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Fair Work Australia Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1035120-1
COMMISSIONER CARGILL
AG2012/7719
s.185 - Application for approval of a single-enterprise agreement
Coffey Information Pty Limited
and
The Australian Workers' Union; The Australian Workers' Union; The Australian Workers' Union; The Australian Workers' Union
(AG2012/7719)
Sydney
10.03AM, TUESDAY, 20 NOVEMBER 2012
PN1
THE COMMISSIONER: Could I have appearances, please.
PN2
MR O. FAGIR: If it please the tribunal, Fagir, initial O, seeking permission to appear as solicitor for the applicant.
PN3
THE COMMISSIONER: Yes, Mr Fagir.
PN4
MR FAGIR: With me is MR V. DI SISTO.
PN5
THE COMMISSIONER: Thank you.
PN6
MR S. CRAWFORD: Commissioner (indistinct) I have permission to appear from Mr Fagir. It's a team effort from the union today. I'm Crawford, initial S. With me is MR M. DECANE and MS K. THOMSON.
PN7
THE COMMISSIONER: Are you all making submissions or it's just they're here to - - -
PN8
MR CRAWFORD: Most likely me, Commissioner, but if something gets too complicated for me, I might have to ask one of my colleagues to step in.
PN9
THE COMMISSIONER: Thank you. Permission is granted, Mr Fagir. Thank you. I've received hopefully all the material in relation to this and that goes for both. So that's an outline of submission, an affidavit of Mr Kelahar and then an affidavit in reply, and also an outline of submissions in reply from you, Mr Fagir.
PN10
MR FAGIR: Yes.
PN11
THE COMMISSIONER: Mr Crawford, I've got an outline of submission from you and two witnesses statements. I note from the list of appearances Mr Callinan is here. Is Mr Muller not required for cross-examination or - - -
PN12
MR FAGIR: He's not required for cross-examination, no.
PN13
THE COMMISSIONER: Okay.
PN14
MR FAGIR: But, Commissioner, you should have one more document from us, which is a detailed comparison table of the agreement as against the building and construction - - -
PN15
THE COMMISSIONER: Yes, attached to your final - the outline.
PN16
MR FAGIR: I think it arrived about 24 hours late, Commissioner. But there's a schedule to the submission which summarises the position.
PN17
THE COMMISSIONER: There's schedule A. Is that what I'm after?
PN18
MR FAGIR: Yes, and there should be another document. Can you find that?
PN19
THE COMMISSIONER: No. I will show you what I have. Maybe something has gone missing in transit.
PN20
MR FAGIR: I'm sure it's my fault, Commissioner.
PN21
THE COMMISSIONER: Do you have a spare or else we can get a copy? Just checking, Mr Crawford, you have that, do you?
PN22
MR CRAWFORD: I received that, yes, Commissioner.
PN23
THE COMMISSIONER: Okay. So if we can get a copy of that. Yes, Mr Fagir.
PN24
MR FAGIR: Thank you, Commissioner. The submissions in reply and the evidence that will be tendered all go to the issue agitated by the union. In relation to the balance of the issues that the tribunal needs to deal with, we rely on the material included in our form F16. Commissioner, if you have any concerns in relation to other matters, I'm sure you'll raise them with me and we'll deal with them. But for the moment we'll be dealing with the issue or the issues raised by the union. I don't think there's any need for a formal opening on our part, Commissioner. I might call Mr Kelahar to give evidence.
PN25
MR CRAWFORD: Just before we do - - -
PN26
THE COMMISSIONER: Yes, I was just going to say in any event we might have to wait a moment, Mr Fagir, till my associate comes back to get him.
PN27
MR FAGIR: Yes, certainly, Commissioner.
PN28
THE COMMISSIONER: Yes, Mr Crawford.
PN29
MR CRAWFORD: In the meantime, Commissioner, I was intending to hand up a supplementary outline of submissions which largely responds to the second submissions filed by Coffey. I hand it up just in an attempt to provide more efficiency today so I don't have to read the whole document in closing submissions. I prefer to just summarise and hand it up, if you please.
PN30
THE COMMISSIONER: Have you got a copy for Mr Fagir?
PN31
MR CRAWFORD: I've handed Mr Fagir a copy, yes.
PN32
THE COMMISSIONER: We might also have to put that on hold, Mr Crawford. That's the problem when you send your associate out, there's no-one to do all those things. He's just photocopying.
PN33
THE ASSOCIATE: Please state your full name and your address, please.
MR KELAHAR: Stuart Leon Kelahar, (address supplied).
<STUART LEON KELAHAR, SWORN [10.09AM]
<EXAMINATION-IN-CHIEF BY MR FAGIR [10.09AM]
PN35
MR FAGIR: Sir, your name is Stuart Leon Kelahar?---That's right.
PN36
Can you tell us your address for the record, Mr Kelahar?---(address supplied).
PN37
Mr Kelahar, have you sworn an affidavit in these proceedings?---Yes, I have.
PN38
Is that an affidavit with a stamp on the front page indicating that it was received on 9 October 2012?---Yes, that's correct.
PN39
Commissioner, I think (indistinct) is the technical term, the affidavit of Mr Kelahar.
PN40
THE COMMISSIONER: Do you want that marked, Mr Fagir?
PN41
MR FAGIR: Yes.
THE COMMISSIONER: I will mark that as Coffey1.
EXHIBIT #COFFEY1 AFFIDAVIT OF STUART LEON KELAHAR
PN43
MR FAGIR: Mr Kelahar, have you made a further statement in reply in these proceedings?---Yes, I have.
PN44
Do you have a copy of that statement with you?---Yes.
PN45
Are the contents of that statement true and correct to the best of your knowledge and belief?---Yes, they are.
PN46
**** STUART LEON KELAHAR XN MR FAGIR
Commissioner, I tender the statement in reply of Mr Kelahar.
THE COMMISSIONER: I will mark that as Coffey2.
EXHIBIT #COFFEY2 STATEMENT IN REPLY OF STUART LEON KELAHAR
PN48
MR FAGIR: Commissioner, with your leave, I would like to ask Mr Kelahar three or four brief questions in supplementation of his evidence.
PN49
Mr Kelahar, you've seen the statement of Tony Callinan filed in these proceedings and you know Mr Callinan has indicated that he had a look at the Coffey web site?---Yes.
PN50
And he had a look at the job advertisements that were present on the web site as of the date a few weeks ago?---Yes.
PN51
Have you seen that web site?---Yes, I looked at it last night.
PN52
What can you tell us about the job advertisements that are posted there at the moment?---For Coffey Information we have 10 positions advertised, of which two of the are for projects that are on site and two of them are for base load positions, one in Darwin and one in Perth, and the remainder are reception/admin type roles.
PN53
Thank you. Mr Kelahar, you're aware that the overtime penalty regime for part-time employees in the agreement is different to the regime that applies under the award - - -?---Yes.
PN54
- - - in that part-time employees under the agreement are only paid overtime penalties when they work more than 38 hours a week - - -?---Yes.
PN55
**** STUART LEON KELAHAR XN MR FAGIR
- - - as opposed - - -
PN56
THE COMMISSIONER: Sorry, Mr Fagir, can I just ask, if you're saying "Yes", you will need to say "Yes" or "No"
because it won't pick up nods or shakes?
---Okay.
PN57
Just if you could do that, thanks?---Sure.
PN58
Sorry.
PN59
MR FAGIR: Thank you, Commissioner.
PN60
The agreement overtime regime differs from the award in that the award provides for overtime penalties after agreed hours. You're aware of that?---Yes.
PN61
Can you shed any light on why the agreement differs from the award in this respect?---Yes, it was a concession made to Simon Miller, who was one of the bargaining reps during the process. A lot of our part-timers or some of our part-timers are uni students and he wanted to be able to, during his holidays - which is now, pretty much - be able to work on a full-time basis if we have the work. However, the previous arrangement or the arrangement we have actually in place now would mean that we would have to pay overtime, which generally meant that we couldn't use those guys for full-time work per week. So we agreed that by putting what we had in the agreement or what we've got in the agreement now, we could use those guys for full-time work. So we basically conceded to Simon Miller's request.
PN62
Thank you. Mr Kelahar, I think you will have to generalise in answer to this question but do your best. Could you give the Commissioner a rough idea of the hours that are worked, first, by employees who are based or who are engaged at base labs; and, second, the hours worked by employees who are engaged on on-site labs?---Yes. We track this obviously through our financial records and overtime is one of the measures that we use to track performance I guess and how much workload the projects and lab sites have. So based on that, the base labs would generally work between 10 and 15 per cent overtime per week, which is roughly say 40 to 45 hours. Project sites we are generally are running about 30 per cent plus, so that's 50 to 55-hour weeks, six days a week really.
**** STUART LEON KELAHAR XN MR FAGIR
PN63
Thank you, Mr Kelahar. Commissioner, that's the evidence of Mr Kelahar.
<CROSS-EXAMINATION BY MR CRAWFORD [10.15AM]
PN64
MR CRAWFORD: Mr Kelahar, during the cross-examination I will refer you to both the affidavit and the statement that you filed in the proceedings but initially I note my friend referred you to job advertisements appearing on the Coffey web site. Is that right?---Yes.
PN65
I would like, if you please, Commissioner, to hand the witness a document. It's an advertisement that was printed from the Coffey web site on 5 November 2012. I have a copy for my friend. You can take a moment to read that, Mr Kelahar, or are you familiar with it?---I'm familiar with this one - reasonably, but yes.
PN66
So this is for, do you agree, a concrete technician position on the HEA Project?
---Yes.
PN67
I understand that's the Hunter Expressway Alliance Project to Newcastle. Is that right?---That's right.
PN68
Does that project effectively fall within your responsibility as a project manager?
---Yes.
PN69
So you would have been aware of this application being on the web site?---Yes.
PN70
And has that position been filled?---I believe they have been filled.
PN71
You believe it has been filled. What does that mean?---Well, sometimes we keep the ads going, although we're not actually actively looking for Coffey concrete technicians now because we're obviously in paving on the project. However, as staff come and go we will continue to build up a - what's the word I'm trying to look for - a pool of people just in case we need to recruit more. So the advert is still open but we're not actually recruiting more people for that project at the moment.
**** STUART LEON KELAHAR XXN MR CRAWFORD
PN72
So in the figures that you gave to the tribunal in response to a question from my friend earlier, was this advertisement included in those figures?---Yes, it's still there in those figures.
PN73
So you said, I believe, there were 10 positions currently being advertised on the web site?---Yes.
PN74
And two of those were on-site positions?---Yes.
PN75
I believe you referred to the Northern Territory and Western Australia. Is that right?---There's two positions for - there's this project, Hunter Expressway Alliance, and the other project is Curtis Island, which is in Queensland.
PN76
So the two positions on site that you're referring to are this one on the HEA Project?---Yes.
PN77
And the other one - - -?---Curtis Island.
PN78
- - - is Curtis Island?---Well, it says "Gladstone area".
PN79
And those are the only two on-site positions that you're aware of?---That I'm aware of, yes.
PN80
I note that this is a specific concrete technician position, isn't it?---Yes.
PN81
And I also note that on the advertisement, in the last sentence appearing under the heading Recruitment Application, it refers to, "Exciting opportunity to develop your career in construction material, compliance testing, working on a large scale infrastructure project." Is that right?---Yes, that's right.
**** STUART LEON KELAHAR XXN MR CRAWFORD
PN82
Was this Hunter Expressway Alliance Project typical of the type of projects you look after in your role?---It's typical to New South Wales projects - to road projects, I should say - specific to road projects in New South Wales.
PN83
In New South Wales, how many temporary on-site laboratories are there?---There is currently four in New South - - -
PN84
And where are they?---Actually there's five that I cover. Under my responsibility there's four - excuse me. There's the Holbrook Bypass, which is on the Hume Highway just north of Albury. There's the Hunter Expressway Alliance Laboratory. There's the Hunter Expressway Design and Construction Project, which is the Abigroup section of this same road through to Branxton Highway. Then there's Kempsey Bypass Laboratory - Kempsey Bypass Alliance with Leighton Project. We have a small facility at Herons Creek and we have a very small on-site laboratory of one person two days a week based out at Ballina, Northern New South Wales and Pacific Highway.
PN85
Is that aligned to a project, the one in Ballina?---That's an Alliance project, yes, with an Alliance partner.
PN86
It's a road building project, is it?---Yes.
PN87
And the Herons Creek, is that a road building project as well?---It's a road. All those projects I've mentioned are roads.
PN88
They're all in civil construction concerned with road building projects. Is that right?---That's correct.
PN89
I note, Mr Kelahar, moving down that document, in the second paragraph, under the heading The Role, it says, "Successful applicants will be offered a fixed term contract with full training provided." Is that right?---That's correct.
**** STUART LEON KELAHAR XXN MR CRAWFORD
PN90
Is fixed term employment common on this type of project?---It is common on these road building projects, yes.
PN91
Would you say that most - - -?---For these entry level technicians it's common.
PN92
As a percentage, what percentage would you estimate of employees on these projects are employed on fixed term contracts?---I would probably have to say it would be 60, 70 per cent, around that mark. I couldn't tell for sure.
PN93
I guess the rationale from the company for employing these people on a fixed term basis is that their employment is directly linked
to that project. Is that right?
---That's right.
PN94
I note under the heading The Person it reads, "Whilst no prior experience is necessary to succeed in these positions, knowledge of construction material, monitoring and testing would be an advantage." Is that right?---Yes.
PN95
Then it reads, "Previous experience in the construction industry, specifically concrete related, along with a construction induction card, would also be beneficial." Is that right?---That's right.
PN96
Can you explain, Mr Kelahar, why it is the case that experience in the construction industry and a construction induction card might be beneficial for this applicant?---Shows experience in the - I'm just trying to work out the relevance. I'm sorry, I understand your question but - yes, obviously interaction with a lot of plant on site and experience in the construction industry from a safety point of view is I think really what we're trying to say in that advert. So some experience operating around heavy plant and things like that would be more beneficial than someone that has no experience around working with heavy plant. It would be around safety, hence the construction White Card.
**** STUART LEON KELAHAR XXN MR CRAWFORD
PN97
Would you accept that working around other construction workers or having a history of working alongside other construction workers might also be a benefit for the applicant?---Yes, sure, that would be a benefit.
PN98
THE COMMISSIONER: Do you want that marked, Mr Crawford?
PN99
MR CRAWFORD: Yes, sorry, Commissioner, I would.
THE COMMISSIONER: We will mark that as AWU1.
EXHIBIT #AWU1 COFFEY POSITION ADVERTISEMENT DATED 05/11/2012
PN101
MR CRAWFORD: Mr Kelahar, sorry, before I leave that issue of that position advertisement, where would this concrete technician - if this enterprise agreement is ultimately approved by Fair Work Australia, where would this technician sit in the classification structure of the agreement?---Depending on age, either a T1 or a T2.
PN102
Do we know how long generally these fixed term contracts last for?---It depends on the length of the project but they're generally 12 months plus. So HEA, for example, that project is a three-year project.
PN103
So still on this position advertisement, do you accept that the advertisement reads, "No prior experience is necessary to succeed in these positions"?---Mm'hm.
PN104
So this applicant would not have to have any formal qualifications to potentially be successful in this job?---No.
PN105
Mr Kelahar, can I refer you to the affidavit initially?---Yes.
**** STUART LEON KELAHAR XXN MR CRAWFORD
PN106
Specifically paragraph 4(b)?---4(b), yes.
PN107
So you've listed four different Coffey entities there in (a), (b), (c) and (d). In the Coffey Information heading, which is obviously the relevant employer in terms of this case, that reads, "Coffey Information performs independent testing, verification, conformity, assessment and technical assessment of construction materials." Is that right?---That's correct.
PN108
So are you indicating there that Coffey Information performs all that testing work specifically in relation to construction materials?---Of construction materials, yes.
PN109
Can I refer you to paragraph 10 of your affidavit, Mr Kelahar?---Yes.
PN110
The second sentence in that paragraph reads, "In the simplest possible terms, that work involves employees collecting samples from a site and testing them in a laboratory." Is that right?---Yes.
PN111
I believe you have read Mr Muller's and Mr Callinan's statements in these cases?
---Yes.
PN112
Do you accept that a significant proportion of testing work potentially gets done purely outside, not in any temporary lab or base lab?---I accept that we do do a lot of work out in the field but it's certainly not the majority of our work, not by a long shot.
PN113
A lot of work out in the field. So why then have you put, in simplest terms, that the work involved employees collecting samples from a site and testing them in a laboratory? Why have you left out that important information, that employees also test out in the field?---They collect samples from the field; that's what I mean by that.
**** STUART LEON KELAHAR XXN MR CRAWFORD
PN114
Where are they tested; in a laboratory?---They test the samples back in the laboratory. Okay, I have to explain how the field testing is.
PN115
Yes?---Go into some detail? Okay, so Geoff Muller talks about concrete testing or concrete sampling.
PN116
Yes?---You sample and then you can do an in situ test on site. So I will focus on concrete testing because that's what Tony Callinan mainly mentions.
PN117
Yes?---So the slump test is a test to determine the uniformity of the concrete or the workability is probably a better word of it - so how wet or dry. We do that at point of placement. So as the concrete truck backs up, tips it out, we test it. We do the slump test. At the same time - or generally you might say we're doing a pour and so you look at the whole pour in its entirety. You might be putting, say, 50, 100, 150 cubic metres of concrete in, which is between five, 10, 15, 20 trucks. You will also be taking periodically through the pour concrete cylinders. Those concrete cylinders are taken back to the laboratory after they've gone hard, for testing in the laboratory. So, yes, of course we do some field tests but at the same time there's a lot of tests that get taken back to the laboratory, which are worked on there. So the other one that he talks about is compaction testing. It's actually called density testing when we talk about it in the field. We use a nuclear field density gauge. That's what it's actually called. The test method is 5.8.1. Out of every single density test you do there's a corresponding sample that is collected and taken back to the laboratory for a compaction test. From that compaction test, we compare that again, which works out the maximum dry density or maximum wet density, depending which one you pick. It can be modified or standard. I don't want to go - I know it means nothing but it's the way I think. Then we compare those two readings, one from the field and one from the laboratory, to work out the percentage of compaction and then advise the client whether they can go ahead and place or whether they know they have to do more work to the road and - - -
**** STUART LEON KELAHAR XXN MR CRAWFORD
PN118
You do accept that some testing - I believe Mr Muller also (indistinct)?---Sure, some testing is in the field.
PN119
- - - some testing is done out in the field?---Yes, absolutely.
PN120
So my question to you was - going back - why haven't you listed that in paragraph 10 of your affidavit?---I think we've listed it - - -
PN121
That's not my question?---Okay. I don't know, I should have done.
PN122
Mr Kelahar, I'd like some information about these base labs which I understand are off construction sites. Is that right?---Yes.
PN123
Were they ever a demountable building, or something similar?---Off site?
PN124
Yes, the base laboratories?---The base labs. Not to my knowledge that they are demountable buildings.
PN125
They're not?---No.
PN126
Have you ever been to a base laboratory?---Yes.
PN127
Can you describe the type of building that the laboratory was in?---The base laboratories, we have over 20 of them and I've been to quite a lot of them and they're permanent facilities generally collocated with another Coffey office, such as Warabrook and Newcastle, such as Albury and Albury, and Melbourne and Melbourne, and all of them.
PN128
Are they fully enclosed?---Yes, they're a building. They're a commercial premises.
**** STUART LEON KELAHAR XXN MR CRAWFORD
PN129
Have they got airconditioning and everything?---Most of them, yes.
PN130
Would you accept, Mr Kelahar, that the working conditions for employees in these base laboratories which are enclosed in a building would be different from those on construction sites?---I think most of our project sites are airconditioned and they're full, proper laboratories.
PN131
What about, for example, Mr Muller when he does field testing?---Field testing? Well, he's not working out of base lab; he's working on site field sampling.
PN132
Are any of your temporary on-site laboratories part of a fully structured building with brickwork or are they more generally demountables?---We obviously do run demountable buildings - ATCO, such as what our clients use. However, a lot of our tests require us to have a concrete floor, so they kind of need to be kind of structural.
PN133
On the Hunter Expressway Alliance Project, can you describe the temporary laboratory there?---It's a proper shed.
PN134
Would you say it's a tin shed?---It's a tin shed that's insulated and airconditioned.
PN135
Mr Kelahar, can I now refer you to the annexures to your affidavit - - -?---Yes.
PN136
- - - initially annexure SK1. Do you have that?---Yes.
PN137
So that's some sort of table supposedly indicating services provided by Coffey Information. Is that right?---That's correct.
PN138
Did you compile that document?---Yes, I (indistinct)
**** STUART LEON KELAHAR XXN MR CRAWFORD
PN139
When did you do that?---Well, some time before - when did we - some time before 9 November.
PN140
This year?---Yes, this year.
PN141
Mr Kelahar, I believe that the Coffey web site contains information about the business. Is that right?---Yes, it has our capability statements there.
PN142
And I believe that also the other business records talk about the type of work Coffey performs. Is that right?---Mm'hm.
PN143
Yet for your affidavit in this case, rather than attaching those web site documents or business records, instead in November this year you compile this spreadsheet. Is that right?---That's correct.
PN144
Is that document publicly available at all, Mr Kelahar?---Yes, it's publicly available.
PN145
Where would we find that?---You'll find it on the Coffey Information web - or coffey.com.
PN146
Coffey.com?---Yes.
PN147
The spreadsheet?---Sorry, no, you won't find this on the web site. You will find our capability statement, which is where a lot of this information has been lifted from.
PN148
Okay, thank you?---Yes. Sorry, I didn't quite understand the question.
PN149
**** STUART LEON KELAHAR XXN MR CRAWFORD
Thank you. So now can we turn to SK2, that annexure. I believe this annexure, SK2, is referred to in paragraph 15 of your affidavit. Is that right?---Yes, that's right.
PN150
"Copies of which are annexed to this affidavit at annexure SK2, namely soil testing" - it goes on at (a), "field density testing"; it goes on at (b), "concrete testing"; it goes on at (c) - is that correct?---Yes.
PN151
Can we have a look at the documents behind the annexure SK2, Mr Kelahar?
---Mm'hm.
PN152
Do you agree the first one is titled - I can't read it. I think that says Module, Basic Technical Units. Is that right?---That would be Module 1, Basic Technical Units.
PN153
Then if we turn over a couple of pages we have Unit 1, Laboratory Practices and OH and S. Is that right?---Correct.
PN154
Just on that document, under the heading Client Contact and Attitude do you agree it reads, "The company operates in the field
of consulting engineering and construction material testing and markets its professional expertise." Is that right?
---Sorry, where did you read that?
PN155
Under the heading Client Contact and Attitude?---Yes.
PN156
Then moving forward, I believe if you turn about four or five pages you will find Unit 2, Soil Classification. Is that right?---Yes.
PN157
Do you agree on that document there's a heading Basic Soil Types for the Construction Material Industry? Is that right?---Yes.
PN158
**** STUART LEON KELAHAR XXN MR CRAWFORD
Turning through, there's about six or seven pages - - -?---Unit 3, yes.
PN159
Unit 3, Sample Preparation. Do you agree that the first sentence reads, "Sample preparation is a critical component of construction material test methods"?---Yes.
PN160
Then under the heading Purpose, do you agree that the words, "The method applies to soil, gravel, crushed rock or similar road construction materials" - second dot point, "Aggregates used in road construction," and then it goes on. Were those words there?---Yes.
PN161
Then the next unit, after another few pages, is Unit 4, Moisture Content. Is that correct?---That's correct.
PN162
Do you agree that under the heading purpose, the second sentence reads, "On a construction site it is also important for determining how far from optimum the in situ soil is currently." Is that right?---That's right.
PN163
THE COMMISSIONER: Sorry, Mr Crawford, you've lost me for that last bit. Where are you on that last bit?
PN164
MR CRAWFORD: That was - - -
PN165
THE COMMISSIONER: Still in unit 3 or have you moved - - -
PN166
MR CRAWFORD: No, sorry, Unit 4, Moisture Content.
PN167
THE COMMISSIONER: Okay. Sorry, that's my problem. Yes.
PN168
MR CRAWFORD: Then another few pages we have Unit 5, Compactions. Do you agree that reads, "Purpose: wherever soil or crushed rock for roads is placed," and then it goes on?---Yes.
**** STUART LEON KELAHAR XXN MR CRAWFORD
PN169
Then I believe that's the last unit attached to annexure SK2. Is that correct?---Yes, it is.
PN170
So now turning back to paragraph 15 of your affidavit where you actually refer to annexure SK2, do you recall in that bundle reference to field density testing and concrete testing?---Yes.
PN171
Where was that?---Sorry, field density testing?
PN172
Yes, in (b) and (c), field density testing and concrete testing.
PN173
MR FAGIR: Commissioner - I'm sorry, I withdraw that.
PN174
THE COMMISSIONER: Maybe you might need to clarify the question, Mr Crawford.
PN175
MR CRAWFORD: Yes.
PN176
THE COMMISSIONER: Mr Kelahar looks a bit bewildered as to what you're asking.
PN177
MR CRAWFORD: I mean, paragraph 15 of the affidavit reads, "The most basic test methods performed by Coffey Information technicians are those described in Coffey Information's training modules 1 to 3, copies of which are annexed to this affidavit at annexure SK2, namely soil testing, (a); (b) field density testing; (c) concrete testing." I'm just curious - I don't refer, when I flick through those modules, seeing anything specifically related to the field density or concrete testing. I'm just wondering if you could indicate for me where those are attached at SK2?---I think we've left out the modules that refer to concrete testing and nuclear testing.
**** STUART LEON KELAHAR XXN MR CRAWFORD
PN178
And did you swear this affidavit, Mr Kelahar?---Yes, I did.
PN179
Did you swear that all the content was correct?---I did.
PN180
Yet now you're saying that some of the content in your affidavit isn't actually correct. Is that right?---Well, unfortunately - - -
PN181
MR FAGIR: I object.
PN182
THE COMMISSIONER: Hang on just a minute, Mr Kelahar. Yes, Mr Fagir.
PN183
MR FAGIR: I think we can acknowledge that some of the relevant documents are behind the next annexure and they should have been annexure SK2 to actually SK3.
PN184
THE COMMISSIONER: So the module 3 and module 2, as I understand it, is in the next bit of the next attachment.
PN185
MR FAGIR: Yes.
PN186
THE COMMISSIONER: And they should have been in the - - -
PN187
MR FAGIR: If he's going to put to Mr Kelahar that he's been dishonest, he should acknowledge that fact, that the document simply seems to have been misplaced?---It's sitting at SK3, yes. So module - I can't read it because of the - - -
PN188
MR CRAWFORD: Sorry, Mr Kelahar, I haven't asked what's in SK3 at the moment and I certainly haven't used the word "dishonest". What I'm saying is, do you agree that there is inaccurate information in your affidavit?---I agree that I've clearly got some of the annexures that should be under SK2 in concrete and field testing.
**** STUART LEON KELAHAR XXN MR CRAWFORD
PN189
Thank you?---They seem to be sitting in SK3.
PN190
Yet you swore the affidavit on that material and you also were asked about the content of that affidavit today and you confirmed it
was correct as well I believe?
---Yes.
PN191
Thank you. So now if we refer to annexure SK3, which is referenced in your affidavit at paragraph 16. It reads, "Second, the tasks described in Coffey Training Module 4 laboratory tests, a copy of which is annexed at annexure SK3, namely" - have you got that?---Yes.
PN192
And then it's got, "(a) soil sample preparation, (b) liquid limit," and so on, and "(c) particle size distributed test". Is that right?---You're reading paragraph 16, are you?
PN193
Yes?---Yes, that's right.
PN194
So now can we turn annexure SK3 of your affidavit. So the first page is titled Field Density. Is that right?---Yes.
PN195
Just pausing for a moment on that front page and the picture, what is that employee doing?---He's digging up a density test for the compaction.
PN196
Is that soil testing?---That's soil testing, yes.
PN197
He's not in an on-site laboratory, is he?---No, he's field testing.
PN198
He looks like he's on a construction site?---That's correct.
PN199
**** STUART LEON KELAHAR XXN MR CRAWFORD
He looks like he's exposed to outdoor conditions I believe?---Yes.
PN200
Also I believe the sun, given I can see a hat and sunglasses. Is that right?---Yes.
PN201
Moving forward into that field density document, I believe a couple of pages in we have Unit 1, Field Density Testing. Is that right?---Sorry, what did you say?
PN202
There's a document headed Unit 1, Field Density Testing?---Unit 1? Yes.
PN203
And in the bottom right corner of the first page of that document there's a paragraph which reads, "Many devices such as those made by Troxler and Humboldt are used to measure both the density and moisture content of material. This is important to the construction industry specifically as both are essential to creating suitable soil environments for building." Is that correct?---That's correct.
PN204
Moving forward, do you accept that that appears to be the only effectively module in annexure SK3?---Yes.
PN205
It does?---Yes.
PN206
So again I refer you to paragraph 16 of your annexure where you explain what documents are attached at annexure SK3. That's not actually correct, is it?---No.
PN207
So there's more inaccurate information in your affidavit, isn't there?---Yes.
PN208
Can we now move to annexure SK4, which is referred to in paragraph 17 of your affidavit - - -?---Yes.
PN209
- - - which reads, "Third, the complex laboratory test, including the California bearing ratio test described in the training modules annexed at annexure SK4 to this affidavit." Is that right?---That's correct.
**** STUART LEON KELAHAR XXN MR CRAWFORD
PN210
Can we now turn to annexure SK4. I believe the first page is headed Module Concrete. Is that right?---That's correct.
PN211
If you turn a few pages in, there's a Unit 1, Sampling Fresh Concrete. Is that right?---That's right.
PN212
Would you accept that fresh concrete generally needs to be sampled at a construction site?---Yes.
PN213
Could I now turn to Unit 2, Slump Testing?---Yes.
PN214
Have you found that?---Yes.
PN215
In the first paragraph there, the last sentence reads, "Samples with lower (indistinct) are generally used in construction while samples with little slump are commonly used to construct roadways and pavements." Is that right?---Yes, that's right.
PN216
Does slump testing need to be performed on a construction site?---Yes.
PN217
Do you accept Mr Callinan's evidence that slump testing a lot of the time would involve an employee going over to a concrete agi truck with a wheelbarrow, getting some concrete and then moving to a suitable area and testing it?---I accept that that's one part of it that would use wheelbarrows. The other - - -
PN218
Sorry?---Well, there's a few ways of sampling concrete. That is one way of sampling concrete.
PN219
Slump testing?---Yes. No, sampling - - -
**** STUART LEON KELAHAR XXN MR CRAWFORD
PN220
In terms of actual specific slump testing, is that generally how it would be done?
---It's not necessary from the back of an agi is what I'm saying, but anyway - yes.
PN221
So then moving forward we have Unit 3, Air Content. Is that right?---Unit 3, Air Content, yes.
PN222
And in Purpose we read, "The method involves the ways and means of identifying the are content of percentage volume compressed concrete with aggregate with a nominal size that does not exceed 40 millimetres." Is that right?---Yes.
PN223
I note again it's referring to fresh concrete. Would that air content work be done on a construction site?---Yes.
PN224
Mr Kelahar, would the slump testing that I just referred you to, or this air content testing for example, ever be done at a base laboratory?---Yes.
PN225
In what circumstances would it be done at a base laboratory?---Whenever you're doing a mixed design, which you do from a base laboratory.
PN226
Is that exactly the same as a slump test and an air content test?---Identical.
PN227
But why then do we have the reference to fresh concrete? How do you get fresh concrete to a base laboratory?---You mix the concrete yourself from the base laboratory.
PN228
You mix the concrete yourself at the laboratory?---Yes, in a pan mixer.
PN229
Whereas when you're doing it in the field - - -?---Which they do a lot.
PN230
**** STUART LEON KELAHAR XXN MR CRAWFORD
- - - you're getting it directly from a truck?---That's correct.
PN231
So it's slightly different at the base laboratory?---No, it's the same.
PN232
But you mixed - - -?---It's the same test.
PN233
- - - the concrete yourself, whereas at the construct site you haven't, have you?
---But the air content and the slump test are just tests; they're the same.
PN234
But in terms of the actual tasks that the employee is doing on a construction site, they're not mixing the concrete, are they?---No.
PN235
At the base laboratory they are?---Yes.
PN236
Thank you?---But the tests are the same.
PN237
All right?---It's the same test method. Like slump test is AS 1012.3.1. It's the same test method.
PN238
You've answered my question, thank you?---Okay.
PN239
Moving forward, I believe we have Unit 4, Making/Curing Concrete Specimens (Cylinders)?---Yes.
PN240
Where would that testing normally be done?---The actual making of them would be on site.
PN241
The filling, is that filling the cylinders on site?---Yes, filling the moulds.
PN242
Would you ever fill the cylinders at the base laboratory?---Yes.
**** STUART LEON KELAHAR XXN MR CRAWFORD
PN243
And how would you get the dirt to fill the cylinders?---Well, it's not dirt, it's concrete. The same thing, if we're doing a mixed design or trial from the base lab.
PN244
So you mix your own concrete?---Yes.
PN245
I believe that module was the last in the annexure SK4. Is that right?---Yes, that's right.
PN246
I refer you to paragraph 17 of your affidavit. I believe you indicate that annexure SK4 refers to a California bearing ratio test. Is that right?---Yes.
PN247
Was there a California bearing ratio test in annexure 4?---No.
PN248
Just back to the concrete slump testing, Mr Kelahar, Mr Muller I believe in his statement indicates that he only ever does that testing at a construction site. Is that right?---That's probably what Geoff does, yes.
PN249
I believe that's in his statement?---Okay.
PN250
And I believe he indicates that that has to be done at the construction site because he does take it directly from a concrete truck. Is that - - -?---That's correct, yes.
PN251
So back at the base laboratory is that further verification work or why is there the same work done at the construction site and the base laboratory?---So at the construction site you're testing concrete as delivered. At the base lab when we do this - which isn't as often, I will admit - it's when we're actually designing the concrete for, say, Boral or whoever. We're actually physically designing the concrete. So we take the aggregate, we take the sand, we take the cement, we take the fly ash and we work out how to mix it best to get the desired requirements. We might be 25, 30, 32 MPa concrete. We actually make it, we design it.
**** STUART LEON KELAHAR XXN MR CRAWFORD
PN252
In terms of - - -?---And those tests are done to sort of work out what's to be tweaked, et cetera - you know, do we need to put more water in or less water in? It's just part of the design process when it's done in the base lab.
PN253
That is, employees at the base lab, as part of the mixing process, are working out the right ingredients for that concrete basically, and they do the slump testing as part of that. Is that right?---That's correct, yes.
PN254
An employee like Mr Muller never has to actually do that exploration of the design at the construction site, does he?---No, you don't do any design at the construction site.
PN255
He's testing the concrete that arrives - - -?---He's testing the concrete, yes.
PN256
So if we now move to annexure SK5, which is referred to in paragraph 18 of your affidavit, "Finally, the most demanding level of testing carried out by Coffey Information is that described in Coffey Training Module 10 annexed to SK5" - is that right - "and known as specialty or advanced testing"?---Yes.
PN257
So now if we refer to annexure SK5. The first page appears to be a module laboratory test. Is that right?
PN258
MR FAGIR: Commissioner, how long are we going to go through this charade? Obviously the annexures are all out by one. Are we going to sit here all day repeating the same meaningless point or can we just move on?
PN259
THE COMMISSIONER: Mr Crawford?
PN260
MR CRAWFORD: Commissioner, I believe I'm already up to annexure SK5. There's only - I believe it will take another five or 10 minutes. I mean, if this was a witness statement I perhaps wouldn't be so concerned but at the end of the day Mr Kelahar is the only witness presented by the company in this case. He has sworn an affidavit and confirmed before the tribunal that all the contents are accurate. What this evidence is revealing is that potentially he hasn't actually read what all the annexures are, which obviously is relevant in terms of his credibility as a witness we would say, but - - -
**** STUART LEON KELAHAR XXN MR CRAWFORD
PN261
THE COMMISSIONER: If that's a point you're going to make, Mr Crawford, then keep going.
PN262
MR CRAWFORD: Thank you.
PN263
So in annexure SK5, Mr Kelahar, that's headed Laboratory Test. Is that right?
---Correct.
PN264
Are those the specialty or advanced testing modules that you were referring to in your affidavit at paragraph 18?---No, they're not.
PN265
So can we turn a few pages in to Unit 1, Sample Preparation?---Yes.
PN266
I might also note, Commissioner, that I have been taking the witness to other aspects of this annexure during this cross-examination, not just the fact that they're all inconsistent with the content of the affidavit. But do you agree, Mr Kelahar, that Unit 1, Sample Preparation reads, "Sample preparations are a critical component of construction material test methods"?---Yes.
PN267
Then at unit 2 we have liquid limit, plastic limit, plasticity index and linear shrinkage. Is that right?---Yes.
PN268
Are these tests that we're referring to in these modules, Mr Kelahar, done at base laboratories or temporary on-site laboratories or out in the field?---They're done from base laboratories or the temporary laboratory on site. They're never done in the field.
PN269
They're never done in the field?---No.
PN270
**** STUART LEON KELAHAR XXN MR CRAWFORD
I believe at about 20 pages we have Unit 3, Particle Size Distribution. Is that right?---Yes.
PN271
And the first sentence reads, "Sample preparation is a critical component of construction materials test methods." Is that right?---That's right.
PN272
And this particle size distribution testing, where would that be done?---Base laboratories.
PN273
I believe that's the end of that annexure, is it?---Yes.
PN274
Unless I've missed something, there doesn't actually appear to be a reference to annexure SK6 in the affidavit. If you or your representative could indicate otherwise, or could you confirm that there's no reference to SK6?---There's no reference to SK6, by the looks of it.
PN275
What is actually at annexure SK6 is headed Complex Laboratory Test. Do you agree?---Yes.
PN276
And where would those complex laboratory tests be done, Mr Kelahar?---Base laboratories or the on-site base laboratory or temporary laboratory.
PN277
Where would they generally be done?---Base laboratories, generally.
PN278
Do employees like Mr Muller or the employees Mr Callinan has spoken about in his statement on the Hunter Expressway Alliance Project, do they ever do these complex laboratory tests?---I'm not sure who Tony Callinan has spoken to out HEA but we do these tests at HEA.
PN279
Would you need any formal qualifications to do these complex laboratory tests?
---No, you would not need formal qualifications.
**** STUART LEON KELAHAR XXN MR CRAWFORD
PN280
You wouldn't need any certificate or anything to do the testing?---Generally the people who are doing these are at least enrolled in performing the cert IIs and cert IIIs.
PN281
Generally they are - - -?---Yes.
PN282
Sorry, what did you say, enrolled in performing the cert II and cert III?---Yes. Well, cert II or cert III or even certificate IV training. They're more senior technicians - experienced.
PN283
It's a few pages in that we find Unit 1, California Bearing Ratio?---Yes.
PN284
Is that right?---Yes.
PN285
And that reads, "The California bearing ratio test, as the name suggests, was developed by the California Division of Highways for the design of highway pavement thickness." Is that correct?---Yes.
PN286
Just turning through these pages, there appear to be more complicated mathematical equations involved in this testing. Is that correct?---They're the same complication as doing a density test. They're not that complicated; they're simply working out the density ratio, which we do for a number of tests.
PN287
They look complicated to me walking onto a construction site with no previous experience or qualifications. I mean, how would I know what W/w = W(i)? How would I know what that means?---We train the guys what they mean and it's underneath. Sure, they look complicated but I guess what I'm saying is that these equations in here also sit in the equations that sit under density compaction testing; they're very similar.
**** STUART LEON KELAHAR XXN MR CRAWFORD
PN288
Just for formality, annexure SK7, that's not referred to in your affidavit either, is it?---No.
PN289
And that actually appears to be Module 10, Advanced Testing, Shear Strength Triaxial Testing. Is that right?---That's correct.
PN290
Where is that advanced testing normally performed?---A few of our base laboratories.
PN291
THE COMMISSIONER: Always at the base laboratories, is it?---Always, yes. This is very expensive, specialised equipment that do these tests.
PN292
You don't want to be sitting out with lots of dust blowing?---No, it has to be quite a controlled environment, kept at a certain temperature and generally dust suppressed. Yes, you're running a lot of high pressure in the cells. What we're trying to simulate is the ground a long way down. You might be building a skyscraper like this building here, so you need to be able to simulate the load that the building is putting on the ground. So we put it under pressure and we shear it over by changing pressures, et cetera, and then - or what we call an undisturbed sample, which is another process of gathering the - yes, it's quite - - -
PN293
And that's usually done at an earlier stage, is it, in the project?---Yes. So that's sort of I guess - I will pick on HEA. If you're going to build a bridge, like quite a large - which they're doing a lot out there - before they even put the job out to tender to construct they've got to kind of work out what they're going to have to do. So all of this testing would be done while trees are still on it, so they can work out how the structures are going to look or how they're going to have to be designed. It's all about end-bearing pressures and things like that - just engineering - so that they can given the pack to, say, Leighton or (indistinct) whoever is bidding the job, to cost it. It's basically the design of the project, yes, is done very much at the start. I guess you still do a lot during construction but it's only if something goes pear-shaped - you find ground that you didn't anticipate being there.
**** STUART LEON KELAHAR XXN MR CRAWFORD
PN294
MR CRAWFORD: Mr Kelahar, if I refer you back to paragraph 18 of your affidavit. You're referring to specialty or advanced testing. Is that right?---Yes.
PN295
You were briefly describing some of that to the Commissioner but can you confirm which - because it's not clear in your affidavit - which of those modules you are referring to when you talk about specialty or advanced testing?---Well, it's module 10, I believe. I'm not completely familiar with the actual modules of training but, yes, unit 1 through to unit 5 and module 10 would be the main specialty testings we do.
PN296
What about the California bearing ratio test, for example, is that a specialty or - - -?---No.
PN297
- - - advanced test?---It's an advanced test but it's not a specialty test. It doesn't require the same environment to test that these ones do.
PN298
Right?---It still involves curing. In fact the CBR is actually a shear test, which is effective - like a direct shear test is just a little bit simpler. It doesn't require the same controlled environment that the specialty stuff does. It still requires curing and things like that - soaking in tanks - that need to be maintained, et cetera, but it's not as - and a machine that applies a load quite slowly and we measure the shear strength of the soil, which is California bearing ratio. The reason it's called a California bearing ratio is there's limestone that sits in California that every single machine is calibrated from; that's 100 per cent and everything is back-calculated or forward-calculated from that. So our machines are calibrated against a lump of limestone in California. Just a bit of useless information but it is interesting.
PN299
THE COMMISSIONER: Is that used in other countries as well?---Yes. So this lump of limestone just sits there and we penetrate it with a 50-mil piston quite slowly - two mil per minute, I think it is - plus or minus a few - and that's 100 per cent and all our machines are - or the calculated bearing ratio is based off that. So in Australia, where we've got a lot of poor soil, such as - we're an old country so there's a lot of really highly plastic clays, of which there's a lot of volcanic type of clays, which is around the Hunter area from all the coal. We're generally only getting 3 to 4 per cent CBRs and that's what we design the road off. So it's really expensive to build roads in Australia because of our crappy ground, or not very suitable ground. The CBRs - we do a lot of stabilisation and things like that. So, for example, in New South Wales, why we do a lot of concrete testing as opposed to every other state is because New South Wales has a lot of really ordinary quarries, which is where we actually get a lot of our sampling from is not from construction site, it's from the (indistinct) sites, which is concrete aggregates road base and stuff like that. Because the aggregates are not very good in New South Wales it's suitable for making concrete but they're no good for making asphalt. So the good ones we save up for asphalt. That's why all the roads are concrete here. But if you go to Victoria or if you go to Queensland you will actually find that a lot of them are what we call semi-flexible pavements, not rigid, and they're asphalt because they've got a lot of good quarries that can make asphalt. So it depends on where you are. That's why New South Wales builds their roads out of concrete, for no other reason than bad quarries.
**** STUART LEON KELAHAR XXN MR CRAWFORD
PN300
The things you find out in these matters.
PN301
MR CRAWFORD: I don't think I could repeat much of it.
PN302
THE COMMISSIONER: Next time you're driving along the road, Mr Crawford, you'll pay more attention to the surface?---I guess what I'm sort of indicating is that in our - so in Queensland we don't do a lot of concrete testing. It's not done very much at all because we don't build our roads out of concrete.
PN303
MR CRAWFORD: That's right?---So it's more around the actual compaction testing and soil testing. New South Wales is the only state where - and in particular, Test-Rite is the only business that we do a lot of concrete testing.
PN304
Yet on the Hunter Expressway Alliance Project - - -?---Concrete road.
PN305
- - - you've advertised for a concrete technician. Is that right?---Yes. I'm saying it's New South Wales centric.
PN306
But you just made a comment about the (indistinct)?---As far as base laboratories goes, Test-Rite is our only base laboratory that its core business is concrete.
PN307
But clearly you've got enough concrete testing work on the Hunter Expressway Alliance?---Sure. Yes, it makes up 20 to 30 per cent of our work out there. The majority of our work on HEA is soil testing.
PN308
Can I refer you now to paragraph 21 of your affidavit. There's a Table 2, Training Requirements. Is that right?---21? Yes.
PN309
And you were involved in negotiating the enterprise agreement, weren't you?
---That's right.
**** STUART LEON KELAHAR XXN MR CRAWFORD
PN310
So the T1, T2, T3, T4, that's referring to classifications in the enterprise agreement. Is that right?---Yes.
PN311
Is it fair to say that to achieve the T3 grade you have to have completed Module 1, Basic Technical Units; Module 2, Field Density; and Module 3, Concrete Testing? Is that right?---Yes, that's what we want them to do.
PN312
But you can't move to the level T4 unless you do the more formal qualifications. Is that right?---Yes, that's right.
PN313
So what does this T3 to T4 and beyond T4 mean? I mean, aren't you just either a T4 or you're not?---So T4 - this is about - so you notice the words "NATA". All our tests are endorsed by - when we sign off a test report, you sign it of as NATA endorsed or NATA accredited. Now, for NATA to actually say that we're allowed to endorse those reports you must have - it's recently changed. It used to be that NATA would actually give us the authority to sign reports and by that, they would actually come out and assess our competency. So we didn't have to have formal qualifications because they would actually give it to us. Now we delegate it. So there's a few people in the company that have been in the industry for, say, 10 years or more and we are allowed to delegate signatory off to other people. But the way it is now, for us to delegate signatory say to a newish employee, they must either have a cert III or more in laboratory skills. So they need to have a formal qualification and X amount of years of experience before we're allowed to delegate them as signatories to be able to sign-off on these reports, which a T4 would be doing.
PN314
But presumably aside from just being able to sign-off on documents, these specialty tests are also a higher skill and knowledge level, aren't they?---Yes, you're learning more tests. Sure.
**** STUART LEON KELAHAR XXN MR CRAWFORD
PN315
Learning more tests?---Yes. So T3, you'd be learning them and you'd be doing a cert III, and a T4 you're competent overall.
PN316
So if you go to paragraph 22 of you affidavit, Mr Kelahar, "Technicians on a day-to-day basis spend their time collecting samples from clients' sites and conducting tests in accordance with the procedures described in" - whatever annexures they are. "A technician working at a base lab would typically travel to a number of different client sites to collect samples before returning to the lab to process them." Is that right?---That's right.
PN317
"A technician working at temporary labs would collect samples from that particular site and then process them at the on-site
laboratory." Is that right?
---That's right.
PN318
Then you say, "There is otherwise no difference between the work of a technician at a base lab and a technician working on site." Is that right?---That's right.
PN319
What about the specialty tests, Mr Kelahar? I mean, you said that they're only performed at a base laboratory. So isn't that a difference between the testing - - -?---Well, the people that are doing the specialty testing and advanced testing are generally T5, T6 or T7. I mean, they're often PhDs and very, very senior - - -
PN320
Are they covered by the agreement?---No, they're not covered by the agreement.
PN321
In terms of the more complicated tests that presumably employees under the agreement do perform - I mean, given that this whole case, Mr Kelahar, is about this particular enterprise agreement, why have you included modules about specialty testing that nobody under the agreement actually performs?
**** STUART LEON KELAHAR XXN MR CRAWFORD
PN322
MR FAGIR: I object.
PN323
THE COMMISSIONER: On what basis, Mr Fagir?
PN324
MR FAGIR: It's not for Mr Crawford to characterise the case in his terms and then ask what evidence fits within those parameters. In fact, it's the wrong way to characterise what the case is about. If I can put it differently, there's a premise underlying the question which has not been established and is in fact wrong.
PN325
THE COMMISSIONER: Maybe you need to back-up there, Mr Crawford.
PN326
MR CRAWFORD: Thank you, Commissioner.
PN327
Mr Kelahar, if the specialty testing is not performed by employees covered by the agreement, why have you included it in your affidavit?---I honestly don't know how to answer that. I think what we were trying to establish is that there's a career path and base laboratories are more than just testing construction materials.
PN328
I believe there was another module in the annexures referring to complex laboratory tests. Is that right?---Complex laboratory tests? Sorry, in the annexures?
PN329
Yes?---Where?
PN330
Do you have that?---Is this at the end? Are you still in module 10 or - - -
PN331
No, there's a module - annexure SK5, Laboratory Tests.
PN332
THE COMMISSIONER: It's in SK6?---Yes.
**** STUART LEON KELAHAR XXN MR CRAWFORD
PN333
MR CRAWFORD: I just have to find the - - -?---It's Unit 1, CBRs, yes.
PN334
Yes, thank you, Commissioner. So that is headed Complex Laboratory Tests. Is that right?---Yes.
PN335
California bearing ratio?---Mm'hm.
PN336
The statements from Mr Muller and Mr Callinan indicate that Mr Muller and his workmates and no employees that Mr Callinan has spoken to on the Hunter Expressway Alliance Project do these more complex laboratory tests. Do you dispute that evidence?---I do dispute that evidence.
PN337
And who do you say does actually perform these complex laboratory tests?---I believe covered by the agreement - I'm trying to remember his name. I haven't got his name but there's at least two technicians that would be working on these complex laboratory tests, as in California bearing ratios on the Hunter Expressway Alliance, on Holbrook, on Kempsey Bypass.
PN338
So are the base lab at Warabrook?---No, they're on site.
PN339
In a temporary laboratory?---In a temporary laboratory.
PN340
And that was just two employees you can think of on HEA?---On HEA, yes.
PN341
So you would accept that aside from those two, the majority of employees on the HEA Project don't do those tests?---No, the majority of employees don't do those tests.
PN342
Would you agree that the majority of employees on that project are doing more the concrete slump, soil density, that type of testing?---Yes.
**** STUART LEON KELAHAR XXN MR CRAWFORD
PN343
As referred to in Mr Callinan's - - -?---And the compaction testing.
PN344
And the compaction testing?---Yes.
PN345
That's generally what they do?---That's generally what they do, yes.
PN346
Mr Muller has referred to core holing work. Where would that be performed?---I guess it's on construction sites or even from - if he's coring concrete, it could be from an investigation of a failed pavement. It could be anywhere. It could be here.
PN347
Would you say he's generally on a construction site doing that drilling work, or that core holing work?---We do a lot of coring on construction sites, yes, that are actually being built, such as HEA. But I wouldn't say that the majority of the times that would be on a construction site. I think it could be a lot of the times investigating an already built project, a finished completed thing.
PN348
Where would it be done then?---Well, it could just be done in a building that's already operating, like this. It could be done on a footpath or a road.
PN349
Would it be done in a base laboratory?---The coring?
PN350
Yes?---It can, yes. Sometimes they will bring panels back to the laboratory and your core there.
PN351
How often? What do you mean, "sometimes"?---I couldn't tell. I'm not that hundred per cent familiar with the Test-Rite business.
PN352
Would you say not very often?---That the coring would be done from a base laboratory?
**** STUART LEON KELAHAR XXN MR CRAWFORD
PN353
Yes?---They do a lot of ASTN panels. I would say it would be reasonably often they do it from the base laboratory at Test-Rite.
PN354
What about nuke testing, which I understand is sticking some sort of object into the soil to do a nuclear density test or something similar? Is that right?---Yes.
PN355
Does that have to be performed on a construction site?---Yes.
PN356
Would that every be done in a base laboratory?---No.
PN357
So then why at paragraph 22 of your affidavit have you not mentioned that that's a difference between work at a base laboratory and
work on construction sites?
---Sorry?
PN358
You just said that that sort of testing, the nuclear testing, would only ever be done on a construction site. Yet aside from the examples you give in your affidavit at paragraph 22, you say there is otherwise no difference between the work of a technician at a base lab and a technician working on site.
PN359
MR FAGIR: I don't follow that - - -?---No, you're talking about an on-site temporary laboratory, not - so the distinction here is between someone working on-site temporary lab and a base lab, not the work they're doing.
PN360
MR CRAWFORD: But you accept that an employee at a base lab would never do that actual testing work?---Of course an employee at base lab would visit project sites and do density testing.
PN361
But they wouldn't do it in a base laboratory, would they?---No, not physically at the base laboratory.
**** STUART LEON KELAHAR XXN MR CRAWFORD
PN362
What about mixer efficiency tests?---Mixer efficiency tests? Number 1, I'm not even sure what that is. I'm guessing it's a yield test but it would be done on site, at the point of placement.
PN363
It would be done on site, not at a laboratory?---Only when you're doing a mixed design.
PN364
What about core meter testing?---Sorry, what was that?
PN365
Core meter testing, I believe it's referred to in Mr Muller's statement?---Core meter testing? Let me see what he's trying to - core meter testing. I haven't got - have you got a copy of the statement?
PN366
Mr Muller's statement, at paragraph 42, says, "I do" - sorry - "cover meter work"?
---I just haven't got the statement here in front of me. I just want to read it. Cover meter. You said "core meter".
PN367
Yes, sorry?---All right. I was wondering what the hell's that?
PN368
This is testing for steel in concrete?---Cover meter, yes. That's just trying to work out how deep the steel is in the concrete, the RIO.
PN369
Whereabouts would you do that work?---You could do it on site. You could do it on already built sites - anywhere were there's concrete. It doesn't necessarily have to be a construction site.
PN370
Would you do it at a base laboratory, indoors?---If you're looking at calibrating the equipment, probably, yes.
PN371
**** STUART LEON KELAHAR XXN MR CRAWFORD
But you wouldn't - - -?---But you wouldn't generally do that, no.
PN372
Again, my knowledge of this test is extremely limited but a Schmidt hammer test?---Yes.
PN373
Do you know what that is?---Yes.
PN374
Can you explain what it is?---A Schmidt hammer test is a rebound - it's a rough way of working out the strength of concrete. So it's a little - it would be easier to show a picture but basically you push it on the ground, it sends a little weight down at a certain speed and it rebounds back and the more dense the concrete is, the more of a rebound. So if you could imagine if you drop a marble on the carpet here it won't bounce much, but if you drop it on something hard, like the desk, it will bounce a bit more. If you drop it on concrete, it will bounce quite high. It's a similar thing. So the more dense the concrete is, the more it will rebound. The more dense the concrete is, generally the more strength it has. It's a very rough way of working out the strength of concrete.
PN375
Where would you do the Schmidt hammer test?---Generally the Schmidt hammer test would be done sometimes on site - only if they've stuffed up and they haven't got any results - but it's usually actually done on investigating concrete that's failed early, it hasn't met its design life. So it's usually done on structures that have been around for quite a few years - yes, for concrete that's failing for whatever reason. This is not a test that you want to be having to do generally because what it means is that the concrete has either not met its design life or, worse case scenario, even worse is that you've got no quality assurance results. So in other words the person that's built the thing has not sampled any concrete cylinders so they don't actually know that it's got, say, 40 MPa, which is what it needs to be to meet its design life. They've not got that data so they're trying to get a rough indication from a Schmidt hammer. If the Schmidt hammer comes up showing that it's really, really good, they will probably leave it alone but if it's showing that it's average then you start coring it, which is a destructive test and we don't like doing that but you've got to fix the building back up.
**** STUART LEON KELAHAR XXN MR CRAWFORD
PN376
Do employees on construction sites do much drilling work to your knowledge?
---We don't have many - well, the only drilling - we don't do much drilling work at all.
PN377
Mr Muller in his statement says, "We take samples of each layer of soil and measure the layers. We do this on a construction sites using auger." Is that right?---An auger? Yes, that's probably correct.
PN378
Again, that type of work, you wouldn't really do that in a base laboratory, would you? It's got to be done on site?---I would believe that the times that he's out there working out the layers of the ground is during more of an investigation before it's a construction site. We were doing (indistinct) when he's doing that type of work.
PN379
So he would be out in the field somewhere, would he, or - - -?---Yes, he'd be out in the field but it might be a paddock before it becomes a road.
PN380
But he wouldn't be in a base laboratory?---No, he wouldn't be in a base laboratory.
PN381
That work wouldn't be done in a base laboratory, would it?---No.
PN382
Would employees from your experience in base laboratories - have you seen the pictures attached to Mr Callinan's statement?---Yes.
PN383
The photos?---Yes, I have seen those.
PN384
I believe one of them has a wheelbarrow with some other tools that employees use. Would - - -?---Yes.
PN385
From your experience, would employees in a base laboratory ever be using a wheelbarrow and a trowel to do that type of work?---In a base laboratory, yes, again if you're doing your mixed designs you'd be using those tools in the base laboratory.
**** STUART LEON KELAHAR XXN MR CRAWFORD
PN386
Using a wheelbarrow and a trowel indoors in a base laboratory, would you?
---Sure.
PN387
THE COMMISSIONER: Only if you're doing that mixing?---Yes, only if you're doing a mixed design. You may not necessarily have to use a wheelbarrow but you're certainly using the trowel and the scoops and stuff. I mean, you have to do the test.
PN388
MR CRAWFORD: I believe Mr Callinan also refers in his statement to employees carrying 25-kilogram bags of dirt on site. Is that right?---He shouldn't be but - we usually use buckets, which he's got in these photos, not bags.
PN389
Do they weigh 25 kilograms?---Well, we try not to get them to lift 25 kilograms because of safety but, yes, I could see how they could get that heavy.
PN390
They're filled up on construction sites?---Yes, they are, or from quarries.
PN391
Do employees indoors in base laboratories have to fill those buckets and carry them?---No, but they will be handling them and carrying them. You've got to split the samples out and prepare them.
PN392
So on the whole, Mr Kelahar, would you say that there are some difference between work in the base laboratory and work on construction sites?---Yes, there's differences.
PN393
Mr Kelahar, I believe in Mr Callinan's statement he refers to his understanding that most workers he deals with on the HEA Project are only working on site and not ever going to the base laboratory. Is that correct?---That's correct, they're working from our temporary laboratory on site.
**** STUART LEON KELAHAR XXN MR CRAWFORD
PN394
Do they ever go to the base laboratory at Warabrook?---Very rarely.
PN395
Do you accept Mr Muller's evidence that he spends 98 per cent of his time on construction sites?---If he's spending 98 per cent of his time on construction sites visiting 15 a day, I can't see how that's possible. He's spending a lot of time in the car. But I agree that he spends a lot of his time working on construction sites.
PN396
Can I refer you to paragraph 23 of your affidavit where you say, "Our company provides services to construction companies, among other clients, but it is essential that we remain independent of the construction companies and materials manufacturers." Is that right?---Correct.
PN397
Mr Kelahar, do you accept that the independence of Coffey to perform that testing work will not be affected by what industrial instrument employees are working under?---Yes, I guess I agree with that.
PN398
I note also in paragraph 23 of your affidavit that you say, "As to our employees, we employ a range of technical and scientific workers from entry level testing technicians to PhD qualified scientists and engineers." Is that right?---That's right.
PN399
So I notice you're referring to scientists and engineers as PhD qualified. Is that right?---Correct.
PN400
I believe in your second statement as opposed to affidavit, Mr Kelahar, you refer a couple of times to 300 tests that Coffey Information does. Is that right?---Correct. That we're accredited to do, yes.
PN401
For example, the employees on the HEA Project in Newcastle, how many of those 300 tests do they actually do?---I would say roughly we do about 50 to 60 tests out there that's accredited for.
**** STUART LEON KELAHAR XXN MR CRAWFORD
PN402
50 to 60 different tests?---Yes, I think. That's a hard question to answer. I would have to have a look at the scope but, yes, it would be around that mark.
PN403
So the advertisement for the concrete technician at HEA, he will be, what, trained up to do 50 to 60 different tests, would he?---No, he'd be trained up to do the concrete side of it.
PN404
Just the concrete side of it?---Which would be roughly - - -
PN405
How many tests are involved?---Well, that would be maybe 10 - six to 10.
PN406
Maybe 10?---Yes.
PN407
At paragraph 10 of your statement, Mr Kelahar, you indicate that, "I note Geoff" - being Geoff Muller - "his description of his work is normally involving travel to construction sites and collection of samples"?---Mm'hm.
PN408
And you say, "It is true that there are a number of employees who spend the majority of their time travelling to sites and collecting samples, usually because of a personal preference to avoid spending time in the office." Is that right?---That's right.
PN409
Are you seriously indicating that Mr Muller could do his current testing duties predominantly in the base laboratory?---Sure. I'm sure Geoff Muller knows how to do compaction testing and cracking concrete cylinders. He's been around for quite a while and he would know how to do those tests.
PN410
But would someone else then have to do the actual testing on the construction site?---Yes, they would.
**** STUART LEON KELAHAR XXN MR CRAWFORD
PN411
So some employee would have to do it?---Sure.
PN412
So it's not really a personal preference for all employees that they decide to go to these construction sites. Some of the work has to be done on the construction site, doesn't it?---It usually works out a lot of people work out where they prefer to be. Some people prefer to work on site and some people prefer to work from the base lab.
PN413
But do you accept that some of his work actually has to be done on the construction sites?---Sure, some of his work has to be done on construction sites.
PN414
Mr Kelahar, are you familiar with the ECLA Award at all?---Yes, a little bit.
PN415
Can I just hand you a copy of that award?---Sure.
PN416
Do you have that document, Mr Kelahar?---Yes.
PN417
Do you accept that Coffey Information was bound by this award up until I believe mid-2011?---Yes.
PN418
Can you turn to clause 5.1 of the award?---Yes.
PN419
That reads, "The award applies in all states and territories of the Commonwealth of Australia to soil, concrete and aggregate testing employees of the companies at appendix A, schedule of respondents, which provide a range of testing services in the civil construction industry." Is that right?---Yes.
PN420
So previously Coffey Information was covered by this ECLA Award that clearly only covers employees doing testing services in the civil construction industry. Is that right?---That's what that says.
**** STUART LEON KELAHAR XXN MR CRAWFORD
PN421
Mr Kelahar, I note that you are the manager for project sites. Is that right?
---Major projects.
PN422
Major projects?---Yes.
PN423
Is there another manager for base laboratories?---Yes.
PN424
Who is that?---In New South Wales or where?
PN425
New South Wales?---We have a service - well, in New South Wales it's Brian Miller.
PN426
Sorry?---Brian Miller.
PN427
So clearly the fact that the company has a manager of project sites and a manager of base laboratories it demonstrates, at least to some extent, that there is some sort of distinguishing within the company between that work. Do you agree?---Yes. It's more around clients than it is about the work.
Thank you, Mr Kelahar. Thank you, Commissioner.
<RE-EXAMINATION BY MR FAGIR [11.30AM]
PN429
MR FAGIR: Mr Kelahar, in the course of answering Mr Crawford's questions you talked about things happening during design, or you talked about design and you talked about investigation. Can you just explain to me what you mean when you talk about design in this context and then tell me what you mean by investigation in this context?---Well, when I'm talking about design - I guess the investigation is, first of all, going out into the proposed construction site, so before the road is even - you know, you've still got trees on it, right. So we will go out there and do the investigation. We will drill holes with a proper drill and we will log the soil profiles and we'll take undisturbed samples, we'll take disturbed samples. At all the time we will have a geo-tech engineer present - normally, for larger sites. The samples will then go back to the base laboratory and undergo the more complex test of which CBRs and PIs and (indistinct) which are called material classification tests. That's what they actually come under. So that will determine, yes, what classification it's in; whether it's a - all those sorts of things. Then the other tests which are more for strength tests and - yes, you do your strength tests and - yes, your strength tests which are - then the engineers, the geo-tech engineers, will then work out the design. So the investigation is the field work. The design is done from the results that the laboratory gives the engineers.
**** STUART LEON KELAHAR RXN MR FAGIR
PN430
You spoke about a test that happens when something goes wrong or is about to go wrong?---Mm'hm.
PN431
Can you just tell us a little bit about that?---So you mean the - - -
PN432
Why is that something that you're involved in?---Me personally?
PN433
I'm sorry, why is that something that Coffey is involved in?---Well, I mean, yes, things go wrong and they need to work out what happened. So, for example, the Alliance model, the Kempsey Bypass and all those were born because the construction industry is so corrupt, is one way of putting it - or what's a word for it - building of such poor quality that they created the alliances. Roads were failing after eight years. Look at the F3, for example, when you drive up to Newcastle. That road busted up after eight years or five years. It's supposed to last for 40. So we got involved and became Alliance partners to try and lift the quality of the industry to make sure everything was right. So testing is quite important, particularly when things go wrong. So when engineers will go back and look at the data, they want to be able to go back to the data and say, "Okay, the design was wrong." You confirm your design or you deny your design but if the test data and everything else is no good, then you can't confirm or deny the design so you keep building roads poorly. So they went to the Alliance model and went back to scratch. So I guess that's sort of what I mean by testing when things go wrong. It's really, really important. So you can go back and confirm or deny the design.
PN434
Right?---I hope I answered that all right.
PN435
If a big crack appears in the F3 or inside of a skyscraper somewhere, do any of these tests - are they every applied in that scenario
to work out what's happening?
---Certainly some of the concrete tests, yes. So the taking of a core of concrete and testing it. Some of the other tests would
be to work out how much cement is in there and things like that.
**** STUART LEON KELAHAR RXN MR FAGIR
PN436
Mr Kelahar, can I just ask you to turn to paragraph 15 of your affidavit. I just want to clarify a couple of things that are there. I think you were asked about the process of extracting soil samples from various sites?---Yes.
PN437
Obviously that happens in situ. What about compaction testing, where does that happen?---That happens in the actual laboratory.
PN438
In relation to concrete testing, you were asked about a module that dealt with making and curing cylinders. Do you recall that?---Yes.
PN439
And I think you said that you make a cylinder essentially by taking it out of the mixer or whatever the source of the concrete is and packing it into some type of container. What about curing?---The curing is done back at the laboratory in a controlled environment. (indistinct) is plus or minus two degrees.
PN440
MR CRAWFORD: Sorry, Commissioner, it's not really an objection but it may assist, given the sort of two different usages of the word "laboratory", if Mr Kelahar can clarify in his evidence whether he's talking about base laboratory or on-site laboratory?---Well, they're done at both. Yes, so the - - -
PN441
Just generally when you answer questions, that's all I was saying?---So what do you want me to do?
PN442
Nothing more for this particular question?---Okay.
PN443
Just when you're answering my friend's questions, if you could specify, that would assist?---Okay.
PN444
MR FAGIR: That's okay, there's only one more.
**** STUART LEON KELAHAR RXN MR FAGIR
PN445
Mr Kelahar, I think it's the final paragraph of your reply statement. You give an estimate of the amount of testing that's done in situ?---Yes.
PN446
Can I ask you first, can we take it that "in situ" means in the field - - -?---Yes.
PN447
- - - as opposed to in a laboratory?---Yes.
PN448
And the estimate that you gave I think was 10 per cent of tests are performed in situ?---Yes, of the 300 tests that would be about right.
PN449
Do you still say that estimate is accurate?---Yes.
PN450
Thanks, Commissioner, that's the re-examination.
PN451
THE COMMISSIONER: Thank you.
PN452
You can be excused, thanks, Mr Kelahar?---Thanks.
If I could have those statements back, please?---Yes.
<THE WITNESS WITHDREW [11.36AM]
PN454
THE COMMISSIONER: That's your evidence, Mr Fagir, as far as witnesses are concerned?
PN455
MR FAGIR: Yes, sort of.
PN456
THE COMMISSIONER: Okay. Yes?
PN457
MR FAGIR: Can I hand up this bundle. The bundle contains the awards that were referred to and some cases which I think are uncontroversial. But I should acknowledge that behind tab 7 the bundle includes a document that's more akin to evidence. I flagged this to Mr Crawford and invited him to reflect on whether that should be subject of an objection or not. I don't know what his position is. It hasn't been tendered through a witness but I think it's - we say that's it's providence is apparent on its face and it should be admitted on that basis. It's not a critical document but it's something that we will refer to later on that may assist the tribunal in dealing with the issues before it.
PN458
THE COMMISSIONER: Is there any difficulty with this document, Mr Crawford?
PN459
MR CRAWFORD: We do object to it being admitted, Commissioner. As my friend has correctly indicated, it's not referred to in the witness evidence of Mr Kelahar. It's titled Certificate II in Sampling and Measurement and we note in the enterprise agreement that is before the tribunal for approval that there appears to be only one reference to a certificate and it appears to be on page 17, Certificate III in Laboratory Techniques. So being the case that this qualification is not even mentioned in the agreement, we don't see the relevance of the document.
PN460
THE COMMISSIONER: The relevance is a different thing to whether or not it can be put in. I mean, it might not have any relevance at all; I don't know.
PN461
MR FAGIR: Commissioner, we're not going to die in the ditch over this.
PN462
THE COMMISSIONER: Yes.
PN463
MR FAGIR: The certificate is referred to in the Manufacturing Award. It will assist the tribunal in construing that award.
PN464
THE COMMISSIONER: And it's a government document - perhaps not a government document. It's a document which appears on the face of it to have emanated from the department.
PN465
MR FAGIR: Yes.
PN466
THE COMMISSIONER: From (indistinct)
PN467
MR FAGIR: Yes.
PN468
THE COMMISSIONER: I will let it in. I mean, I don't know what's going to be made of it and obviously you can make submissions, Mr Crawford, as to what it's supposed to do or what you presumably say it doesn't do, but I will certainly let it in.
PN469
MR FAGIR: Thank you, Commissioner. I will briefly identify two documents that are hopefully in the front sleeve of that folder. One is simply the award modernisation request to which I will refer in submission. The second is a document mentioning some calculations that I will come to when we speak about the better off overall test.
PN470
THE COMMISSIONER: Right.
PN471
MR FAGIR: That now, Commissioner, is the applicant's evidence in the proceedings.
PN472
THE COMMISSIONER: Thank you, Mr Fagir. I'm just wondering, before we start with Mr Callinan, do people want a brief adjournment and then - yes, no?
PN473
MR FAGIR: Yes, Commissioner.
PN474
THE COMMISSIONER: We will adjourn for five minutes, 10 minutes, whatever people want.
<SHORT ADJOURNMENT [11.40AM]
<RESUMED [11.55AM]
PN475
THE COMMISSIONER: Yes, Mr Crawford.
PN476
MR CRAWFORD: Commissioner, may I please call Tony Callinan as a witness.
PN477
THE ASSOCIATE: Would you please state your full name and your address, please.
MR CALLINAN: Anthony William Callinan, (address supplied).
<ANTHONY WILLIAM CALLINAN, AFFIRMED [11.55AM]
<EXAMINATION-IN-CHIEF BY MR CRAWFORD [11.56AM]
PN479
MR CRAWFORD: Mr Callinan, do you have a copy of the statement that's been filed in your name in this case in front of you?---I do.
PN480
Is that a statement that you signed on 7 November 2012?---It is.
PN481
To the best of your knowledge, are the contents of that statement true and accurate?---Yes, it is.
PN482
Commissioner, I would like to tender Mr Callinan's statement.
PN483
MR FAGIR: There are some objections to his statement, Commissioner.
PN484
THE COMMISSIONER: Yes, Mr Fagir.
PN485
MR FAGIR: I begin with the first sentence of paragraph 6. Mr Callinan is not competent to give evidence about the reason that Coffey continued to apply the ECLA Award.
PN486
THE COMMISSIONER: Maybe you can go through all the objections and then Mr Crawford can respond to them all together.
PN487
MR FAGIR: Certainly. The second objection is in paragraphs 11 to 26. The objection is on the basis of the material is not relevant to any fact in issue and I should point out that there's a practical dimension to this objection in that I would prefer to avoid having to cross-examine and make submissions about matters which are ultimately not going to have anything to do with the determination of the case. Thirdly, our objection is to annexure A. That's the ombudsman's advice. To state the obvious, it's hearsay evidence and there are practical problems with it in the sense that we don't know what the brief was to the ombudsman. I have to say it's not clear on the face of the document what the question was that the ombudsman answered. So it's not simply hearsay; it's hearsay which would be dangerous to rely upon in the context of these proceedings. They're the objections, Commissioner.
**** ANTHONY WILLIAM CALLINAN XN MR CRAWFORD
PN488
THE COMMISSIONER: Yes, Mr Crawford.
PN489
MR CRAWFORD: Commissioner, we would say that the Fair Work Ombudsman's advice has been properly brought into evidence in Mr Callinan's statement. We do say it is relevant in the case because obviously it deals with award coverage, which is the primary issue in this case. How much weight should be afforded to that advice I note is something that my friend has already referred to in his submissions. So he's basically already dealt with that evidence and it's a matter for the tribunal how much weight they afford to that document. So we would say that we would press the inclusion of that advice. In terms of paragraphs, can we just have what the first one was?
PN490
THE COMMISSIONER: It was 6 is the first one. As I understand it, Mr Fagir is objecting to it, saying that Mr Callinan has expressed a view as to why Coffey was actually applying the ECLA Award.
PN491
MR CRAWFORD: I think we wouldn't have an issue with striking out some of those words. I mean, "In 2007 Coffey's was still applying the ECLA Award to it's employees," seems uncontroversial and we'd say it should stay. "Because it remained the most appropriate award for a business carrying out on-site activities," I wouldn't have a problem striking that out.
PN492
THE COMMISSIONER: Does that answer your objection, Mr Fagir?
PN493
MR FAGIR: Yes, Commissioner.
PN494
THE COMMISSIONER: Okay.
PN495
MR CRAWFORD: So the next one is?
**** ANTHONY WILLIAM CALLINAN XN MR CRAWFORD
PN496
THE COMMISSIONER: The next thing is 11 through to 26.
PN497
MR CRAWFORD: 11 - - -
PN498
THE COMMISSIONER: I think it's a global objection to all of that, is it? I don't think there needs to be line-by-line answers. It's more how relevant is that, given what I actually have to decide.
PN499
MR FAGIR: Yes, Commissioner.
PN500
THE COMMISSIONER: It's a practical objection being put.
PN501
MR CRAWFORD: Again, in particular, paragraph 23, for example, we would say is relevant to this issue in that it's referring to how the Fair Work Ombudsman's came about and how it is being included into evidence. So we would certainly press that paragraph. A lot of this content I wouldn't have thought is controversial. I mean, "I became aware that ECLA was terminated August 2011," we wouldn't actually have a problem striking that out because it's not really contentious. I mean, it's hard, Commissioner, to deal with these holistically. There are some differences in the paragraphs. I mean, they're not all exactly the same. In dealing with these issues, I would note that under section 591 of the Fair Work Act that Fair Work Australia is not bound by the Rules of Evidence.
PN502
Paragraph 12, for example, we would say is relevant, that "Mr Coffey knew that Coffey employees would be working on the HEA Project for some time after the termination of ECLA." So that demonstrates that there's ongoing work on a long-term project. So we would press that paragraph. Paragraph 13, the first sentence we would be happy to remove but the fact that Mr Callinan communicated to Coffey's management and was told they were not interested in an enterprise agreement is perhaps relevant in terms of the background as to how the agreement that's before you came about.
**** ANTHONY WILLIAM CALLINAN XN MR CRAWFORD
PN503
Given that Mr Callinan is an organiser working in, amongst others, construction industry, we would say his view about the award which applied to the industry is relevant. Also, his communications with employees on site is also relevant in paragraph 14, 15, 16, in that he was investigating compliance with the award. We would say that is also relevant. Paragraph 17 is basically just exactly what the company is saying, that they don't think the construction award applies. We would see no reason to strike that out. Likewise paragraph 18. I mean, it's just recounting the background.
PN504
Paragraph 19 is certainly relevant because it - as is paragraph 20, 21 and 22 because it provides a factual background for the tribunal in determining how this agreement has come about and the positions taken by parties during negotiations. So we would certainly press 19 to 22. I've dealt with 23. We would say that 24 - 25 I assume you would be relatively familiar with already, Commissioner. 26, Mr Callinan is just saying that he was involved in negotiations until it was voted on, which is relevant and not controversial at all. I mean, it provides background of Mr Callinan's evidence in these proceedings because he was involved in negotiations.
PN505
Basically most of that evidence that the company is trying to have struck out is relevant to Mr Callinan's role and why his evidence should actually be taken into account by Fair Work Australia, because it demonstrates how involved he has been. Thank you.
PN506
THE COMMISSIONER: Mr Fagir, did you want to put anything in response?
PN507
MR FAGIR: No, Commissioner.
PN508
THE COMMISSIONER: Paragraph 6 seems to be dealt with, as I understand it. 11 to 26 I'm going to leave in, although I realise that that may lengthen proceedings because you may very well wish to cross-examine Mr Callinan about the contents of that material. As to ultimately how particularly relevant it is to what I have to decide I don't know, but I will leave that in. I will leave the Fair Work Ombudsman's report or whatever it's called but - the advice, I should say - I am aware that the company received advice from the Fair Work Ombudsman which I understand is in somewhat different terms but I don't know at the end of the day where either of them leaves me, but it's a factual background. Obviously I accept, Mr Fagir, we don't know what the question was, we don't have the person who has provided this advice to be cross-examined about what led them to that advice but I will leave it in. So anything else before - no?
**** ANTHONY WILLIAM CALLINAN XN MR CRAWFORD
PN509
MR FAGIR: No, Commissioner.
THE COMMISSIONER: This will be AWU2.
EXHIBIT #AWU2 STATEMENT OF ANTHONY WILLIAM CALLINAN
PN511
THE COMMISSIONER: Is there anything you need to ask him?
PN512
MR CRAWFORD: Just a couple of brief questions, Commissioner.
PN513
Mr Callinan, this morning the company has presented to the tribunal a document entitled Certificate II in Sampling and Measurement and asked for the tribunal to consider it. I will hand you a copy so you have it in front of you. Do you have that?---Yes, I think so.
PN514
Mr Callinan, to what extent, if any, has that certificate come up during your conversations with employees of Coffey Information?---I've never heard of a certificate II at all previously. None of the employees have ever mentioned any training to the level of certificate II. I have had some limited conversations where employees have been exposed to a sort of very limited - some of the long-term employees have done a certificate III but I've never heard mention of a certificate II. It was never mentioned during the negotiation of the agreement and from recollection, as I don't have a copy of the full agreement in front of me, it doesn't form part of the enterprise agreement and wasn't part of the skills matrix discussions during negotiations of the agreement, although I personally wasn't involved at great length in the content of the classification structure or skills matrix but it was never discussed during negotiations, the cert II. The only conversations were about cert III and cert IV qualifications.
PN515
**** ANTHONY WILLIAM CALLINAN XN MR CRAWFORD
Mr Callinan, in your own words can you describe the on-site laboratories that you've come across in terms of Coffey Information during your involvement with the company?---Yes.
PN516
MR FAGIR: Commissioner, I object. This is beyond the pale of the type of questions that can legitimately be asked at this stage of proceedings. I mean, this may raise a series of substantial issues that we'd need to answer in evidence.
PN517
THE COMMISSIONER: If you have to recall Mr Kelahar to give evidence - I mean, is it like the physical description, is that what you're after or - - -
PN518
MR CRAWFORD: Yes, I believe he's been in the on-site laboratories. But I would note, Commissioner, that my friend referred to overtime calculations this morning and asked questions to Mr Kelahar during examination-in-chief, so I fail to see how he can be allowed to ask those questions about new material which we hadn't dealt with and now I'm not.
PN519
THE COMMISSIONER: You can ask the question, Mr Crawford.
PN520
MR CRAWFORD: Do you need me to repeat it, Mr Callinan?---No, that's fine. Look, my view is that laboratory is probably a stretch of the description. To me a laboratory is an area that I envisage people in sort of white dust coats, things like microscopes, fairly technical scientific type experiments or things of that nature happening. The so-called laboratory on site - and I've seen a number of them back from a number of years at the (indistinct) Creek Project, the Kempsey Bypass Alliance, the Hunter Expressway Alliance. They're a tin shed. They are not even lined usually. They're a Colorbond structure. They have roller doors. They are open to the outside atmosphere. They are not airconditioned. It is effectively just a shed that vehicles reverse into and unload buckets of dirt into the shed where the tests are conducted. So my view is that laboratory, whilst it's referred to - as a laboratory or the lab - I think the guys refer to it on the job as, "Take this soil sample back to the lab." It's nothing more than a shed.
**** ANTHONY WILLIAM CALLINAN XN MR CRAWFORD
PN521
Thank you, Mr Callinan. I note at paragraph 3 of your statement you refer to first dealing with Coffey in 2006 in relation to an underpayment claim. Can you describe whether you've had any other underpayment issues arise in relation to Coffey employees?---Yes, look, there's been a number of issues over the course of the six or seven years that I've been an organiser. They are all usually similar in nature and relate to the application of the old award, the ECLA Award, that was being applied at the time - usually in areas of overtime rates, meal allowances, that type of thing. After raising the issue myself on at least three or four different projects, you're left to wonder whether the management - if the company keeps making the same mistakes over and over and over again under the same provisions of the same award, you're left to wonder whether the management is either incompetent or dishonest. Such as the overtime meal allowance not being applied, you raise the issue, they either apply it for a short period, do some sort of back-pay and then usually put a blanket notification of a requirement to work overtime every day on the site to avoid paying it in the future. Now, you would think once the company has made that mistake once and the union started proceedings and the matter was settled prior to going to court for back-payments, that they would learn from those mistakes. But it's been my experience that Coffey haven't learnt from those mistakes. In actual fact, it's known broadly amongst myself and other union organisers that it's quite easy to find an underpayment on the site.
PN522
MR FAGIR: Commissioner, I object. I object. I think we let the evidence go for a certain period but we're so far away from any fact in issue and we're getting into the realms of assertions that not only are irrelevant but are, I'm sure, offensive to the company and which have nothing to do with these proceedings. What's the point of this?
PN523
MR CRAWFORD: We don't press for any further information, Commissioner, and I have no further questions for the witness.
**** ANTHONY WILLIAM CALLINAN XN MR CRAWFORD
PN524
THE COMMISSIONER: Thank you.
<CROSS-EXAMINATION BY MR FAGIR [12.11PM]
PN525
MR FAGIR: Mr Callinan, have you been inside any of these on-site laboratories?---Yes, I have.
PN526
How did that happen?---I've entered the premises to hold discussions with some management representatives after issues have been raised during lunchtime discussions with AWU members.
PN527
Inside the laboratories?---Yes.
PN528
With management?---Yes.
PN529
What were you doing, were you standing up, sitting down?---A bit of both. I actually walked through the laboratory area to access the - it's like a partitioned off area in the corner where the supervisors sit and the receptionist sit. It's a timber structure within the Colorbond shed where the supervisor and management sit in an office. So you've actually got to walk through the laboratory area to access where the site manager would be sitting to hold some conversations with them.
PN530
Is this reception area just on a dirt floor?---It's a concrete floor in the shed.
PN531
What's in the office?---The usual things in offices: a couple of desks. I think there was a photocopier, a couple of phones, that type of thing.
PN532
There were walls on this structure?---Yes, as I said, it's a temporary timber structure. I think it was actually one on the HEA that I was in recently or a couple of months ago. It's like a formwork, chipboard, ply type stuff on the materials. It's only basic construction type materials. It's not Gyprock or it's not painted like you would expect a normal office. They were just a bare timber frame covered with plywood with a few temporary desks and office furnishings in them.
**** ANTHONY WILLIAM CALLINAN XXN MR FAGIR
PN533
We're not sort of talking about a Colorbond roof on four posts with the wind blowing through it, are we?---No, look, the external structure is a Colorbond structure, yes, a steel frame. But within them there's been some timber walls put up to delineate the office from the rest of the laboratory where the actual dirt and testing is done.
PN534
So there's a wall around the entire structure and then within the structure there's a reception area. Correct?---Yes.
PN535
And management offices?---Yes.
PN536
And there's some sort of internal separation between the laboratory area - - -?
---Yes, a timber structure.
PN537
- - - and the management area?---And a couple of windows and that so the supervisors obviously can see through from the internal building out into the rest of the shed, yes.
PN538
And what instruments were in this laboratory?---Mate, there were a couple of compaction presses, benches, lots and lots of buckets of dirt that have been brought back, the samples around the place, and any number of employees. On the day I was there it was period of inclement weather. The employees had caught up on the backlog of work so there wasn't a lot of anything being done at that point in time. So, yes, there was a lot of employees sort of standing around in the shed.
PN539
Whatever instruments were required to conduct the tests that happened at HEA were in that laboratory, weren't they?---Yes, I would imagine they would be. Well, maybe not all of them. There would be some instruments that would be used in testing on other areas on site, you know, such as the portable testing that might be undertaken at various locations across the site. I don't know, but I don't imagine every piece of equipment used in the purpose of testing was actually in that shed at that point in time; I would doubt that very much.
**** ANTHONY WILLIAM CALLINAN XXN MR FAGIR
PN540
In the context of dealing with the certificate II document that Mr Crawford showed you, you mentioned some long-term employees who'd done a certificate III?---Yes.
PN541
How long is long-term?---Well, I've only found two people out of the 20 to 30 people I regularly communicate with on site that have completed the certificate III. Both of those employees have worked for the company previously on other projects - on the Hume Alliance, one previously in Queensland - so they're employees that have worked on a number of on-site construction jobs and travelled with the company - I don't know an exact time frame but after some years of employment.
PN542
They're employees who have survived the conclusion of one project and moved onto another. Correct?---Yes, they are - well, the two that I'm referring to, one was asked to come up from the Albury project and help out for a short period of time and has been there ever since; the other was relocated up to this project from the Albury Hume Alliance (indistinct) Hume Alliance - Albury, whatever you want to call it.
PN543
Mr Callinan, how much do you know about soil compaction testing?---I would say I only have limited knowledge. I don't claim to be an expert in the field but I've worked in construction over a number of years and witnessed it being done. I've spoken to a number of employees, some of which are members, that do the testing.
PN544
And it's because you have limited knowledge of that procedure that you describe the testing as opposed to the sampling in only a sentence or two. Correct?---No, look, the process I described there was with some testing with the nuclear density tester as well as collecting the sample that's returned back to the on-site facility for further testing. So it's both a conducting of the test and the removing or collection of a sample to then be transported back for some further testing when required.
**** ANTHONY WILLIAM CALLINAN XXN MR FAGIR
PN545
You haven't made that very clear in your statement, have you?---I believe I have, yes. It clearly stipulates that a hole is drilled with a drill, a nuclear density tester is then used and the attachment on the drill is changed to a spade fitting, the hole is expanded upon and the dirt removed is collected into a bucket, placed in the vehicle and returned back to the on site facility for further testing.
PN546
You haven't said anything about what that testing actually involves?---No, I did not.
PN547
In fact your evidence is that it's really - you talk about soil sampling and you talk about concrete slump testing and that's it?---Yes. They're the two areas that, you know, I focused on in my evidence. I do reference the fact that there is further testing done, usually by an automated machine. The employees return the sample back to the shed and there's a process it goes through. It's sieved, weighed and then put through a testing that's usually automated. However, on some occasions the employees report the machine is not working and they need to do them calculations manually, yes.
PN548
And that limited description reflects the fact that you have very limited knowledge of Coffey's business, don't you?---I wouldn't say a very limited knowledge. As I said, I don't claim to be an expert in the field but I'm aware of the process and what it involves and the part that it forms in the construction process.
PN549
You don't know, for example, what's happening in the rock testing lab in Melbourne?---No, I've never been to the laboratory in Melbourne so it would be a bit difficult to know what happens there. As I said, in my seven and a half years as a union organiser, all of the dealings that I've had with Coffey have been on major construction projects, road construction projects, as well as some limited discussions with members and potential members in fixed laboratories. So, yes, I'm not aware of all that Coffey does; I never claimed to be aware of that.
**** ANTHONY WILLIAM CALLINAN XXN MR FAGIR
PN550
Within that category of road construction projects, it's even narrower than that, isn't it, in the sense that these were road construction projects in New South Wales?---Yes, in New South Wales, that's correct. But having worked in construction, it's not that much different to build a road in other states than it is in New South Wales. The dirt, the areas, the processes is the same. As I said, I have had a fair bit of experience in the construction industry and they don't do anything too different in other areas than we do in New South Wales. In actual fact our members quite often transfer from one state to another regularly. So the process is similar to build a road.
PN551
Let me just take you back for a moment. You said the process of building roads in New South Wales is pretty well the same as everywhere else?---Depending on the environment constraints, the type of structure to be built. For argument's sake, I'm recently looking - or currently looking after a project at Kempsey that involves the construction of the longest suspended bridge in the Southern Hemisphere. Because the material underneath is not suitable to compact a road on so they built a bridge over it. So obviously the methods change depending on the environment and the structure of the subsoil that the road is to be built on. But for argument's sake, if you were building a road on a floodplain in Western Australia or Queensland, you would use the same process as you would in New South Wales. If you were building a road over mountains or in a solid substructure area in Queensland, you would use the same cut and fill process as you would in New South Wales. That's what I meant by the processes would be the same. Obviously it would vary from job to job, but we don't reinvent the wheel every time we build a new road depending on what state it's in.
PN552
What's your opinion on the quality of aggregate in New South Wales compared to other states?---Look, it varies considerably. That's a broad question. The quality of aggregate in the mountains and in Newcastle, where this current project is, is obviously considerable different to, for argument's sake, as I said, the floodplain at Kempsey. The section of road is over 20-odd kilometres. There's areas that have to be blasted to remove the rock and the rocks crushed. There's areas where the dirt is pushed. It's too broad of a question to accurately answer. The terrain can change considerably over one kilometre, let alone 20.
**** ANTHONY WILLIAM CALLINAN XXN MR FAGIR
PN553
And the work that's being done would change to reflect the circumstances that you've just described. Correct?---The construction method would change, yes.
PN554
And the design would change, the design of the - - -?---Yes.
PN555
- - - concrete and the paving and so on?---Look, at the end of the day the concrete is concrete. The design of the job would dictate whether areas needed to blasted or the practical sense of having to move the dirt would dictate what principles are used to move it, compact it. Different materials need to be treated differently.
PN556
The character of the testing that's performed would vary as well, wouldn't it?
---Well, it would vary, no doubt. But, you know, at the end of the day the compaction level is measured to make sure you've got a
suitable base to build a road on. That's what the test is designed to identify.
PN557
And you would agree with me, wouldn't you, that we can't have a look at what's happening with HEA in your area and extrapolate from that conclusions about the work of other employees in other locations, can we?---Yes, I believe you could. The testing being undertaken on the Kempsey site, for argument's sake, where the company has employees doing work Leightons is not dissimilar to the work being done on the Thiess Hunter Expressway job. It's no different to the work that was being done three years ago on the (indistinct) Creek job. As I said, we don't reinvent the wheel every time we start a new project. Things vary according to the terrain, the quality of the material being used, but it's all similar of nature.
PN558
The three projects that you just mentioned, they're all in your - - -?---They're in my - the area that I'm responsible for servicing goes to Macksville in the north, which is about an hour north of Kempsey, down to the Hawkesbury River in the South and up to sort of Muswellbrook in the Hunter Valley. So that's the areas that I predominantly look after construction for the Newcastle branch of the AWU.
**** ANTHONY WILLIAM CALLINAN XXN MR FAGIR
PN559
Are you getting an overnight allowance for the time that you spend up at - - -?
---Usually. Unfortunately it's not quite as good as what some of my members get but better than what others get, others get nothing
and they're left to fend for themselves but you'd probably object if we want to go down that line of description with the applicant's
employees.
PN560
I have some sympathy for them, Mr Callinan. Mr Callinan, I just wanted to ask you one other question?---Yes.
PN561
At paragraph 55 of your statement - this is at the end of your description of the slump test?---Yes.
PN562
You say, "All management do is sign-off on the test results"?---It's my understanding from the employees that those that don't have the appropriate certification, the cert III or IV, to complete the documentation required to maintain the NATA accreditation, they simply conduct the testing, fill out the paperwork and then that goes back to the laboratory, probably someone sitting in the office that we were talking about before that's built within the shed, for them to sign off on the paperwork for the tests that have been performed.
PN563
Do you understand that Coffey is authorised by NATA; that's the National Association of Testing Agencies? It's authorised by a national
certifying agency?
---Yes, that's correct.
PN564
That certification relies upon Coffey's observance of protocols?---Yes.
PN565
And that nothing can be signed off unless those protocols are observed?---Yes.
PN566
And instruments have to be properly calibrated, for example?---Yes, that's correct.
**** ANTHONY WILLIAM CALLINAN XXN MR FAGIR
PN567
And tests have to be carried out in accordance with the steps that are established for those tests?---Mm'hm.
PN568
It's only on that basis that test results are signed off on. Correct?---Well, you would hope in an ideal world. I'm not here to pass comment as to whether Coffey conforms with the requirements of NATA or not. Again, my information is that employees - some of which are not signed off on certificate III or IV - perform the tests, they return their paperwork to their supervisor or whoever the relevant person is and they are the ones that have completed the relevant training and they sign off to say the tests have been done accurately. Now, what involvement that person has in overseeing the tests being done, from my information, sometimes is very limited to non-existent. So again, I'm not here to question whether Coffey conformed with their NATA requirements. That's up to them for their quality assurance, I'd imagine.
PN569
Commissioner, they're my questions of Mr Callinan.
PN570
THE COMMISSIONER: Thank you. Anything by re-examination?
PN571
MR CRAWFORD: Nothing arises, thank you, Commissioner.
PN572
THE COMMISSIONER: Thank you.
In that case you can be excused, Mr Callinan.
<THE WITNESS WITHDREW [12.26PM]
PN574
THE COMMISSIONER: Do you have any documents, Mr Crawford, that you want to hand up?
PN575
MR CRAWFORD: Commissioner, I need to I guess tender Mr Muller's - - -
PN576
THE COMMISSIONER: That's right, yes.
PN577
MR CRAWFORD: - - - statement into evidence.
PN578
THE COMMISSIONER: So just for the record it's the statement dated 6 November 2012.
PN579
MR CRAWFORD: Yes, Commissioner.
THE COMMISSIONER: I will mark that as AWU3.
EXHIBIT #AWU3 STATEMENT OF MR MULLER DATED 06/11/2012
PN581
THE COMMISSIONER: Anything else, Mr Crawford?
PN582
MR CRAWFORD: Commissioner, we do have a folder to hand to you and the other side. It contains the relevant awards and cases that we rely upon but I'm instructed not the modern awards, Commissioner, because I guess we assumed that Fair Work would have access to those.
PN583
THE COMMISSIONER: I think Mr Fagir has provided them anyway.
PN584
MR FAGIR: Yes.
PN585
THE COMMISSIONER: Given the time, I'm just wondering do you want to keep going now until 1.00-ish or do you want to perhaps have our break now and then come back and do submission all together? Whether you want to have a discussion between yourselves as to your preference; it doesn't bother me either way.
PN586
MR CRAWFORD: Commissioner, given that my friend would go first, he's indicated he wouldn't finish by 1 o'clock. So perhaps if we adjourn and then all the submissions can be - - -
PN587
THE COMMISSIONER: Yes, that's why I was suggesting it might be useful because it's probably preferable if you don't keep chopping and changing. So how long do you want? Do you want an hour or do you want less time?
PN588
MR FAGIR: I would prefer half an hour, Commissioner.
PN589
THE COMMISSIONER: Okay. So is, say, 1 o'clock-ish all right with you, Mr Fagir?
PN590
MR FAGIR: Yes, Commissioner.
PN591
THE COMMISSIONER: And with you, Mr Crawford?
PN592
MR CRAWFORD: Yes, thank you, Commissioner.
PN593
THE COMMISSIONER: We will adjourn until approximately 1 pm. Thank you.
<LUNCHEON ADJOURNMENT [12.28PM]
<RESUMED [1.05PM]
PN594
THE COMMISSIONER: Yes, Mr Fagir.
PN595
MR FAGIR: Thank you, Commissioner. Can I just deal with an issue briefly. Mr Crawford made something of errors in terms of the annexures to Mr Kelahar's affidavit. I will say nothing about grasping for straws but can I point out that this is a problem, at paragraph 15 Mr Kelahar refers to three modules and says they are annexed to SK2. What has actually happened is that the three modules are separately annexures to 2, 3 and 4 and as a result each of the references to the annexures is out by two, so 3 should be read as 5, 4 as 6 and 5 as 7. Commissioner, we have filed fairly fulsome submissions and I don't intend to traverse every aspect of them but I want to say something about the evidence and I also want to highlight the main element of our submissions. Can I say in terms of the evidence credit is no great issue in these proceedings.
PN596
The evidence of the applicant and the evidence of the respondent really - the two sets of evidence pass as ships in the night, they talk about different things, they don't really engage with one another. They to a large extent are not contradictory. Where there is a difference between the applicant's evidence and the respondent's evidence is in respect of the scope of the evidence and second, the quality of the evidence. Dealing first with the issue of scope, the evidence that's been filed by the applicant is comprehensive. Mr Kelahar describes the Coffey Group, he describes Coffey Information Pty Ltd, the applicant, across (indistinct) of operation. He describes the works as performed by the employees and describes the detail of the tests. He traverses the broad and the specific and gives the Commission or sorry, the Tribunal now.
PN597
THE COMMISSIONER: We might be back to the old Commission, Mr Fagir, soon.
PN598
MR FAGIR: It can't come soon enough as far as I'm concerned. Mr Kelahar gives the Tribunal a broad and accurate view of the business of Coffey and the work of the employees. There is a stark contrast in the evidence of Mr Callinan and Mr Muller. Dealing firstly with the evidence of Mr Callinan. He describes concrete slump testing in some detail. He describes in detail one part of the soil testing process that is soil sampling and that's it. We don't know why the evidence is so limited. It could be that Mr Callinan only has one member, it could be that he's only described the type of work or the category of work that is consistent with his case. We don't know and it really doesn't matter.
PN599
The point simply is, Mr Callinan's evidence is narrowly focussed on one fragment of the applicant's business with the result that it doesn't engage first with the evidence of Mr Kelahar. Second, and more importantly, it doesn't engage with the question in the proceeding or one of the questions which is the question of the industry of the employer. Mr Muller's evidence is in the same category, although the reason for that is a bit more obvious, that is Mr Muller is talking about what he knows, which is his job. We can accept that the evidence of a union in these proceedings will always be a little bit more limited than the evidence of the company and that just reflects the difference in the information that's available to the two parties. We can accept that.
PN600
But what you would expect is at least a description of the range of work performed by members and some attempt to describe the business in general. One can subpoena documents, one can look at annual reports. Sometimes Google is a bit help. There has been no real effort to do that in this case. There has simply been the narrow description of one small slice of the work of employees. The second difference between the applicant's evidence and that of the respondent is in its quality and this is what I mean by that. Mr Kelahar has worked for the applicant for 15 years. He has come through the ranks. He has done the work covered by the agreement and he understands the issues that affect the work. As I mention he describes the general and the specific and he includes detail by attaching the training materials which establish the parameters of the work.
PN601
On the other hand is the evidence of Mr Callinan who said something about its scope but the other limitation of that evidence is that it's not explained how Mr Callinan knows any of this. We have to assume it's all a matter of hearsay. I would invite the Tribunal to assume that Mr Callinan isn't a technician currently employed by Coffey and therefore whatever he knows about the work is hearsay, but the evidence doesn't even include the basis step of saying look, I spoke to some employees or I saw this test being carried out or anything of that nature. It's simply an assertion of these matters with no foundation or no basis for the knowledge included. In other words the applicant has adduced evidence from somebody in the know and it's given them a full picture, and as against that there is some fragmentary material from a person whose qualifications give the evidence has not been established.
PN602
I don't intend to traverse the evidence in detail, but Commissioner I do want to draw your attention to some elements of it which might otherwise escape view. First, Mr Kelahar explains in his affidavit that some of his clients have the capacity to do some materials testing themselves. So insofar as there is some mystery about the reference to materials testing in the on site award it was explained by that evidence. Second, there are several significant propositions in Mr Kelahar's evidence which were not contradicted and which was not put to him are untrue. An unfortunately constructed sentence but I think it makes a point. These are some of those propositions. The first, what Mr Kelahar said about there being a cyclical shift towards on site work as opposed to a structural shift has not been contradicted.
PN603
Mr Kelahar effectively says at the moment this is the most on site work we've done and it's likely that the percentage of work we do on site will decline as opposed to increase over time. It wasn't contradicted and if anything Mr Callinan's evidence supports it insofar as he says peaks in the business are driven by the on site jobs. I think we would adopt that statement as correct. That's in Mr Callinan's statement at paragraph 31. Second, Mr Kelahar says that employees, technicians can move from on site labs to base labs. That hasn't been contradicted. He said 10 per cent of tests are performed in situ, that's not contradicted, and he said 30 per cent of employees are based permanently, perhaps full time would have been a better term, based permanently at temporary labs. That wasn't contradicted.
PN604
Mr Kelahar also explained importantly that testing can happen before the construction process commences. He said you might do testing in a paddock or in a hillside with trees on it and he also explained testing can occur after construction is complete if something goes wrong. Finally turning to Mr Kelahar's evidence today, he explained that the material that's tested we would accept comes so far as the technician is helped by the agreement, often or usually comes from construction sites but may come from elsewhere and I think he identified quarries specifically as a source of material which might be tested. Finally, I'm not sure it's accurate to describe it as evidence but we've said something about the Ombudsman's advice and the quality and the reliability of that advice. To be fair the advice does not say that employees of this employer are covered by the on site award.
PN605
In fact it tautologically says, "The building modern award does provide coverage for employees performing soil concrete and aggregate testing duties where such duties are undertaken on site in or in connection with the civil construction industry." That is nothing more than a re-statement of the words of the award, albeit with the substitution of the word "employees" as opposed to "employers". So first it's with respect wrong. Second, it doesn't go so far as the union contends in stating that technicians covered by the agreement are covered by the on site award and Commissioner I think you accepted - I'll withdraw that. As I submitted briefly earlier we don't know what was said to the Ombudsman, we don't know what question was asked, we don't know what question they were answering. The value of that document is nil, in our submission.
PN606
Moving on from the evidence can I deal with something briefly. In a submission filed by the AWU in the proceedings includes a typographical error. At paragraph 31 quotes clause 4.10(b)(v) saying, "The testing of soil, concrete and aggregate," this is a component of the definition of civil construction, it says that it is, "The testing of soil, concrete and aggregate where it's carried out at a construction site or in connection with work under clause 4.10(b) that is civil construction work." Of course the phrase is "testing of soil" et cetera when it's carried out at a construction site in or in connection with work. Of course 4.10(b)(i). The error is corrected in the following paragraph, we don't make too much of it other than to say it may have infected the submissions to follow insofar as they imply without saying that work imported in the definition if it were either a) on a construction site or b) in connection with civil construction, we say that's obviously wrong.
PN607
The definition comprehends only work which is both on a construction site or in or in connection with civil construction. I actually don't think it's controversial but if it is (indistinct) to it applying. Commissioner, can I put some propositions about construction of industrial awards and modern awards in particular. I will cite authority for each of these matters. In the interests of preserving forests we haven't produced each of them but I think they are uncontroversial propositions. First, "Industrial awards or instruments made pursuant to beneficial legislation should be interpreted beneficially and not subjected to an overly literal construction." Among other cases Coulson v. State Rial Authority [1992] 43 IR 332 is authority for that.
PN608
Second, "The interpretation of an award begins with the consideration of the natural or normal meaning of its words," but importantly in this case we say the words are to be read as a whole and in context. It's a proposition that hardly needs authority but City of Wanneroo v. Holmes [1989] FCA 369 makes that point. Third, "An industrial instrument should be read so as to give effect to its evident purpose despite inconsistencies or infelicities of expression which might tend to some other reading," Cuxon CSR is authority for that. Fourth, "In the context of modern awards at least it is permissible to construe the coverage of an award by reference to the classification descriptors used in the award." The decision of the Federal Magistrates Court and Workplace Ombudsman v. QMGIM Pty Ltd [2010] FM CA 64 establishes that that is the case.
PN609
Finally, we say given the words of the ministerial request which either directed or suggested, depending on your point of view, suggested to the AIRC that it should in making modern awards have regard to the desirability of avoiding the overlap of the awards and minimising the number of awards that apply to a particular employee or employer. In the context of that request modern awards should be construed such that an employer recognising the intention of the Commission to minimise the number of awards that would apply to any particular employer, and the award should be construed having regard to that intention. If I can turn to the specifics of the awards that are before the Tribunal now. Starting with the manufacturing award. Our submission here is very straightforward, it is that the manufacturing award applies to technical workers on an occupational basis.
PN610
The award defines technical workers to include, and I will paraphrase for clarity, technical workers include those conducting the scientific or engineering work, analytical or investigational work of a technical nature in connection with physical testing and the definition also includes those assisting in those operations. We say that definition precisely describes the work of the technicians covered by this agreement. Consideration of the classification descriptors confirms that view and I will just point to some elements of the classification structure which are relevant. A certificate of (indistinct) laboratory techniques is a qualification relevant for access to C7. It is not a qualification for any technician under this agreement but it's one of the pre-conditions for advancement from T4 to the next grade T5.
PN611
Second, T4 technicians were required to have a certificate for any laboratory skills. That's a precondition of promotion to the T4 grade under the agreement. Third, C11 includes a laboratory tester classification description which we say would apply to - or are prepared to accept for today's purposes applies to the T3 technicians on the basis that their training is equivalent to certificate 2 in sampling and measurement requirements. I don't want to make too much of this but I would simply point to the type of training that's described in the document at tab 7 to our bundle and it is clear that that aligns closely with the training modules that are annexed to Mr Kelahar's affidavit. I will quote only a few, one module is fuel based acceptance tests of construction materials, conduct laboratory based acceptance tests for construction materials, maintain the laboratory field work base (indistinct) workplace, require (indistinct) control point requirements, perform calibration checks. I won't go on.
PN612
You can look at that yourself, Commissioner, but we would say on any reading it's clear that that lines up neatly with the training requirements of T3 technicians. Finally in terms of T1 and T2 we say they fall within C13 or C14 grade of the manufacturing award, although for boot purposes we have applied the C11 rate to them. So as I say, our case on this point is pretty simple. Having regard to the coverage clause and the classification descriptors of the manufacturing award, it is clear that that is the award which covers laboratory technicians and testers, including the technicians covered by this agreement. Commissioner, if you accept that submission that's the end of it. As we have described in our primary submission the coverage of the manufacturing award prevails over that of the building and construction award by virtue of clause 4.2A of the building and construction award. So if you're covered by the manufacturing award that's it.
PN613
If you're against us on that point, Commissioner, you would have to consider whether the on site award applies, and it will apply only if two things are true. First the employer has to be an employer in the relevant industry, and second, employees have to be working in a classification named in the award. Dealing first with the industry of Coffey, our evidentiary case can be reduced to the propositions that we set out in paragraph 34 of our primary submission which are these. The evidence is that some, not all of the employer's work is done on site. The history of its work is that the bulk of work is done on site. Even now with the cyclical shift toward on site work only around a third of employees covered by the agreement are permanently based on construction sites and finally the evidence is that employees may move between on site and off site work from day to day. There is no distinguishable, separately identifiable group of employers that the applicant will work in the on site building and construction industry. The group of employees covered by the agreement is certainly not that.
PN614
We say that the evidence of Mr Kelahar, which is substantially uncontradicted, establishes those propositions. That's what the evidence of Mr Kelahar demonstrates. The evidence of the union on the other hand doesn't describe and doesn't purport to describe the industry of the employer. It describes the work of one employee. It describes two tasks that might be performed by some employees. I have already said something about the limitations of the evidence ,I don't need to say that again other than to mention Mr Kelahar properly acknowledged the limitations of the evidence. Aside from its scope, in the sense that what happens at HEA, which is what he knows, isn't necessarily what happens anywhere else and one couldn’t extrapolate from the work of HEA employees to work of employees elsewhere, particularly given the evidence of Mr Kelahar about the differences between work in New South Wales and work elsewhere.
PN615
Our submission is this, the industry of the employer cannot be identified by that type of evidence, because even if everything Mr Callinan and Mr Muller say is accepted that is not sufficient to permit a finding that the industry of Coffey is the on site building and construction industry. We say the authority for that approach is, among other things, Dyno Nobel. That's a tricky case in some ways. It's sometimes said the decision was overtaken by the decision in Harnischfeger. That's not so and the full bench in the TWU v. Queensland Property Investments case at tab 10 of our material explained why that is so. We don't need to turn to it at length but I will just summarise it in this way. The full bench in QPI said, "The perceived inconsistency between Dyno Nobel and Harnischfeger arises from a mistaken view that Dyno Nobel says every part of the business of an employer has to be in a particular industry for the employer to be in that industry.
PN616
The full bench said that's not what Dyno Nobel says, that's certainly not a proposition we assert in this proceeding. We accept that Coffey can be in more than one industry. We accept that it wouldn’t have to be proven that every aspect of Coffey's work is in the on site building and construction industry for it to be in that industry for the purposes of that award. The proposition that we rely on is much narrower than that. It is simply that it's insufficient to point to the work of a small group of employees to identify the industry of an employer. Dyno Nobel and the cases that precede it and follow it weren't award coverage cases, they were for the most part union eligibility cases of the coal industry and I think some more time regulation decisions. But there is no reason why the logic of those decisions wouldn’t apply here. The language is the same. The question is whether the employer is in the particular industry.
PN617
I am repeating myself, but to summarise we say the evidence that's been offered in this case could not establish a finding that the industry of Coffey is the on site construction industry. I state the obvious when I say this but that industry extends only to the boundaries of a construction site. On any view work that's been done off site could not fall within the coverage of that award. I suspect that is conceded but I suppose we will find out. So on any view, the 70 per cent of employees who are not based at on site labs cannot be covered by this award. An employee who moved from an on site lab to a base lab could not be covered and even someone like Mr Muller, who travels from site to site, would we submit not be captured by this award. I hasten to say that's not the analysis. We don't look at his work to answer the question but even if everyone was doing what he did we would suggest that that work would not be captured by this award.
PN618
We have referred previously to the absurdity or the awkward result that would follow if the AWUs construction were accepted, that is that some of your employees are covered by the on site award, most are not. The employees who have moved from on site to off site will move from one award to another. That is a result to be avoided and it’s a result which demonstrates the fallacy of the construction that's put to you. I will deal now with the classifications of the on site award and the best submission I can make here is to point to the submission of the AWU. The best that submission does is point to some of the generically formulated skills and duties identified in the award, they align with some of the skills of the employees that we're talking about, therefore the classification applies. They ignore first the specific training preconditions for each classification and they also ignore the actual job descriptions in the classifications and it just can't be enough.
PN619
There is no job description in the classification structure of the - I think it's 220 job descriptions. Not one of those is even analogous to the work of these employees and in terms of the training requirements its of course not asserted that anyone has any specific training in the building construction industry. It's not asserted that anyone's training is equivalent to those specific requirements. There is certainly no evidence of any equivalence between the training of these employees and the various certification requirements that are named in the award. This is a comment in passing more than anything else, that Mr Callinan refers to some jobs that I think are analogous to the technician's work. I don't follow the analogous but in any case the jobs are steel fixer, drainage, employees building bridges, employees working essentially in pre-cast yards, pre-cast panels and grader operators. I will make this as an interesting observation rather than anything else but each one of those jobs is specifically named in the classification structure of the on site award.
PN620
Can I turn to the application of the better off overall test. Our reasoning on this point is set out in our submission in reply and I won't labour it but I just want to make some observations about the application of the test. First, in our analysis we identified the overtime provision for part timers as a minus if you like as against the award. The evidence of Mr Kelahar today explains that that was actually a concession made to bargaining representatives, arguably, but that's not a provision which derogates the award but is one which on one view leaves employees better off. Second, in our wages analysis we have included some comparisons as against the construction worker 1D rate. In fact Coffey technicians would never on any view get about CW1C because they wouldn’t ever complete the CW1V requirements.
PN621
Third, we have identified the casual conversion period again as a subtraction. Can I just say that as we have explained the casual loading regime in the agreement is significantly more advantaged than in the award in the sense that the 25 per cent applied is an all purpose rate and that higher rate is a much better guarantee of security of employment or permanency of employment than any casual conversion clause in my submission. We have identified the leading hand allowances minus but in practice someone with leading hand duties at Coffey would tend to be a (indistinct). I concede that that is a matter that would rely on inference to some extent. To summarise, regardless of whether the manufacturing award or the building and construction award applies to these employees, they are better off overall in each case. The wages are higher. I'll say something more about that in a moment. The wages are higher.
PN622
There are a number of other elements of the agreement which are more beneficial than the award and the matters which are below award are for the most part minor. They are listed in our analysis because we describe both pros and cons. They include for example 40 cents on the first date allowance, a loading on non-consecutive night shifts and (indistinct) minor issues. Just turning back to wages, Commissioner, can I draw your attention to the document that's in the front sleeve of the blue folder. The wage calculations that are in both our summary document and our (indistinct) analysis are comparisons of 38 hour rates. In fact as overtime is worked with the gap increases even further because while the $33 in the allowances under the award remains fixed, the higher rate of the agreement is subject to the usual multipliers. So as our calculation set out the gap increases.
PN623
In the case of 50 hours a week permanent employees earn $55 and $161 a week. The casuals it's between $289 and $437 a week, and as we get to 60 hours it's even greater, up to $563 a week for a casual (indistinct) and bear in mind at this point the evidence of Mr Kelahar which is that employees working on site would tend to work 50 to 55 hours a week. So in our submission given the higher rate of wages and the other aspects of the agreement, even as compared to the on site award, the employees are better off overall under the agreement as opposed to the award. Of course, Commissioner, if we are wrong about all that, if we are wrong about the application of the manufacturing award, about the industry of Coffey, about the classifications of the on site award and the boot analysis of course Commissioner we would submit that the applicant should have the opportunity to give undertakings that will remedy any boot difficulties that might be identified. Unless I can assist you further, Commissioner, they're our submissions.
PN624
THE COMMISSIONER: Thank you, Mr Fagir. Mr Crawford.
PN625
MR CRAWFORD: Thank you, Commissioner. Commissioner, I believe my friend just mentioned that the company is now saying that none of their technicians would be above the CWU1C level in the on site award if the Tribunal finds that - - -
PN626
MR FAGIR: No, that's not what I said.
PN627
MR CRAWFORD: - - - some employees would be at the - some technicians would be a the CWU1C level.
PN628
MR FAGIR: T4's would be CW3, everyone else is up to CW1C.
PN629
MR CRAWFORD: Okay, so aside from some T4 technicians as defined in the agreement all the other technicians - and bear in mind, Commissioner, to be a T4 under the agreement I think even on the company's evidence you have to have a certificate 3 in laboratory testing. So our evidence has indicated that no employees that we've had contact with actually have that certificate or certainly very few if any. The point I was making is that the company is here saying that under the on site award the relevant classification for most of their testing employees would be CW1C. Yet in the very same case they are here arguing that these relevant employees meet the definition of a technical worker which appears in the modern manufacturing award.
PN630
In our supplementary outline of submissions which I have handed up, I have provided some dictionary definitions to assist the Tribunal in interpreting the words in the manufacturing award. On the company's case, Commissioner, the only relevant coverage for the manufacturing award that they have identified for these testing employees is if they fall within the definition of a technical worker because that essentially would on their argument activate the occupational coverage of the manufacturing award. The term technical worker is defined in clause 3 of the modern manufacturing award and that it reads initially, "Technical workers are employees who are or who are mainly engaged," and then it reads, "In the conducting of scientific or engineering work on," and then it goes on. Now, my friend mainly referred to the words below but all of those words only have operation if the Tribunal finds that these relevant employees are performing scientific or engineering work.
PN631
Hence the dictionary definitions I have cited in our supplementary submissions. So the dictionary definition of "scientific", "Of an investigation, et cetera, according to rules laid down in exact science for performing observations and testing the soundness of conclusions." That of course would have to be read with a definition of "science" which is a branch of knowledge conducted on objective principles involving a systematised observation of an experiment with phenomena, expressly concerned with the material and functions of the physical universe." Then engineering, "The application of science to the design, building and use of machines, constructions, et cetera." So what the company is basically saying is that these same employees that on their argument fall within the CWU generally fall within the CWU1C classification in the on site award, that being the third lowest classification in that whole award, those employees are performing scientific and engineering work as defined by the modern manufacturing award.
PN632
Bear in mind these are employees with no formal qualifications. The job advertisement is in evidence clearly demonstrates that a concrete technician who would be covered by the agreement on the HEA site walks into that position with no previous experience whatsoever and no formal qualifications, yet the company would have us believe that those employees are about to start performing scientific or engineering work. We don't accept that that position is sustainable, Commissioner, and if the company cannot prove - and we say they haven't - that the relevant employees fall within that definition their whole argument on the manufacturing award falls by the wayside as well.
PN633
THE COMMISSIONER: But Mr Crawford that doesn't mean the construction award didn't have any work to play necessarily, it might just mean that people aren't award covered at all.
PN634
MR CRAWFORD: I guess it could mean that, Commissioner, but as my - - -
PN635
THE COMMISSIONER: In which case the boot is irrelevant as a recent full bench has mad clear.
PN636
MR CRAWFORD: That may be the case, Commissioner, but as generally my submissions will deal with we do say that these relevant employees are not award free at all, they're clearly intended to be covered by the - - -
PN637
THE COMMISSIONER: I realise that's you case, but I'm just saying assuming what you are saying now is correct and say I was to find that the manufacturing award didn't apply, then it doesn't mean that it follows necessarily that the on site award applies. It might mean that there is no award.
PN638
MR CRAWFORD: It may. It doesn't follow necessarily. The Tribunal will have to make a determination about the relevant award coverage which is obviously the critical aspect of this contentious case, but we certainly don't say that the employees would be award free when there is a clear definition in the on site award capturing precisely the work that these employees perform. I might take the Tribunal to that definition. It is referred to at length in both of our submissions. In terms of the on site award clause 4.1 reads, "This industry award covers employees throughout Australia in the on site building, engineering and civil construction industry and their employees in the classifications within schedule B clause definitions to the exclusion of any other modern award."
PN639
Then at clause 4.9 the on site award reads, "For the purpose of clause 4.1 on site building, engineering and civil construction industry means the industry of general building and construction, civil construction and metal and engineering construction in all cases undertaken on site." Then the term "civil construction" is defined at clause 4.10B of the modern award and in (i) there is reference to civil and/or mechanical engineering projects. We then find that clause 4.10B(v) the clear unambiguous reference to the testing of soil, concrete and aggregate when it is carried out at a construction site in or in connection with work under clause 4.10B(v) which of course includes civil construction work. We say that the full bench in making the on site modern award has clearly demonstrated the intent to include this type of testing on construction sites within the on site award and that is a logical position.
PN640
I mean these employees, the evidence has revealed, perform work on construction sites, they are exposed to conditions like inclement weather. Employees like Mr Muller have to travel to different construction sites all through the day, hence conditions like the travel allowance. The full bench of the Commission has clearly determined that these employees should fall within the on site award. Significantly, Commissioner, the full bench of the Commission has also clearly defined the term "civil construction" to include the testing work performed by employees of Coffey Information. We have also referred to the ECLA Award which was terminated on 11 August 2011 and there is no dispute that this award previously covered Coffey Information. As I put to Mr Kelahar earlier the ECLA Award specifically covered only employees who provide a range of testing services in the civil construction industry.
PN641
Coffey Information was covered by the ECLA Award, so seemingly up until August 2011 Coffey were willing to accept that they were doing testing in the civil construction industry, yet now they turn up at the Tribunal and say no, we're not in that industry at all. A whole third of our employees even though they perform work purely on construction sites, we're not in the civil construction industry at all. Before I move on to some of the more legal aspects I would like to make some comments about the evidence as well. I believe to some except the union was criticised by my friend for not, I guess, seeking an order to produce or something similar in terms of company records about what actual industry they're in. To the best of my knowledge the applicant in this case is Coffey, the onus is on Coffey to prove their case, to prove what industry they're in.
PN642
So how does Coffey do that? They attach a spreadsheet to Mr Kelahar's affidavit which on his evidence they prepaid in November this year for the purposes of this case, and that is the extent of the evidence they rely upon to say no, we're not in the civil construction industry. If anyone should have produced business records or website documents, any type of official public document going to the business that they perform, surely it is Coffey Information in this case. I have perused the cases dealing with how the industry of an employer should be determined and there is reference all through those cases to companies turning up with financial information and a lot of other relevant and conclusive information about where they earn their income and what they actually do.
PN643
But in this case Coffey chooses not to do that, instead whilst they're preparing for this case they get together and put together a spread sheet and attach it to Mr Kelahar's evidence and supposedly well, that's it, that's what industry are in because we've done a spreadsheet in November 2012 and that's exactly what we do. I would submit if there is evidentiary shortcoming in relation to that issue it clearly falls on Coffey Information and not the union. In relation to Mr Kelahar's evidence I do not accept my friend's submission that the fact he has included incorrect information in his affidavit is not significant. Perhaps if it was only a witness statement I would be more lenient, but Mr Kelahar swore an affidavit stating that all the information under oath is correct and it was revealed clearly here today that that's not actually the case.
PN644
If Mr Kelahar wasn't correct about that information how can the Tribunal be fully satisfied that he is 100 per cent correct in all the other information in his affidavit. It does pose a significant issue in terms of Mr Kelahar's credibility. We would also say that Mr Kelahar generally gave evidence that was self-serving to the company. I had a lot of difficulty getting Mr Kelahar to accept that there is any difference between work performed in base laboratories and on construction sites, for example, when the company's own evidence clearly reveals that there is some specialty or design test that would never be performed on a construction site because the environmental conditions mean that that testing cannot be done, yet I had to repeatedly argue with Mr Kelahar to get him to accept that work done in base laboratories to work done on construction sites.
PN645
In relation to the evidence of Mr Callinan which I believe my friend referred to as hearsay, yet I don't believe he actually challenged the evidence on that ground whilst Mr Callinan was in the witness box, and what he did challenge was all types of other aspects of Mr Callinan's evidence. I would say that Mr Callinan gave extremely compelling answers to all my friend's questions. He was able to clearly demonstrate to the Tribunal that he does know the work of Coffey Information relatively well. Obviously he is not claiming to be a full expert but he has obviously had a lot to do with the company over the years. He has attended their sites on a number of occasions and it's simply not possible to disregard his evidence in determining the issues in this case.
PN646
Mr Muller was not cross-examined by the company in this case. Mr Muller, his evidence therefore being unchallenged is that he spends 98 per cent of his time working on construction sites. That means, obviously, he spends 2 per cent of his time in base laboratories. He doesn't hold any formal qualifications. He's not currently being trained to gain any formal qualifications. Further, Mr Muller's statement also goes to the fact that he only deals with the civil construction industry and the overwhelming majority of work he performs is directly related to the civil construction industry. I also took Mr Kelahar to various parts of the annexures to his affidavit which actually highlight that Coffey is doing testing on construction materials and that doesn't actually appear to be contested in this case. It's clearly stated in Mr Kelahar's affidavit that basically the testing Coffey does is on construction materials.
PN647
They claim that that testing may be done for clients outside of the industry but again there is not really any compelling evidence led to establish that. Mr Kelahar explained in detail he deals with, I believe, four or five temporary on site laboratories on construction sites in New South Wales. They were all on road construction projects falling clearly within the definition of the civil construction industry. I wouldn’t accept also my friend's contention that it has been established technicians can move from on site labs to base labs. Mr Muller's evidence clearly states that 98 per cent of the time he's working on site. Mr Callinan's evidence establishes that the employees he has spoken to on the HEA project generally spend all of their time on that construction site and haven't even been to the Warranbrook base laboratory. So it's not fair to say that the evidence has clearly established that employees move from base laboratory to on site on a daily basis. To the contrary, we say our evidence establishes that they are generally working on construction sites.
PN648
We do accept that we do need to satisfy the Tribunal that - well, the Tribunal has to be satisfied anyway that the relevant employees can fall within the classification structure of the on site award. We say they do. Our primary argument is that is at the CW3 level. However, obviously that is a matter the Tribunal needs to determine as part of this case. My friend made reference to qualification levels for the CW3 classification description in the on site award. As we have identified at paragraph 29 of our supplementary submissions there is a series of basic dot points which are linked by the word "or". In terms of the CW3 classification and a number of other classifications in the on site award. In addition to having a certificate an employee can also have successfully completed the required competency standards or obtained skills equivalent to the above gained through work experience subject to competency testing to the proscribed standard.
PN649
So it's not fair to say that simply because employees don't hold a particular certificate that they cannot fall within that classification level. There is scope for work experience in competency to effectively pull an employee within that classification description and as I've said, that is explained at paragraph 29 of our supplementary submissions. What we would say the company in this case, and I would make the point at this time, Commissioner, that in their initial material the company didn't even bother to do a boot comparison of the on site award and that is not only in relation to their form F17, that's in relation to the material they initially filed in this case. Now we can see now that we filed some evidence in submissions, they are actually taking the boot quite seriously in relation to the on site award, even to the extent where they are leading additional evidence today about people working certain amounts of overtime.
PN650
So it's obvious that the company despite their very confident submissions that they do have some concerns about which award applies, and they must be at least a bit concerned that the on site award is relevant if they are bothering to do these calculations on overtime. A point I would need to make, Commissioner, in relation to these overtime figures that the company has provided is that in terms of the boot the Tribunal has to be satisfied that every single employee covered by the agreement is better off overall than they would be under the relevant reference instrument. The generic overtime information that Coffey has supplied cannot possibly establish, which it seems they are trying to do, that every employee is working this certain amount of overtime so it should be generically applied to the whole boot test. I mean that evidence is simply not before the Tribunal.
PN651
We do not know that every employee is doing this exact amount of overtime so we would say that the relevance - and obviously anyone in this industry knows overtime is inherently subjective and there is no guaranteed overtime. All these are is average figures but we would say they are of extremely minimal relevance in terms of assessing the boot because there is simply not evidence before the boot that every single employee that they have to consider is working this amount of overtime. So the figures have limited utility in that regard. The company has made the point on several occasions that there are a lot of job titles listed in the on site award and that concrete and soil testing unfortunately is not included as a specific job title but on their argument that appears to be the end of the matter and the generic skills and duty descriptions and task descriptions have no work to do whatsoever. We say that obviously the classification clauses have to be viewed in their entirety.
PN652
The first provisions relate to duties and skills, then some tasks are identified and then there is a statement of positions that, "The CWU3 classification incorporates the following broadband and award classifications." That is not precisely saying that that is an exhaustive list and it is certainly not saying that the skill and duty descriptions and the task descriptions should be disregarded purely for an assessment of whether the job is listed in the broadband award classifications. We say that the evidence reveals that the skill and duty and task descriptions actually work very well with the work performed by the relevant technicians in this case. That many of those descriptions are perfectly consistent with the work that the technicians do, and we would say that the company hasn't actually made a serious attempt to lead evidence to establish that those duty and skill and task descriptions don't actually apply to their employees.
PN653
Commissioner, in relation to the classification descriptions in the on site award I would also briefly note that at schedule B1.13 there is reference in the on site award to, "Work in the technical area includes." So there is actually reference in the on site award to work in the technical area. Commissioner, I also would submit it is relevant that the one witness that the company has brought for this case is actually a project manager specifically for on site testing laboratories, so he is actually a project manager effectively for civil construction sites, and that is the only evidence that the company has chosen to bring in this case. We haven't seen employees from base laboratories or anyone else rolled out to give evidence. In addition in relation to Mr Kelahar we note that he admitted that there is a separate manager for the base laboratories within Coffey Information. That is a very important point because the company is making the point that it is absurd that they would have to distinguish between two awards for their employees.
PN654
What Mr Kelahar's evidence reveals is that internally the company is already distinguishing in terms of their management roles in terms of on site work and base laboratories. So if they can make that distinction in terms of managers well we wouldn’t expect that it would be that difficult to also make a similar distinction for their employees. Commissioner, as I've said we submit that Coffey clearly falls within the civil construction industry. As my friend has pointed out and as the cases included in our folder indicate there can be occasions when an employer can fall within more than one industry. We would say that on the clear evidence that at least the third of these employees work on construction sites, and that's only what the company is saying, whether or not that's true we don't actually know. Plus that in conjunction with Mr Muller and Mr Callinan's evidence is sufficient to establish that Coffey is clearly in the civil construction industry as defined in relatively unequivocal terms in the on site award which picks up on coverage from the old ECCLA Award which the company doesn't contest covered their work and only covered the civil construction industry.
PN655
In terms of the boot we say that the Tribunal can be satisfied that at least for some employees, the employees we have led evidence about in this case, that the relevant reference instrument is the on site award and we say that when the Tribunal does the boot in relation to the on site award that the agreement does not pass and hence cannot be approved by Fair Work Australia. We have provided figures which compare the wage rates for the CWU3 and CWU2 and now the company has provided figures from the CWU1 level. So all those wage rates are before the Tribunal. All the other conditions are also before that Tribunal. Even an assessment of the analysis provided by the company demonstrates that taken on a whole wage rates aside, some conditions are slightly better in the agreement than the on site award, whereas other conditions are slightly better under the on site award as opposed to the agreement.
PN656
So we would say that if the Tribunal finds the on site award applies then the relevant wage rates for the CWU3 classification or whichever classification the Tribunal feels should apply the rates in the on site award are significantly above the relevant rates in the agreement and the other conditions generally probably roughly balance each other out and that being the case the agreement doesn't pass the boot and shouldn't be approved by Fair Work Australia. Thank you, Commissioner.
PN657
THE COMMISSIONER: Thank you, Mr Crawford. Mr Fagir, do you want to reply?
PN658
MR FAGIR: I'll be brief, Commissioner. I think something I said has been misunderstood. We don't suggest any of these classifications line up properly with the CW1 or any other classification in that award. Again as our submission identifies, the technician roles in the agreement aren't comparable to the on site award classifications but if we have to somehow get that square peg into the round hole, none of the T1, 2 or 3 technicians can get above CW1C because none of them has completed an engineering construction industry skills certificate level 1 or gained equivalent skills. There is actually no evidence about what (indistinct) involves and there is certainly no evidence of any equivalence. Can I also say about the classification comparison. I'm a post-Workchoices indsutrial lawyer so the mysteries of the C10 and the (indistinct) person rate, its central role in industrial relations is a bit of a mystery to me. But even I know that you don't compare a sub-tradesman (indistinct) rate in one instrument with a tradesperson rate in the other.
PN659
It is clear on the agreement that everyone below T4 is sub-certificate 3 tradesperson rate and it is simply wrong to compare that against the construction award tradesperson rate which is a CW3. In terms of the definition of technical worker, can I just say we say the work is scientific and engineering work as required but if we are wrong about that how could it not be work assisting in that process. I think it's apparent from the evidence that even the work that is simply sampling and density testing, all ends up either with the material being further tested or with some mathematical process applied to them to determine fitness or conformity. We say that's scientific and engineering work but if it's not it's certainly assisting in that process. The analogy between base labs and on site labs is said to be false because base labs perform speciality testing and I think Mr Kelahar's evidence on this point was fairly clear, that is not work performed by people covered by this agreement in any case. It is clear that otherwise the work is the same.
PN660
I think we got into a bit of confusion, Mr Crawford was asking Mr Kelahar whether people on base labs would perform work in situ and Mr Kelahar explained that whether they're at the base lab or the on site lab they both go out and take the sample out of the mixer or out of the ground or whatever it is. There is no distinction on that basis. There is no distinction on the basis that the on site people do in situ tests and the base lab people do not. Finally in terms of management structure can I just point out that the evidence of Mr Kelahar is not that he is the on site laboratory manager, he is the major projects manager and the transcript will deal with this, but my recollection is that he explained that there is a state manager for each state on site and then base lab and then he has a national responsibility for major project labs which are - that term is not synonymous with the on site labs major project or something different. But the transcript will speak for that. Commissioner, that's all I wanted to say in reply.
PN661
THE COMMISSIONER: Thank you. I am obviously going to reserve my decision and the matter is adjourned, gentlemen, thank you.
<ADJOURNED INDEFINITELY [2.17PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
STUART LEON KELAHAR, SWORN PN34
EXAMINATION-IN-CHIEF BY MR FAGIR PN34
EXHIBIT #COFFEY1 AFFIDAVIT OF STUART LEON KELAHAR PN42
EXHIBIT #COFFEY2 STATEMENT IN REPLY OF STUART LEON KELAHAR PN47
CROSS-EXAMINATION BY MR CRAWFORD PN63
EXHIBIT #AWU1 COFFEY POSITION ADVERTISEMENT DATED 05/11/2012 PN100
RE-EXAMINATION BY MR FAGIR PN428
THE WITNESS WITHDREW PN453
ANTHONY WILLIAM CALLINAN, AFFIRMED PN478
EXAMINATION-IN-CHIEF BY MR CRAWFORD PN478
EXHIBIT #AWU2 STATEMENT OF ANTHONY WILLIAM CALLINAN PN510
CROSS-EXAMINATION BY MR FAGIR PN524
THE WITNESS WITHDREW PN573
EXHIBIT #AWU3 STATEMENT OF MR MULLER DATED 06/11/2012 PN580
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