MR SNELSON PN1363
EXHIBIT #N3 AFFIDAVIT OF MR SNELSON DATED 12/10/2010 PN1398
CROSS-EXAMINATION BY MR STANLEY PN1399
THE WITNESS WITHDREW PN2103
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/other/FWATrans/2011/455.html