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Fair Work Australia Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1033710-1
DEPUTY PRESIDENT SMITH
AG2012/707
s.185 - Application for approval of a single-enterprise agreement
Application by Maroondah City Council
(AG2012/707)
Melbourne
10.06AM, MONDAY, 21 MAY 2012
Continued from 04/04/2012
PN68
THE DEPUTY PRESIDENT: Any changes in appearances?
PN69
MR A. McNAB: Yes. If the tribunal pleases, I seek permission to appear on behalf of the applicant.
PN70
THE DEPUTY PRESIDENT: Mr McNab, thank you.
PN71
MR S. MOORE: If the tribunal pleases, I seek permission to appear on behalf of the union.
PN72
THE DEPUTY PRESIDENT: Thank you, Mr Moore. Leave is granted in both cases. Now, Mr Moore.
PN73
MR MOORE: I think Mr McNab, being the moving party, is anticipating perhaps kicking off, your Honour.
PN74
THE DEPUTY PRESIDENT: Mr McNab, thank you.
PN75
MR McNAB: Your Honour, in support of the application, in addition to the form 17 document which we've filed, the applicant has filed an outline of contentions and we seek to tender that outline.
PN76
THE DEPUTY PRESIDENT: Yes, just a moment. Let me just - I'll mark that A1.
EXHIBIT #A1 OUTLINE OF CONTENTIONS
MR McNAB: It also has in support of the application filed an outline - witness statement of Steven Bishop dated 11 May 2012, which I will tender in due course through the witness, and also a statement of Mr Heskett. The position of the applicant, I think, has been set out in the contentions and I wasn't proposing to do an opening. In summary, we would submit that the terms of the Act have been complied with and the better off overall test is satisfied. In those circumstances, I call Mr Bishop. I would seek an order that - just confirming this, I've discussed it briefly with my friend, that witnesses be out of the court apart from those who are instructing. Mr Heskett is not present in court.
PN78
THE DEPUTY PRESIDENT: Yes. Are you content with that - - -
PN79
MR MOORE: Yes, your Honour.
PN80
THE DEPUTY PRESIDENT: - - - (indistinct) make arrangements. Any of those witnesses who will oppose the - close the door.
PN81
MR McNAB: I call Mr Bishop.
<STEVEN MARK BISHOP, AFFIRMED [10.09AM]
<EXAMINATION-IN-CHIEF BY MR McNAB [10.09AM]
MR MCNAB: Mr Bishop, could you please tell the tribunal your full name, your work address and your occupation?---Steve Mark Bishop, (address supplied). I'm an industrial relations and employee relations adviser.
PN83
Have you prepared a witness statement dated 11 May 2011?---Yes.
PN84
I'm just wondering, do you have a copy of that with you? Just if the witness could leave the box.
PN85
THE DEPUTY PRESIDENT: Yes, that's all right.
PN86
MR McNAB: That's a statement with 14 attachments?---Yes.
PN87
Have you had an opportunity to read the statement and are you familiar with the attachments?---Yes.
PN88
Is the statement true and correct?---Yes.
PN89
I tender the statement. Does your Honour have a copy of the - - -
PN90
THE DEPUTY PRESIDENT: The statement and the attachments? Yes, I do.
PN91
MR McNAB: You've got it. Good.
PN92
MR MOORE: Your Honour, I have a couple of objections before your Honour marks the document.
PN93
THE DEPUTY PRESIDENT: Yes?
**** STEVEN MARK BISHOP XN MCNAB
PN94
MR MOORE: If your Honour turns to paragraph 35, I'll just give your Honour a moment to read that.
PN95
THE DEPUTY PRESIDENT: Yes.
PN96
MR MOORE: The objection is that the witness is unable to give that evidence. It doesn't say he was there. The paragraph does two things: it firstly states that a meeting occurred and secondly, it purports to say what Mr Cox and Ms Gay said to employees at that meeting. So the witness can't give either of those things as he has no direct knowledge of those matters. Shall I go through the rest of the objections, your Honour?
PN97
THE DEPUTY PRESIDENT: Yes, please.
PN98
MR MOORE: Paragraph 40, the objection there, if I give your Honour a moment to read that paragraph, it's just for the last part of the second sentence which commences "which employees with limited English literacy skills would be unable to fulfil". We don't have any objection to the paragraph prior to those words. We seek that those words be struck out on the basis that they constitute an expression of opinion by the witness about the capacity of persons with limited English literacy skills in circumstances where he has no qualifications to express that opinion, and it's expressed in such global terms as to be meaningless in any event.
PN99
The next objection is paragraph 41 and again, perhaps to save your Honour a moment from reading the whole of that paragraph, the objection is confined to the last sentence. It's the same objection. Paragraph 49, I'll ask your Honour to read that, please.
PN100
THE DEPUTY PRESIDENT: Yes.
**** STEVEN MARK BISHOP XN MCNAB
PN101
MR MOORE: The objection is one of relevance. It doesn't bear upon any issue for determination by the tribunal, your Honour. The question of what rates of pay in other councils and how that compares to rates provided for under this proposed agreement is neither here nor there.
PN102
THE DEPUTY PRESIDENT: Yes.
PN103
MR MOORE: They are the objections, your Honour.
PN104
THE DEPUTY PRESIDENT: Thank you. Mr McNab?
PN105
MR McNAB: In relation to paragraph 35, in my submission Mr Bishop can give that evidence if he has spoken to those people, and I can list that evidence from him with the leave of the tribunal and that would deal with that paragraph, in my submission. If he's been told by Mr Cox and Ms Gay as to what they said to the Karralyka employees, I know it's hearsay, but that's not uncommon in this place and in relation to these types of applications. In relation to paragraph 40, in my submission, one doesn't need to have any particular specialist knowledge of literacy and the like to express an opinion like that. If there's a test which has to be passed which involves comprehension of the English language, one can express that opinion; you don't have to be an expert to do that.
PN106
Likewise, in relation to paragraph 41, if arborists require qualifications - and this witness appreciates that - it's simply a matter of common experience as to whether he's able to express an opinion as to whether they have an intermediate or moderate level of literacy; it's not a matter of specialist knowledge. In relation to paragraph 49, I'd submit that the matters in SB13 are relevant. They go to the fundamental point which is made throughout the contentions that the better off overall test is satisfied by virtue of the fact that the pay rates that have been paid to the employees who are the subject to the schedule 11 of the agreement are well above award and that the comment is made - the evidence is given in the witness statement and also in - well, it's not evidence in the contentions, but the point is made in the contentions that the council has undertaken not to outsource the functions of those employees.
**** STEVEN MARK BISHOP XN MCNAB
PN107
It cannot do that if it continues to pay rates which are well above market, and that's the point of paragraph 49, it simply goes to that point. You can't look at the rates of pay simply in isolation, given the contentions that are made and the evidence that's given.
PN108
THE DEPUTY PRESIDENT: I see.
PN109
MR MOORE: May I be heard on one matter in answer to what my friend has said, your Honour. Just in relation to paragraph 35 - - -
PN110
THE DEPUTY PRESIDENT: It's all right, you don't need to. I'm prepared to delete 35 and leave 40, leave 41 but delete 49.
PN111
MR MOORE: I'm sorry, your Honour is deleting 35?
PN112
THE DEPUTY PRESIDENT: And 49.
PN113
MR MOORE: Thank you, your Honour.
PN114
THE DEPUTY PRESIDENT: Thank you. Yes, Mr McNab?
PN115
MR McNAB: If 35 is deleted, will the tribunal give me leave to ask questions about the meeting, or - - -
PN116
THE DEPUTY PRESIDENT: Yes.
PN117
MR McNAB: I don't want to go behind the - - -
PN118
THE DEPUTY PRESIDENT: No. You can ask some questions. How they assist me might be another matter, but - - -
**** STEVEN MARK BISHOP XN MCNAB
PN119
MR McNAB: Because I was intending to do that in any case, but I don't want to cavil with - - -
PN120
THE DEPUTY PRESIDENT: You might get an objection, but - - -
PN121
MR McNAB: I appreciate that. Subject to those matters, I tender the outline.
PN122
THE DEPUTY PRESIDENT: Thank you. A2.
EXHIBIT #A2 OUTLINE OF EVIDENCE OF STEVEN MARK BISHOP
MR McNAB: Mr Bishop, in relation to the function centre employees and Karralyka employees, from your own knowledge, what steps were taken to inform those employees of the content of the proposed agreement?---So they were sent copies of the pay slip attachments which are referred to in my statement. They were also invited to a meeting with Jenny Gay and Tim Cox to discuss the proposed schedule.
PN124
When did that occur and how did it occur?---Letters were sent out to those employees and they were invited to attend a meeting.
PN125
Do you know when that happened?---The meeting - - -
PN126
When were the letters sent out and when did the meeting take place?---I'm not sure of the exact date, but the letters were sent out - I think they were sent out the week before the meeting.
PN127
Well, do you recall when the meeting took place?
PN128
MR MOORE: I object to that question. The witness hasn't given any knowledge that he was at the meeting. He hasn't given any evidence that he's able - he hasn't given evidence that he attended any such meeting. He can give evidence if he has direct knowledge about notification of the meeting in the way in which he has given, but he can't go further than that if he wasn't at the meeting, and it's apparent that he wasn't at the meeting. He hasn't given that evidence and he didn't purport to do that in his witness statement, so this is an attempt by my friend to circumvent your Honour's ruling.
**** STEVEN MARK BISHOP XN MCNAB
PN129
THE DEPUTY PRESIDENT: Is it in issue whether the meeting took place?
PN130
MR MOORE: Well, yes, it is at issue.
PN131
THE DEPUTY PRESIDENT: It is at issue?
PN132
MR MOORE: We don't concede that the meeting occurred.
PN133
MR McNAB: One can give evidence about whether a meeting took place, whether they were at the meeting or not in the same way that people give evidence there was a hearing in relation to this matter whether or not they attended this hearing. There's ways of becoming aware of that and that's all I seek to ascertain from the witness. I don't think it's objectionable, your Honour.
PN134
THE DEPUTY PRESIDENT: I'm content to hear whether the witness knew, or believed that a meeting had taken place.
PN135
MR McNAB: To your knowledge, did a meeting take place which was attended by Tim Cox and Jenny Gay and function centre employees?---Yes.
PN136
Do you know when it took place?---3 November 2011.
PN137
Do you know what steps, if any, were taken by the council to notify employees of that meeting?---They were sent letters to invite them to attend.
PN138
Who were they sent to, do you know?---Sent to all the casual employees.
PN139
Do you have a copy of the letter?---No.
PN140
Have you searched for a copy of that letter?---Yes.
**** STEVEN MARK BISHOP XN MCNAB
PN141
And you've been unable to locate it?---I've been unable to locate it.
PN142
Did you discuss with either Tim Cox or Jenny Gay what occurred at that meeting?
PN143
MR MOORE: I object to that, your Honour. That's going to the heart of the matter.
PN144
THE DEPUTY PRESIDENT: Yes, very well.
PN145
MR McNAB: Are you aware of how many people attended the meeting?
---Approximately six.
PN146
Six employees in addition to Mr Cox and Ms Gay?---Yes.
PN147
In relation to the Karralyka employees and the clauses of the agreement that relate to those employees, were the discussions with the union in relation to those clauses at meetings?---We discussed the Karralyka schedule at the negotiation meetings to the point where we were advised that we had in-principle agreement.
PN148
Just wondering if I could show the witness a document which is an EBA negotiation main body meeting minutes.
PN149
Is that EBA negotiation main body meeting minutes the minutes of a meeting held on 8 December 2011?---Yes.
PN150
If you can go to page 2 of that document and the fourth matter from the bottom, schedule 9, you notice that records the agreed?---Yes.
PN151
I tender those minutes, your Honour.
**** STEVEN MARK BISHOP XN MCNAB
PN152
THE DEPUTY PRESIDENT: A3.
EXHIBIT #A3 MINUTES OF MEETING DATED 08/12/2011
MR McNAB: Paragraph 25 of the submissions which have been put on behalf of the ASU, it's contended, in relation to the Ringwood Aquatic Centre and the Karralyka complex, that the access to the Smart Net was severely limited through non-functional computing equipment or a lack of management availability. To your knowledge, was there any issue in relation to the non-functioning of computer equipment?---No.
PN154
What's the spread of the penetration of computers throughout the workplace? Are they generally available?
PN155
In relation to the sites that are raised, the Ringwood Aquatic Centre and the Karralyka Complex, are you aware of the number of computers that are there and where they are?---Not exactly. At Ringwood Aquatic, there would be, I'd estimate, five computers and at Karralyka it would be approximately 10.
PN156
Are you aware of any complaint or any issue being raised in relation to non-functioning computer equipment at those sites at this time?---No.
PN157
In terms of access to computers at the Ringwood Aquatic Centre, where are they available to access?---They're available at the reception area and then there's a staff lunch room area and adjacent to that, there's another computer in there and then there's a top office which is where the manager is located and there's one up there, and then there's another office adjacent to that where there's either two or three.
PN158
In terms of management availability, how many managers are there at these centres and are they generally available to staff?---Yes. At Ringwood Aquatic there's a centre manager who is based down there, and at Karralyka there's a - at the time of this matter, there was a centre manager based there as well.
**** STEVEN MARK BISHOP XN MCNAB
PN159
I've got no further examination-in-chief for this witness.
<CROSS-EXAMINATION BY MR MOORE [10.27AM]
MR MOORE: Mr Bishop, just to deal with some matters that you gave evidence about just a moment ago, where is your office?---Braeside Avenue in Ringwood.
PN161
Is that where the Ringwood Aquatic Centre is?---No.
PN162
It's a different location, is it?---Yes.
PN163
Your office is not at the Karralyka Function Centre either, is it?---No.
PN164
Is it part of your job to have reported to you faults with computers and information technology equipment?---No.
PN165
So you'd agree with me you wouldn't have any direct knowledge of the state of functioning or otherwise of computers at either Karralyka or the Ringwood Aquatic Centre?---It would depend if someone brought it to my attention.
PN166
But it's not part of your job to bring those sort of problems to your attention?
---No. However, with information that was sent out during the access period, employees had a range of options in terms of raising
issues about access and availability, so in that case, had someone rung me, it might have come to my knowledge at that point in time.
PN167
Can I ask you some questions about the attachments to your witness statement. Have you got the attachments there, Mr Bishop?---Yes.
PN168
So if you could turn to SB1. Have you got that there?---Not yet. Got it.
**** STEVEN MARK BISHOP XXN MOORE
PN169
In your statement you give evidence in paragraph 7 that on 1 February a home page was created on council's intranet, home page called Smart Net, and looking at SB1, are the first two pages of SB1 that home page?---Yes.
PN170
So those first two pages are what a person would see if they went to the home page?---No.
PN171
So if a person clicks on Smart Net and goes to the newly-created home page, is not the first two pages of SB1 what the person would see?---That is the content on the screen, but to the left of the screen is a range of indexes, subheadings that you can click on. So SB1 is a screen dump of the actual text that existed separate to the "click here if" - - -
PN172
Drop-down menu or the?---Correct.
PN173
- - - (indistinct) down the side?---Yes.
PN174
Now, would you agree with me that if an employee looked at the home page and just looked at the page you are now referring to, namely these first two pages of SB1 with the menu down the side, that if they just looked at that page, what they would learn in terms of their rates of pay is what's set out under the heading Rates Of Pay on the first two pages of SB1?---No.
PN175
What other information would an employee see in relation to rates of pay if they were looking at the first two pages of this home page?---They would need to click on the details of the proposed agreement.
PN176
I'm not asking you about clicking on links, Mr Bishop; I'm asking you to put yourself in the shoes of an employee who takes up the council's invitation to look at the Smart Net home page. Is it not correct that if an employee did that, what they would learn about rates of pay, by looking just at the first two pages - that is, the home page itself, without clicking on any links - is simply what's set out under the heading Rates Of Pay?---No, I don't agree with that.
**** STEVEN MARK BISHOP XXN MOORE
PN177
What other information, looking at the first two pages of SB1, would an employee learn about rates of pay proposed under the new agreement?---It's just what's there.
PN178
What other information in relation to rates of pay would an employee learn by looking at those two pages, other than the two paragraphs that appear under the heading Rates Of Pay?---They are the only two paragraphs on that page.
PN179
So the headline that an employee would understand by reading this page would be that Maroondah continued to be one of the highest paying councils and to see a Smart Net EBA page for graphs showing the impact of the proposed increases of 3.3, 3.2 and 3.1 per cent over each of the three years of the agreement. That's what they would learn in relation to rates of pay. Correct?---That's what they'd see.
PN180
It is correct, isn't it, that not all employees proposed to be covered by the agreement would in fact receive increases of 3.3, 3.2 and 3.1 per cent? That's true, isn't it?---Yes.
PN181
In particular, for casuals at Karralyka there is no increase in year 1. That's correct?---Yes.
PN182
A 1.6 per cent increase in year 2?---Correct.
PN183
And a 1.55 per cent increase in year 3?---Yes.
PN184
You agree with me that most staff who work at Karralyka are employed on a casual basis?---Yes.
PN185
And there is about 50 of them?---Yes.
**** STEVEN MARK BISHOP XXN MOORE
PN186
For major leisure facility staff, there's no increase for existing staff under the proposed agreement?---For the majority of existing staff.
PN187
There's 271 major leisure facility employees?---There was at that time, yes.
PN188
So you'd agree with me, wouldn't you, that in light of the state of increases proposed at Karralyka and the absence of increases proposed for the major leisure facility staff, that the first two pages of the web page on SB1 did not, of itself, give an accurate picture of the rates of pay proposed under the agreement?---If read in isolation.
PN189
That's right. You agree?---Yes, if read in isolation.
PN190
Your position, I take it, is that to get an accurate picture of wage increases for all employees under the agreement, an employee would need to click through the menu, yes?---No.
PN191
Now, you've told the tribunal that on the left of the screen which contains the first two pages of SB1 there's a menu. I take it that if one clicked on an icon on that menu, a person could be taken to the next page in SB1 which is page 3 of SB1? It's headed Next Page at the top?---Yes, I think that's where you went if you clicked on "see details of the proposed agreement", which is on page 1 of SB1, that's where you would go.
PN192
And if you did that, what you'd then see on the screen would be page 3, 4 and 5 of SB1. Correct?---Yes.
PN193
Now, looking at page 3 of SB1, about midway down the page is the heading Summary Of The Proposed EBA. Do you see that?---Yes.
**** STEVEN MARK BISHOP XXN MOORE
PN194
The first dot point you see is "wage increases. The following percentage increases will apply to all eligible employees". Do you see that?---Yes.
PN195
Casual employees at Karralyka and employees at the major leisure facilities were not eligible employees, were they?---Yes, that's true of the Karralyka casuals and the majority of major leisure.
PN196
I'm sorry, just to clarify that answer, Mr Bishop, you are agreeing with my proposition that they are not eligible employees?---Some of the major leisure employees are eligible. So if you go to section C3, which is the golf maintenance section of schedule 11, they are eligible for pay increases in accordance with the EBA percentages.
PN197
But you said before that most of them are not?---Correct.
PN198
So just to be clear on your evidence, your evidence is that most of the MLF employees, if I can use that acronym, and all of the casual Karralyka employees are not eligible employees?---Yes.
PN199
The document doesn't tell a reader that, does it?---What it states is - when you follow the asterisk, the asterisk after "eligible" - and then it says "note: major leisure facilities and casual Karralyka employees should refer to the wage-related provisions of the respective local area agreement's schedules".
PN200
I just want to clarify that your understanding of the document is that, in that paragraph you've just read, or elsewhere, it doesn't
make clear, it doesn't say expressly that the employees that I referred to before are not eligible employees?
---What it says is those employees should refer to the wage-related provisions of the respective local area agreement/schedules.
**** STEVEN MARK BISHOP XXN MOORE
PN201
It says in the note?---Yes.
PN202
Now, if I can ask you to look at attachment SB2 to your statement. Have you got that there?---Yes.
PN203
You say in your witness statement that on 1 February, an all-users email to all of council's 506 employees who have council email accounts was sent on 1 February, and this is it, yes?---Yes.
PN204
Looking at the first page of SB2, is that what a recipient of the email would see in the email message, "Latest issues of That's Maroondah"?---No, what you need to - so on SB2 if you go to page 1, that's the body of the email.
PN205
SB2 page 1 is the body of the email?---Correct.
PN206
Now, is that - and that's Maroondah Council's newsletter?---Yes.
PN207
How many times does that get published a year?---I think it's once a month.
PN208
A monthly document, is it?---Yes, that's my recollection.
PN209
Is it normally distributed by all-users emails in this way?---It's a combination, so yes, that's the electronic means of distribution and then the hard copies - - -
PN210
Lying around the place - - -?---No, pay slip attachments.
PN211
You agree with me that the body of the email did not alert the reader of the email to the fact that the attachment contained information
in relation to the agreement?
---Yes.
**** STEVEN MARK BISHOP XXN MOORE
PN212
Now, if I could ask you to look at the attachment which is That's Maroondah and just turn to page 6. Do you have that page? Page 6 is rather faint in my copy at the bottom right-hand side. Do you have that?---What's the heading - - -
PN213
At the top left it says, "Enterprise bargaining agreement - cast your vote". Do you have that?---Yes.
PN214
I've only got a black and white copy of the document. What colour was this document published in, do you know?---It's in multi-colour so - - -
PN215
Am I right in thinking that the square part of the document on page 6 on the bottom right called "rates of pay" was in a colour different from - was in a colour?---I can't recall.
PN216
But it's a coloured document, is it?---Yes, a coloured document. That's Maroondah is published in colour.
PN217
So in that rectangle called "rates of pay", you agree that the reader is told that Maroondah will continue to be one of the highest-paying councils in Victoria? You see that?---Yes.
PN218
At the bottom of the paragraph there's a direction to visit Smart Net or see your supervisor to see a range of graphs that indicate the impact of the current offer of 3.3, 3.2, 3.1 per cent increase over each of the three years of the EBA. You see that?---Yes.
PN219
There's nothing said there to tell a reader that those increases were not available or intended to be provided to casuals at Karralyka or the majority of MLF staff. That's true?---It's true of that paragraph.
**** STEVEN MARK BISHOP XXN MOORE
PN220
The only mention of wage increases for those staff on this page is under the heading Summary Of The Proposed EBA on the left? You see that?---Yes.
PN221
In your evidence you set out how various communications were sent to some staff by email and some by hard copy. Looking at the numbers, my arithmetic tells me that just under half of the employees proposed to be covered by this agreement don't have email addresses that the council uses. Would you agree with that? 46 per cent is my calculation. Does that sound right to you?---Yes, that sounds broadly right. I think it's about - 600 would be combined, have electronic access, either via their own email addresses or by the council email address and the balance of that are not covered.
PN222
So a slightly majority the council can communicate with via email addresses, either council emails or personal emails?---Yes.
PN223
But a large minority - council is unable to communicate that way?---Via email, yes.
PN224
In your witness statement, you refer to multi-staff workplaces. There's 10 of them. Is that right?
PN225
Mr Bishop, if you look at paragraph 8 of your witness statement. Do you see that?---Yes.
PN226
You'll see you refer to a list of council premises (indistinct) office, Braeside Avenue, et cetera, and you define these for the purpose of your witness statement as "multi-staff workplaces". How many multi-staff workplaces are there? Are there 10?---In terms of - are there 10 referred to in paragraph 8? Is that the question?
**** STEVEN MARK BISHOP XXN MOORE
PN227
Yes. Well, I understand from paragraph 8 that what you've there identified is all of the multi-staff workplaces. Am I right in that assumption?---Yes, I think that's right.
PN228
There's 10 of them as I counted up?---Yes, I haven't counted them but I'll take your addition on that. I can count if you like, but there would have been multiple packs at some of those sites.
PN229
I'm not asking you about (indistinct) and such things, I'm just asking about the numbers at the moment?---Yes.
PN230
So there's 23 registered work sites that the council has, of which 10 are what's called "multi-staff workplaces", yes?---Yes.
PN231
Do you agree with me that, although most staff work in multi-staff workplaces, a large minority work at other work sites?---No.
PN232
Pardon?---No.
PN233
So what proportion of employees work at other work sites, other than multi-staff workplaces?---I haven't had cause to actually add that up, but I wouldn't say it's a large minority.
PN234
So on what basis do you disagree with my proposition then, if you haven't counted them up or you don't know?---From close to five years of experience working at Maroondah, the vast majority of employees work at one of those multi-site workplaces.
PN235
Would you agree with me that between 20 and 40 per cent of employees would work at other workplaces, other than a multi-staff workplace?---No, I'd say it's lower than that.
**** STEVEN MARK BISHOP XXN MOORE
PN236
But you haven't done the analysis?---I haven't done the analysis.
PN237
The council takes in a geographically large area. Am I right in thinking that?
---Yes.
PN238
61 square kilometres, I think. Does that sound right to you, according to the ABS? Do you dispute that?---No, I won't dispute that.
PN239
That's one of the larger geographically-spread councils in the Melbourne area?
---I'm not sure.
PN240
Does the council work off a fortnightly pay cycle?---Yes.
PN241
Is it correct that employees only receive a pay slip if they perform work in relation to a fortnightly period?---Yes.
PN242
Looking at paragraph 10 of your statement - so 696 pays were processed on 2 February. So having regard to the evidence you've just given, that would be in relation to the preceding fortnight. Am I right in thinking then that, having regard to the fact that there's a total of 936 employees to whom this agreement is proposed to cover, that some 240 didn't work in that fortnightly period?---Yes.
PN243
My reading of your witness statement leads me to this conclusion, tell me if you agree with it. Do you agree that by 2 February, an employee proposed to be covered by this agreement would not have received the magazine, the That's Maroondah magazine, from council if they did not have an email address and if they were one of the 240 employees who did not work in that fortnightly period which preceded that date?---Sorry, what was the question again?
PN244
By 2 February, an employee would not have received the That's Maroondah publication which you attach if they did not have an email address. That's correct?---Yes, an email address or via hard copy pay slip attachments.
**** STEVEN MARK BISHOP XXN MOORE
PN245
They could have got the That's Maroondah by email or by hard copy?---Yes. There are sometimes additional copies placed in lunch rooms and things like that, but yes, that would be fair to say.
PN246
Generally?---Yes.
PN247
But an employee wouldn't have got a copy of it if they had not worked in the fortnight before 2 February and if they did not have an email address?---Yes.
PN248
Do you agree that the 50 casual workers at Karralyka, that all or most of them did not work in that fortnightly period?---I honestly wouldn't know.
PN249
You're aware that there's a close-down of that facility effectively from just before Christmas until early to mid-February?---Yes, I'm not sure.
PN250
You're not sure?---Yes.
PN251
The EBA communication information pack to which you refer in your witness statement, am I right in understanding that what you're saying occurred is that one pack was delivered to each of the multi-staff workplaces?---No. A minimum of one pack was, but some sites are larger so there was two.
PN252
Because that might explain why, in paragraph 11, you refer to 17 copies of the information pack to each of the multi-staff workplaces?---Correct.
PN253
And you said there's 10?---Yes.
PN254
So most of those workplaces got one pack and some got two?---A minimum of one, but the larger sites such as Ringwood where you have a long building with different lunch areas, you would have got more than one.
**** STEVEN MARK BISHOP XXN MOORE
PN255
You don't have any direct knowledge as to where those packs were delivered in each of those workplaces?---Not in relation to all of them, but I know where some of them went.
PN256
You didn't deliver them?---No, Samantha delivered them.
PN257
You don't know what happened to them after they were delivered to the workplaces?---Not all of them.
PN258
If I can ask you to look at the information pack, which is SB3, please. Have you got that there? The version of SB3 that I have in front of me has on the cover a cover page, "Maroondah City Council EBA communication information pack". Then page 2 is headed Final Draft Maroondah City Council Enterprise Agreement 2011-2014 Dated 1 February 2012, and then moves into the body of the agreement - - -?---Yes.
PN259
- - - which has 73 pages, if you look at the bottom?---Yes, it's got part A. Yes.
PN260
Then there follows after that the document headed EA And Victorian Local Authorities Award which goes for three pages?---Yes.
PN261
Then document parks and works proposed schedule, which goes for three pages?
---Yes.
PN262
Then some graphs, four graphs?---Yes.
PN263
Is that how the pack was actually composed, in that order that we've just been through?---My recollection is that the summaries were on top and then the agreement was underneath that and the graphs were at the back.
**** STEVEN MARK BISHOP XXN MOORE
PN264
But the cover page, I would have assumed, EBA communication information pack, was presumably the top page of the bundle?---The information was contained in a green - manila I know is the colour - green manila folder and then stapled on the front of the cover was a yellow, orangey-coloured piece of paper and that's what the two staple marks at the top of page 1 of SB3 are. So that's a photocopy of the physical front cover.
PN265
So to interrupt you there, SB3 page 1 before us is the cover page on the outside of the manila folder?---Correct.
PN266
Then within the manila folder, you have the agreement and then the other attachments?---Correct.
PN267
The agreement that was within that folder did not include parts B and C of it?
---Yes, it was part A, payment.
PN268
When you say "yes" - it only included part A?---Yes.
PN269
And parts B and C were the Victorian Local Authorities Award 2001 and part C was the Nurses (ANF - Victorian Local Government) Award 2002?---Yes.
PN270
Those two instruments were expressly incorporated by reference into the body of the proposed agreement?---They are actually physically in the proposed agreement.
PN271
Yes, they are physically and also in terms of the language of the agreement. You recall that paragraph 7.1 of the agreement states that the parties agree that the Victorian Local Authorities Award 2001 and the Nurses (ANF - Victorian Local Government) Award 2002 as at 31 September 2008, attached to this agreement as parts B and C respectively, are expressly incorporated into and form express terms of this agreement?---Yes.
**** STEVEN MARK BISHOP XXN MOORE
PN272
That is so?---Yes.
PN273
So within the folder there was the agreement and then behind the agreement the explanatory documents, if I can call them that, EA and the Victorian Local Authorities Award, that document?---No. As I said before, my recollection is that the summary was on top of the agreement.
PN274
Where were the graphs?---They were at the back, is my recollection. But they were separate documents.
PN275
How were they separated?---Below - stapled together - they were sitting loose in the folder.
PN276
Well, are you saying that within the folder the agreement itself was stapled separately from the other documents, or was it all one
bundle stapled together?
---They were separate.
PN277
So the agreement is stapled together, the explanatory documents are stapled together and the graphs are stapled together?---Yes.
PN278
The graphs, if I could ask you to look at those. In a number of the communications published by the council, employees are invited
to look at graphs. The graphs that we here have which form part of SB3, are they the same graphs that an employee could access on
the Smart Net system, for example?
---Yes.
PN279
So the first graph, there's a line drawn between some dots and the code on the right tells the reader that those dots are Maroondah?---Yes.
PN280
So this document is a graphical representation of the progression in weekly wages of employees of Maroondah in band 3D as compared to rates for other councils. Is that a fair description?---Yes.
**** STEVEN MARK BISHOP XXN MOORE
PN281
The other graphs do the same except for employees in different bands, namely employees in band 4D, 5D and 6C, yes?---Yes.
PN282
The straight line on each of those graphs which represents Maroondah does not, of course, accurately represent the wages for MLF employees or casuals at Karralyka?---For the majority.
PN283
Do you agree with what I've just said then?---Well, it depends if you're qualifying it, but there are some major leisure employees who - - -
PN284
I'm sorry, I do qualify it in a way in which we've canvassed several times now?
---Yes.
PN285
You agree that the graphs do not accurately represent the progression of wages for the majority of MLF employees, nor all of the casual
Karralyka employees?
---Yes.
PN286
Where is that made clear on the graph?---It's not on the graph.
PN287
Looking at paragraph 14 of your witness statement, you tell us that on 15 February 2012, council processed 775 pays. So again, having regard to the fact that there's a total of 936 employees proposed to be covered by this agreement, am I right then in understanding that 161 employees did not work in the fortnight which preceded 15 February?---Yes, it's the difference between those two figures.
PN288
You're not able to say whether or not that group my arithmetic tells me is 161 included all or most of the Karralyka categories?---Yes, I can't be definitive as to that.
**** STEVEN MARK BISHOP XXN MOORE
PN289
If I could ask you to look at SB5, SB5 is another email that was sent to 567 employees who, and I assume you're here referring to the pay period ending 15 February 2012, received their pay slips electronically?---That's what's referred to in paragraph 14, yes.
PN290
That's the covering email?---Yes.
PN291
Which then attached a document signed by Mr Dixon?---Yes.
PN292
And pages 6 and 7 of the That's Maroondah newsletter to which we've previously considered?---Yes.
PN293
Looking at Mr Dixon's memorandum, the first page of it, you'll see under the heading Rates Of Pay he states, "You would be aware through previous information on the EBA process that Maroondah is one of the top-paying councils in Victoria and with the pay increases offer of 3.3 for the first year, 3.2 per cent for the second year and 3.1 per cent for the third year, this will continue. A range of graphs is available on Smart Net which indicate the impact of the proposed increases over each of the three years at the EBA." You see that?---Yes.
PN294
The graphs to which Mr Dixon refers there I assume are the graphs to which I asked you about some moments ago which form part of the
information pack?
---Yes.
PN295
School crossing supervisors, would you agree with me that there are approximately 120 school crossing supervisors employed by council?---No, it sounds a bit high.
PN296
What would your estimate be, or do you not know?---My estimate would be 60 or 70, but I don't know precisely.
**** STEVEN MARK BISHOP XXN MOORE
PN297
The way school crossing supervisors work is that they work for an hour in the morning and an hour in the afternoon. That's two hours a day, five days a week in the school term. Is that about right?---Broadly, yes.
PN298
They work by turning up at the crossing, do their job and then go home and then return in the afternoon?---Yes.
PN299
School crossing supervisors don't actually attend council offices for their day-to-day work?---No.
PN300
Most of them are older people?---Yes.
PN301
Good number of them top up their pension by working on the crossing?---Yes.
PN302
Under the local government award, they fall within band 1 in the classification structure?---Yes.
PN303
A requirement for completion of year 10 is not a requirement that employees have under the award until they're in a band 3 classification.
Do you agree with that?
---I'm not sure.
PN304
In paragraph 42 of your statement, you say about school crossing supervisors that this group of employees must have a minimum level of secondary schooling to year 10. That's not right, is it, if they are band 1?---That's the specification in the position description.
PN305
With Smart Net, to access Smart Net you've got to have a password or username?
---That's certainly the case for - if you've got one of those you can certainly access it. There are, however, a number of computers
that I believe you can access them without that.
**** STEVEN MARK BISHOP XXN MOORE
PN306
The general access point though to access Smart Net is that one has to have login details? I couldn't just turn up and turn on Smart Net without having some login data to give me access?---Typically that's the case, unless you were at an area that has a kiosk set up.
PN307
There is no remote access to Smart Net, is there? I should clarify that. By "remote", I mean from an individual's home, for example?---Some employees could access it from home, but that would - - -
PN308
But that's the exception, I take it. Is that as a result of special arrangements?
---Yes.
PN309
There's no general capacity of the employees to access Smart Net remotely from their home, for example?---No.
PN310
Some of your council employees work at a workstation or an office which involves them sitting in front of a computer. That's right?---Yes.
PN311
But many employees work for council in very different circumstances without being at a workstation with a computer in front of them?---Yes.
PN312
There are a large number of council employees who perform their work without being assigned to, if you like, or having a dedicated computer to use in carrying out their duties?---Yes.
PN313
In some places, there may be up to - and I'm thinking here of, for example, some depots - 60 or 80 employees in a workplace and one computer, because the computer isn't necessary for their job?---Yes. I think there's more than one computer down at the depot, but yes, a lot of the work is physical work and wouldn't necessitate those people accessing a computer on a daily basis.
**** STEVEN MARK BISHOP XXN MOORE
PN314
If such a person, whose job does not involve them working on the computer, wanted to use the computer, for example, to access Smart Net at such a workplace, they would typically need to ask their supervisor or manager to use the manager or supervisor's computer?---Or someone in an administrative capacity.
PN315
But they would seek their permission to use their computer?---Yes.
PN316
The F17 document lodged by council with the tribunal records that 622 of the employees to whom the proposed agreement would apply are women. You're aware of that?---I don't have it in front of me, but if that's what it says - - -
PN317
Now, I just want to ask you about SB14 to your statement. Have you got that?
---Yes.
PN318
This is a breakdown, as I understand it, about - a gender breakdown and also the employment engagement breakdown of employees in different parts of the organisation?---Yes.
PN319
Looking about midway down the document, there's a heading in the second column Major Leisure Facilities. Do you see that?---Prefaced with FAC?
PN320
Yes, I'm sorry. In the second column, Major Leisure Facilities?---Yes.
PN321
What does FAC mean?---I'm not sure.
PN322
Major Leisure Facilities, am I right in understanding that what this document is saying is that there is a total of 260 employees who work there, being the sum of the numbers appearing in the last and second-last columns?---Yes.
PN323
Of whom 177 are women?---Yes.
**** STEVEN MARK BISHOP XXN MOORE
PN324
Where do Karralyka employees fall in this table?---They would be under LYC, which is Leisure, Culture and Youth. We've just got "leisure" written there, so it's about - - -
PN325
Leisure, Culture and Youth, I see. I take it then that that descriptor "leisure", or that category, is not confined to Karralyka employees but employees in other parts of the council?---Yes, it's Leisure, Culture and Youth so it's got youth workers and people involved in culture.
PN326
And leisure?---And leisure. Different sort of leisure.
PN327
If I might just have a moment, your Honour.
PN328
Just one other matter, Mr Bishop. You gave some evidence at the outset today about the number of computers at Karralyka. I think you said there were 10 computers at Karralyka?---Yes, it might be something like that. Yes.
PN329
Those computers are, I assume, most or all of them are in managers' offices or in administrative areas?---Yes. I think there's an admin office downstairs, there's a box office area that has one and then there's a number sort of behind the box office where the manager and the level below that, those employees work.
PN330
For an employee who works at Karralyka and attends work to work on a performance that's in an evening, it's not open to that employee to simply find a computer sitting in someone's office in the facility, is it?---I'm not sure that there is. Also someone that doesn't work the table set-up and design and those sorts of things - so there's a computer in that office as well, but yes, I'm not sure how that's configured in terms of whether or not that requires logging on his behalf and that's it or whether or not it's available more broadly. But that office I expect would be open when functions are getting run late at night and - - -
**** STEVEN MARK BISHOP XXN MOORE
PN331
Which office is that, I'm sorry?---I forget his exact title. He's the guy that looks after all the facilities. Fred Cottle's office.
PN332
I'm sorry, could you say that - - -?---Fred Cottle is the guy's name. I can't do justice to his title off the top of my head though.
PN333
So you don't know but you're speculating that his office might be open in the evening in the Karralyka facility?---Yes.
PN334
But if it is open, you don't know if employees are able to have ready access to using his computer?---That's correct.
PN335
You don't know?---I don't know. Yes.
PN336
Nothing further, your Honour.
<RE-EXAMINATION BY MR McNAB [11.25AM]
MR MCNAB: In relation to Karralyka, you gave evidence in relation to managers of the centre. When are they on duty at Karralyka?---Well, they typically work office hours, but the role also - they're contracted salary staff so they do work a broader spread of hours than that on occasion to oversee the running of the centre.
PN338
If a performance is being held at Karralyka, are there supervisory staff there?
---There are more senior staff.
PN339
Do they have access to computers?---Yes.
PN340
You were asked about the availability of computers and the need to log on to computers to access the Smart Net. You made reference to a kiosk, whether a kiosk was set up. How does the kiosk arrangement work and where are they located?---The kiosk arrangement is where you have a computer in a common area that people can just simply go up to and access it - - -
**** STEVEN MARK BISHOP RXN MCNAB
PN341
Which common area?---My understanding is there's one down at the depot and there may be others as well. There may be some (indistinct) but I can't be definitive on that.
PN342
In terms of the depot, how many people are employed at the depot?---It's around about the 70 mark, I think.
PN343
Can I just take you to the documents that you were asked questions about. SB1, if you just go to the first page of that. The words in the fourth paragraph of the first page, "See details of the proposed agreement on Smart Net". Now, was that a link that that sends?---Yes. So that was in blue writing, so it's a different colour, and that was a link so you just click on that and away you go.
PN344
In terms of the second page of the document, the words, "See details of the proposed agreement on Smart Net", is that a link?---Yes, that was also a link so that was in the blue writing and you click on that and it takes you - - -
PN345
And you were asked questions about the next page. How did one get to the next page?---By clicking on the link.
PN346
In terms of - there's a document "links" and the pages that follow, parks and works proposed schedule, how did one click
onto those? How did one access those?
---By clicking on the link.
PN347
So for instance, to get to the link dealing with Karralyka Centre, how did one move in through that page?---So if you're going from the front page, you would click on the, "See details of the proposed agreement on Smart Net", and then you would scroll down.
PN348
In terms of - you were asked questions about the wording on the first page and the fact you've made reference to is "most employees would be aware Maroondah City Council offers some of the best conditions of employment within the Victorian local government." To your knowledge, is that the case?---Yes.
**** STEVEN MARK BISHOP RXN MCNAB
PN349
In particular in relation to the employees at the major leisure facilities, is that the case?---Yes.
PN350
I don't want to antagonise you or my friend either, but in my submissions (indistinct) I'd love to keep everybody reasonably happy, but in my submission, my learned friend has really cross-examined that document into relevance - - -
PN351
THE DEPUTY PRESIDENT: Well, he didn't ask questions about the other places but he did ask questions about the - but I understand - - -
PN352
MR McNAB: The point of comparison. In due course, I'll renew an application to make that document relevant and tendered as part of the witness statement.
PN353
The newsletter - you were taken to SB2 and you were referred to the rates of pay part of that document which is on the bottom right-hand
corner of the sixth page. Is it the case, if you look under the summary proposed EBA, there's a note there?
---Yes.
PN354
If you go to the following pages of schedule 11, major leisure facilities?---Yes.
PN355
Do you recall any employees raising issues in relation to this document as to whether it was incomprehensible or - - -
PN356
MR MOORE: Well, I object to that. I'm not sure how that arises.
PN357
MR McNAB: I think that the thrust of the cross-examination was that, in effect, this is a misleading document. That was the whole point and the point of my question is, did anyone come up and say, "Look, I actually find this all very confusing".
**** STEVEN MARK BISHOP RXN MCNAB
PN358
THE DEPUTY PRESIDENT: Yes, very well?---No.
PN359
MR McNAB: You were asked about the 10 multi-staff workplaces and they are referred to in your witness statement. Just for the purposes of clarification, you talk about - and you're asked about this - the 23 registered work sites and then there's 10 multi-staff workplaces. What are the balanced - what are these other workplaces? If they're not the major staff workplaces, what sort of work is done in these other places?---They would be the smaller workplaces, maternal child health centres that might be staffed by one or two part-time employees. Those sorts of workplaces. But they're the smaller workplaces.
PN360
You're asked questions about the graphs which were included in the information pack. If I just take you to the first page of the summary wage increases, there's the words "summary of the proposed EBA" and below that refers to wage increases. It refers to people - you see graphs representing the percentage increases and comparisons to other councils. I don't want to delay this. It might be a matter for submissions, but you can see that underneath the words, "See graphs representing percentage increases in comparison to other councils", below that is an asterisk - - -?---Yes.
PN361
- - - which points out to people that major leisure facilities and casual Karralyka employees should refer to the wage-related provisions of the respective local area agreement schedules. Just to make this clear, where was the summary placed in the information pack in relation to the agreement itself?---On top.
PN362
Where were the graphs?---Underneath the agreement.
PN363
You were asked questions about the school crossing supervisor. You made reference to a specification for I think it was year 10 education - - -?---Yes.
**** STEVEN MARK BISHOP RXN MCNAB
PN364
- - - in a position description. Do you have - is that position description available?---Yes. When the positions are advertised, which is typically most of the time because they're difficult to attract and retain, yes, you click on the link if you're applying because we have no electronic recruitment system, and that takes you to the position description and then in that, it talks about criteria and one of the criterias is year 10 English.
PN365
A copy of that can be provided to the tribunal if asked to do so?---The position description? Yes.
PN366
You were asked questions in relation to computer access at depots. Apart from computer access, was there any other access available to the information pack at the depots?---Well, the information pack was taken to the depot, yes.
PN367
Do you know how many copies of the pack were delivered there? If you don't, don't - - -?---No, I'm not sure, but a minimum of one.
PN368
No further questions.
PN369
THE DEPUTY PRESIDENT: Thank you for your evidence, Mr Bishop. Return to your seat.
PN370
MR McNAB: I think it appropriate to do it before Mr Bishop leaves, if he's going to leave. I do renew the application to have exhibit 14 to be included in the - pardon me, I do apologise. Exhibit 13 to be included because, in my submission, it arises directly from the cross-examination in relation to the assertion in the information packs and in the newsletter that the rates of pay are higher and it goes directly to the case put by the applicant.
PN371
THE DEPUTY PRESIDENT: How is it relevant in me dealing with the statutory tests that I must apply?
**** STEVEN MARK BISHOP RXN MCNAB
PN372
MR McNAB: What I presume will be asserted is that the statement in the newsletter, in addition to continuing to offer X in conditions of employment, Maroondah will continue to be one of the highest-paying councils in Victoria. Now, we submit that that is not a misleading statement and, in particular - I understand my friend is not going to be making that submission, but - - -
PN373
THE DEPUTY PRESIDENT: See, can I put it to you squarely as I apprehended from the materials, that what might be at issue is whether or not the vote would be the same irrespective of whether they're the highest paying or not, if some of the arguments in relation to proper advice were upheld.
PN374
MR McNAB: Well, I think if - - -
PN375
THE DEPUTY PRESIDENT: I think an employee might relish the idea of being highly paid, but not relish the idea of not receiving an increase.
PN376
MR McNAB: But it goes - whether or not they receive an increase has got to be judged against what the relative value of that employment is in relation to other employees in the sector. If, in fact, they are getting very well paid - - -
PN377
THE DEPUTY PRESIDENT: I understand, yes.
PN378
MR McNAB: - - - and that's in fact true, then whether or not they get an increase has got to be judged against that.
PN379
THE DEPUTY PRESIDENT: Well, there's been debates throughout history about the maintenance of relativities.
PN380
MR McNAB: True, but I don't think it can be ignored that if you're working in this particular sector as a fitness instructor or a gym instructor that you're getting paid well above award rates and more than other employers, that that's a significant matter and, as against that by which you judge the fairness of the agreement that's being put to you.
**** STEVEN MARK BISHOP RXN MCNAB
PN381
THE DEPUTY PRESIDENT: I understand. I'm going to say that my relevance is whether or not it passes the better off overall test and some of the other questions that are being raised in this matter. So whether you're getting $1000 over the award or $100 over the award, you might still pass the better off overall test. Whether you get some increase or no increase, you still might pass the better off overall test.
PN382
MR McNAB: And that, in fact, is our submission.
PN383
THE DEPUTY PRESIDENT: Yes.
PN384
MR McNAB: The lack of increase doesn't render the employee worse off overall.
PN385
THE DEPUTY PRESIDENT: Well, that's why I wondered as to the relevance of the comparison, other than - - -
PN386
MR McNAB: We're moving away from - I think, as I anticipate, it may (indistinct) behind the questions is whether the process of voting and the information that was put before the employees was a fair and correct process in accordance with the Act and we say that this is relevant to that point, not just the better off overall test. That's my submission.
PN387
THE DEPUTY PRESIDENT: As going to the overall informed consent?
PN388
MR McNAB: That's right.
PN389
THE DEPUTY PRESIDENT: I follow. What do you say, Mr Moore?
PN390
MR MOORE: Your Honour, the union will be submitting that the tribunal ought not approve this agreement for reasons including that the communications issue by council to its employees were misleading. However, that contention will not be advanced and hasn't been advanced in the outline of contentions filed by reference to the asserted comparison with other council pay rates. We don't come along and say, "Well, employees are being misled because that's false, this assertion that you will be the highest-paid employees in local government", to that effect.
**** STEVEN MARK BISHOP RXN MCNAB
PN391
That's not part of our case. We challenge the accuracy of the communications to employees in relation to what they say about their rates - the accuracy of the statements contained therein about the rates of pay on offer or being proposed to employees. They are inaccurate because they proclaim as a headline figure 3.3, 3.2, 3.1 to everyone. That's not right. So the misleading argument, the argument that the council's communications were misleading, turns upon some of the documentary communications which contain reference to the point that my friend is making about these employees will be the highest-paid council employees. But we don't take issue with that. We don't assert, as a particular of the misleading conduct, if you like, the proposition that, "No, you are not the highest" - - -
PN392
THE DEPUTY PRESIDENT: No, but Mr McNab's point is that somebody reading that might go, "Well I'm still the highest paid. I agree."
PN393
MR MOORE: Well, they might, and it's in the document, but I don't understand if one comes back to - in terms of this debate that we're having, your Honour, the question is whether or not paragraph 49 or the exhibit attached therein should be admitted into evidence which contains a comparison between the rates paid at Maroondah and other councils. How is that relevant to the statutory tests or the misleading argument which I have just outlined? It doesn't engage them.
PN394
THE DEPUTY PRESIDENT: Yes.
PN395
MR McNAB: I don't think there's anything further I can add. I think I've put the submission. It's been made relevant because of the fact that parts of the document are being directly referred to. The witness and - it's directly relevant to the issue as to whether that's a misleading statement and also it's relevant to the better off overall test.
PN396
THE DEPUTY PRESIDENT: I'll admit it so that I can hear argument on it now. That raises the question, do you want to cross-examine Mr Bishop on any of those matters at all, Mr Moore?
**** STEVEN MARK BISHOP RXN MCNAB
PN397
MR MOORE: No, your Honour.
PN398
THE DEPUTY PRESIDENT: No, thank you.
<THE WITNESS WITHDREW [11.48AM]
Mr McNab, you've got another witness?
PN400
MR McNAB: I've got Mr Heskett.
PN401
THE DEPUTY PRESIDENT: We might just take a five-minute break before we get - - -
<SHORT ADJOURNMENT [11.48AM]
<RESUMED [12.01PM]
PN402
MR McNAB: My next witness is Mr Heskett, your Honour.
PN403
THE DEPUTY PRESIDENT: Thank you.
<CRAIG IAN HESKETT, SWORN [12.02PM]
<EXAMINATION-IN-CHIEF BY MR McNAB [12.02PM]
MR MCNAB: Ms Heskett, can you please tell the tribunal your full name?
---Craig Ian Heskett.
PN405
And your work address?---(address supplied).
PN406
And your occupation?---Program and services manager at the Croydon Leisure and Aquatics Centre.
PN407
Have you had prepared a witness statement dated 14 May 2012, which has one attachment?---That is correct.
PN408
THE DEPUTY PRESIDENT: It's the 14 May one, and the attachment is an email. Is that the one?
PN409
MR McNAB: Yes. Have you had an opportunity recently?---Yes, I have.
PN410
Is it true and correct?---Yes, it is.
PN411
My friend has got some objections.
PN412
THE DEPUTY PRESIDENT: Mr Moore.
PN413
MR MOORE: Yes. Thank you, your Honour. Paragraph 5. I'll give your Honour a moment to read that.
PN414
THE DEPUTY PRESIDENT: Yes.
PN415
MR MOORE: The objection commences with the word "and" on the second line to the end. If the paragraph otherwise read, "I'm aware that flyers and other communications from the ASU were circulated to CLAC staff", I wouldn't have any objection. It becomes objectionable with the paragraph because the witness proceeds to purport to give evidence about the awareness of other people; an unspecified generic group of other people that he is not able to give. That's that objection. Paragraph 6. The objection is to the words "intermediate to high", and the objection to those words is that it's this witness' opinion without any proper qualification to cast a view about not just the need for a level of literacy, but where in the spectrum that need sits; intermediate to high.
**** CRAIG IAN HESKETT XN MCNAB
PN416
The witness isn't able to give that nuanced evidence or to express that nuanced opinion. The last objection is paragraph 12. It's the last sentence in that paragraph. The witness hasn't given a basis that he there expresses as to how much time is spent by this group of employees on a particular task, and the ASU wouldn't see that there's any proper basis to express that opinion.
PN417
THE DEPUTY PRESIDENT: "Personal trainers typically spend." That's the sentence?
PN418
MR MOORE: Yes. "Personal trainers typically spend." That sentence.
PN419
THE DEPUTY PRESIDENT: Thank you. Mr McNab.
PN420
MR McNAB: Your Honour, in relation to paragraph 5, I think a reference to "employees" has got to be a reference to CLAC staff. That's the only way that makes sense. So he's not talking about some general group of employees as was asserted. But for the paragraph to make sense, it's really restricted to that. He's able to give that statement if he's aware of the level of communications that came from the ASU and what was in those communications.
PN421
THE DEPUTY PRESIDENT: No. The point being made that he can have a view about that, but how does he know the views of others?
PN422
MR McNAB: Well, it might require some - - -
PN423
THE DEPUTY PRESIDENT: Some further - - -
PN424
MR McNAB: - - - (indistinct) further question. With the leave of the tribunal, I would seek to do that.
**** CRAIG IAN HESKETT XN MCNAB
PN425
THE DEPUTY PRESIDENT: Yes.
PN426
MR McNAB: In relation to paragraph 6, 6 has got to be read in conjunction with 6.1 and 6.2, and he then explains why he expresses the opinion he does in paragraph 6. The question as to whether it's an intermediate or a higher level of literacy, that can simply be expressed in another way; that persons can read and write to a reasonable level. I don't think it's offensive. It could be expressed differently, but it's not objectionable. In relation to paragraph 12, that's something that might require some amplification. But if he is working there in that area and sees these people working, he's able to express that opinion.
PN427
THE DEPUTY PRESIDENT: All right. Well, I don't see the need to strike out paragraph 6, paragraph 5 and paragraph 12. You'll have to get some further evidence to establish the foundation upon which those views are held.
PN428
MR McNAB: As the tribunal pleases. Mr Heskett, could you just have a look at paragraph 5. Are you aware how flyers were distributed in the workplace?---They were provided by the ASU and they were put in a green communication binder by the reps in the luncheon room along with other information regarding the process.
PN429
From your own knowledge, were you aware that employees were talking about the material that had been provided?---Yes. Invariably I'd walk into the luncheon room and you'd hear the conversation, people discussing and looking at the information that was there, or there was conversations being held in passageways, hallways. There was a constant buzz chatting about the process, the pros and cons.
PN430
Are you aware of whether or not the material from the ASU was being discussed?---It was being discussed, yes, the pros and cons of the process. The flyers were there, and it wasn't just one. There was probably a dozen or so flyers on that luncheon room table outside the green communication folder.
**** CRAIG IAN HESKETT XN MCNAB
PN431
In terms of paragraph 12, where you expressed the view that personal trainers typically spent approximately five minutes planning personal training sessions and altered that plan as required, do you have any personal knowledge of the way that personal trainers work?---I've been a qualified fitness professional for 15 years, a qualified personal trainer for 13 of that. First-hand knowledge. I'm more than happy if we want to run through a personal training session now.
PN432
THE DEPUTY PRESIDENT: I decline.
PN433
MR McNAB: In terms of observing the way they're working, are the people - apart from yourself, observing the people working there who are personal trainers, is that the way they were working?---Yes. They've all got an experience level where they can think on their feet and run on a session basis, depending on how the person is going in any particular session, and they tweak if someone is having a good day, bad day, needs to be challenge, or is having a rough day and they need to back it off a little bit.
PN434
I've got no further examination-in-chief.
PN435
THE DEPUTY PRESIDENT: Thank you.
PN436
MR McNAB: I've submitted those paragraphs should be admitted.
PN437
THE DEPUTY PRESIDENT: I take it you don't press your objection in relation to paragraph 12, but do you have anything else?
PN438
MR MOORE: No, I don't.
PN439
THE DEPUTY PRESIDENT: They're admitted. Thank you.
**** CRAIG IAN HESKETT XN MCNAB
PN440
MR McNAB: I seek to have that tendered.
PN441
THE DEPUTY PRESIDENT: It will be A4. Thank you.
EXHIBIT #A4 STATEMENT AND ATTACHMENT OF CRAIG IAN HESKET DATED 14/05/2012
THE DEPUTY PRESIDENT: Thanks, Mr Moore.
<CROSS-EXAMINATION BY MR MOORE [12.11PM]
MR MOORE: Are there about five computers at the Croydon Leisure and Aquatic Centre? Does that sound about right?---No. A lot more than that.
PN444
How many are there?---There would be well over 15, 20.
PN445
Are most of those computers in the offices occupied by management staff?---No. There would be only four of those.
PN446
Did you say before there would be about 15 computers?---Yes.
PN447
So about four of those are in managers' offices?---Correct.
PN448
And where are the other 11?---In the general administration, reception, sales office, the gymnasium.
PN449
Going through, they're different areas. There's a computer in the gymnasium?
---Yes.
PN450
How many computers are in the gym?---One.
PN451
How many are at reception?---Three computers.
**** CRAIG IAN HESKETT XXN MOORE
PN452
Where was the other area you mentioned?---Administration.
PN453
Is that an office, is it?---It's an open plan, administration area.
PN454
The remainder are in there, are they?---You've got two, four, six, eight in there.
PN455
Those eight computers in the administration office really are the IT hub, I assume, for the centre. Is that right?---Yes. There's three hot desks and staff come and go at various times at the other workstations.
PN456
When you refer to staff that come and go in the desks in the administration area, they're the administrative staff, I take it?---Yes, there's a lot of range. We have a lot of permanent part time. We have a group fitness team leader that isn't there all the time so she will come and go at different days and at different times.
PN457
People who work in the leisure centre as trainers and life guards, cleaners, they don't use the computers in the admin area?---No, they're not based at a workstation.
PN458
So would you agree with me that the access, insofar as employees have access to a computer at the Croydon Leisure Centre, it is the three computers at the reception area?---No. It would be more the administration, because the computers in the reception area are usually used for scanning people coming in and out.
PN459
They're busy, those three computers?---They're busy a greater portion of the day.
PN460
They're actually used to admit customers into the gym or into the facility?---And to do a task associated with it.
PN461
So you wouldn't expect staff in the leisure centre to be able to jump on one or other of the three computers in the reception area to make whatever inquiries they may want to make through their computer and any Internet access that is available?---Not as a matter of course, no.
**** CRAIG IAN HESKETT XXN MOORE
PN462
Insofar as they are going, the staff might access material on a computer. You say that they would do that through the computers in the administrative area?---Yes.
PN463
How many staff work in the administration area?---Across a seven-day period?
PN464
I'm sorry. On any one day?---On any one day?
PN465
Yes?---Probably a maximum of four. Actually, I might just clarify that. We don't have someone sitting at a desk from 9.00 to 5.00. So you might find that someone sits a desk between 9.00 and 12.00 and goes home, and someone else may come in. So if you're asking how often are the computers used, it would probably be four, but it would be various people across the day.
PN466
People coming and going because they might be working part-time, and do morning, and then someone else comes in the afternoon?---Yes.
PN467
You know what Smart Net is?---Yes.
PN468
Is it your understanding that to access Smart Net, a person needs to have some login details?---Individual logins or there's a generic login.
PN469
Individual logins or - what's a generic login?---A generic login, which every staff member has access to, which will get them onto Smart Net or might get them onto the Internet.
PN470
Can you look at the attachment to your statement, please. You'll see that this is an email from you to a number of people. The people to whom the emails are addressed, who are they?---It was a user group known as "CLAC staff".
PN471
Are these management supervisory staff?---No, it's just general CLAC staff that we have email addresses for.
**** CRAIG IAN HESKETT XXN MOORE
PN472
But there's only about nine names there?---There's a lot more that (indistinct) printed on there.
PN473
This has gone to all staff in CLAC. That's what you call it, I take it?---CLAC, the acronym, yes. Croydon Leisure and Aquatic Centre.
PN474
This is an email to all staff in CLAC that you have email addresses for?---Yes.
PN475
The email refers to there being a folder in the staff lunch room containing information from the union and from the council. What was this information from the union?---It was flyers that were distributed.
PN476
Who put the information in the lunch room. Do you know?---I think it was an employee who was a union member who posted them in there.
PN477
The collation and placement of that information, was that done by you or one of your staff or by a union person, or - - -?---It was done by a union member.
PN478
In terms of people who work as instructors, there are people whose jobs it is to take groups; group instructors. Is that right?---That's right.
PN479
And there are people who are personal trainers who train an individual or, I presume, a small group of individuals?---Yes.
PN480
In relation to both of those - just referring to people who work as group instructors or trainers - the council doesn't tell them what to do in the sessions they take, does it?---No, we don't give them instructions and say, "You must do this".
PN481
So the instructor or the trainer decides how to prepare what sort of lesson or what sort of session they're going to undertake with their participants?---I guess to simplify it, we've got group fitness instructors. Some of those run Les Mills programs, which is all pre-choreographed. So that is preset that, "This is what you have to do in your class". You have freestyle instructors, group fitness, who, by their name, is freestyle. They run a class and it's up to them what they would like to put in it. And you've got personal trainers, as we've already discussed. They're in control of their sessions.
**** CRAIG IAN HESKETT XXN MOORE
PN482
In relation to the second and third of those groups, the group instructors and the personal trainers, those persons have to decide what routines are going to be undertaken in each session?---If you look at the group fitness professional, the freestyle - and very well that doesn't change too much because you've got your set members that come along and they like routine. You can tweak it a little bit and change an exercise or two, and they'll give you feedback as to whether it's what they want. But there is no - - -
PN483
I'm sorry. Forgive me if you misunderstood my question. I wasn't suggesting there was no change in what might occur from session to session. It's more of a general question that it's the instructor who decides what routines are going to be undertaken in the class?---Yes.
PN484
The order of those routines and the music that might accompany them, yes?
---Yes.
PN485
The appropriateness of particular routines for a particular class or for particular participants?---Yes.
PN486
That work might vary from week to week in terms of how much thinking time might be required to plan for a class?---It would depend on how much they're going to change the class.
PN487
The fact that they do that work - that is, that planning and preparation from time to time - is recognised in the agreement, isn't it?---It is on the different sessional rates.
PN488
There's a communications book that is used at CLAC?---Numerous communication books, depending on the area.
**** CRAIG IAN HESKETT XXN MOORE
PN489
In what areas is there a communication book?---Gymnasium, customer service, group fitness, cleaners, life guards, aquatic education.
PN490
These communication books are books which facilitate communication between staff in each of those areas?---Area-specific, yes.
PN491
Can you have a look at this document, please. Just take a moment to look over that document, Mr Heskett. I don't invite you to read the whole thing in detail, Mr Heskett. But if you prefer to you, you're welcome to. I don't propose asking you questions about any particular statements in it. I would just like you to look over the document. You've had a look through that?---I've had a glance, yes.
PN492
Do you know Denise Parks?---Yes. Group fitness instructor and works on customer service.
PN493
Denise Parks will give evidence in this proceeding in which she will identify the document that you have in front of you as being an extract from a communications book. Does that look to be a communications book extract?---It does, yes.
PN494
Does that look to be the communications book for the fitness staff, or is it the administrative area?---It would be more the customer service, I think.
PN495
Do you expect to see in the customer service communications book - do you anticipate to see daily entries in it, or an entry every day or two?---Every day or two. I mean, it's a communication. It's not a hard and fast fact that you write something every day unless there's something to be communicated.
PN496
Mr Beate is the reception manager?---It's actually Beate, yes.
**** CRAIG IAN HESKETT XXN MOORE
PN497
Is it a Mr Beate?---Beate, Ms.
PN498
She's a reception manager?---She's the team leader of customer service.
PN499
Are you aware of any instructions or directives given by her to reception staff not to discuss the EBA?---Can you possibly clarify - there was instruction not to talk to members of the public, but definitely no instructions given not to discuss it amongst ourselves because we wanted to encourage that sort of discussion.
PN500
There was a discussion, wasn't there, not to discuss it with members of the public?---Yes.
PN501
It was confined in that way, was it?---Just the members of the public.
PN502
Well, Ms Parks will give evidence that she saw in the communications book a direction to the effect that staff were not allowed to discuss the EBA at reception because it was unprofessional. Would that accord with your understanding?---I would agree with that. I'm not sure, but I would agree about discussing it in a public forum.
<RE-EXAMINATION BY MR McNAB [12.29PM]
MR MCNAB: Mr Heskett, you were asked questions about who distributed material from the union and you gave evidence that it was done by an employee who was a union member. I'm just wondering if the witness could be shown SB10. Was that one of the flyers that was distributed?---Yes.
PN504
Were there other flyers distributed?---There were other flyers. Any information that came out was placed in the luncheon room.
PN505
You were asked questions about a direction given not to discuss the certified agreement - proposed agreement. In your mind, was there any discussion amongst employees and what was the level of discussion?---There was quite regular discussions about the pros and cons of voting yes, voting no, and employees wanted to know how it was going to impact on their employment.
**** CRAIG IAN HESKETT RXN MCNAB
PN506
Were you part of those discussions or was it a discussion between other employees?---It was other employees. Occasionally, I would be there in the luncheon room and be part of the discussion.
PN507
Was there any sense from your point of view that people were feeling inhibited about discussing the proposed agreement?---No, they were discussing it quite freely. No-one expressing, "I am going to vote yes", "I am going to vote no", but just a free discussion all in good spirit.
PN508
Did the employees who were involved in that discussion - did include the personal trainers and the gym staff who are involved in the Les Mills program, for instance, or the freestyle exercise programs?---It was a good cross section of all employees.
PN509
Does that include cleaners and - - -?---Yes, cleaners and lifeguards.
PN510
You were asked a question about the need to log on to the computer and you made reference to a generic logon or login. How does that work?---You can go in and use this one login that will get you access to any computer. It won't give you access to the Internet. The council likes to be able to trace who actually hops on and where they're going.
PN511
How were employees made aware of the login - the generic login?---As part of the induction process, it's written down. I believe some of the computers have it written down, attached to the monitor for reference.
<THE WITNESS WITHDREW [12.32PM]
MR McNAB: That is the evidence the applicant proposes to call.
PN513
THE DEPUTY PRESIDENT: Thanks, Mr McNab.
PN514
MR MOORE: Like my friend, your Honour, I don't propose to make an opening unless it would assist your Honour. The issues are out there as it might have been said, and I think it's of more assistance to get into the evidence. The union proposes to call five witnesses. They are - the first witness that will be called is Ivy Fell who works with the council, then will be called Denise Parks who also works with the council, Kristin Lavrans who also works with the council and then two officials of the union, Melissa Wainwright and Michelle Jackson. So I call our first witness, who is Ivy Fell.
PN515
THE DEPUTY PRESIDENT: Is there a statement on file? No.
PN516
MR MOORE: No.
PN517
THE DEPUTY PRESIDENT: So I can stop looking for it.
PN518
MR MOORE: You can. I've read the transcript and I saw your Honour's indication of provision of witness summaries or something to that effect, as I recall it, your Honour, and a document called Respondent's Witnesses was filed and served, I'm told, which identified those persons I've just identified, and outlined in short terms the evidence that was intended to be adduced from each of them. I should indicate that list included Mr Carmello Carcamo, and he won't be giving evidence because of, I think, a difficult family circumstance. Thank you.
PN519
THE DEPUTY PRESIDENT: That's all right. So there's a document that briefly outlines the nature of the evidence?
PN520
MR MOORE: There is, and my instructor has just handed that to me helpfully. The Respondent's Witness. I can hand that to you. I'm not sure if it will be of that much - I don't know if it will be of much assistance to your Honour. As you'll see, there's a very short outline of the evidence that they will each give.
<IVY CECILIA FELL, AFFIRMED [12.35PM]
<EXAMINATION-IN-CHIEF BY MR MOORE [12.36PM]
MR MOORE: Ms Fell, could you please repeat for the tribunal your full name and work address?---Ivy Cecilia Fell, (address supplied), and I work from home.
PN522
What is your occupation, Ms Fell?---I am an educator.
PN523
You are an educator and you work from home?---From home, looking after children.
PN524
How many children do you look after?---Monday to Thursdays I've got four children, and on Friday I've got one child.
PN525
In doing that work Monday to Friday, you do that work as an employee of council?---That's correct.
PN526
Are there any other employees with you when you do that work?---No, I'm alone.
PN527
Do you have a supervisor?---Yes, we do - I do. She's at the council.
PN528
She's at the council, did you say?---Yes.
PN529
How long have you been employed by the council, Ms Fell?---I think between - no. With Croydon, it's probably about 22 years - 22, 23 - with Croydon.
PN530
Could you describe in general terms the nature of the work you do as an educator with the children in your house, Monday to Friday?---Well, we do activities with them. I take them out on the road with me. We do outdoor and indoor play, and are sometimes quite hands on with them, having to do the activities and stuff. Yes.
**** IVY CECILIA FELL XN MOORE
PN531
Would it be right to think of your work as early education and childcare work? Is that a fair of thinking about it?---That's correct, yes.
PN532
How many hours a week then would you work for council?---I start at 8 in the morning and I finish at 5.40 in the evening.
PN533
5.40, did you - - -?---5.40.
PN534
You said your supervisor is located at the council's office?---That's correct.
PN535
How often do you attend at council's office to see her, for example?---Not often.
PN536
Is it a weekly occurrence or a monthly occurrence or an annual occurrence?---No. Mostly when we're in service meetings we see each other. Otherwise it's more phone calls.
PN537
Phone calls?---Yes.
PN538
Do you have a computer at home?---Yes, I do.
PN539
Is that your computer or the council's computer?---My husband's.
PN540
Your husband's computer?---Yes.
PN541
Do you know of something called Smart Net?---No.
PN542
Do you ever access council information over the Internet from your computer at home?---Never.
PN543
When you're looking after the children from Monday to Friday as you've outlined, do you ever attend meetings during those hours at council?---No.
**** IVY CECILIA FELL XN MOORE
PN544
I think you mentioned before that from time to time you attend a meeting with your supervisor?---That's correct.
PN545
How frequent are those meetings?---Probably once every two or three months.
PN546
Do those meetings occur between 9 am and 5 pm?---No. In the evening.
PN547
They occur - - -?---7 and 7.30 at night.
PN548
You're aware of a vote that occurred in February this year about a new enterprise agreement to apply to council workers?---Yes.
PN549
Did you ever see a copy of the agreement which employees voted on?---No.
PN550
Did anyone from council ever tell you that you could access a copy of the agreement if you wanted to?---No.
PN551
Is English your first or second language?---Second language.
PN552
What's your first language?---Afrikaans.
PN553
Could the witness please be shown exhibit SB2. Ms Fell, please disregard the first page of the document that's just been handed to you, and just take a moment to leaf through the rest of the document. You don't need to read it in any detail but just take a moment to leaf through it. Do you know if you've seen that document before you?---No.
PN554
Sorry?---Never.
<CROSS-EXAMINATION BY MR McNAB [12.43PM]
**** IVY CECILIA FELL XXN MCNAB
PN555
MR MCNAB: How were you paid, Ms Fell?---Pardon me?
PN556
How were you paid?---Through the council. The money goes into my account - savings account.
PN557
Do you get an email advising that?---No.
PN558
Do you get a pay slip do you?---Yes, I do.
PN559
And do you get a pay slip sent to you?---That's correct.
PN560
Is it the case that - were you working in February of this year?---Yes.
PN561
You were?---I was working, yes.
PN562
Is it the case that you were sent a pay slip, and it had attached to it a copy of the That's Maroondah newsletter?---There was one piece of paper with one of the pay slips, yes.
PN563
So there's a pay slip and you also received the newsletter?---Well, I don't know that was a newsletter that was in there. I'm not sure.
PN564
So you can't recall whether you got the newsletter or not?---Yes, that's correct.
PN565
But you might have got the newsletter?---Maybe. I'm not sure.
PN566
You were working in February of this year and you were paid on or about 2 February?---If that's the date, yes, I was working.
PN567
Do you read the newsletter when you receive it?---Yes, definitely.
**** IVY CECILIA FELL XXN MCNAB
PN568
You say you've been working at the council for 20 years?---20 plus.
PN569
You're aware that there was a previous certified agreement that dealt with employees?---I can't - - -
PN570
You're not aware of that?---No.
PN571
You say that you're aware of a vote in relation to the agreement that the council is wanting to have certified?---Yes, because we received a copy.
PN572
So you received a copy?---In one of our pay slips.
PN573
You received a copy of a newsletter in one of your pay slips?---Yes. I don't know. It wasn't a newsletter. It was just something to guide us through how to vote.
PN574
So you got some information there?---Yes.
PN575
That was before the vote?---That was before the vote.
PN576
If you had any questions about that, you were able to ask people about that, weren't you?---Yes.
PN577
Your supervisor - because you're working in your home from the hours of 8 to 20 to 6 every weekday, does that mean that the supervisor will come to your house occasionally to see how things are going, just to check things up?---Well, they only do the home visit once a month. If we have a problem, we need to ring them.
PN578
If you had a problem in relation to voting on this agreement or anything to do with the agreement, you could speak with your supervisor, couldn't you?---Yes.
**** IVY CECILIA FELL XXN MCNAB
PN579
You could speak with someone from the union. Is that right?---Yes.
PN580
You're a member of the union?---I am.
PN581
And you're fairly active in that? I'm not being critical - - -
PN582
MR MOORE: Well, I don't see what the relevance of that question is.
PN583
MR McNAB: It goes into the mix of whether somebody is aware of the material, and the cases seem to say that if people are aware of it, and if the union is active, it becomes part of the matrix of fact to considered as to whether the work force is aware of it.
PN584
MR MOORE: If I might be heard, your Honour. This witness' precise awareness and what she did or did not do in relation to the agreement is not in issue. It's not in issue whether she's an active member of the union and whether or not she took steps to better inform herself about the agreement. I mean, that does not fall for an issue for determination in terms of what the Act requires. What's in issue in this proceeding is about the process that has been adopted and the requirements of the Act. What this particular witness did or didn't do in terms of making inquiries of people, it's neither here nor there.
PN585
MR McNAB: Well, it might be a matter for submissions later, but I can take you to the case - in fact, I think in the McDonald's case this point was directly dealt with.
PN586
THE DEPUTY PRESIDENT: I think you can rephrase the question rather than asking whether the witness was an active member of the union. That brings up a whole range of issues.
**** IVY CECILIA FELL XXN MCNAB
PN587
MR McNAB: Which is a place we don't want to be, but I can appreciate that.
PN588
THE DEPUTY PRESIDENT: Yes.
PN589
MR McNAB: So once you became aware of the fact that this was to be voted on, you were in a position then to raise questions about it?---Well, that letter stated that we had to vote on it, so it was either "yes" or "no" and send it back in, which I did.
PN590
If you wanted to look at the agreement that you were voting on, you could take steps to do that?---No, I couldn't because I have children in care and there's nobody else to look after them.
PN591
What I suggest is if you didn't have access to it and you wanted access to it, you could arrange for it to be sent to you?---Well, I didn't even know about the Smart Net, nothing.
PN592
Well, not such much the Smart Net, but you could get on the telephone, couldn't you?---Well, I could if I knew about it, but I didn't know about all the agreement and stuff that was going on.
PN593
But you know an agreement was to be voted on?---Yes, I did know.
PN594
Do you have any access to the computer at all? Have you ever used the computer to go onto the Internet?---No.
PN595
So you don't use it at all?---No. I'm not computer literate.
PN596
In terms of your - you say that English is not your first language and in fact Afrikaans is your first language, you are able to read and write in English?---Yes.
**** IVY CECILIA FELL XXN MCNAB
PN597
You don't have any difficulty doing that?---Well, it depends on how it is worded. If it's really difficultly worded and it's not simple English, I may find it difficult. Yes.
PN598
All the communications that come to you for your work for looking after the children that you look after are all in English, aren't they?---They are, yes.
PN599
They're not translated into Afrikaans for you to do that?---No.
PN600
You don't say to the council, "Look, I can't understand the instructions that are being given to me"?---Well, we've got a support group, and normally we talk at the support group, and talk about issues and - yes, one time I did raise that question to one of my fellow workers because I didn't quite understand what it was, and she explained it to me.
PN601
You've been directed to documents. You're able to read the documents you were shown by Mr Moore?---Pardon me?
PN602
You were direct to certain documents here today?---Yes. You're referring to this?
PN603
In fact, you said before you were able to read English in those documents?---Well, it depends on how simple the language is. Then I will be able to understand and read it. But most of the times I can read it.
PN604
How often do you speak to your supervisor?---When there's a need to do that.
PN605
And how often is that?---Probably once, twice a week.
PN606
Do you have situations where your schedule changes, where you have to speak to the council in relation to that?---In relation to what?
**** IVY CECILIA FELL XXN MCNAB
PN607
Changes that occurred?---Can you explain it again, please.
PN608
With your work, if there's some change to your work, you're able to speak to the council?---Yes. I can ring them regarding whatever I need to. I can.
PN609
Do you tend to speak to the same person?---No, not always.
PN610
The supervisor comes to your office - or to your house I should say - a couple of times a week. Is that right?---No, not a couple of times a week. She does when she visits once a month.
PN611
Once a month?---Not the supervisor, it could be the field officer as well.
PN612
So a field officer?---Yes. It could be the supervisor could be a field officer. Anyone can come.
PN613
How often is that?---We get home visits once a month.
PN614
Once a month?---Yes.
PN615
How often are you attending meetings at the council?---It's probably every two or three months, depending on - if it's a compulsory meeting that they need to fit in, then they'll both probably be - often it just depends on how quickly they have to get it through, but at least every two or three months.
PN616
How often are you speaking on the telephone?---Whenever there's a problem, I need to ring them.
PN617
How often in a week?---Sometimes a week will pass and I don't speak then. It's probably once a week.
**** IVY CECILIA FELL XXN MCNAB
<RE-EXAMINATION BY MR MOORE [12.55PM]
MR MOORE: You were asked some questions by my friend about receiving a pay slip in February, and you confirmed that you did get a pay slip and it had something attached to it?---Yes.
PN619
How many pages was the thing that was attached to it?---It was just one page.
<THE WITNESS WITHDREW [12.55PM]
THE DEPUTY PRESIDENT: We'll adjourn now for lunch lest there be concern about the 3 o'clock matter I've got listed; don't be. I'll either - well, I won't be joining them. I may still require them to be here but I won't be joining them. So we'll continue on today and hopefully with our best endeavours we can finish depending upon whether or not counsel wishes to review the transcript before any final submissions. It's a matter for you. You can let me know. We'll adjourn until 2.15.
<LUNCHEON ADJOURNMENT [12.56PM]
<RESUMED [2.20PM]
PN621
THE DEPUTY PRESIDENT: Ms Parks, is it?
PN622
MR MOORE: No, it's Ms Lavrans.
PN623
THE DEPUTY PRESIDENT: Ms Lavrans.
<KRISTIN LAVRANS, AFFIRMED [2.21PM]
<EXAMINATION-IN-CHIEF BY MR MOORE [2.21PM]
MR MOORE: Ms Lavrans, please help yourself to a glass of water if you need a refreshment. For the record, could you please tell the tribunal your full name and your work address?---Kristin Marie Lavrans, and I work at the Karralyka Centre at Mine's Road, East Ringwood.
**** KRISTIN LAVRANS XN MOORE
PN625
Ms Lavrans, what is your occupation?---I work as a waitress in a convention centre and I work as a theatre usher and kiosk operator in the theatre.
PN626
Karralyka, I take it, is a large function centre?---Yes.
PN627
How long have you worked at Karralyka for the council?---Between three and a half to four years.
PN628
On what basis are you employed there?---I'm a casual waitress and theatre operator.
PN629
Does the number of hours you've worked each week vary from week to week?
---Yes.
PN630
So what sort of range of hours would you work?---It varies from one shift a week up to five or six shifts a week at the very end of the year.
PN631
The very end of the year?---Yes.
PN632
How much work, if any, did you perform at Karralyka between Christmas last year and the second week of February this year?---I think only one shift, if I recall.
PN633
And why is that?---It's during the shutdown period. We shut down from about 17 or 18 December through to - the first function is towards the end of January, early February.
PN634
Are they mainly men or women at the centre in doing the work that you do?
---Mainly women. There are a few men.
**** KRISTIN LAVRANS XN MOORE
PN635
Are they in any particular age group so far as you're aware?---They range from probably university age, 18 to 21, to mid 20s, 30s and 40s plus.
PN636
In that period from Christmas until the second week of February where you say you worked one shift as you recall, other than that occasion, did you attend at council for any other purpose?---No, not during that period.
PN637
You're aware, I take it, of the voting which occurred in relation to a new enterprise agreement to apply to employees of the council in February?---Yes.
PN638
Prior to that voting, did you ever see a copy of the agreement?---Not in its final form.
PN639
Have you heard of something called Smart Net?---Yes.
PN640
What do you know it to be?---It would be a council-based intranet service, I'd imagine.
PN641
Have you ever used it?---No.
PN642
Have you ever been trained on it?---No.
PN643
Did you undertake an induction when you commenced employment with the council, I think you said about three years ago?---Not a formal induction, and I didn't do any Smart Net training.
PN644
Are you aware of any computers located in Karralyka?---There's computers in the managers' offices downstairs. I think there's a computer in the chef's office.
PN645
Have you ever used any of those computers?---No.
**** KRISTIN LAVRANS XN MOORE
PN646
Do you know if you're able to use any of those computers?---No.
PN647
I'm sorry. Do you mean by that that you don't know if you're able to use them or that you're not - - -?---I don't know if I'm able to.
PN648
Do you have a Smart Net login?---No.
PN649
Do you know someone by the name of Fred Cottle?---Yes.
PN650
He works at Karralyka?---Yes, he does.
PN651
Do you know what his job is at Karralyka?---He's the venue set-up manager.
PN652
Does he have an office?---Yes.
PN653
Do you know if you're able to - do you know if he has a computer in his office?
---No. I've never been in his office.
PN654
Do you know if you're allowed to access his office?---No.
PN655
Now, when you work - I think you said at the outset that you work as a waitress and also as an usher. So I take it that when you're working as a waitress, you're serving on tables, and when you're working as an usher, you're showing people to seats in the theatre?---Yes.
PN656
When you're doing those different types of work, are the shifts the same length? Or what's the length of the shifts when you do that work?---Shifts vary between - a theatre shift is usually three, three and a half hours, sometimes a little longer. A waitressing shift can usually range from five to six hours.
**** KRISTIN LAVRANS XN MOORE
PN657
When you have a waitressing shift, do you have a break?---Yes, we do.
PN658
And when you have a theatre shift, do you have a break?---No.
<CROSS-EXAMINATION BY MR McNAB [2.27PM]
MR MCNAB: Do you have access to a room - an area at the function centre which is like a staff room?---Yes.
PN660
In fact there was a copy of the agreement in that room, wasn't there?---I don't recall seeing one.
PN661
When you were asked the question whether you'd ever seen a copy of the agreement, you said, "Not in its final form". So you had seen documents in relation to - - -?---Yes. I'm the union delegate so I would have seen documents related to it.
PN662
You were aware of the fact there was an agreement to be put up for a vote?---Yes.
PN663
You were aware that in fact a document representing the agreement was placed in the lunch area or the break area of the function centre?---No. As I said to you, I don't recall seeing one so I don't know if one was there or not.
PN664
Did you speak to your managers about access to the agreement?---No. I only worked one shift at Karralyka in that timeframe so, no, I didn't.
PN665
Did you receive a copy of it through the post?---Not that I recall. I received a flyer attached to a pay slip, but I don't recall a copy of the agreement.
PN666
So you received a flyer?---Yes.
**** KRISTIN LAVRANS XXN MCNAB
PN667
And that flyer made reference to the proposed agreement?---Yes.
PN668
It also made reference to the fact that access to the documents could be obtained through the Internet?---It mentioned Smart Net.
PN669
So if you wished to follow that through, you could have asked to go onto a computer and get access to that?---I could have asked, but I wasn't - I don't work at Karralyka every day, and I wasn't there during that period. And when we work, there's usually not a manager as such on board.
PN670
The fact is you were aware of the proposed agreement, you were aware it was on the intranet?---Yes.
PN671
If you wanted to chase that down, you could have?---I could have, but I don't have access to a computer and I don't have a logon, so I'm not sure how I would do that.
PN672
You don't have a computer at home?---I beg your pardon?
PN673
You don't have a computer at home?---I have a computer at home but it's not attached to the council's Smart Net.
PN674
Did you speak to anyone about getting a logon?---No. I didn't have a need to.
PN675
Why is that?---Well, because I'm the union delegate, I'd already read the order. I understood it so I didn't need to access it on Smart Net.
<RE-EXAMINATION BY MR MOORE [2.31PM]
MR MOORE: Ms Lavrans, you said in answer to your question from my friend just a few moments ago that when you work shifts at the facility, there's usually no manager on?---No. We have a member of staff that's a team leader, but the actually management - functions manager isn't there on the weekends or at night usually.
**** KRISTIN LAVRANS RXN MOORE
<THE WITNESS WITHDREW [2.32PM]
MR MOORE: Your Honour, the next witness is Ms Denise Parks.
PN678
THE DEPUTY PRESIDENT: Thank you.
<DENISE MERRILL PARKS, SWORN [2.33PM]
<EXAMINATION-IN-CHIEF BY MR MOORE [2.33PM]
MR MOORE: Ms Parks, if you'd like a glass of water, please help yourself?
---Thank you.
PN680
Ms Parks, could you tell the tribunal your full name and your work address?
---Sure. Denise Merrill Parks, and my work address is (address supplied).
PN681
What is your occupation, Ms Parks?---Customer service and group fitness instructor.
PN682
Do you work for Maroondah City Council?---Correct.
PN683
How long have you worked for the council?---I've been taking group fitness classes since 1990, and I've been doing customer service for five years.
PN684
How many hours a week approximately do you work as an instructor?---I take five classes a week.
PN685
How long are the classes?---55 minutes.
PN686
Are they sessions, are they?---Sessions, yes. One is temporary - four permanent, one temporary until another instructor comes back.
PN687
With your work in customer service, how many hours a week do you work?---11 and a half.
**** DENISE MERRILL PARKS XN MOORE
PN688
Where do you perform all this work?---My customer service is at reception.
PN689
In what place?---At the Croydon Leisure Centre.
PN690
Is this the Croydon Leisure - - -?---Yes, Croydon Leisure and Aquatic Centre; CLAC.
PN691
You perform the classes at CLAC?---Yes.
PN692
Now, you do five classes a week and they're 55 minutes in length?---Yes.
PN693
Do you spend any time planning or preparing for those sessions?---Yes, I certainly do.
PN694
What do you do by way of planning or preparation?---For instance, we do what's called a Les Mills franchise class, and I take three of those classes, and every 12 weeks we have to purchase CDs and DVD pack, which comes to about $180 for the three of them, and then we have to present those new releases. They're called "releases". So I have to learn all those tracks. So I have to learn Pump, which will take me three or four or five hours. Body Balance takes me longer because it's fairly intricate with a lot of technique, so I only learn that bits at a time, but hours. And Step, it's not as intricate a balance but you can't miss a beat because a step class. You wouldn't want to get off the beat; no-one will come back. I spend hours and hours - literally hours practising for my class when there's a new release. Then before I present a class, I always go through it first. For instance, tonight I'm doing a Pump class. I will spend at least 45 minutes going through my notes and going over it again, and my Body Balance class tonight as well, because I want to make sure I get it right and sometimes you might miss something. So yes, I do put effort into it prior to the class.
**** DENISE MERRILL PARKS XN MOORE
PN695
The evidence you've just given, does that relate to Les Miller's - is that - - -?
---Correct. That's the three Les Mills classes I take. The other two are freestyle classes; the classes I make up myself.
PN696
Is there any preparation involved in those - - -?---One is a Saturday morning freestyle whereby I do 50 minutes of non-stop aerobic routines. So I have a bank of routines that I make up and I get my own music as well. Sometimes, yes, I do plan a class. It doesn't always go to plan, depending on who is in the class, whatever. I do plan that class. I also fill in for a circuit class. I generally have a theme for the class for the day, and I do spend maybe half an hour planning that circuit class before I do it.
PN697
So are you able to give the tribunal any indication about how much preparation time you might spend per week across all of those classes?---At very minimum - I'd have to say a minimum of three hours.
PN698
Every week?---Definitely.
PN699
When you work at the centre instructing, do you have any breaks?---No. They're 55 minutes straight classes.
PN700
I think you said that tonight you've got two classes?---Correct.
PN701
When the classes are done, what do you do?---Go home.
PN702
Now, how many instructors approximately are there at the centre?---I think there's approximately 18 to 20, and there may be a few more on the emergency list.
PN703
Do you know of something called Smart Net?---Yes.
**** DENISE MERRILL PARKS XN MOORE
PN704
It's an intranet that the council has?---Yes.
PN705
Now, the evidence before the tribunal is that there are three computers in the reception area at the centre. Do you agree with that?---Yes.
PN706
I think there's some eight computers, it has been said, in the administration area?
---Approximately eight. I don't know the exact amount. Eight or nine.
PN707
Now, when you're attending at the centre to take classes, do you access - use the computers at all?---No.
PN708
And why is that?---Because I only go there to do the class. I try to get there about 10 to 15 minutes prior to the class so I can greet people as they come in, take my class and stay for about 10 minutes afterwards, and then I leave and go home.
PN709
On what basis are you paid for those classes?---We're paid for the 55 minutes, one session.
PN710
For a session?---Yes.
PN711
You don't get any more money if you stay there for an hour and a half, for example?---No.
PN712
Over the time that you've worked at the centre, have you seen any of the other instructors use the computers at the centre while working?---No.
PN713
Or at any time?---No.
PN714
With your reception work, how many hours a week do you do working in the reception?---11.5 plus sometimes you might get asked to do an extra shift if someone has called in sick or something.
**** DENISE MERRILL PARKS XN MOORE
PN715
Do you have login details for Smart Net?---Yes.
PN716
Do you know if there are generic login details available for other staff?---No.
PN717
Now, the three computers in the reception areas where you work when you're doing administrative work, that's when you're doing customer
service work?
---Yes.
PN718
Are they all connected to Smart Net?---There's only one that you can use for Smart Net that I'm aware of; just the one on the left.
PN719
When you are doing that customer service work, the 11 and a half hours or thereabouts that you do each week, do you ever access Smart Net?---I believe I've accessed it about three times this year.
PN720
Why is that?---To check my emails.
PN721
Is there much opportunity to check Smart Net when you're working reception?
---Definitely not on a Tuesday night. Maybe on a Saturday late in the afternoon if it's quiet. But then there's lots of other things
to do as well when you're there on your own, so - - -
PN722
The computers in the administration area, do you regard yourself as entitled or able to use those computers?---No. They're other people's computers so I don't think that would be right just to go up to someone's computer and use it.
PN723
There's a communications book that you use at the reception?---Correct, yes.
PN724
What's the purpose of the communications book?---To give notes on different things that are happening.
**** DENISE MERRILL PARKS XN MOORE
PN725
Give notes to whom?---To customer service staff when we - it's a requirement that we read the communications book when we arrive for our shift.
PN726
It's a method of communicating between staff coming on and off shift, if you like?---Yes.
PN727
How often are entries made in the book?---Daily.
PN728
What sort of book is it?---It's got a spiral bit - spiral book.
PN729
Spiral-bound book?---Like that but with a hard cover at the front.
PN730
Have you ever read any entries in the book relating to the enterprise bargaining agreement?---Yes.
PN731
What was that entry? Do you recollect what that entry was?---I recollect that the entry said - and the top bit was highlighted in green - that we were not to discuss the EBA at reception as it is unprofessional.
PN732
Do you know who wrote that?---Beate, the team leader for reception. Beate Matthews.
PN733
How do you know that?---It was her - she signed it or it was her initial.
PN734
Do you know approximately when you read that entry in the book?---I believe it was around about February this year.
PN735
I'll show you this document. Your Honour, I'm just handing a witness that I - yes, that's the one. Just take a moment to look through that document, Ms Parks. Are you able to identify what that is?---That's part of the communications book at reception, at customer service.
**** DENISE MERRILL PARKS XN MOORE
PN736
I tender that, your Honour.
PN737
THE DEPUTY PRESIDENT: ASU1.
PN738
MR McNAB: I'm just wondering the relevance of that one.
PN739
MR MOORE: Well, I'm coming to that now.
PN740
MR McNAB: For it to be admissible, it has got to be relevance.
PN741
THE DEPUTY PRESIDENT: You object to it on the basis of relevance?
PN742
MR McNAB: It's not relevant, yes.
PN743
THE DEPUTY PRESIDENT: Thanks. Mr Moore.
PN744
MR MOORE: Perhaps I need to ask the witness a couple more questions about it before I formally tender it. I didn't anticipate an objection so I can approach it in that way.
PN745
THE DEPUTY PRESIDENT: All right.
PN746
MR MOORE: Now, the entry that you've told the tribunal about to the effect not to discuss the EBA at reception as it is unprofessional, have you been able to locate the entry in the book?---No, I couldn't find it.
PN747
Is it in here?---No, it's not.
PN748
If you can look at page 2 of the document in front of you, you'll see that there's a handwritten entry that bears the date 8 February?---Yes.
**** DENISE MERRILL PARKS XN MOORE
PN749
Then over the page, there's two entries of the same date. Do you see that?---Yes.
PN750
Then the next page, there's a - it says at the top, "Hello, customer service", and there's an entry - there's a date 8 February and then one 9 February?---Yes.
PN751
Then over the page, you'll see there's an entry about mid-way down, 17 February. Do you see that?---Yes.
PN752
Now, when you copied this document, were there any pages between the page which has towards the bottom, "9 February tennis bookings", and the next page which has mid-way down, "17 February"?---You mean there's no entries in between?
PN753
Yes?---Yes.
PN754
You've identified that - sorry. The pages aren't numbered. It's actually quite difficult. But, "9 February tennis bookings", do you see that?---Yes.
PN755
Were there any pages in the book after that page and before the next page in the document that's in front of you?---Well, I can't say for sure because obviously it looks like there's some dates missing.
PN756
Why do you say it looks like there's dates missing?---Because the entries are very regular. So this is from the 9th to the 17th. That's eight days.
PN757
In the book that you looked at, were there any entries for dates between 9 February and 17 February when you copied this document?---I didn't actually copy this. I personally didn't copy this book, so - - -
PN758
Your Honour, if I might withdraw the tender.
**** DENISE MERRILL PARKS XN MOORE
PN759
THE DEPUTY PRESIDENT: Thank you.
PN760
MR MOORE: Ms Parks, when you read the entry to the effect, "Staff are not to discuss the EBA at the reception because it's unprofessional", what did that make you think?---That we should not be discussing it at all at any time.
PN761
Why did you have that reaction?---Just by the wording of it.
<CROSS-EXAMINATION BY MR McNAB [2.51PM]
MR MCNAB: Now, you had the session times for the group fitness sessions that you take at 55 minutes in length?---Yes.
PN763
But you choose to get there about 15 to 20 minutes early, do you?---Well, if the class starts at 5.30, I have to be there at a minimum of 5.20 to set up the weights or the steps and/or the music. So you don't just turn up for your 5.30 class at 5.30. You have to be there earlier than that, and you have to turn the stereo on and unlock the cupboard where all the equipment is kept, get your music ready and greet the clients. So for a 5.30 class, you do not turn up at 5.30. You have to be there at least, the latest, 20 past 5.
PN764
In terms of your training for the Les Mills classes, you have the opportunity to go and do courses in that four times a year?---Yes.
PN765
That's the training for those classes, isn't it?---It's not training as such. It's a presentation of the latest release of those programs. It's like a master class. And sometimes there's extra bits after that.
PN766
Now, the fact that you do - you say that you do extra work, that's part of your particular commitment to try and do the best you can. Is that right?---My commitment and other instructors' commitment.
**** DENISE MERRILL PARKS XXN MCNAB
PN767
They're not coming though, are they?---I beg your pardon.
PN768
You're the only person coming to give evidence from the leisure centre. Isn't that right?---Yes.
PN769
And there's no requirement for you to do any extra work, is there?---I have to learn the routine.
PN770
You watch a video to do that, do you?---You watch a DVD, read the notes and practise it track by track. With Pump there are 10 tracks, with Step there are 12 tracks and with Body Balance there are 10 tracks. So each track might be four or five minutes with a choreographed routine.
PN771
This is all part of the skills that you have to develop as skills in order to be a group trainer?---Correct.
PN772
That's what you're paid for, isn't it?---Yes.
PN773
THE DEPUTY PRESIDENT: All these activities are well known to counsel. I'm a little - - -?---What do you do?
PN774
No, I said I don't actually - - -
PN775
MR McNAB: So setting up the music, you go in there and you open the door of the cupboard, do you?---We unlock the door to get into the group fitness room. We unlock the equipment cupboard, go over to the stereo, turn on the stereo. If I'm doing a Pump class, I'll go over to the Pump weights, put them on the stage while I'm putting on my music and people are coming in the door ready to start on time.
**** DENISE MERRILL PARKS XXN MCNAB
PN776
The participants in the Pump class, they get their own weights and set them up?
---Yes, they do.
PN777
So all you're doing is just grabbing the bar with some of the lightweight pump weights, bringing them on the stage. Correct?---One bar. You take one bar and put it on the stage. You go back and you get your weights - you can't pick all your weights up at once - and I will maybe have eight weights - four sets of weights - that I pick up and put on stage. And you don't just put them on the edge of the stage, you've got to bring them up. Then you've got to go over to the - - -
PN778
You're lifting them from the floor, are you, to put them on the stage?---No. They're on things that come out of the wall.
PN779
That would take about a minute, wouldn't it?---No, it would take more than that, because you have to be very careful of how you pick those weights up, and I'm only 5 foot 1.
PN780
And putting the music into the slot of the music player. What's that? About 30 seconds?---Testing the sound of the music, the sound of the microphone - - -
PN781
Check that the - - -
PN782
MR MOORE: The witness should be allowed to answer the question.
PN783
THE WITNESS: We're also responsible for putting the batteries in the microphone and the batteries in the battery charger. And you may have to play more than one CD in that class so you might have to set up two, three or four CDs on the floor on top of the stereo and have them in order.
PN784
MR McNAB: That's going to take you a couple of minutes, isn't it?---More than a couple of minutes.
**** DENISE MERRILL PARKS XXN MCNAB
PN785
You had access to the intranet?---At reception, yes.
PN786
You were able to look up the terms in relation to the proposed agreement on the intranet?---If I knew where to go, yes.
PN787
Well, you know where the intranet is?---Yes, I do.
PN788
So you can get onto the intranet and then you can look at the terms there?---I suppose I could.
PN789
And did you?---No, I haven't. I wouldn't have known they were there.
PN790
Are you on the email?---Yes, I do have an email.
PN791
You've received notification from the council in relation to the fact that there's going to be a vote on an EBA?---Yes.
PN792
You received that with a pay?---You mean with the pay slip?
PN793
Yes?---Yes.
PN794
You could follow that through, if you wished to, and go on the intranet to look up the terms?---Yes, I could do that.
PN795
It was quite the topic of conversation amongst staff at the leisure centre, wasn't it, the EBA and the vote?---As far as I'm concerned with, customer service staff minimalistically discussed with one other group fitness instructor. That's all.
PN796
So where'd you discuss this? In the lunch room, did you?---Yes.
**** DENISE MERRILL PARKS XXN MCNAB
PN797
You saw their materials from the union in the lunch room?---Yes.
PN798
You also saw a copy of the proposed agreement in the lunch room?---It was in a folder.
PN799
So you were able to look at it there?---Not that much time to read it, no.
PN800
Had it been the case that the EBA was being discussed in the public areas of the building, in the reception?---I only remember discussing it once.
PN801
With the Les Mills classes, do you, as part of your qualifications as a fitness instructor, make it part of your work to keep up to
date with those courses?
---What - I'm not sure what you mean.
PN802
Sorry. I'll ask it another way. Are you a qualified instructor?---Yes, I am.
PN803
Where did you get the qualifications?---Deakin University when it used to be - - -
PN804
Do you maintain membership of a professional body?---Yes. I belong to Kinect. We need to do a certain amount of points to register every two years.
PN805
So the points are, in effect, continuing education for yourself?---Yes.
PN806
That would include doing the Les Mills-type work?---If you did a new program, yes, you'd get points towards that.
PN807
You do this in order to maintain your - - -?---Registration.
PN808
- - - personal association?---You have to be registered to have professional indemnity insurance.
**** DENISE MERRILL PARKS XXN MCNAB
PN809
This is a requirement that's extra to your work requirements?---Yes.
PN810
How many hours per year is it?---It's a number of points every two years.
PN811
And how do you achieve the points?---You go to workshops, or if you like, you spend five or six hundred dollars and do a new Les Mills program for eight points or do workshops, and you can get points doing things online.
PN812
You do that in order to - as I asked before - to maintain your professional membership?---Yes.
<RE-EXAMINATION BY MR MOORE [3.02PM]
MR MOORE: You were asked some questions by my friend about the buzz in the workplace, if any, about the agreement. I'm talking about the workplace where you work of course. What was the level of discussion about the agreement?---There was really no discussion as such about the agreement. I believe staff were loathe to talk about it. Management certainly weren't talking about it to us nor the team leader for reception or the team leader from group fitness. Nobody has been talking about it to us.
<THE WITNESS WITHDREW [3.03PM]
THE DEPUTY PRESIDENT: If you excuse me for five minutes. We're adjourn for five minutes and kick off the other matter, leave them to it, and I'll return. I'll adjourn briefly.
<SHORT ADJOURNMENT [3.03PM]
<RESUMED [3.09PM]
PN815
THE DEPUTY PRESIDENT: Thanks, Mr Moore.
PN816
MR MOORE: Thanks, your Honour. The next witness is Ms Melissa Wainwright.
PN817
THE DEPUTY PRESIDENT: Thank you.
<MELISSA GAIL WAINWRIGHT, AFFIRMED [3.09PM]
<EXAMINATION-IN-CHIEF BY MR MOORE [3.09PM]
MR MOORE: Now, Ms Wainwright, could you please tell the tribunal your full name and your work address, thanks?---Yes. It's Melissa Gain Wainwright at (address supplied).
PN819
What's your occupation, Ms Wainwright?---I'm an organiser for the organising and campaign team.
PN820
For the ASU?---For the Australian Services Union.
PN821
How long have you been employed by the union?---Approximately seven years or so.
PN822
Do your organising duties take in the membership employed by the Maroondah City Council?---Correct.
PN823
How long have you had responsibility for organising at Maroondah?---Since the start of last year, around about March.
PN824
Were you involved in negotiating the agreement which was put to a vote in February this year?---Yes, I was.
PN825
In general terms, what does your role as an organiser entail?---My role and duties are various. It involves working with membership and delegates on the ground, setting up communications structures, shop committees, consultative committees and negotiating.
PN826
Are you able to tell the tribunal approximately how many members the union has at Maroondah?---There's approximately 170.
**** MELISSA GAIL WAINWRIGHT XN MOORE
PN827
Was that the approximate membership number at the time of the vote undertaken in the agreement in February?---I believe the numbers were that, yes.
PN828
Have you heard of Smart Net?---I have heard of Smart Net.
PN829
It's an intranet system operated by the council?---Yes, it is.
PN830
Have members spoken to you about Smart Net?---Some members have spoken to me about Smart Net, yes.
PN831
What sort of comments - what have they spoken to you about in relation to Smart Net?---Comments have been varied from knowing there's an internal system that they can access through some training, some have no idea what Smart Net is in relation to login details, some people are in workplaces where they don't have access to the Smart Net system, are some of the comments that people have given to me.
PN832
In the last year or so, approximately how often do you visit Maroondah City Council work premises? Not the total number of times, but how frequently?---On a weekly basis, yes.
PN833
Your conversations are with members and delegates or one or the other?
---Members and delegates, yes, and some non-members too.
PN834
When members have spoken to you about training in relation to Smart Net, what, if anything, have they said?
PN835
MR McNAB: I object to these questions. They're so general. Unless they're going to be narrowed down into particular areas of work or the nature of these employees' work, they're so broad that the applicant can't in fact deal with them. I accept that hearsay is acceptable in these types of application and in this tribunal, but it is so nebulous, this level of evidence, that it can't be fairly responded to.
**** MELISSA GAIL WAINWRIGHT XN MOORE
PN836
THE DEPUTY PRESIDENT: Thank you. Mr Moore.
PN837
MR MOORE: Well, a live issue in the proceedings is around Smart Net and how it works and employees' facility with it. I'm entitled to seek to adduce evidence from the witness about that matter generally speaking. One has to inject a level of practicality and realism into that exercise of course, because there are 936 employees. This organiser, unsurprisingly, hasn't gone around and done a survey with notes about who said what on what occasion. I'm seeking evidence from her about employees' experience with Smart Net and what they've related to her. That is at a level of generality, I concede, but that doesn't make the question objectionable. What your Honour does with it is another question.
PN838
THE DEPUTY PRESIDENT: That's what I'm thinking about.
PN839
MR MOORE: It's evidence that will form part of our submissions in relation to the methods of communication adopted here. This witness is able to give evidence about the experience of members in dealing with Smart Net.
PN840
THE DEPUTY PRESIDENT: You've already called some evidence in relation to that in a specific sense, haven't you, in areas?
PN841
MR MOORE: Yes.
PN842
THE DEPUTY PRESIDENT: Whereas the evidence that has been given here, I don't know whether the reaction is from a child care worker, from an admin office-based staff or - - -
PN843
MR MOORE: I can explore that with the witness and introduce an element of particularity and - - -
**** MELISSA GAIL WAINWRIGHT XN MOORE
PN844
THE DEPUTY PRESIDENT: But I think that was the concern that was had by Mr McNab, that he doesn't then know how to ask a question in response if - - -
PN845
MR MOORE: Well, I have no issue in focusing the question in that way insofar as the witness may be able to address it.
PN846
THE DEPUTY PRESIDENT: All right.
PN847
MR MOORE: Ms Wainwright, insofar as members have spoken to you about Smart Net, those members, are they employed in any particular area or areas of the council?---All areas of council. However, the training aspect of it would be predominantly the indoor area.
PN848
The indoor area?---Correct.
PN849
What do you mean by the "indoor area"?---Those who have access directly to Smart Net, and as part of the training of Smart Net, it is connected to a radar system, so an end-of-band-type payment.
PN850
THE DEPUTY PRESIDENT: Sorry. Would you say that again? An end-of-band payment?---Yes. It's a payment at - - -
PN851
There has been too much music in this matter?---- - - of an appraisal every year. We are asked to do training which assists in to getting some sort of payment every year. It is available to all staff. However, all staff don't necessarily have to undertake any of that eTraining which is available on Smart Net.
PN852
It's a part of the performance assessment for movement within the band?
---Somewhat.
**** MELISSA GAIL WAINWRIGHT XN MOORE
PN853
Yes, I follow.
PN854
MR MOORE: And indoor staff, what class of staff are they?---Well, your office-based staff would probably - do you mean - - -
PN855
Office-based staff, are they?---Yes.
PN856
Are you able to give the tribunal any indication of the number of staff members who have spoken to you about Smart Net from that indoor area?---No, I couldn't.
PN857
What has been expressed to you by members in relation to the training aspect of Smart Net?---That it's an unfair process.
PN858
What aspect is said to be unfair?---The type of training provided, and for those that can actually Smart Net if you're not in the office space areas.
PN859
Could you just repeat that. In what way is training in relation to Smart Net said to be unfair?---For those that actually have access to the training to get onto the Smart Net system. So you have to have access to a computer to be able to access the training provided on Smart Net.
PN860
So it's not training in relation to Smart Net per se. It's to do with access to training provided through Smart Net?---And if you have had training with Smart Net.
PN861
Does the union distinguish between its membership in the indoor and outdoor area?---Can you elaborate on that?
PN862
Well, you've referred to membership in indoor - that's office-based members - and there are members who are not office-based?---Yes.
**** MELISSA GAIL WAINWRIGHT XN MOORE
PN863
What sort of occupations are they involved in?---We would offer refer to as "white collar" and "blue collar", outdoor workers being those in the depot predominantly and office workers being indoor, and then you have everyone in between, being (indistinct) and supervisors who we would classify as outdoor, and - yes. That's it.
PN864
The members who work in the depot, what sort of jobs do they?---Anywhere from bush land crew, replanting trees, it could be road maintenance, mechanics and then you have some indoor workers as well.
PN865
Those outdoor workers that you've just described in the depot, do you have dealings with them?---Yes.
PN866
Do they work with computers in undertaking their work?---No.
PN867
Now, have you been to the Ringwood Aquatic Centre?---Yes, I have.
PN868
Do you have members there?---Yes, we do.
PN869
Do you know how many staff work there?---Off the top of my head, no. It has been a little down since the closure of the Ringwood Aquatic Centre so the numbers have changed.
PN870
The closure of the Ringwood Aquatic Centre?---It's about to close on 30 June so there has been a decrease in staff over the past six or so months.
PN871
Do you know if there's computers and related infrastructure in the aquatic centre there?---I believe there's a computer in the tea room and one that would be at the front desk as you walk in.
**** MELISSA GAIL WAINWRIGHT XN MOORE
PN872
Have members spoken to you about the state of those computers?---Yes. There was a member that spoke to me about the computer not working in the past two to three months of the past year. I believe that was from the December period.
PN873
Do you know if meetings occurred with staff at the Ringwood Aquatic Centre in relation to the agreement?---No meetings occurred to my knowledge.
PN874
You're saying that no meetings occurred to your knowledge?---No meetings occurred.
PN875
Now, you mentioned school crossing supervisors before. Have you had anything to do with your members who work in that area?---Yes. We have a few members in the school crossing area. However, we have spoken to a few school crossing supervisors when they had a training day earlier this year.
PN876
What's the general work arrangements for school crossing supervisors?---As far as I know, they don't have an office space. They literally leave from home, go to the crossing that they've been dedicated to, work on the crossing in the morning and again in the afternoon.
PN877
They don't work in school holidays?---No, that's right.
PN878
Do you have any knowledge as to how school crossing supervisors would access Smart Net?---No, they wouldn't.
PN879
Do you know how many school crossing supervisors there are approximately?
---I'll say approximately 150.
PN880
Do you have any knowledge about their age, generally speaking?---It's generally above 45 years of age; retirees.
**** MELISSA GAIL WAINWRIGHT XN MOORE
PN881
Retirees, did you say?---Generally.
PN882
Do you have any impression about the level of education and literacy of people working in that area?
PN883
MR McNAB: That is an objectionable question in my submission to put that generally.
PN884
MR MOORE: I think my friend produced the very same evidence through his witness statements.
PN885
MR McNAB: No. That was particular evidence having regard to particular levels of qualification required among particular employees. This is just a very general question.
PN886
THE DEPUTY PRESIDENT: About school crossing - - -
PN887
MR McNAB: Yes.
PN888
MR MOORE: My friend adduced evidence, as I recall it, about the level of literacy of gym instructors and the like. I'm just asking the same question in relation to a different group of employees.
PN889
THE DEPUTY PRESIDENT: Yes.
PN890
MR MOORE: From your work as an organiser, have you formed any impressions about the level of education and literacy of people who work as school crossing supervisors?---I would say in the group of school crossing supervisor there would be low literacy.
**** MELISSA GAIL WAINWRIGHT XN MOORE
PN891
What's the basis of that observation?---That they been out of schooling for quite some time or not gotten back into studies. And I guess it depends on the various jobs. Some would have high literacy skills, but very few.
PN892
Have any school crossing supervisors spoken to you about the agreement since it was voted up?---Not since it was voted up.
PN893
Before it was voted?---Before it was voted.
PN894
What did they speak to you about in relation to the agreement?---That they had no idea that the major leisure facility staff were not going to be receiving an increase, and that Karralyka staff would be getting a reduced increase. And one comment was made that they believed that they had been told that the agreement didn't even pertain to them, that the agreement wasn't even - had anything to do with their conditions of employment.
PN895
When were these views expressed to you?---It was two days, three days before the vote was actually going to happen, so around about 14, 15 February, and that was the training day of the school crossing supervisors.
PN896
Are you able to say how many of the supervisors expressed that view to you?---I spoke to at least 30.
PN897
Now, in your work as an organiser, do you have anything to do with family daycare workers?---Yes, I do.
PN898
How many family daycare workers, to your knowledge, are employed by the council?---15 at the moment.
PN899
Form your work as an organiser and dealing with family daycare workers, have you formed any impression about the level of education and literacy of family daycare workers?---Yes. Low literacy again. Predominantly, family daycare was set up for home-based childcare. Until regulations came in, there has now been a minimum level of certificate III that they must possess. So again, they've only just gone through a bit more (indistinct) of regulations - qualifications.
**** MELISSA GAIL WAINWRIGHT XN MOORE
PN900
Is there a depot at Maroondah or a number of depots where the depot staff work?
---There's just the one depot that I know of.
PN901
And approximately how many employees work there?---I believe there's around 80 outdoor staff and approximately 20 indoor staff.
PN902
You gave some evidence before about the fact that, unsurprisingly, the outdoor staff don't work with computers. Insofar as they wanted to access the computer - for example, to get onto Smart Net - how would they go about that, in your experience?---They would have to ask a manager to get onto the computer. I believe there are three computers within the tea room, but no-one that I know has had the training to access the Smart Net system or that there isn't even an icon of Smart Net on there.
PN903
Have you formed any impression about the level of literacy and education of the outdoor workers in the depot?---Yes. There is low literacy. We're looking at a - - -
PN904
Sorry. I missed your - - -?---Sorry. Yes, there would be low literacy definitely. It is known to have low literacy levels in depots, simply because of the schooling level and the trades and all that kind of qualifications to enter into depots.
PN905
Do you know approximately the number of casual staff employed at Karralyka who are members of the union?---The number of casual staff employed at Karralyka who are members of the union.
PN906
That's correct. That's the question?---Approximately seven.
PN907
Was that the membership number - does that remain the approximate membership number in the last six months?---Yes.
**** MELISSA GAIL WAINWRIGHT XN MOORE
PN908
Thank you, your Honour. Nothing further.
PN909
THE DEPUTY PRESIDENT: Thank you.
<CROSS-EXAMINATION BY MR McNAB [3.30PM]
MR McNAB: Ms Wainwright, have you gone to the intranet system at the council?---No.
PN911
So you don't know how difficult or easy it is to use?---No.
PN912
You haven't done any survey of literacy within any of the areas that you've given evidence about?---The union has never done an electricity survey, no.
PN913
The computers - you say that there were three computers in the team room at the depot?---Mm'hm.
PN914
You haven't accessed those computers?---No. It was raised in a consultative committee - - -
PN915
I'm just asking whether you've used those computers, and you haven't?
---(indistinct)
PN916
Are you aware that a copy of the agreement was placed at the depot?---I believe so.
PN917
It's the case that employees at the Ringwood Leisure Centre were invited to attend a meeting which was conducted at the Croydon Leisure
Centre on 13 December?
---No, they weren't.
PN918
You were aware that meetings were conducted at the Croydon Leisure Centre on 13 December?---December - - -
**** MELISSA GAIL WAINWRIGHT XXN MCNAB
PN919
2011?---No, December doesn't ring a bell for a meeting at CLAC, no.
PN920
So you didn't attend a meeting on that day?---No.
PN921
Are you aware that Mr Bishop met - had two meetings with school crossing supervisors on 28 February?---No.
PN922
So that wasn't raised with you?---No.
PN923
Are you aware that there was a meeting of - an invitation sent out to casual employees of the Karralyka reception facility - that facility to attend a meeting in relation to the terms of the proposed agreement in November 2011?---No.
PN924
Has it been reported to you that casual employees attended the meeting in November 2011 with Mr Cox and Ms Gay?---Where at, sorry?
PN925
At Karralyka Centre?---No.
PN926
You gave evidence that the crossing supervisors had, in your words, "no idea about the Karralyka stuff"?---Their lack of pay increases. That's right.
PN927
Did they indicate that they were aware that there was going to be a vote on the EBA?---They were aware there was going to be a vote because they had received their ballot papers and they were three days out from when the ballot paper had to be in on 17 February.
PN928
Did you ask them whether they'd received the information which had been sent out with their pay slips?---I did.
PN929
They responded that they had?---It was conflicting. Some said they did, some said they didn't. All - the time frame around when they received that information was conflicting.
**** MELISSA GAIL WAINWRIGHT XXN MCNAB
PN930
So some received it earlier in February and some received it a little later in February?---Yes, some couldn't remember.
PN931
No further questions.
PN932
THE DEPUTY PRESIDENT: Thank you for your evidence. Sorry, no. Any re-examination?
PN933
MR MOORE: If I may.
PN934
THE DEPUTY PRESIDENT: Of course. I'm sorry.
PN935
MR MOORE: I'll be brief.
<RE-EXAMINATION BY MR MOORE [3.35PM]
MR MOORE: Ms Wainwright, you gave evidence just a moment ago in relation to the conversations with school crossing supervisors and you said, I think, that there were conflicting statements about whether they had received information with their pay slips. Do you want to clarify what you mean by that?---When we asked if they had received some information around the first week of February, some couldn't remember getting any information. I had a school crossing supervisor tell me that they received an update on 15 February and had received nothing around the start of February and that they had little or no idea about the actual enterprise agreement within itself.
PN937
You gave some evidence earlier about the computers in the tea room at the depot and you told my friend that you hadn't personally accessed those computers. If that's so, what is the basis of your knowledge in relation to those computers?
PN938
MR McNAB: This is examination-in-chief masquerading as re-examination or indeed cross-examination. I object to it.
**** MELISSA GAIL WAINWRIGHT RXN MOORE
PN939
MR MOORE: Well, I think it goes like this, your Honour: I asked the witness, in chief, some questions about the access of outdoor depot staff to computers. The witness, in answer to that question, gave evidence, including that there were three computers in the team room, but that - I think she said they didn't have a Smart Net icon on them. Now, my friend cross-examined about that and elicited from the witness evidence to the effect that she'd not used those computers. I'm entitled, by way of re-examination, to take the witness back to that evidence, which I've just done, and to ask her then what is the basis of her knowledge in relation to those computers.
PN940
THE DEPUTY PRESIDENT: Yes, I'll hear the answer, thank you.
PN941
MR MOORE: Would you like me to repeat the question?---Yes, please.
PN942
You gave evidence in answer to a question from my friend that you'd not accessed the computers in the tea room at the depot. If that's so, what is the basis of your knowledge in relation to those computers?---Well, I would personally have no reason to access the computers. Having said that, I would need login details if I was going to access the computers onto Smart Net or whatnot.
PN943
I think you misunderstand my question. What is the basis of your knowledge to give evidence about those computers if you've not accessed
them yourself?
---Well, the basis of my knowledge would be from members that have tried to access it and/or haven't been successful or just been
out of operation.
PN944
No further questions, your Honour.
PN945
THE DEPUTY PRESIDENT: Thank you for your evidence.
<THE WITNESS WITHDREW [3.38PM]
MR MOORE: Your Honour, I have one more witness but she may be occupied. That is, the witness is Ms Jackson. I think she might be in the other matter. She's at hand, I believe.
PN947
THE DEPUTY PRESIDENT: All right, good.
<MICHELLE JUNE JACKSON, AFFIRMED [3.39PM]
<EXAMINATION-IN-CHIEF BY MR MOORE [3.40PM]
MR MOORE: Could you please re-state your full name and work address for the tribunal?---Michelle June Jackson, (address supplied).
PN949
Your occupation?---Lead organiser.
PN950
Of the ASU?---Of the ASU.
PN951
How long have you been with the ASU?---Almost 10 years.
PN952
Have you had involvement in the negotiations for a new agreement at Maroondah City Council?---Yes.
PN953
What was the nature of your involvement?---I was on the negotiating team for the ASU.
PN954
Are you able to give the tribunal an estimate of the total membership numbers at the council?---Around 168.
PN955
Is that the membership number at the present time?---I believe that's the membership number at the present time. It does fluctuate. Would that be an accurate reflection of the membership numbers in the preceding six months?---It would be between 150 to 170.
PN956
You're aware that the union has filed contentions in this proceeding which advance the position that certain elements of the agreement have the effect that the employees propose to be bound by it will not be better off overall?---Yes.
PN957
You're aware of this thing called the BOOT test?---Yes.
**** MICHELLE JUNE JACKSON XN MOORE
PN958
You're aware of the union's position in respect of the contention that the agreement does not pass the BOOT test?---Yes.
PN959
You're aware, are you, that the better off overall test operates by reference to the Victorian Local Authorities Award 2001 and also the Nurses' ANF Local Government Award 2002?---Yes.
PN960
Do you have a good familiarity with the first of those awards, being the Victorian Local Authorities Award 2001?---Yes.
PN961
Is it fair to say that your concerns about whether the agreement passes the BOOT test centre around schedule 11 of the agreement relating to major leisure facilities?---Yes, that would be correct.
PN962
Have you got a copy of the agreement with you?---No, I don't.
PN963
I will help you out there; just bear with me for a moment.
PN964
Your Honour, I propose to ask the witness some questions about the agreement and in particular, schedule 11 of it.
PN965
THE DEPUTY PRESIDENT: Of the agreement?
PN966
MR MOORE: Yes, as well as the award. So I'm handing to the witness now a copy of the agreement, which is SB3. Part B of the agreement, which is the Victorian Local Authorities Award - - -
PN967
THE DEPUTY PRESIDENT: What part of the award are you going to be referring to in particular?
**** MICHELLE JUNE JACKSON XN MOORE
PN968
MR MOORE: Maybe a number of provisions of it. I'm just going to ascertain if we have another copy of it.
PN969
THE DEPUTY PRESIDENT: I've got a copy of the award. I've got it in hard copy and online.
PN970
MR MOORE: You don't need any more copies of it.
PN971
THE DEPUTY PRESIDENT: Thank you.
PN972
MR MOORE: If you go to schedule 11 of the agreement, have you got that in front of you?---Yes, I have, thank you.
PN973
What I'd like you to do is to explain to the tribunal by reference to the provisions in schedule 11 of the agreement and, if necessary, the provisions of the award which I've also just handed to you, if you need to refer to it, how you say that the agreement, and in particular schedule 11, does not pass the BOOT test?---If you go to - the first part of it is clause 5.2 of schedule 11, pool (indistinct) employees. What that says is that all overtimes taken as time in lieu - so it says, "All overtime must be agreed by the relevant line manager and as agreed between the employee and the line manager. Time in lieu equivalents to one and a half times the amount of time worked may be accrued in lieu of payment for overtime." We don't believe that that specifically spells out that the award entitlement is for payment of overtime rather than time in lieu.
PN974
Just pausing there, your position there is that that is inferior to the award entitlement, is it; what is the award entitlement?---It is inferior to the award entitlement. There are two different award entitlements that apply. There are two types of employees: there are physical/community services employees - bands 1 to 5 - and there are employees that are called other than physical/community services employees, bands 3 to 8. Both of these types of employees are engaged in the major leisure facilities. The overtime provisions are award clause 34.2 and 34.3.
**** MICHELLE JUNE JACKSON XN MOORE
PN975
Just wait one moment. Yes?---So for other than physical/community services employees, which is clause 34.2, the overtime provisions are time and a half for the first three hours and double time thereafter, double time on Sundays and double time and a half on a public holiday. For clause 34.3, which are the physical/community services employees - band 1 to 5 - they are time and a half for the first two hours and double time thereafter, Monday to Saturday noon inclusive, double time afternoon on a Saturday, double time all day Sunday and double time and a half on a public holiday.
PN976
THE DEPUTY PRESIDENT: You've got the award there, have you?---Yes, your Honour.
PN977
What does 34.2.13 deal with, then?---Sorry?
PN978
34.2.13. That's in recreation centres, I see. That's TOIL. That doesn't deal with the areas that you're speaking of, does it?---It does in relation to the other than physical/community services employees, but not the physical/community services employees. What I'm saying with that clause, 5.2, is it says that time in lieu is by agreement but it doesn't give another option for payment.
PN979
MR MOORE: If we could move on to the next issue you wish to raise in relation to the BOOT and schedule 11?---The next issue is clause 5.3, part-time employees. This clause says that, "Any hours worked for a part-time employee will be paid at the ordinary rates of pay up to 76 hours per fortnight." Clause 15.3 of the award - - -
PN980
Clause 15.3, entitled part-time employment, yes?---15.3.1(e) says that "overtime will be payable for all work performed before or after the agreed hours or outside the spread of hours."
**** MICHELLE JUNE JACKSON XN MOORE
PN981
Do you have any other concerns in relation to the BOOT?---I do, sorry. I'm just reading through them.
PN982
Please take your time?---The next one is 5.7, sessional instructors and personal trainers.
PN983
Yes?---It says that sessional instructors and personal trainers will be engaged on a flat, all-inclusive rate per session and then if you go further to - it's section B of schedule 11 - it talks about sessional instructors. If you go to B4, it says - - -
PN984
Sorry, is it on page 69; is that right?---Yes, on page 69. B4. It says that "the sessional rates of pay are deemed to be an all-inclusive rate which includes payment for conducting each session in addition to all required session research, planning, preparation, setup activities and pack-up activities." Then if you go to B6, nominal session duration, it says that "the minimum length of a group fitness session will be 60 minutes and that the minimum length of a personal training session will be 30 minutes." There are no maximum lengths set for these sessions. So if you go to the pay rates on the next page, which is B8, these pay rates may appear to be generous, but they also include, although it's not specifically stated in the appendix - but I'm advised that they also include the 25 per cent casual loading, and given that there is no maximum length for a session, it's impossible to really tell whether they meet the BOOT or not. Clearly, if that's the rate of pay for one hour, they would meet the BOOT, but if that's the rate of pay for three hours, then they wouldn't meet the BOOT.
PN985
THE DEPUTY PRESIDENT: Doesn't that say that, 30 minute session, 60 minute session?---In B6, your Honour?
PN986
No, table 2?---Sorry?
**** MICHELLE JUNE JACKSON XN MOORE
PN987
I thought you pointed me to table 2, the sessional rates?---Yes.
PN988
Doesn't that identify the time period and the rate for that time period?---But if you go back to B6, your Honour, it says that the minimum length of a group fitness class will be 60 minutes duration. The minimum length for a personal training session will be 30 minutes in duration. Then if you further go back to B4, where it says that it includes all research, planning, preparation, setup and pack-up activities - - -
PN989
I understand that point, but the point that you're making is that if you take a personal training 30 minute session at 1750, for example, that's to include the 30 minutes plus all the preparatory work?---Yes, and B6 is clear where it says it's a minimum length of 60 and 30 minutes, which is not clear in table 2. It just says 30 and 60, so they contradict each other.
PN990
You wouldn't see that if they went to 40 minutes they'd be into their second 30-minute session?---Well, you may be able to argue that, but I'm sure the employer would then pull this agreement out and say, no, the minimum length is 30 minutes in duration.
PN991
I see the point that you're making. It's an abundance of caution, is it?---Yes. Now, if we go back to - sorry, I'm jumping all over this agreement, but this agreement does jump all over the place - section A again. In clause number 6, hours of work - - -
PN992
MR MOORE: I'm sorry, you're referring here, Ms Jackson, to the body of the agreement?---So in schedule 11, number 6, hours of work.
PN993
On page 64?---On page 64. If w can go down to 6.4, the maximum of days per fortnight.
**** MICHELLE JUNE JACKSON XN MOORE
PN994
THE DEPUTY PRESIDENT: Could I just ask you to pause a minute, I'm sorry. Did you give me a reference to the relevant award clause in relation to sessional instructors?---The award clause.
PN995
Yes, the comparator?---Well, I believe they would be covered by 33.1.
PN996
No, the rates. What's their classification?---The employer has not provided that information.
PN997
What would you say their classification would be under the award?---I'd say their classification would be a minimum band 3.
PN998
Please go on?---Clause 6.4, "Employees may be rostered to work up to a maximum of 10 days per pay fortnight at ordinary rates of pay, however this number of days per pay fortnight can be increased up to a maximum of 12 days per pay fortnight at ordinary rates of pay if an employee applies to council and council approves the application." Now, there are a number of provisions that could apply to staff in this schedule and it depends on how the employer decides to employ them. Award clause 33.1 is the default position. So clause 33.1 says that the spread of hours is 6 am to 6 pm, Monday to Friday and it - sorry, I'm just trying to find it in here. Firstly, clause 33.1 talks about - the hours are 6 am to 6 pm, Monday to Friday. So you can clearly only work five days a week under that arrangement at ordinary rates because Saturday and Sunday would be penalty rates. That's in clause 33.1. There are other provisions that can be applied to these staff. Now, for other than physical/community services employees - bands 3 to 8 - the employer could use clause 33.13, which says that "an employee can work 38 hours per week in any five days of not more than eight hours per day at ordinary rates."
PN999
MR MOORE: I'm sorry to interrupt you. Is that clause 33.13 - - -
**** MICHELLE JUNE JACKSON XN MOORE
PN1000
THE DEPUTY PRESIDENT: Point 1.13?---33 point - - -
PN1001
1.3?---No, 33.13.
PN1002
What about 33.1.3. Isn't it right that in local government under this award, you can average ordinary hours over any days?---It's not ordinary that you would average ordinary hours over 12 days.
PN1003
No, but you can do it over the seven days by agreement?---You can average it, but it's not usual to work six out of seven days is the point that I'm making.
PN1004
So it's the length; not the attraction or otherwise of penalty rates?---Well, what I'm saying is you can usually work five out of seven days at ordinary rates, but not six out of seven days at ordinary rates.
PN1005
I follow?---The sixth and seventh day usually attract penalties, no matter which provision of the award you use.
PN1006
Or what day it is?---Or what day it is.
PN1007
Would you excuse me for another five minutes. I'll just adjourn. It won't take me long, so don't disperse; I'll come back in a moment.
<SHORT ADJOURNMENT [4.01PM]
<RESUMED [4.12PM]
PN1008
THE DEPUTY PRESIDENT: Thank you for that consideration. I can only say to you that if anybody is planning on using a public facility on the weekend, I wouldn't bother.
PN1009
MR MOORE: Thank you for that heads up. Ms Jackson, I think, before the break, you were giving evidence in relation to clause 6.4 of schedule 11 of the agreement and then how it compared, as it were, to the award provisions. I think, before we broke, you were referring the tribunal to clause 33.13 or 33.1.3?---I know this becomes really confusing. The default provision is 33.1, standard engagement, but then there are other provisions that can be used, such as clause 33.13. That can be - - -
**** MICHELLE JUNE JACKSON XN MOORE
PN1010
MR McNAB: If I can make an objection and, in effect, a submission. What the witness is doing in the witness box now is in fact not giving evidence, but, really, making submissions or contentions from the witness box. What the clause means and how it compares with the award is a matter that has to be decided by the tribunal. Now, Mr Bishop was in the witness box and none of these matters were put to him so that he could give an explanation as to how it worked. Many of the matters that are being raised have not been raised in the contentions which were filed on behalf of the respondent. So in terms of how the matter proceeds - in my submission, it's pointless having the witness simply sitting in the witness box making submissions. If there are direct submissions on the BOOT test, they should be put clearly so that submissions can be made in reply. I can ask this witness questions about, in particular, say, clause 5.2 and the effect of those questions would be that she's fundamentally misunderstanding what the plain words of the agreement say. But that's to little effect, really, because it's in the nature of the submissions through cross-examination. What her view is in evidence is not going to be determinative of whether it passes the test or not. So in my submission, I don't want to drag this matter out, but I think the more appropriate way to deal with it is to put a clear, comprehensive and comprehensible submission as to the operation of the agreement; from their point of view, the operation of the proposed agreement versus the awards, and then the employer can then make a sensible response. Now, many of the things have been dealt with in the applicant's submissions already, but if one looks at the contentions which were filed by the respondent, there's reference to, in paragraphs 7 through 9, percentage rates and the like - 13 and 14, likewise - none of which are comprehensible and it's likely that the matter is divided into two parts: whether, in fact, the employees have had a proper opportunity to - whether it's a fair vote and secondly, whether it passes the BOOT test. I think it's probably better to deal with it all in one, but you understand the submission I - - -
PN1011
THE DEPUTY PRESIDENT: Yes, I do. Mr Moore?
**** MICHELLE JUNE JACKSON XN MOORE
PN1012
MR MOORE: Your Honour, these matters are complex and if the union is endeavouring to adopt a practical approach to these issues - I well understand that the evidence is giving from the witness box is evidence in the nature of something that might reasonably be described as a contention about the operation of the provisions of the agreement. I don't shy away from that. However, these provisions are complicated and, for my part, I think the witness's evidence to date has cast real light on how these provisions operate so that the applicant is fully on notice about how these arguments and propositions are put. It's not a question of me having to have put these matters to Mr Bishop because these are, as my friend points out, ultimately matters for submission. It seemed to me, however, that in the circumstances of this case, the most direct way home was for Ms Jackson, with a lot of knowledge about how these provisions work, to articulate it from the witness box. Now, this is a tribunal; it's not a court. It's a practical approach, your Honour. We reject the submission that adequate notice hasn't been given of the general issues that the respondent union seeks to raise. The issues have been identified in a general way and with some specificity in the contentions. Now the witness is elaborating upon that and articulating, in a considered and meaningful way, how the BOOT test is unable to be complied with - it hasn't been complied with in the circumstances of this case. Now, it's a matter for submissions hereafter, your Honour, but I am not sure what my friend's point is, ultimately, when he gets to his feet, as to whether or not he's making just a general complaint or whether or not he's objecting to the continuation of the evidence. If it's the latter, we'd submit that that's really an inappropriate course and that there's nothing that makes this course of evidence disallowable. It's a course which, in my submission, is a practical way to grapple with what are complex issues which are ultimately matters of construction and submission around the provisions of the agreement and the award.
PN1013
THE DEPUTY PRESIDENT: Thank you. There might be another way of dealing with it, and I'd invite your observations, Mr McNab and Mr Moore. That is, we could always adjourn the matter into conference to have a discussion to see whether or not there is an understanding as to the factual circumstances between the parties without going into views about what the agreement might or might not mean, but about the factual circumstances, because I do note - I think it's in your submission, Mr McNab, that to the extent that something is found to be necessary for an undertaking, a certain undertaking will be given if it can be. Now, it may well be that a discussion can give you some notice as to whether or not it is worthy of giving an undertaking. Now, I only put that - I understand the practical way in which Mr Moore seeks to deal with this, by going to the actual agreement. It can be done by way of submission, but I'm happy to, either with the parties by themselves or even me presiding over a conference, go through the issues which are being agitated as not passing the BOOT test to see whether or not we can narrow those issues at all. Do you want a couple of minutes to think about that?
**** MICHELLE JUNE JACKSON XN MOORE
PN1014
MR MOORE: Yes, your Honour.
PN1015
MR McNAB: Thank you.
THE DEPUTY PRESIDENT: I'll adjourn for five minutes.
<THE WITNESS WITHDREW [4.21PM]
<NO FURTHER PROCEEDINGS RECORDED [4.21PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #A1 OUTLINE OF CONTENTIONS PN77
STEVEN MARK BISHOP, AFFIRMED PN82
EXAMINATION-IN-CHIEF BY MR MCNAB PN82
EXHIBIT #A2 OUTLINE OF EVIDENCE OF STEVEN MARK BISHOP PN123
EXHIBIT #A3 MINUTES OF MEETING DATED 08/12/2011 PN153
CROSS-EXAMINATION BY MR MOORE PN160
RE-EXAMINATION BY MR MCNAB PN337
THE WITNESS WITHDREW PN399
CRAIG IAN HESKETT, SWORN PN404
EXAMINATION-IN-CHIEF BY MR MCNAB PN404
EXHIBIT #A4 STATEMENT AND ATTACHMENT OF CRAIG IAN HESKET DATED 14/05/2012 PN442
CROSS-EXAMINATION BY MR MOORE PN443
RE-EXAMINATION BY MR MCNAB PN503
THE WITNESS WITHDREW PN512
IVY CECILIA FELL, AFFIRMED PN521
EXAMINATION-IN-CHIEF BY MR MOORE PN521
CROSS-EXAMINATION BY MR MCNAB PN555
RE-EXAMINATION BY MR MOORE PN618
THE WITNESS WITHDREW PN620
KRISTIN LAVRANS, AFFIRMED PN624
EXAMINATION-IN-CHIEF BY MR MOORE PN624
CROSS-EXAMINATION BY MR MCNAB PN659
RE-EXAMINATION BY MR MOORE PN676
THE WITNESS WITHDREW PN677
DENISE MERRILL PARKS, SWORN PN679
EXAMINATION-IN-CHIEF BY MR MOORE PN679
CROSS-EXAMINATION BY MR MCNAB PN762
RE-EXAMINATION BY MR MOORE PN813
THE WITNESS WITHDREW PN814
MELISSA GAIL WAINWRIGHT, AFFIRMED PN818
EXAMINATION-IN-CHIEF BY MR MOORE PN818
CROSS-EXAMINATION BY MR MCNAB PN910
RE-EXAMINATION BY MR MOORE PN936
THE WITNESS WITHDREW PN946
MICHELLE JUNE JACKSON, AFFIRMED PN948
EXAMINATION-IN-CHIEF BY MR MOORE PN948
THE WITNESS WITHDREW PN1016
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