AG2012/3865, Transcript of Proceedings [2012] FWATrans 610 (4 June 2012)

TRANSCRIPT OF PROCEEDINGS

---

Fair Work Act 2009 1033744-2

SENIOR DEPUTY PRESIDENT RICHARDS

AG2012/3865

s.185 - Application for approval of a single-enterprise agreement

Application by Queensland Pre-Stressing Pty Ltd
(AG2012/3865)
Queensland Pre-Stressing Pty Ltd Enterprise Agreement 2011

[AE892921 Print PR522031]]




Brisbane

10.07AM, MONDAY, 28 MAY 2012

Continued from 24/05/2012

PN1604

THE SENIOR DEPUTY PRESIDENT: Good morning, everyone. Please take a seat. Welcome to day three. Do we have any housekeeping to deal with?

PN1605

MR REIDY: Just one. It's a correction to transcript I've raised with Mr Crank. It's fairly minor, but on the fourth page - although it's easier to identify it at PN1009, PN1001 [sic] and PN1013 there are various comments - statements attributed to Mr Crank. They were in fact each made by me.

PN1606

THE SENIOR DEPUTY PRESIDENT: Sorry, these are paragraphs - can you indicate that again?

PN1607

MR REIDY: PN1009, PN1011 and PN1013. They should have my name, not Mr Crank's.

PN1608

THE SENIOR DEPUTY PRESIDENT: Okay. We'll have those amended, then.

PN1609

MR REIDY: Other than that, I call my next witness.

PN1610

THE SENIOR DEPUTY PRESIDENT: Okay. Nothing for you, Mr Crank?

PN1611

MR CRANK: No, thank you.

PN1612

THE SENIOR DEPUTY PRESIDENT: Good, thank you.

PN1613

MR REIDY: I call Declan Hartley.

PN1614

THE ASSOCIATE: Mr Hartley, please state your full name and address for the tribunal.

PN1615

MR HARTLEY: Declan Joseph Hartley, (address supplied).

<DECLAN JOSEPH HARTLEY, AFFIRMED [10.09AM]
<EXAMINATION-IN-CHIEF BY MR REIDY [10.09AM]

PN1616

MR REIDY: Could you tell his Honour your full name?---Declan Joseph Hartley.

PN1617

Who do you work for?---QPS, Queensland Pre-Stressing.

PN1618

How long have you worked in that occupation?---Approximately eight years.

PN1619

Have you been a member of the Builders Labourers Federation?---Yes, I have.

PN1620

Do you recall being involved in a negotiation for an agreement in about 2006?
---Yes, I do.

PN1621

What was your role in that?---I was a workers' representative.

PN1622

In that capacity as workers' representative what did you do?---Negotiated an EBA basically between our employer and the men, going back and forth with information.

PN1623

So far as the negotiations were concerned, what did you do in regard to the conduct of negotiations? What was your role?---Main role was speaking with our employers and employees, negotiating terms and conditions that the workers required; speaking to our bosses; arguing any points that needed to be argued if the workers weren't happy.

PN1624

Then do you recall during the course of last year some discussions about a further EBA?---Yes, I do.

PN1625

What was your role in that?---Same role, I was the workers' representative. The men asked me to do the representation for them.

PN1626
**** DECLAN JOSEPH HARTLEY XN MR REIDY

Okay. Do you recall any contact that you had with the BLF in the early phases of negotiating that agreement?---Very early in the piece I contacted the union for a copy of their EBA so that I could give that to our bosses and say we had a model to go off to start with.

PN1627

What did you do in relation to that?---Contacted the union office and asked if I could come in and get copies of the new EBA that was coming out, and they said I could come in and pick up copies. I got three copies; one I kept myself, one I gave to one of our other representatives, and also one to QPS.

PN1628

Who did you give the copy to at QPS?---Phil Gray.

PN1629

I'll just have that document turned up. Subsequent to that, were you involved in further negotiations at QPS?---At a later stage. That was months prior that I first handed the EBA in.

PN1630

Okay. I want to take you to the latter part of last year?---Mm'hm.

PN1631

Do you recall in the process of the negotiations of the EBA and its lodgement that there was an EBA lodged and was withdrawn?---Yes, I'm aware of that.

PN1632

Were you involved in negotiations prior to the withdrawal of that EBA?---Yes.

PN1633

Could you have a look at this document. Just look through it carefully. Can you say whether you recognise this document?---Yes, this looks like the document that I first got from the union office.

PN1634

And this is the one you gave to Mr Gray?---Yes.

PN1635

If you go to the third page of that document you'll see an invoice. Do you see that?---Yes.

**** DECLAN JOSEPH HARTLEY XN MR REIDY
PN1636

Do you see there's a date on that invoice. Does that assist you as to when you might have picked that document up, or does it not?---I can't recall, but I know it was months and months prior to the negotiations, that I picked it up.

PN1637

I tender that document. I think we might be up to 19.

PN1638

THE SENIOR DEPUTY PRESIDENT: A19.

EXHIBIT #A19 COPY OF EBA AND INOVOICE FROM UNION OFFICE

PN1639

MR REIDY: If I can use this expression for the agreement that was subsequently withdrawn, I'll refer to that as the first phase, just simply to get timing?---Yes.

PN1640

And then the second phase for the agreement which is currently before Fair Work Australia. In relation to the first phase, you said you were a bargaining representative. Can you describe the process by which you became a bargaining representative for that phase?---Best way to describe it is nobody else really wanted to do it, so most of the men got together and asked me to do it because I'd done it in the past. So there was no form or vote, but it was basically word of mouth from the men who've asked me to continue doing it.

PN1641

Okay. You've also said that there was a process of discussion, I think, that occurred in relation to that phase?---Yes.

PN1642

Were you involved in those discussions?---Yes, I was.

PN1643

At what level were you involved in those discussions?---Who did you have the discussions with?---Phil Gray, Paul Costello, myself, Michael Turner and Joe Sweeper were the other two representatives.

**** DECLAN JOSEPH HARTLEY XN MR REIDY
PN1644

Were there other people with whom the content of the agreement was discussed by you?---Outside of those meetings I discussed with all the other employees.

PN1645

From those discussions with employees, what were the major issues that you recall in that first phase being raised?---The first phase, the main issue were rostered days off and also allowances; they needed to be made more clearer to the men, what they meant. And also living away from home was one of the issues as well.

PN1646

Do you recall anything being done in that first phase in regard to giving information to employees about the agreement?---I had a copy of the - basically a draft of the EBA that our workers put together, so I took a copy of that with me. We had the men read it. I kept it with me at all times, if they needed to look through things. Some men came back with issues they'd want to change, so I'd have to make notes so I could take it back to the bosses, basically.

PN1647

Okay. Apart from those efforts on your part, do you recall any other things that were done, for example, by the employer?---They discussed on length with us a lot of the details; also coming out, having meetings, seeing the men on site as well to discuss issues, if they had more issues to discuss. So they were actively working on the EBA to come to a solution with everyone.

PN1648

Based on your discussions with fellow employees in that first phase, did you form a view about the level of understanding of the agreement that went to Fair Work Australia at that time?---Yes. A lot of - - -

PN1649

MR CRANK: Objection, your Honour. The witness's opinion is not relevant. He's not an expert witness. He's just here to give evidence about what he heard or saw, et cetera.

PN1650
**** DECLAN JOSEPH HARTLEY XN MR REIDY

MR REIDY: He can give evidence as a bargaining representative - he's speaking to fellow employees - and observe in relation to those - and it's just an observational piece of evidence that he's asking for.

PN1651

THE SENIOR DEPUTY PRESIDENT: Can you just ask the question again so I can re-hear it and just listen.

PN1652

MR REIDY: What did you observe in regard to the level of understanding of other employees about the agreement by the time it was voted on in the first phase?

PN1653

THE SENIOR DEPUTY PRESIDENT: Just on the question there, we'll hear the answer, Mr Crank, but your objection has some substance to it. As to the weight I can possibly give to his answer, it will be impressionistic at best, absent any other degree of qualification?---In my opinion the men had a good understanding of the EBA.

PN1654

MR REIDY: To put the question another way, did anyone approach you and make any comment about their lack of understanding of it?---Yes, on a few occasions some of the men, before it was finalised, needed it to be explained clearer to them.

PN1655

And in the latter phases?---Everyone was happy with the understanding. Always asked, "If there's any questions, you need to ask us now. If you don't understand anything, please ask us."

PN1656

Do you recall then the second phase - and I might just take you to exhibit A2 - taking you to a point of time after the first agreement was withdrawn?---Mm'hm.

PN1657

Do you recall what happened then? After that was withdrawn?---After it was withdrawn we were contacted by Phil and Paul to explain the situation, what was going, and what needed to be changed in the agreement - certain wordings. As we saw it, it was what was wrong with the first agreement.

**** DECLAN JOSEPH HARTLEY XN MR REIDY
PN1658

When you say "we were contacted", how did that information get conveyed?---By phone.

PN1659

Was there any other - can you have a look at that document - there are two documents?---Yes.

PN1660

Do you recall the occasion on which you saw those documents?---That was mailed out to us.

PN1661

Okay?---Originally we were told just by phone and then - - -

PN1662

If you have a look at a document, "Appointment", I think it has at the top of it. Do you see that?---Yes.

PN1663

Do you recall any meeting in the yard in the latter part of last year?---Yes, I do recall a meeting in the yard.

PN1664

Can you tell his Honour what happened at that meeting?---That was to basically explain the steps we needed to do our EBA process, to make sure we follow all the correct legal steps in the agreement.

PN1665

Do you recall whether that document was there at the meeting?---Yes.

PN1666

Okay. Do you recall filling out a document in relation to the appointment?---Yes, I do.

PN1667

In regard to that document was anything said by either Mr Costello or Mr Gray at that meeting about a notice of representational rights?---There was a discussion basically saying "This is what you need to fill out. Whoever you want to vote in, you just put that name down, it all goes in a ballot so you can vote. You can put the union down, you can put a representative down, you could put anyone you wanted down as your representative."

**** DECLAN JOSEPH HARTLEY XN MR REIDY
PN1668

I'll just have that document back. Do you recall at that meeting any discussion about the content of the EBA?---I don't recall a major discussion about it because we'd been through that process so much before. I think there were some small issues of just some wording that needed to be changed.

PN1669

Okay. Could you have a look at this document. I'll just show you part of exhibit A3. Have you seen that document before?---Yes, I have.

PN1670

Do you recall the circumstances under which you saw that?---I recall that at a meeting with all the other representatives and with Paul and Phil.

PN1671

What's your understanding of that document?---It was to explain the rates of pay and where our rates stand compared to other rates, and so we could also explain to the men as well.

PN1672

Do you recall anything about that content of the document being discussed in the December meeting?---I can't recall.

PN1673

Can I have that document back. You attended a number of EBA negotiations?
---Yes, I did.

PN1674

Do you recall the dates independently without looking at minutes?---I wouldn't remember the dates specifically.

PN1675

Would you accept that the first meeting occurred on one February?---Yes.

PN1676

Do you have any independent recollection of what occurred at that first meeting?
---The first meeting was basically to discuss with Phil and Paul that we needed to get an EBA in place. I'd previously given Phil the union EBA so we needed to start discussions in where they wanted to go and what they were looking at.

**** DECLAN JOSEPH HARTLEY XN MR REIDY
PN1677

Do you remember any representative of the BLF being at that meeting?---At the first meeting, no.

PN1678

Maybe if you look at these minutes. Look at these minutes and see if - - -

PN1679

MR CRANK: Your Honour, I must object. We already know who is the author of the minutes is, so it's not - this witness can't prove that document. The minutes effectively suggest the answer to the witness that the question is looking for.

PN1680

THE SENIOR DEPUTY PRESIDENT: Is that when you're heading with this?

PN1681

MR REIDY: I'm asking if he seen that document before, which I am entitled to do.

PN1682

THE SENIOR DEPUTY PRESIDENT: Yes, you're entitled to, but have pressed the applicant as to his knowledge of any meeting first of all?

PN1683

MR REIDY: I'll do that, your Honour.

PN1684

You have no independent recollection of the actual date of the first meeting in the second phase?---No, dates, I don't, sorry.

PN1685

Do you remember meeting, then - I'll put it this way: the first bargaining meeting, do you recall who was there?---Myself, Michael Turner, Joe Sweeper, Phil Gray and Paul Costello.

PN1686

Do you remember any other person, for example from the BLF, being there?---I do remember a union delegate being there, but from recollection that was the second meeting we had.

PN1687
**** DECLAN JOSEPH HARTLEY XN MR REIDY

Well, at that meeting can you recall the name of that person?---No, I can't.

PN1688

Okay. Does the name Joe Myles mean anything to you?---Yes, it does.

PN1689

What does it mean to you?---Our union delegate.

PN1690

Can you say whether it was him at that meeting?---I honestly couldn't say definitely yes.

PN1691

So far as Mr Myles is concerned, at the meeting that you were at, can you recall what role he performed all what you did?---Nothing, basically. He just basically said that the document he had in front of him wasn't a union document and it wasn't worth looking at.

PN1692

Can you recall what other discussion he had in relation to it?---He had no input at all.

PN1693

What period of time was he at the meeting?---Maybe at the most, 10 minutes.

PN1694

How long did the meeting go for after he departed?---Probably two hours.

PN1695

Can you recall the issues that were discussed at that meeting?---Living away from home allowances, some other conditions, clothing issues, training, staff at the EBA.

PN1696

Then do you recall a second meeting?---I do. I recall the second meeting.

PN1697

Okay. And do you recall who was at that meeting?

PN1698

MR CRANK: The evidence was all - - -

PN1699
**** DECLAN JOSEPH HARTLEY XN MR REIDY

THE SENIOR DEPUTY PRESIDENT: I'm a bit confused myself. I thought that was the second meeting, on the basis that Mr Hartley had thought there was only a union (indistinct) second meeting.

PN1700

MR REIDY: I'll rephrase the question.

PN1701

Was there a further meeting - - - ?---Yes.

PN1702

- - - that you attended?---Yes.

PN1703

Do you recall who was attending that meeting?---Myself, Michael Turner, Joe Sweeper, Paul Costello and Phil Gray.

PN1704

Okay. Do you recall anything in relation to the attendance of the BLF at that meeting?---I recall Paul informing us that he had contacted the union, making them aware that the meeting was on and if they wanted to attend, but had no reply.

PN1705

Can you recall what discussion was held at that meeting?---Further discussions just with changes that they'd implemented in the EBA, and that done a new draft, changed it, some of the men had asked to be put in. Just discussed what we basically been through before and make sure it had all been put in place.

PN1706

So far as your role as bargaining agent was concerned, what input did you make to that meeting?---Biggest one, mine was for the living away from home allowance. A lot of the men were doing a block away from home work so that was my main input, and just discuss issues of a pay rise, basically, for those men.

PN1707

Do you recall attending - then you had a further meeting?---That no, there was a third meeting, I was working away.

PN1708
**** DECLAN JOSEPH HARTLEY XN MR REIDY

Do you recall receiving any information about that meeting or the outcome of that meeting?---Yes. Michael Turner, who I keep in contact with, he made me aware of the meeting. I informed him I couldn't be there, obviously. He spoke to me after the meeting, the next day, about just basically what happened at the meeting.

PN1709

Before the meeting do you recall speaking to Michael Turner?---Yes.

PN1710

What did you say to Michael Turner?---Just to let him know that all final drafts that I've seen of the EBA, I said, "Everyone I've spoken to were all happy with it." So I just said, "If all your men on your side are happy, then we're good to go as well."

PN1711

What can you say throughout this period of negotiation about the availability of a copy of the EBA document at sites?---Yes, I always had a copy. At this stage they'd mail out the final draft to all the employees as well. But I always had a copy and always with me on site.

PN1712

Did you ever have occasion to refer to that at site?---Sometimes the men would ask me a question or how something was worded. We get it out just to check on it. If there was some had issues they weren't happy with, I'd speak to them and go back to work.

PN1713

Okay. You've said that you've spoken to Michael Turner before his final meeting?---Mm.

PN1714

Do you recall anyone from QPS contacted me after that final meeting?---I only really recall speaking to Michael Turner and on occasion, Joe sweeper, that's the other representative.

PN1715

Do you recall receiving any information about the ballot that was to be conducted?---Yes.

**** DECLAN JOSEPH HARTLEY XN MR REIDY
PN1716

How did you receive that information?---That was sent to me by e-mail. I was in Townsville. Paul contacted me when I first got to Townsville, seeing if we would be back in time for the ballot, and I said, "No, we would be back on the due date." So he emailed all the information up to me and spoke to me at length on the phone about how we had to do it.

PN1717

So when you say Paul contacted you, how did you contact you?---By phone.

PN1718

When you're talking about Paul, who's Paul?---Paul Costello.

PN1719

Can you recall the detail of the information that Paul gave you about the ballot?
---I recall him explaining to me that that's the steps that have to be taken in the legal process for the EBA. It has to be a secret ballot, it has to be done. This is a timeframe where the men have to be warned. He explained it all to me so I could then go and explain to the men that I had working with me the same information.

PN1720

Can you recall the detail of that information?---Yes, just that it was a secret ballot and that's how it had to be done.

PN1721

You had a role in that secret ballot?---Yes, I did.

PN1722

Before we get to that, can you recall any information being given about the timing or date of the ballot?---Yes, I can.

PN1723

What was that information?---That was by a phone call from Paul Costello once again. He phoned me, it was a good week before the ballot was to go ahead, because he needed time to find out if I was going to be back in Brisbane all he needed to organise paperwork to come to me.

PN1724
**** DECLAN JOSEPH HARTLEY XN MR REIDY

Okay. Can you recall precisely what Paul told you about the time or date of the ballot?---I recall him saying it would be on a Friday, that they were doing it in Brisbane, and how they were doing it in Brisbane; and he would make sure I have the paperwork there that day to do it the same day.

PN1725

In relation to, then, the conduct of the ballot in Townsville, can you tell his honour how he did that?---Yes. We returned from work, the paperwork was sitting in an envelope on my bed. I got the paperwork out, explained to the men once again how the ballot was supposed to go, gave them both their forms. I said, "You can go into your own rooms, do your vote, however you want to cast your vote." I said, "You're quite welcome to keep those papers and bring them back with you if you like, or I can put them back in this envelope and I'll bring them back to Brisbane."

PN1726

And what happened?---Both the men went into their own - we all had our own rooms - went in, had the vote, they prefer me to bring it back because they said that end up losing it. So I had an A4 envelope; they dropped in there; I sealed it and I put it in my luggage and brought it back to Brisbane.

PN1727

When you brought it back to Brisbane what did you do with it when you got back to Brisbane?---First day back at work I took it to the site I was working on, Legacy Way, and gave the paperwork to our supervisor, Laurie Keerey.

PN1728

Were you present at the counting of the ballot?---No, I wasn't.

PN1729

Do you recall receiving a copy of the EBA?---Yes, I do.

PN1730

How did you receive that?---By mail.

PN1731

Was there any other document that was subsequently received?---I remember getting other forms of amendments to the EBA, other things that needed to be added that came with the same document.

**** DECLAN JOSEPH HARTLEY XN MR REIDY
PN1732

Okay. And do you recall how you got that document?---By mail.

PN1733

Once you go to the second document, which you referred to as the amendment document, what's your recollection of that document and what it did?---The amendments were basically wording about certain issues in the EBA. They had real - no major changes for me, it was just basically wording seemed to be different.

PN1734

Can you tell his Honour about your level of understanding of those changes?---I understood the changes from a legal-sided way, it seemed to be just the way it was worded. They wanted the wording changed because it didn't seem to be reading a certain way.

PN1735

Okay. Just have a look at exhibit A14. See if you can identify that document?
---Yes, I remember receiving this at home.

PN1736

Does that assist your memory in what the content of that document was?---Yes, it does.

PN1737

Do you recall any approaches being made to you about that document by any employees?---On this lot of documents, I don't. No, not on this document; no-one approached me about anything.

PN1738

Okay. I'll just take that document back. You were a bargaining representative on a number of occasions going back to 2006?---Yes.

PN1739

Can you say what level of involvement the employer had in your appointment as bargaining agent?---Good involvement. They were quite prepared to sit and bargain and listen to what the men had to say.

PN1740
**** DECLAN JOSEPH HARTLEY XN MR REIDY

I'm going over to the issue of how you got to be selected?---Yes.

PN1741

Can you comment on what involvement the employer had in your selection as bargaining agent?---He had not part in it. The men basically asked me because I'd been a long-term union member and also long-term in the construction industry.

PN1742

Right?---So the men basically asked me to do it.

PN1743

Were you ever a BLF delegate?---No.

PN1744

Did you ever present yourself as a BLF delegate to other employees?---No.

PN1745

What role, then, did you perform, if any, as a BLF person in the workplace?
---Mainly I think because I've been in the union for so long the men knew - especially the younger fellas who didn't understand conditions or what they're supposed to be getting, they would actually call me. If I couldn't answer them I would ring the union and find out for them.

PN1746

Did you do any advocacy on their behalf with the employer about issues?---We've never really had any issues where the union has had to get involved.

PN1747

But you personally, would you have ever advocated or taken an issue on behalf of an employee to the employer?---Yes.

PN1748

Do you recall Mr Gray coming to site at all?---Yes, I do.

PN1749

Can you say whether this is in the period of the negotiation of the EBA and the ballot period? Do you recall that?---Yes, I do.

PN1750

Do you recall what Mr Gray did when he came to site?---He came to the site I was on, had a meeting with all the employees before work commenced, just discussing the EBA and letting the men - giving them the opportunity to bring up anything they needed to discuss.

**** DECLAN JOSEPH HARTLEY XN MR REIDY
PN1751

Do you recall when that meeting was?---I can't recall the date, sorry, no.

PN1752

No. Can you recall whether it was early in the process?---Early.

PN1753

If you had to locate it in time with when the bargaining meetings were occurring, what point of time in relation to those?---That would have been, from my recollection, between the second and third meeting that we had in the office.

PN1754

So the second and third meeting you attended, or was it the last one?---Yes, the last meeting that I would have attended. It would have been in between then.

<CROSS-EXAMINATION BY MR CRANK [10.43AM]

PN1755

MR CRANK: Mr Hartley, your role within the company is a leading hand. Is that right?---Leading hand driller, yes.

PN1756

All right. Can you just describe for us a little bit about what your role as a leading hand is?---Looking after job sites, making sure the equipment is there, the men have got all they need to do; they're getting the job done, basically.

PN1757

Okay. So the boys are basically under your control when you're on the site?---If I'm running the site, yes.

PN1758

And you're always running the site when you're on the site?---No.

PN1759

When are you not - can you tell us - - - ?---Yes.

PN1760

- - - when you're running the site and when you're not running the site?---Okay. Tomorrow I fly out to Western Australia, so I'll be running that site over there. The last week I've been working in Brisbane drilling, so I wasn't running those jobs. And quite often I don't run the jobs unless it's an away job, and then I'll run it because I'm the driller as well.

**** DECLAN JOSEPH HARTLEY XXN MR CRANK
PN1761

All right. When you're not running the jobs, part of your role is still to allocate tasks to employees, isn't it?---Normally only my offsider.

PN1762

Your offsider, all right. When you are running the jobs you're effectively the company's representative on the site?---On the site if I'm running it, yes.

PN1763

In mid-July or late July of last year - that's 2011 - you attended a meeting called by Mr Costello or Mr Gray which was also attended by Mr Costello or Mr Gray and the other leading hands of the company to discuss the enterprise bargaining process?---Yes.

PN1764

Were there any other employees apart from the leading hands and the company directors invited to attend that meeting?---I can't recall the date, but if it was one of our EBA meetings, then no, there wouldn't be.

PN1765

All right. What was said at that meeting?---That was a discussion of the EBA and we need to get something into place, basically, to start negotiations on the EBA. I can't recall the exact meeting that that date falls on, though, so it's hard for me to answer that.

PN1766

I'm not asking you to recall an exact date. You've agreed that it was around mid to late July; that's sufficient for me. But can you give us a bit more detail of what was actually discussed in that meeting. For example, who said what? When you say something was discussed, can you please say who actually said those things?
---It's hard for me to recall because I don't recall exact date, so I don't know which meeting you're talking about.

PN1767

You've agreed you recall a meeting - - - ?---Yes.

PN1768
**** DECLAN JOSEPH HARTLEY XXN MR CRANK

- - - which was attended by Mr Costello or Mr Gray - - - ?---Yes.

PN1769

- - - and the company's leading hands, and that it was in mid to late July of last year. You recall that meeting? You said you did?---I recall lots of meetings with companies. The date you're giving me, I don't recall the exact - what meeting that was on. So that day you've given me, I can't recall the exact meeting and what was said, because different things were said at different meetings, obviously. I don't want to say something was said at a meeting that was probably on a different meeting that I'm not recalling the right date.

PN1770

All right. Just to help you sort of recall which meeting I'm referring to, you've agreed it was in mid to late July of 2011. That was well before there were any discussions with employees about the enterprise bargaining process, wasn't it?
---Yes.

PN1771

So it would have been the first meeting at which there was any discussion in that year - in 2011 - the first meeting between leading hands - between the company management, including the leading hands - - - ?---Mm'hm.

PN1772

- - - about enterprise bargaining in the year, was the meeting. Do you recall that one?---No, I don't recall the meeting, specifically that date.

PN1773

How many meetings occurred that were attended only by the company directors - - - ?---Yes.

PN1774

- - - director or directors - and the leading hands that involved a discussion of enterprise bargaining in 2011? How many such meetings occurred?---In 2011, I don't recall. I recall meetings, but I can't be specific because I don't know the dates.

PN1775

All right. Was that the meeting you referred to earlier when - in answer to Mr Reidy's question - where you said you provided Mr Costello with a copy of the BLF's proposed agreement that you'd obtained from the union office?---That was the EBA - the union EBA was probably given to QPS management around that date because I'd got it from the union, but I can't be specific with the date.

**** DECLAN JOSEPH HARTLEY XXN MR CRANK
PN1776

Which leading hands were at that meeting?---The leading hand for which date are you talking about?

PN1777

For the meeting of the leading hands and the directors in mid to late July?---July? That would have been all of our leading hands. That would have been a general leading hands meeting, not just to discuss an EBA, but also what's going on on site, how to improve on things. So that would have been - it wouldn't have been just an EBA meeting.

PN1778

Was Mr Costello at that meeting?---I don't recall Paul being there, no.

PN1779

Was Mr Gray at the meeting?---Yes.

PN1780

All right. You were at the meeting?---Yes.

PN1781

Mr Sweeper - Joe Sweeper was at the meeting?---Yes, I recall Joe there.

PN1782

And Mr Michael Turner was also at the meeting?---Yes. There was also other leading hands as well.

PN1783

All right. That was well before there was any process of asking workers to appoint bargaining representatives, wasn't it?---Yes.

PN1784

I might just jump around with the dates here. I hope I don't confuse you doing that. I'll just move ahead now in time to 14 December 2011. Do you recall a meeting being held in the company yard on that day?---I do recall a meeting with all staff. I don't recall what was really spoken about there. I do remember all the men were brought to the workshop for a meeting.

PN1785
**** DECLAN JOSEPH HARTLEY XXN MR CRANK

All right. Do you recall how many employees who were to be covered by the agreement - do you recall how many of them were at that meeting?---There would have been 25, more, site personnel.

PN1786

Okay. Do you recall who would have been covered by the agreement but who was not at that meeting?---No, I don't recall.

PN1787

All right. Do you have some idea of where the employees of the company live?
---Most of them, yes.

PN1788

Most of them, okay. Michael Turner lives at (suburb), doesn't he?---Yes.

PN1789

Jayden Fitzgerald lives at (suburb), doesn't he?---Jayden, yes.

PN1790

Wayne Maidment, he lives at (suburb) on the Gold Coast?---Yes.

PN1791

Tyson Armstrong lives at (suburb) on the Gold Coast?---Yes.

PN1792

Neil Stephens lives at (suburb) on the Sunshine Coast?---I believe he lives on the Sunshine Coast.

PN1793

All right. Jai Stephenson lives at (suburb)?---Yes.

PN1794

Ethan Graham lives at (suburb)?---Yes.

PN1795

Anthony Lopez lives at (suburb)?---Yes.

PN1796

Sorry, I withdraw that question. Ashley Gaddes lives at (suburb) on the Sunshine Coast?---Yes, he's on the Sunshine Coast.

PN1797
**** DECLAN JOSEPH HARTLEY XXN MR CRANK

Martin Reydell lives at (suburb) - - - ?---Yes.

PN1798

- - - near (suburb)?---Yes.

PN1799

Yourself of course, you live at (suburb) - - - ?---Yes.

PN1800

On the Sunshine Coast. Evan Pridell also lives at (suburb)?---Yes.

PN1801

So does Luke Kilpatrick?---Yes.

PN1802

Mark Campbell lives at (suburb)?---Yes.

PN1803

And Jake Acutt - is that the right pronunciation, A-c-u-t-t?---Jake - - -

PN1804

Acutt - Acutt?---I'm not even sure who you're talking about there.

PN1805

The surname is spelt A-c-u-t-t?---Don't know.

PN1806

You don't know him?---Sounds like one of our fitters in the workshop. I'm not sure.

PN1807

Do you know if he lives at (suburb)?---That it is the fitter, yes. I do recall him living there if it's the same Jake I'm thinking of.

PN1808

Is there more than one Jake who works the company, to your knowledge?---Not that I know of. If it is workshop personnel, I don't really have a lot to do with them.

PN1809

I am a bit unclear about the earlier evidence; it was a bit general. Do you say that employees ever received an explanation of the content of the agreement?
---Received, as in by mail, or - - -

**** DECLAN JOSEPH HARTLEY XXN MR CRANK
PN1810

No, verbally by any means, but - - - ?---Yes.

PN1811

I'll ask you firstly, verbally. Did employees receive a verbal explanation? I'm talking about employees generally?---Yes.

PN1812

That's the 36-odd employees, not just the bargaining representatives?---Yes.

PN1813

Were there about 34 employees that received an explanation of the content of the agreement?---Yes.

PN1814

How did that occur?---Initially verbally when we got our first draft we sat down and explained it all. I had a copy of the union one as well in the early stages so we could compare, to have a look at, so yes, they were explained.

PN1815

What were you told in that explanation about the content of the agreement?--- e went through the agreement and I explained it to them.

PN1816

You explain it to them?---At first. That was the first initial meeting with the first draft, and then they were eventually mailed out copies of the EBA. And if they had any questions that would obviously ask asked or ring the office for an explanation.

PN1817

All right. So you explain the agreement to employees but Mr Costello and Mr Gray gave no explanation?---Yes, they did. Initially I did and then Phil Gray held meetings, came to site to discuss with employees.

PN1818

When did Mr Gray explained the agreement to employees?--- can't recall a date.

PN1819

And you can't recall any of the detail of that explanation?---Yes, I can recall being explained to us. The EBA was read out.

**** DECLAN JOSEPH HARTLEY XXN MR CRANK
PN1820

Can you remember one thing that he said about what was in the agreement?---The main thing, which was an issue that I'd raised, was just the living away from home allowances and discussing why we needed it to be increased. That was my main issue. So that's how I recall that more than anything because more men were working away so that was one of my main issue is that I was sticking to, so I recall that.

PN1821

So you explained to the men particularly about the living away from home allowance issue, did you?---In the initial stages we discussed it and they put forward the changes they want to it, and then I put that forward to management.

PN1822

What you just spoke about then, are you talking about what happened in the bargaining meetings in the company office; or are you talking about what was explained to workers by Mr Gray on the site?---I was talking about what was discussed out on site as well.

PN1823

All right. That was you giving an explanation to the workers on the site about the living away from home allowance issue?---At the final stages, I did, as well when I said yes, they've agreed and then Phil Gray came out and he held his meetings and explained the EBA.

PN1824

But you can't remember anything of what he said in that explanation?---Yes, I just explained that. I read the EBA out and I read the agreement, so - - -

PN1825

I asked you for the detail?---Do you want me to read it to you?

PN1826

No, I don't want you to read the - - - ?---But that's how I'm trying to answer you, is I read it to the men to try and make a clear explanation to them for what was in writing, and ask the men, "If you don't understand anything then I'll explain it to you again."

**** DECLAN JOSEPH HARTLEY XXN MR CRANK
PN1827

You read the living away from home allowance clause?---That was the main thing that I looked at, yes.

PN1828

Did Mr Gray explained to employees that there were a range of award allowances that workers would not be entitled to under the proposed agreement?---Sorry? I don't understand the question.

PN1829

Did Mr Gray explained to employees that under the proposed agreement workers would not be entitled to the number of allowances that they are entitled to under the award?---No, he didn't.

PN1830

He didn't, all right. Do you have a copy of the agreement - - - ?---The union one, I have here.

PN1831

You've got the union one, all right. Can I refer you to a copy of the agreement that approval is sought for. Do you have a copy of that with you?---Not with me. Not on me, no.

PN1832

Can I ask you to have a look at clause 5.1?---Yes.

PN1833

There's a sentence in there which among other things sense, "Employees shall work in a completely flexible workplace." Can you see that?---I'm just looking for it now. Yes.

PN1834

There was no explanation by Mr Gray to you or any other employees about what that meant, was there?---No, I don't recall.

PN1835

Also in clause 5.1 there's a part of the sentence which says, "There shall be no demarcation or restrictions between" - among other things - "occupations." Can you see that?---Yes.

**** DECLAN JOSEPH HARTLEY XXN MR CRANK
PN1836

There was no explanation from the company to employees about what that meant, was there?---No.

PN1837

Also in clause 5.1 part of it reads, "An employee may be required to, and shall perform any function." That was not explained to employees, was it?---No, I didn't see a need for it.

PN1838

Another part of clause 5.1 says that, "The level of flexibility and skill is comprehended in the wage rate for each classification." That parts of clause 5.1 wasn't explained to employees, was it?---Yes, it was.

PN1839

By who?---Phil Gray.

PN1840

What did he say about that?---Basically explained your rates of pay. Also you can increase your position in the company by multi-skilling, basically.

PN1841

You can increase your position in the company by multi-skilling - - - ?---You're not going to - - -

PN1842

Did he say that? He was explained that is what the agreement provided for for workers?---Because one of the things brought up by some of the men was training and that was something that was brought in, that the company would provide training, and of course the more skilled you become, you were CW rating will change as well. So that was explained.

PN1843

So Mr Gray said where the agreement says, "The level of flexibility and skill is comprehended in the wage rate for each classification," you say Mr Gray told employees that that means that employees can go up a classification if they do more training?---That was discussed in the union - in our meeting, sorry, in our EBA discussions.

**** DECLAN JOSEPH HARTLEY XXN MR CRANK
PN1844

Which meeting are you referring to?---That would have been the second meeting - my second meeting.

PN1845

You're talking about the bargaining meeting at the company office?---The bargaining one. That was one of the issues raised by the men, for training.

PN1846

I'm not asking you what was said then, I'm asking you about was to Mr Gray said to employees on - I should ask you what site. You say is the Gray attended your site - - - ?---Yes.

PN1847

- - - and explain something to employees. What site was that?---Cunningham's Gap.

PN1848

All right. When did you finish working on - did QPS finish working on Cunningham's Gap?---I can't recall the date. I was there for four or five month. I can't recall the date.

PN1849

That was during the first phase of the agreement, prior to December 2011?---Yes.

PN1850

Did Mr Gray or Mr Costello attend the site at Cunningham's Gap after that meeting to say anything about the EBA process at a later date?---No.

PN1851

What site we you working on in February 2012?---In February - February just gone?

PN1852

Yes?---I don't recall. I've been all over the place the last 12 months.

PN1853

You mentioned before that when the ballot was being - just prior to the ballot being conducted you were working in Townsville?---It would have been in Townsville then, yes.

**** DECLAN JOSEPH HARTLEY XXN MR CRANK
PN1854

How long did you spend working in Townsville prior to the ballot being conducted?---We were there for two weeks - just over two weeks - and Paul contacted me. Paul Costello contacted me in the first few days we were there to make me aware of the ballot and to see if I've have the project finished in time to be back, and I explained that I wouldn't.

PN1855

Mr Costello or Mr Gray didn't attend the Townsville site - - - ?---No.

PN1856

- - - while you were there?---No.

PN1857

Was there any teleconference or some sort of other video link or something like that between the employees who were working with you in Townsville and Mr Costello or Mr Gray?---No.

PN1858

I'll just refer you to again exhibit A2. Do you still have a copy of that in front of you? It's the Union Notice of Employee Representational Rights, is the heading?
---No.

PN1859

The second page of that is headed Appointment?---Yes.

PN1860

It's got some blank spaces on it. You said before, did you not, that Mr Costello told you that that's what you need to fill out?---Yes, that was the process we had to go through, yes.

PN1861

All right. You mentioned a ballot for a vote for bargaining representatives. How did that ballot or vote process work?---That was a - the men came into the workshop, from memory, they were explained that the process - because the first agreement put forward was rejected, so they had to redo the bargaining agreements again.

**** DECLAN JOSEPH HARTLEY XXN MR CRANK
PN1862

Who said what you're saying now?---Phil Gray and Paul Costello explained the process to us, of how we had to do it. So we had to come in and vote for a representative of workers and therefore the men were explained you could vote for yourself if you wanted to, you could vote for a union, you could vote for the whether you wanted to. That's how it was explained to us. They see that's the first process of the agreement.

PN1863

In that meeting Mr Costello told the workers that yourself and Michael Turner and Joe Sweeper had previously been the bargaining representatives for the workers - - - ?---I don't recall - - -

PN1864

- - - and that they could nominate - they could vote for you again?---I don't recall Paul saying that. He basically said you can vote for whoever you want. You could put the union down - - -

PN1865

You don't recall your name being mentioned as a bargaining representative at that meeting?---It probably was, but not put forward as in to tell the men to vote for me.

PN1866

I didn't say that. I'll ask you question again: what Mr Costello said was that yourself - in other words how it was said it to the employees is, "Declan Hartley and Michael Turner and Joe Sweeper have all previously been bargaining representatives, so you can vote to them." That's what he said, didn't he?---No, I don't recall it being set like that at all.

PN1867

Okay, well your name was mentioned in that meeting by Mr Costello, as was Mr Turner's and Mr Sweepers, yes?---Probably.

PN1868

What was the sentence that Mr Costello spoke in which your three names were mentioned?---I don't recall my name - yes, I do remember names being mentioned, but I also recall Paul quite clearly explaining to all the men, "You can vote for anyone you want. You don't have to use the representatives that are there now. You can put the union down; you can choose whoever you like."

**** DECLAN JOSEPH HARTLEY XXN MR CRANK
PN1869

Can you just explain to me what - Mr Costello said those things to workers, but what was the process then that - what did workers actually do by way of voting for a bargaining representative?---Got a piece of paper, filled it out, and voted.

PN1870

All right. And then what?---As far as I know that gets taken away and was counted and - I don't know the process once we've voted and handed it in. I don't know where it went from there.

PN1871

All right. So Mr Costello didn't explain anything about the voting process to workers?---Yes, he would have, but I just don't recall.

PN1872

Do you recall any sort of declaration of the results of this vote as to how many people voted for you and how many people voted for other people?---I don't recall any paperwork, but I was told a figure that the boys - most of them - a percentage had gone for the original representatives; certain blokes wanted the union in; and we all agreed that that's fine if that's how they want to do it.

PN1873

So the workers - if they filled out this form which is on the - - - ?---Yes.

PN1874

- - - second page of exhibit A2 there, that document was given to Mr Costello or Mr Gray?---After we'd voted for it - after we'd filled it out, each worker.

PN1875

After each worker had filled it out where the did the workers physically hand the document?---From memory I remember putting it in a box. That's from my memory.

PN1876

Do you know who had control of the box after that?---No, I don't.

PN1877

It wasn't you?---No.

**** DECLAN JOSEPH HARTLEY XXN MR CRANK
PN1878

It wasn't Mr Turner or Mr Sweeper?---I don't believe so.

PN1879

I recall someone saying one of those lads had to be there for the counting process, but I don't recall who was there or how it was done.

PN1880

So you don't know how many people voted for you?---No.

PN1881

Can I ask you to have a look at the front page, the first page of exhibit A2 again?
---Yes.

PN1882

The first paragraph reads, "Queensland Pre-Stressing Pty Ltd gives notice that it is bargaining in relation to an enterprise agreement, Queensland Pre-Stressing Enterprise Agreement 2011, which proposes to cover those employees that work for Queensland Pre-Stressing Pty Ltd subject to enterprise agreements already in place"?---Mm'hm.

PN1883

What does - in that sentence in your understanding what is meant by "subject to enterprise agreements already in place"?---It means subject to the enterprise bargaining agreement that we're already running under.

PN1884

Which one was that?---Our last one was - it wasn't a union one either, it was an in-house EBA basically modelled on the union EBA.

PN1885

Was that one that was made in 2006?---I recall when I first ever did agreements for Queensland Pre-Stressing it was a completely union agreement. That agreement lapsed. We got another agreement in place - I think it was the 2006 one, I can't recall for sure - and that was - there was no union involvement. We couldn't get the union to even come to a meeting. So their last one was non-union.

PN1886
**** DECLAN JOSEPH HARTLEY XXN MR CRANK

All right. That was made in around 2006, was it?---Yes.

PN1887

Okay. Who was covered by that around 2006 agreement that you're referring to?
---All staff. All site staff.

PN1888

All site staff, okay. So in light of your answer, what do you think "subject to enterprise agreements already in place" means?---In my understanding I think it means subject to - we're still running under our other agreement. We've got to wait for it to lapse before the new one comes into place. That's just my understandings of it.

PN1889

All right. Wouldn't it mean - if the 2006 agreement that you've referred to was the one that was already in place, wouldn't it mean that this notice - exhibit A2 - does not apply to people who were covered by the 2006 agreement?---That's not my understanding of it.

PN1890

Also in what way was this notice subject to what had happened previously? What difference did it make whether there was a previous agreement in place or not as far as this notice is concerned?---As far as my understanding is, legally you have to have an EBA in place. The company has to have one in place. That's my understanding of it.

PN1891

You don't think that the words "subject to enterprise agreements already in place" might have had something to do with who actually was affected by this notice and who wasn't?

PN1892

MR REIDY: I object to this question. The witness has already answered.

PN1893

THE SENIOR DEPUTY PRESIDENT: He said he had a particular understanding of that provision. I'm not sure we can educate him to have a different one.

**** DECLAN JOSEPH HARTLEY XXN MR CRANK
PN1894

MR CRANK: All right then.

PN1895

You mentioned that there were three bargaining meetings in the company office - - -

PN1896

MR REIDY: If Mr Crank has finished with that, could I just have that exhibit back?

PN1897

MR CRANK: Yes, I've finished with that.

PN1898

You mentioned that there were three bargaining meetings in the company office. There was no discussion in any of those meetings, was there, about any of the content of the union's proposed agreement, was there?---Yes, there was.

PN1899

What was discussed?---Certain conditions. Just basically clauses in there that we discussed. The RDOs was a big issue we discussed because the union EBA was used basically as a draft for us.

PN1900

Yes, but what was actually being discussed was the company's draft, not the union's draft, wasn't it?---Both were discussed.

PN1901

Who had a copy of the union draft at those meetings?---I had a copy, Phil Gray had a copy, that's it.

PN1902

At those meetings?---At those meetings, yes.

PN1903

All right. What exactly was discussed about the union's - - - ?---Most of our conditions - - -

PN1904
**** DECLAN JOSEPH HARTLEY XXN MR CRANK

- - - proposal as regards anything, or - - - ?---Yes, the - - -

PN1905

- - - example, a - - - ?---Yes. That was the biggest issue. Most of the clauses in there we read as being very similar; rates of pay and all that, very similar, if not better in some cases for some of the workers. The RDOs were a big discussion because unfortunately in our industry, the time constraints on jobs nowadays are calling for men to be at work on the RDOs. As much as we all like our RDOs, we also have to keep the company running as well, because that's what pays our bills. That was a big discussion with Paul Gray and Paul said - couldn't run the RDOs the way the union wanted it because of the job sites that we were on. But discussed with the - our leading hands were there, they all were all in agreement. We were basically running the way we are now anyway. That was the main thing.

PN1906

What did Mr Costello say about the union's document?---Nothing formally referred to it in any matter, really.

PN1907

What did Mr Gray say about the union document?---His was mainly the RDOs as well. That was his main concern, was the fixed RDOs.

PN1908

What did he say about the union's proposal regarding RDOs? Anything?
---Basically said that in our industry it was unviable with some of the jobs that we have running at the time, and in future that if they have those RDOs, that we needed to make them more flexible.

PN1909

Did Mr Gray say anything about the union's proposal on other issues apart from RDOs?---Not really, no.

PN1910

All right. Did Mr Gray say why he thought the union's proposal was not viable in relation to RDOs?---Yes, he did explain it. A lot of job sites run at the moment in the civil - - -

**** DECLAN JOSEPH HARTLEY XXN MR CRANK
PN1911

I'm asking you what he said, not what you think or what anybody else - - - ?---I am, I'm just - - -

PN1912

- - - I'm just asking about what he said at the meeting - any of the three bargaining meetings?---He explained to me the jobs that we're on now are running six days a week. They're civil contracts. A lot of these big jobs have their own EBAs and RDO systems. For us to be able to be on that job we need to follow the rules of the specific job site we're on.

<RE-EXAMINATION BY MR REIDY [11.17AM]

PN1913

MR REIDY: You were asked some questions about the 2006 agreement and also exhibit A2 which referred to that agreement. That's the notice of employee representational rights. To whom within the QPS workforce - on your understanding - did the 2006 agreement apply?---To all the site personnel.

PN1914

In relation to personnel at QPS, are there other personnel besides site personnel?
---Yes, there's workshop people.

PN1915

Okay. Mr Crank took you to some clauses in the EBA about - do you recall this - flexibility and demarcation and restrictions?---Yes.

PN1916

What is the work that is carried out by QPS employees, if you had to describe it simply? What work do you do?---Simply, labouring; but also we have a long arm of trades. Basically non trade-based skills in our company.

PN1917

But if you're at a site - - - ?---Yes.

PN1918

- - - what function are you performing at a site? What kind of labouring work, if you like, do you do?---Myself, I'm a machine operator, so I'm a driller. We had labourers, who are offsiders; we have steel fixers; we have concrete placers; stressers.

**** DECLAN JOSEPH HARTLEY RXN MR REIDY
PN1919

Okay. In relation to those jobs that you've described, are any of those jobs done by people who don't work on site?---No.

PN1920

Okay. Insofar as the two phases of this agreement-making was concerned, what was your understanding of the section of the workforce that was to be covered by this?---My understanding was it was all site personnel.

PN1921

When you say site personnel, that's people who work on site?---On site, that's right.

PN1922

Those were all the questions I have.

PN1923

THE SENIOR DEPUTY PRESIDENT: The witness is excused.

<THE WITNESS WITHDREW [11.19AM]

PN1924

MR CRANK: Can we have a short adjournment, five minutes, your Honour?

PN1925

THE SENIOR DEPUTY PRESIDENT: We'll adjourn for 10 minutes.

<SHORT ADJOURNMENT [11.20AM]
<RESUMED [11.34AM]

PN1926

MR REIDY: I call Philip Gray.

PN1927

THE ASSOCIATE: Can you please state your full name and address for the tribunal.

PN1928

MR GRAY: My name is Philip Mark Gray, and my address is (address supplied).

<PHILIP MARK GRAY, AFFIRMED [11.34AM]
<EXAMINATION-IN-CHIEF BY MR REIDY [11.35AM]

PN1929

MR REIDY: Can you tell his Honour your full name?---Yes. My full name is Philip Mark Gray.

PN1930

And what's your occupation?---Managing director of Queensland Pre-stressing.

PN1931

How long have you been in this industry?---I've been in this industry since 1985, so 27-odd years.

PN1932

How long have you had this company?---I've had this business 12 years.

PN1933

I'm going to take you to the period - I don't think there will be a problem with me leading this. There are two phases in the enterprise agreement that's before Fair Work Australia, and the first phase with the agreement was withdrawn. Do you remember that?---Yes.

PN1934

Now, the current phase of this agreement is currently being considered for approval?---Yes.

PN1935

During that period, could you identify who the competitors to QPS are?---The competitors to QPS are companies by the name of Hyatt Ground Engineering, Anchormac, Team Rock Anchors - or Team Rock Anchors and PT - Geovert, and there are a couple of smaller ones.

PN1936

Now, you're familiar with companies such as Leightons and Hutchinsons?--- Yes, I am.

PN1937

Would you describe those companies as competitors of - - -?---Of QPS? No.

PN1938

Why?---They are head contractors that QPS works for.

**** PHILIP MARK GRAY XN MR REIDY
PN1939

To describe the industry in which QPS is located or the area of work it carries out, how would you describe that?---QPS is a ground retention - ground engineering business.

PN1940

Specifically, what areas of work is it involved in?---The areas of work, we're in mainstream construction work, including civil - the fair majority of our work is in civil infrastructure work. We do - a large portion of our work is in wind farms, and we also do - or are progressing through the process of geothermal drilling within the business.

PN1941

Do you recall doing - well, was there any enterprise agreement in place before the first and second phases were embarked upon, or at the time they were embarked upon?---The last enterprise agreement we had was in 2006, which I believe ran through to 2009. And then we continued on the same agreement until this current position we're in now.

PN1942

That 2006 agreement, what sort of agreement was it? Do you remember?---It was a BLF, CFMEU agreement.

PN1943

Do you remember the negotiations for that agreement?---It was some time ago, so minimal - - -

PN1944

Do you remember who was involved from the employee side in the negotiations?
---Yes. In that stage of the business - obviously, we're an a lot smaller business - I went to the workers when it came around time to do - start negotiating an MBA and put it to them to go and find some people to represent the workers, and that was the first phase of identifying the best way to go about the bargaining process with the union.

PN1945

Now, going back to the 2006 agreement and that bargaining phase, you said it was a BLF agreement. Can you recall whether any BLF representatives were involved in that negotiation?---In the later stages, there was a BLF representative. I believe his name was Junior. I'm not a hundred per cent sure of his first name.

**** PHILIP MARK GRAY XN MR REIDY
PN1946

Besides junior, who else?---Junior, there was Declan and Mick Turner, and myself.

PN1947

Now, in your dealings with employees in the company, what method of communication do you adopt with them?---Over the years, the best way to deal with my employees is verbally, to discuss things with them on site as trying to get them all together, because we do work over a large area of Australia at the time. So verbally is the best way of communicating.

PN1948

And for this - what I'll call the current round of negotiations - do you recall when that started?---Probably the latter part of last year.

PN1949

Insofar as the BLFQ was involved in the negotiations for the agreement before Fair Work Australia at the moment, can you describe what documents, proposals or other materials were provided to QPS as part of the negotiating process?---The negotiating process we're in now? From the union, nothing.

PN1950

I'll go back to the first phase. Do you recall when that started during the course of last year?---It would have been around, I'd say, September-ish.

PN1951

In that period until the agreement was withdrawn, what can you say about the documents, proposals, draft agreements provided by the BLF in that period?
---There was nothing provided to us.

PN1952

Did you ever see any document that set out any BLF proposals?---I have had in my hand a copy of the draft agreement from the union.

PN1953

How did you come by that?---That was passed to me by Declan Hartley.

PN1954

Could you look at exhibit A19. Can you have a look at that document and see whether you can identify it?---Yes. That appears to be the document I've seen.

**** PHILIP MARK GRAY XN MR REIDY
PN1955

Thank you. Now, I want to take you to the period after the - sorry, I'll go to the period in what I call the "first phase" until the withdrawal of the agreement application for approval. In that first period, what can you tell his Honour about the process of dealing with the workforce - that form of agreement?---In the first phase?

PN1956

Yes?---Your Honour, I addressed the workers on site and outlined where the company had come from, identifying the market that we were targeting and how we saw - or we didn't have a lot of positive foresight into the market and the current, and the way it was standing with - in regard to construction work. The company was very strong and wanted to maintain its presence, and we felt that - and addressed the well-known, within my company, employees that the rates of pay that they were paid was over and above all our competitors. They all knew they were being paid well. QPS doesn't have a lot of employees that leave the company because they're disappointed with the amount of money they're earning. QPS has a name - or a reputation for being able to carry out the work on site in a professional manner, and is probably known as being one of your top-tier contractors in what we do. We have paid our workers well for that, and this was addressed to the workers and they understood that. The response back from the workers was that they were happy to proceed with a non-union agreement. They just wanted to get an agreement in place.

PN1957

An agreement document was drafted?---Yes.

PN1958

Can you say how that was provided to the workforce and what was done to discuss that document with the workforce?---Copies of the document were given to the workforce. The two representatives - sorry, the three representatives were given copies of it and asked to make contact with all the current employees, and go through all the clauses and all the issues in the document, and get any feedback and then report back to Paul or myself.

**** PHILIP MARK GRAY XN MR REIDY
PN1959

Could the witness look at exhibit A1. If you go to paragraph 2.5 of exhibit A1. Now, can I ask you this: did you - if you have a look at what the document is - - -?---What was that? 2.5, was it?

PN1960

Sorry. Before you do that, could you have a look at what the document is. Do you recall that document?---Yes.

PN1961

Did you have a role in completing that document?---No. The document was put together by Paul Costello.

PN1962

Do you recall whether in the course of putting that document together, Mr Costello sought any information from you?---Yes, we discussed information regularly.

PN1963

Could you go to 2.5 of that document?---I don't have a 2.5.

PN1964

There might be that there are two 2.5s. I think you'll find it's in two parts there. You need to go right down the end to find the next 2.5 to which I'm referring. If you look down to the draft agreement?---Yes, 2.5.

PN1965

Now, did you - could you look - just read that paragraph and identify whether you provided any of the information for the completion of that paragraph. Sorry, the two paragraphs, and then in particular, the answer to the second paragraph.

PN1966

MR CRANK: Your Honour, in the event there are two 2.5s, could we just ask the witness to read what he is referring to so we're all looking at the same thing.

PN1967

THE SENIOR DEPUTY PRESIDENT: So this is "please specify" - - -

PN1968

MR REIDY: Yes, it's "please specify".

**** PHILIP MARK GRAY XN MR REIDY
PN1969

THE SENIOR DEPUTY PRESIDENT: - - - "the steps taken by the employer to ensure"?

PN1970

MR REIDY: Yes. I want to draw your attention in particular to the paragraph stating "all employees".

PN1971

THE SENIOR DEPUTY PRESIDENT: "All employees are provided". The - - -

PN1972

MR REIDY: The question I'm asking is do you recall providing any information for the completion of that section of the document?---Yes. The employees would have received a copy of the drafts.

PN1973

Do you recall providing that information, or - - -?---I didn't, but Paul Costello would have.

PN1974

Could you then go to 2.7 on the following page and read the "please specify" paragraph, but then in particular the paragraph that starts "all employees had a bargaining representative"?---Yes. That's correct. All employees did have a bargaining representative, which were the - - -

PN1975

Look at the second sentence which refers to meetings. Can you see that?---Yes.

PN1976

Do you recall providing the information for that part of the form. I'll go back a step. Do you recall having meetings with employees around those dates?---Yes. I had numerous meetings with employees.

PN1977

Can you recall providing that information for the document?---Yes.

PN1978

Those are the questions on that document. Do you recall a meeting in the late part of last year, in December, following the withdrawal of the enterprise bargaining agreement application?---This is the meeting on the 14th?

**** PHILIP MARK GRAY XN MR REIDY
PN1979

You recall that meeting?---I do.

PN1980

Can you tell his Honour what occurred at that meeting?---The meeting was held on the 14th. All the company employees were present at the meeting, all bar, I think, a couple. I started the meeting by addressing the employees, again making them aware of the position of the company, the intentions of the company to continue with a quality of workmanship, providing them with a guarantee - not so much a guarantee of employment, but to try and make them feel confident that the company was going to maintain its presence in the industry, and that it was a very tough market out there. And for the company to maintain its presence in our part of the industry, we have to seriously look at the cost within the company, and identifying the fact that there was a good portion - and I think the number was somewhere in the order of 70 per cent of the staff, or of the employees - were paid more than the current EBA rates. And that was what I mainly identified, and then I handed the meeting over to Paul Costello, who went through the process of the whole agreement, and addressed all the clauses within the proposal.

PN1981

When you say you handed it over to Paul and he did those things, what precisely did he do in relation to the agreement?---We went through step by step of the different parts of the agreement, from working conditions to rates of pay, through to training. All the parts are laid out in our proposed agreement. We've - Paul went through and discussed each of the issues as we went through, and then we asked the boys to give feedback as they felt needed, and the meeting went from there.

PN1982

Was there anything else done at that 14 December meeting besides explaining the agreement? Do you remember anything in relation to bargaining representatives?
---Yes. We asked the boys to confirm who they wanted as a bargaining representative.

**** PHILIP MARK GRAY XN MR REIDY
PN1983

Who conducted that part of the meeting in addressing employees about their selection?---Paul.

PN1984

Do you recall what Paul said?---No. I don't.

PN1985

Do you recall when the first bargaining meeting occurred in this second phase?
---Yes, sorry. That was the 21st.

PN1986

When, sorry?---The 21st.

PN1987

Was that the first meeting? Can you recall how many bargaining meetings you attended?---There's numerous site meetings prior to that, yes.

PN1988

But you know there's bargaining meetings with bargaining representatives?---Yes. They were held in our office with the three bargaining representatives, yes.

PN1989

Do you recall - who were the three bargaining representatives?---Declan Hartley, Michael Turner and Joe Sweeper.

PN1990

Were there any other bargaining representatives present at any of those meetings that you recall? For example, from the BLF?---No.

PN1991

MR CRANK: A leading question, your Honour.

PN1992

MR REIDY: Well, did you involve yourself in - can I ask this: were minutes made at those bargaining meetings?---Yes, there were. The minutes were made of the bargaining meetings with the union, yes.

PN1993

Now, did you - were you involved in those meeting minutes at all in any way?

**** PHILIP MARK GRAY XN MR REIDY

---No.

PN1994

Well, I want you to just think carefully about the meeting process at the bargaining meetings. And you've referred to bargaining meetings being held at the QPS office?---Mm'hm.

PN1995

Do you recall who was at the first of those meetings?---The first of the meetings with - when we invited the union, was a guy by the name of Joe - I can't remember his last name - Declan Hartley, Joe Sweeper, Michael Turner, Paul Costello and myself.

PN1996

Well, you mentioned a person called Joe who is not Joe Sweeper. Do you recall what happened at the meeting - what Joe did at that meeting?---Yes. Joe came in and made a comment that he was not there to - he was there to listen. He'd been given a copy of the agreement on his way to the meeting. He was just there to represent the BLF and to obviously listen and observe, but not really to make any comment at the meeting.

PN1997

Did you have any interaction with him at that meeting?---I did, because once he stated - he introduced himself and we started the meeting, and Paul started conducting the meeting. We asked a couple of questions to Joe, and his reply was that he wasn't there to make comment. He was just there to observe. We pressured him a couple of times and his comment was, "Well, it wasn't a BLF agreement and that it was an inferior agreement, and that he was standing by his statement that he was just there to observe". I then said, "Well, what's the point of this going any further?" The three QPS representatives, Paul and myself have been through this numerous times. We got up to a point where there was -everybody was satisfied with what we'd put forward, and it was a pointless exercise us bargaining anything with Joe if he wasn't prepared to make any fair input into it.

**** PHILIP MARK GRAY XN MR REIDY
PN1998

Do you know what he did?---Yes, he then got up in a huff and spat the dummy and walked out, and said, "There's no point me being here anymore".

PN1999

Now, do you recall the meeting then continuing?---Yes. We discussed a few other items and then - that were - and had some questions to them.

PN2000

Do you recall the next meeting that occurred?---Yes, the second meeting.

PN2001

Do you recall who was present at that meeting?---Yes. It was Declan Hartley, Joe Sweeper, Michael Turner, Paul Costello and myself, and nobody from the union turned up.

PN2002

Then do you recall whether there was any other meeting after that?---Yes. There was a third meeting that we called. I think it was a couple of weeks later than that. Declan couldn't attend. He was up in Townsville. I believe it was Townsville at the time. And Chad Bragdon, I think it was, attended the meeting for the union. The rest of us were as normal.

PN2003

Can you recall any interaction that Mr Bragdon had at that meeting?---Yes. He made a couple of comments. One of the comments about the fact it was an inferior agreement to the proposed BLF agreement. He also said that - - -

PN2004

Well, I'll stop you there. When he raised the proposed BLF agreement, can you tell his Honour what was produced in relation to the proposed BLF agreement?
---Well, he has never produced the directors or the owners of the company QPS with the agreement.

PN2005

In regards to Bragdon in that meeting, what did he produce?---He was basically commenting about - he believed he'd read a copy of the QPS agreement and he knew exactly what was in the proposal, and he was making reference to his - his comments were regarding how inferior our - - -

**** PHILIP MARK GRAY XN MR REIDY
PN2006

MR CRANK: I object to that answer, your Honour. The question was about what Mr Bragdon produced. The answer has got nothing to do with what he produced. You can assert a new question if your Honour chooses - - -

PN2007

MR REIDY: Well, he's explained that. But at the risk of getting the same answer again, I can break the question up. I asked you whether he produced anything. Can you recall what he said at the meeting?---The meeting went for a little bit longer than any of the other meetings.

PN2008

I want to focus on Mr Bragdon. What did Mr Bragdon say?---Mr Bragdon made one comment that if QPS wouldn't sign a BLF agreement, then they would - the work would go to someone else and the QPS employees could go and work for them.

PN2009

Do you remember what happened after that comment was made?---Yes. Joe Sweeper and Mick Turner took offence to that, voiced their disappointment in the union and the fact that they have no issues with QPS or working for QPS and they do not want to work for anybody else.

PN2010

Can you say how long Mr Bragdon remained at the meeting or can you recall the circumstances of his departure?---I can't recall the circumstances of his departure, but he was probably there somewhere in the order of 20 minutes I would say.

PN2011

Well, can you place his time of departure in relation to when the meeting itself ended with the rest of the representatives? I don't want a specific time, but just in sequence before or at the same time?---No. The rest of the employees' representatives remained and we went through a couple of other items after Mr Bragdon left.

PN2012

Now, is that the last meeting with bargaining representatives that you recall, the one that Mr Bragdon attended?---Yes, it would have been.

**** PHILIP MARK GRAY XN MR REIDY
PN2013

Do you recall - you're aware of the process that was undertaken by QPS for distribution of the agreement for voting purposes?---Yes.

PN2014

Do you know when the agreement to be voted on was sent out? Can you describe that process?---The agreement was sent out by mail to all the employees approximately a week or two prior to the meeting we had in the yard which was on the 21st.

PN2015

In between that agreement going out and this meeting on the 21st that you've described, can you explain what steps you took in relation to explaining the agreement?---My role in the business is one where I meet the staff regularly on sites. So I would address the workers on site each time I arrived, which on average would have been every two or three days, and discussed with them whether they had read the agreement, whether they'd had anything they wanted to talk to me about in regards to the agreement and if I didn't address it then, I made sure I got back to them about it.

PN2016

You talk about the last meeting being on the 21st. Did you have any role then subsequent to that time in relation to explaining the agreement?---Yes, on sites. On the sites I had meetings with the workers as I went to site.

PN2017

Now, can you recall when you went to those meetings what you did?---Yes, I went through and addressed - - -

PN2018

MR CRANK: I object to the question, your Honour. It's too general. According to the statutory declaration, there are six or seven alleged meetings on which we've heard previous evidence they were on sites. We can't ask one question about everything that happened at seven - well, possibly more than seven meetings. If the allegation is that there were multiple meetings on the same day on different sites, we may be talking about 20 meetings or something like that. The question should be asked in relation to each meeting on each site.

**** PHILIP MARK GRAY XN MR REIDY
PN2019

THE SENIOR DEPUTY PRESIDENT: Are you going to particularised this to an extent, Mr Reidy?

PN2020

MR REIDY: I want to preface it with what the general approach was to attending the meetings before I get down to - - -

PN2021

THE SENIOR DEPUTY PRESIDENT: Okay (indistinct)

PN2022

MR REIDY: Could you tell his Honour what your general approach was in going to these meetings?---Obviously the agreement they had a copy of. In just about every construction worker's eyes, the main issues with an agreement are to do with rates of pay, conditions, how it would affect them financially. So they were the items that were addressed the most.

PN2023

And in terms of your approach then in relation to the - and we'll get to some of the detail in a second - but your approach to explanation, were those the sorts of things that governed your approach?---Yes, they were.

PN2024

Now, if the witness could have a look at the application itself in this matter. There's two parts to this. There's a form F16. I want you to go past that and go to a form F17. It should be right down the back. I might just get my instructing solicitor to help find the clause. Can you see that that's a statutory declaration by Paul Costello?---Yes, I can.

PN2025

Are you familiar with this particular document?---I would have read it at some point, yes.

PN2026

I want to take you to, at this stage, 2.7 of that document?---Yes.

PN2027

Now, I'll ask you this: did you have any role in providing information to Mr Costello for his completion of this document?---Yes, we had discussions about it.

**** PHILIP MARK GRAY XN MR REIDY
PN2028

Can you look at clause 2.7, and it deals with the employer holding meetings with employees to explain the agreement. Do you see that?---That's correct.

PN2029

Do you know who provided that information?---Yes. I gave Paul those dates.

PN2030

Can we go to the first of those dates, which is 22 February?---That's right.

PN2031

Do you have a recollection of what you did on 22 February regarding explaining the agreement?---Yes. I went around to all the sites on that day.

PN2032

Now, when you say all the sites. All the sites where?---All the sites, sorry, in Brisbane. We did have one site away which was in Townsville, but I visited all the sites that we had employees working on in Brisbane.

PN2033

How many employees were in Townsville?---Three.

PN2034

And when - do you recall the order in which you went to sites that day?---No.

PN2035

If you had to - could you list the sites you went to?---Yes, I can.

PN2036

Which sites?---The sites we went to was Legacy Way project, was the RNA, there was the 111 Eagle Street, there was Ann Street for Laing O'Rourke and there was one more - yes, I'd have to look at my diary to get the last name.

PN2037

Do you have your diary with you?---No, I don't.

PN2038

Now, with - can you say at each of those sites how many employees were at each site?---No. I didn't take a record of the number of employees. I knew who was working for us at that time and I knew where they were all working, but they were various. Some sites had three . Some sites had 15.

**** PHILIP MARK GRAY XN MR REIDY
PN2039

If you went to a site for three, was there any difference in the approach that you took in explanation to a site where there was 15?---No.

PN2040

Can you go through what you did by way of explaining the agreement when you went to a site on that day, on the 22nd?---Once I arrived on site and I addressed the workers as far as asking them if they'd all received a copy of the agreement.

PN2041

Was there anyone who said that they didn't?---There was probably a few that didn't receive a copy because it was mailed the day before. We have workers that live down the Gold Coast, Ipswich, so, yes, they would have received it the next day. But - - -

PN2042

When you talk about the agreement, what are you talking about?---The agreement, yes. They already had possession of the agreement. Sorry. We had the meeting on the 21st with the union. 22nd was basically going over the agreement that we'd already put forward. They should have all, yes, had a copy of it by then.

PN2043

Would you recall then an addendum document going out at some stage?---Yes. It was an addendum.

PN2044

So when you commented before in relation to people not having received something, which of those two documents were you talking about?---It probably would have been the addendum.

PN2045

Well, just going back then to the approach that you took on the 22nd, you said you had addressed the workforce. When you address them, do you recall what you said when you address them?---Yes. I went through - I had a copy of the document so I went through the document asking them if there was anything that they wanted to discuss, or the topics they wanted to discuss or confirm, and there was only really - the main issues were regarding monetary issues, where they would be situated with a QPS agreement. We just - - -

**** PHILIP MARK GRAY XN MR REIDY
PN2046

Can you explain what that discussion was about?---They were asking how - they were obviously aware that the union was offering up a 5 per cent increase, whereas we were offering a 3 per cent. I did inform them that the majority of the staff were actually paid above that rate anyway, and that for QPS to maintain its position in the industry, and if we were to follow the union proposal, then that would put us that far further afield from the rest of our competitors at the end of the agreement period.

PN2047

Again, you describe some discussions on the 22nd. Did this issue about the 5 per cent get raised at every site you went to?---No, a couple of sites. The other ones were regarding living away from home allowances.

PN2048

What was raised and discussed in relation to that?---Just the amount that we were offering for the living away from home allowance. I explained to the workers that we would - as we have always provided them accommodation, they were reflecting the amount of money that we were offering as being less than apparently the union proposal was once I'd explained to them that we were providing them with accommodation. And the amount we were paying for a daily rate was well and truly over and above what the union was offering. Basically, we did adjust that not long after that as well.

PN2049

I'll just interrupt. I'll get my instructing solicitor to get a copy of the agreement for you. But before we do that, can you just deal with this issue: you had three employees in Townsville in this period. Did you ever go to Townsville?---No, I didn't.

PN2050

How was the explanation given to the employees in Townsville. Do you know?
---Declan was up in Townsville and Declan had a copy of the agreement, and if Declan wanted any clarification, he would ring me.

**** PHILIP MARK GRAY XN MR REIDY
PN2051

Do you recall him ringing you?---No.

PN2052

Did you have any role in instructing Declan in respect of giving him an explanation?---I think Paul was dealing with Declan with regard to anything in Townsville.

PN2053

I'll just have a look at the copy of the agreement. If you could go to - we'll start with this page if I can show you that, and if you can find that page which says, "Queensland Pre-stressing Pty Ltd Enterprise Agreement"?---Yes.

PN2054

I just ask you to look at the first page, and you'll see there are clauses which start at clause 1, "Parties to the agreement", going down to clause 5.2, which spills over onto the next page, I think?---Mm'hm.

PN2055

No, it doesn't. It just finishes there. Can you tell his Honour clause by clause what explanation you gave on the 22nd in relation to any of those clauses, and if you didn't give an explanation, why an explanation wasn't given? So if we could - - -?---I briefed over each one of the pages, yes. So the brief was explaining, obviously, that the agreement was between Queensland Pre-stressing and the employees. The duration of the agreement, I identified that we going for a four-year, not a five-year - or a three-year. Not a four-year, sorry - as the union proposal was.

PN2056

I stop you there. Can you recall on the 22nd any discussion about the term of the agreement, any questions that were raised or any explanation about the term of the agreement?---It was agreed that it was a good idea because we were looking to offer, obviously, a reduced percentage of increase in rates because we were unsure what the market was doing. We were unsure of what the industry was doing. So we felt if we shortened it to a three-year term, then we would have a much better idea of what was - as the couple of years progressed.

**** PHILIP MARK GRAY XN MR REIDY
PN2057

In that answer that you've just given, is that describing a discussion that you had on the 22nd?---Yes.

PN2058

Do you remember where you had that discussion or how many times you had that discussion?---Yes. I had that discussion with all the employees.

PN2059

THE SENIOR DEPUTY PRESIDENT: Can I just one thing of Mr Gray. When you presented each of the work sites, did you indicate to the people in advance that you were coming for that purpose, or did you just assemble people on that day?---Just assembled people on that day.

PN2060

How did you explain what your role was there that day?---Explain it to who?

PN2061

Well, the employees that you were interacting with. Did you call them up, did you walk around the site and gather them together?---That's right.

PN2062

Did you then sit down somewhere, or did you just stand - - -?---Yes. We just went to a smoko room or an office that was available on each of the sites.

PN2063

How did you - they all know you, presumably?---Yes.

PN2064

What did you say was your purpose in being there that day?---It was to discuss the proposed agreement from QPS. They'd had an idea of what was being spoken about within the industry for what the union was asking for, so I was there to answer any questions that they had to ask in relation to the issues.

PN2065

MR REIDY: Now, if we go down to 5.1 in the paragraph headed Engagement. Do you see that paragraph?---Yes.

PN2066

Do you recall what you discussed about each of the sections of that paragraph?---I would have globalised it and told employees that QPS has very few casual employees. We have - we don't continuously use casual employees. We maintain a fairly strong permanent employee base, and there was really - I don't even think any of the people I addressed that day were casuals.

**** PHILIP MARK GRAY XN MR REIDY
PN2067

If you go to the third paragraph which refers to multiskilling and a flexible workplace. Can you recall what explanation you gave in relation to that?---No, I wouldn't have given an explanation for that.

PN2068

The next paragraph in relation to demarkation or restrictions?---Yes. I wouldn't have discussed that as well.

PN2069

Can you explain what demarkations or restrictions might exist in practice, in the way the work is carried out?---No, I can't.

PN2070

Sorry?---No, I don't have an explanation for it.

PN2071

No. I'm asking you, having a look at the way work is carried out, at QPS by its employees, are there demarkations or restrictions that are of any concern in the organisation of your workforce?---No, there's not.

PN2072

In relation to multiskilling and flexibility, can you describe what the current position is with multiskilling and flexibility in your workforce?---Can you clarify what you're meaning by "multiskilling".

PN2073

The agreement talks about - you see "multiskilling"? Can you describe the applicability of multiskilling in the tasks that people do in your workforce. Well, I can tell you my understand, for what it's worth, is having the capacity to do a broader range of work rather than a narrow area of work?---Yes. I mean, the work we do, which is predominantly ground anchoring, we have drillers and we have fabricate anchors. So that, in a lot of ways, is the reason why the staff is paid a high rate of pay. Because the people that are the drillers are paid more money than most of the other workers. But the multiskilling - there is no multiskilling in the rest of the workforce. They're carrying out a relatively simple task.

**** PHILIP MARK GRAY XN MR REIDY
PN2074

Can you recall whether there was any discussion about progression through the pay rates or any explanation about how - can I take you to 6.1, and you'll see there's classifications at CW1 through to CW3?---Yes. Well, that's a known industry practice that obviously if you come in as a first time, you're a CW1. After a six month period, you roll into a CW2.

PN2075

Can you recall giving any explanation of the progression through those various levels when you met on the 22nd?---Yes, I would have explained it pretty much as how I just did.

PN2076

Sorry. How was that?---That as a CW1, you're a first-timer. Generally, that's someone who's new to the industry. And after being in the industry or working for us for a period of six months, then you progress to a CW2.

PN2077

Now, can we go over the page to redundancy at 5.3. Can you recall the explanation you gave on the 22nd about that provision?---Just that the redundancy was an increase of what they're being paid at that particular time, but it was a progressive increase, I think, of 3 per cent per year.

PN2078

Was there any need to explain - or did you see any need to explain what BERT was?---No.

PN2079

Why was that?---The workers on site obviously know that BERT is a - sorry. Are you talking BUTE or BERT.

PN2080

Building Employees' Redundancy Trust. It's 5.3, sorry, right at the very top of the page?---Yes, okay. No. The redundancy was, again - all the workers know that that's a redundancy in the event they have to be terminated.

PN2081

Did you then go through and give any explanation as to 5.4 concerning safety?

**** PHILIP MARK GRAY XN MR REIDY

---No, just explaining that Queensland Pre-stressing has a full-time WHSO that works for the company.

PN2082

Can you explain what a "WHSO" is?---Workplace health and safety officer. And he was there to address any issues that might arise from a day-to-day perspective.

PN2083

When you went to drug and alcohol testing, what explanation did you give there?
---That a drug and alcohol, that everybody that was working for us had already been through that with the company induction, that was part of the - they were handed a copy of the drug and alcohol policy as part of that process.

PN2084

You'll see there's 5.6 and 5.7 deal with consultation and flexibility respectively and there's detailed attachments. Do you recall what you said about those matters?---I don't think I said anything about them, no.

PN2085

We'll go on with 6.1. Do you recall anything else that you might have said about 6.1?---Obviously the rates of pay on CW2 were the starting rates, and as you progress through the company if you show leadership and so forth, then the rates are addressed there.

PN2086

Then wage rates are dealt with in 6.2 and there's a table of wage rates for each of the classifications. Can you recall on the 22nd what explanation you ran through on those?---No. The rates of pay were just the offered rates of pay which were, again, just an extension of the 3 per cent each year from what they were on at the time.

PN2087

Did you discuss the clause 6.3 in relation to casual employees?---I may have, but I would have only addressed it if there was casual employees there, because like I say, there's probably 99 per cent of employees are full-time employees.

PN2088

Can you recall on this whether any of the employees who voted were casual? Well, I'll back up one step - on the date that the ballot was taken, 2 March, whether there were any casual employees?---I'd have to check. No, I can't recall.

**** PHILIP MARK GRAY XN MR REIDY
PN2089

Can you recall a discussion on superannuation?---Yes. Superannuation was offered up on the same basis, that it was increased annually by 3 per cent. Not 5 per cent.

PN2090

6.5, income protection. Did you give an explanation of that clause?---Yes. Same. Again, it was increased by 3 per cent, not 5 per cent.

PN2091

Was there any need to explain, or did you explain 6.6, payment of wages?---No, I didn't. Yes, I would have basically explained it. Yes, obviously you get paid weekly.

PN2092

What about the EFT part, electronic funds transfer?---No, I didn't explain that because they obviously know how they're getting paid anyway.

PN2093

6.7, travel allowance?---Again, that was explained that it was on an increase of 3 per cent, not 5.

PN2094

Then you've already dealt with 6.8, the living away from home allowance. Do you recall explaining that at the meetings on the 22nd?---Yes, living away from home allowance because we do a fair bit of work away.

PN2095

So what explanation did you give in relation to that clause?---I explained to them that if they wanted to go and find accommodation of their own, then the rates above would apply, but based on the fact that QPS offers the accommodation - because where we go, sometimes it's expensive. Sometimes, very rarely, it would have been something that they could make money - not so much make money, but cover all their expenses with. So we attached a cost of up to $250 per week down the bottom there and then we pay them $30 per week. There was some questions about the $30 per week. We discussed that and then we increased that up to $40 per week and then did the 3 per cent from then on.

**** PHILIP MARK GRAY XN MR REIDY
PN2096

Was that done prior to the 22nd, that increase - - -?---That date I can't recall.

PN2097

Do you recall giving an explanation of the industry allowance?---Yes. The industry allowance was explained in the way that we do a lot of work for small builders as well where there's no industry allowance or a site allowance. So for years, we've had the same issue where we'd have workers working on these smaller jobs, there was no site allowance whatsoever yet someone could go and work on another job and get $5 an hour. So it was decided some time ago that with the 2006 agreement with the union, it was created that there would be this industry allowance and it was based on a guaranteed amount per week for every job.

PN2098

Insofar as the explanation you gave on the 22nd, how much of that information was given as part of the explanation?---Yes, all of that.

PN2099

Now, going to hours of work and overtime, can you recall the explanation you gave in relation to ordinary hours and RDOs?---Yes. Ordinary hours were still based on a 36-hour week. Ordinary hours were from the hours of 6.00 until 6.00, but I put some emphasis on the fact that because we work for a range of different builders, a range of different clients, that we needed to be more flexible with their RDO calendar and that was - for QPS to survive, we had to meet the requirements of all the builders we work for and be able to service them, and I explained that I had no problems and Paul and I had no intentions of removing any of their RDOs, but that we needed to make them more flexible and as long as they gave us a week's notice then they could take the RDOs that were accrued to them.

PN2100

Now, moving on to 7.2, do you recall what explanation you gave about that clause?---That would have been encompassed in the ordinary hours. Basically overtime was dealt with as the normal practice with time and a half for the first two, double time thereafter and then on Saturdays was time and a half for the first two - sorry, Saturdays were time and a half for the first two and then double time from there on; ordinary hours were eight hours and then time and a half from there on.

**** PHILIP MARK GRAY XN MR REIDY
PN2101

Did you recall giving any explanation about 7.3, meal breaks and rest pauses?
---Yes. I told the boys that - they start on most sites around about 6.30 and for a number of years, it's been a request from all the employees that they would rather have an extended smoko and then not have a lunch break. It's their choice to do that because a lot of them have small families. They also want to get away from site after eight hours to pick up their children if need be. So I didn't have a problem with that. I've always told them that if they knew they were doing overtime then they needed to take a lunch break, which would have been - if they were doing somewhere in the order of 10 hours a day, they would have to take a lunch break so that they're not putting themselves into a fatigue issue.

PN2102

If you go over the page at 7.4, shift work, do you recall what explanation you gave in relation to that clause?---We don't do shift work.

PN2103

Did you discuss that?---Yes. I said that obviously you look at it as a night shift, but it's not shift work; it's actually night work, so I had to explain that to them.

PN2104

7.5, short-term night work. What explanation did you give there?---Yes, we do. Some of our work is short-term night work and it's paid as it's supposed to be.

PN2105

Then wet weather downtime. Do you remember giving an explanation about that?---Wet weather has always been one that we've followed through by - exactly the same as the union. I mean, we're working in pretty ordinary conditions a lot of the time so as soon as it's wet the boys go and sit in the shed, and that was explained to them, that nothing changes there, they just report back to the office if the site is too wet and they've accrued a minimum of four hours in the shed.

PN2106

Then do you recall the explanation you gave about 7.7 hours of work?---No, I don't recall that one.

**** PHILIP MARK GRAY XN MR REIDY
PN2107

In relation to annual leave entitlement?---Yes. Annual leave was based on four weeks annual leave and then your - four weeks annual leave a year, that's right, and all the public holidays that accrue as well.

PN2108

If we then go down through 8.1.2, 8.1.3, 8.1.4 in relation to all those annual leave issues, can you recall giving an explanation in relation to those?---I would have said that they were all as per - as history as - they've always been paid their - and nothing would change there. They would all get their 17-and-a-half per cent holiday accrual and holidays - basically was to give us as much notice as possible to book in the holidays.

PN2109

Do you recall any explanation about taking annual leave for an annual shutdown?
---Yes. The period around the Christmas break, we've always dealt with that that if they don't have enough holidays owing, they could use their RDOs. We've never really shut down for long periods of time at Christmas; it's generally the mandatory public holidays and the majority of the employees have taken RDOs and a couple of holidays in that period.

PN2110

So out of that answer, what was explained on that occasion?---That's what I explained to them.

PN2111

Now we're going to payment on termination. Do you recall explaining that clause?---On termination, obviously you - no, I wouldn't have explained anything on that. I thought that was pretty much straightforward.

PN2112

Then if we go to personal carer's leave, entitlement and payment. Do you recall giving an explanation about those two matters?---No, I don't.

PN2113

Going over the page in relation to 2.3, 2.4, 2.5?---No, I wouldn't have addressed any of those.

**** PHILIP MARK GRAY XN MR REIDY
PN2114

Was there any discussions about parental leave?---No, there wasn't.

PN2115

And compassionate leave?---No.

PN2116

What about long service leave and public holidays?---Public holidays I addressed before, that they'd all receive mandatory public holidays. Long service leave was covered in their portable long service which is paid weekly.

PN2117

8.7, provision of work wear. Was that discussed?---Yes. Work wear would be supplied, as it states there. There was two issues of long-sleeved shirts and trousers. Some are in a winter issue. Boots, pair of safety boots and then as long as they show fair wear and tear then they would be replaced. Gumboots were supplied as required as well.

PN2118

Do you recall the addendum? You spoke about that before?---Mm'hm.

PN2119

Were you involved in sending that addendum out?---I had some brief discussions with Paul about it but Paul looked after sending it out.

PN2120

Well, can you have a look at A14. You see that first there's a memo from yourself and Paul Costello?---Mm'hm.

PN2121

Do you know when that was sent out?---Yes, on the day, 22nd, I take it.

PN2122

So the function of that addendum is to amend the agreement that had already been sent out?---Yes, that's right.

PN2123

Did you have any knowledge - well, what can you say about - sorry. If you can go back to 8.7, provision of work wear?---Yes.

**** PHILIP MARK GRAY XN MR REIDY
PN2124

Maybe if you look at that document, do you see if it does deal with work wear?
---Don't think it does. There's (indistinct) drug and alcohol policy here.

PN2125

I might just have that back. I'm not sure if I've given you the right thing. So to your recollection, was that clause in relation to provision of work wear what was in the document at the time it was - - -?---I'm nearly sure it was. Yes, we've always supplied two issues of clothing: one summer, one winter, and a jacket in winter. The boots have always been on a fair-wear basis.

PN2126

What explanation did you give to staff on that date?---Basically that, that we would maintain that two sets of clothing would be supplied through summer and through winter, they'd get the jumpers and boots and gumboots would be supplied on a fair-wear basis.

PN2127

If you go to item 9, staff training, was there a discussion or information provided about that?---Yes. The boys are constantly being trained for different skills required, in access platforms, confined spaces and therefore - so yes, I discussed it. Any training that would be needed to be done would be paid at the company's cost and arranged for them to carry it out.

PN2128

The dispute resolution procedure, was there any information or explanation provided by you about that?---No, I don't believe I discussed that.

PN2129

Now, if you go back to the document of application, at 2.7 - I don't know if you have that in front of you. Yes, just go through about three or four pages and then you go to another section. It's a bit confusing. There's two documents there?
---Okay.

PN2130

You should come to 2.7?---2.7, "Please specify the steps taken"?

**** PHILIP MARK GRAY XN MR REIDY
PN2131

Yes. Now, your evidence has just dealt with 22 February. Can you recall - we see a series of dates where steps are said to have been taken to explain the document. Who would have done that on behalf of the company?---I did.

PN2132

Can you say what you did on each of those days, from the 22nd through to 1 March?---Yes. I went to - not all the sites at one day. Each day I made site visits to different sites and discussed with the workers. The workforce moves around a fair bit around some of the sites in town. Where I think I'd be addressing the employees that I hadn't seen before, I went and spoke to them. May have been straight after smoko or at the start of work in the morning. I did some early starts to just ask them if they'd had any issues with the agreement we're proposing.

PN2133

So do you know whether you captured all of the employees on the 22nd, putting to one side those in Townsville?---I'm more than positive I've covered all the employees more than once.

PN2134

So then with these subsequent meetings, your evidence is you didn't go to every site on each of those days. Is that correct?---That's right.

PN2135

So when you did go to a site, what did you do, say for example, on the 23rd? What did you do by way of explanation or discussion?---I basically just asked the boys if they'd received a copy - sorry, if they'd looked at their copy of the proposed agreement and asked if they had any issues with it.

PN2136

You've given evidence that on the 22nd, people were called into smoko rooms and the like?---Mm'hm.

PN2137

Was a different approach taken for the subsequent interactions from the - - -?
---Not really, just making sure that I wanted to address any of the issues that they may have had. Most of them were about allowances and so forth.

**** PHILIP MARK GRAY XN MR REIDY
PN2138

In terms of the explanations that you were given, or were giving or asked to give, was there any degree of repetition in relation to that?---Yes, there was a lot of repetition. The response from the workers was really only a couple of main areas that they were concerned. One was how the 3 per cent rate of pay would affect them after the four-year period against the proposed union 5 per cent. I addressed that by saying that, as they already knew, the majority of the workers were already paid well and truly above that rate and that for QPS to maintain its position in the industry, we needed to get ourselves probably closer to our competitors because at that point, three of our competitors that I named earlier on already have company agreements only, not union agreements, and they're way substantial - well, they were way less than what QPS had proposed, and this is what we were dealing with. We're dealing with a market where we had to stay competitive and to do so, we had to look at curbing our costs.

PN2139

In those subsequent visits through to 1 March, in what ways did you speak to or address workers? Groups or individually - - -?---No, groups and in most cases, the fellows said, "No, I have no issues with the agreement."

PN2140

You've given evidence about a very detailed explanation on the 22nd. Was that same detailed explanation given on each of these subsequent dates?---Not to that length, no. I was more going out there and talking to the workers to get them to give me their feedback.

PN2141

Now, do you recall the day of the ballot being held on 2 May?---Yes, I spoke to the - the ballot was held on 2 March, I believe. Yes.

PN2142

You had a role in relation to going around to the Brisbane area sites, did you?---I did, yes. That's right.

PN2143

Could you just explain what you did on that day?---On the day of 2 March, I visited all the sites within Brisbane. We had a ballot box, we had ballot forms.

**** PHILIP MARK GRAY XN MR REIDY
PN2144

When you say "we", who - - -?---Sorry, Joe Sweeper. I spoke to Decland and Mick Turner and I said - Declan wasn't there at the time, Mick was on a fairly important project in at Legacy Way. I said, "Do you think it's a good idea that I get Declan to come with me and I do the vote" - - -

PN2145

Declan or someone else?---Not Declan, sorry - "Joe Sweeper to come with me to carry out the votes", and they all agreed. So I grabbed Joe with me and took him to all the sites. I addressed all the employees - - -

PN2146

I'll stop you there. Can you remember what order you went around the sites in?
---I did - Legacy Way was first; I think I went out to Ipswich, we have a job at Ipswich; I came back to Legacy Way east; I went to the RNA; and - - -

PN2147

Any sites in the city itself?---I'd have to check back - - -

PN2148

Well, did you have a procedure that you adopted when you went to each site?
---Basically, yes. I just explained to the fellows that it was one purpose. That we were doing the ballot and - - -

PN2149

We'll go back a step. You arrive at a site, what do you do?---Joe had the ballot box, I had the ballot forms. I went and got all my employees together that were on that particular site.

PN2150

Where would you take them?---In a lot of cases, it was just around the back of the ute. In other cases, it was over to the lunch hub. I sat them down and basically told them that we're doing a secret ballot, we're carrying out the secret ballot they were already aware of, but the process was that they were to fill out one of the ballot forms. It was a secret ballot so they didn't have to put their name on it at all, just make - there was two boxes to tick. I asked them just to make sure they only ticked one of those boxes and then folded it. Because I had Joe with me, I also said, "Once you have folded it, to get Joe to put a signature on the back face of the document", and then, between them and Joe, they'd place their ballot paper straight into the ballot box.

**** PHILIP MARK GRAY XN MR REIDY
PN2151

Now, you mentioned a minute ago that the employees already knew it was a secret ballot. How did they know about that?---Because I'd explained to them on the 22nd. I told them that it was going to be a secret ballot and it would be - the requirements by legislation were it had to be a minimum of seven days, so I had it would be Friday-week. I didn't make a note of the date, but I did say that it would be on Friday-week. So I think the day I was going around was a Wednesday, so they knew that Friday-week was the ballot day.

PN2152

So if I can take you then back to - you address people and what do you do then, after you've done that?---Once I've addressed them and told them how they had to fill the ballot form out, I left the area. If it was the ute, I walked away from the ute. If it was in the smoko room, I walked away from the smoko room and I allowed them to do it in privacy. At all times, Joe had the ballot box with him.

PN2153

Now, was the ballot box secure in any way?---Yes, it had a key and it was locked.

PN2154

Who had custody of the key?---They keys - I didn't know where the keys were until I got back, but I believe that Lesley had my - our office lady had the keys in her possession.

PN2155

Can you say whether you had possession of the keys at all any time that day?
---No.

PN2156

Is that: did you have possession, or didn't you?---I did not have possession of the keys.

PN2157

Was there - after the last ballot was conducted, what did you then do?---After the last ballot, which was at Legacy Way east, that was the site Joe had been working on so I dropped Joe off. I proceeded back to the office with the ballot box. I took the ballot box straight upstairs into the board room. During that transit back to the office, Paul gave me a ring and said that there had been some discussions regarding - because the ballot wasn't going to be counted that day because we were waiting for the ballots to come down from Townsville, that a couple of the fellows were questioning the safety of the box and it was put forward that perhaps Joe took the box home with him. So I think once the ballot box was put up on my board room table, Joe had already been there - arrived straight after me. I basically went to the toilet, came back upstairs and he'd grabbed the ballot box and he was gone.

**** PHILIP MARK GRAY XN MR REIDY
PN2158

When did you next see the ballot box?---The Monday morning.

PN2159

Do you recall being present at the opening of it?---Yes, I was there.

PN2160

Can you explain what the process was engaged in for that?---There was Paul; myself; Lesley, our office administrator; Joe was there; Chad; and I believe Eddie Bland.

PN2161

Then how was the ballot then counted?---Lesley is a commissioner of declarations, so she had the key, she opened up the ballot box. Joe presented the ballot box to the room. Lesley opened up the ballot box and then counted the ballots, one by one.

PN2162

How did she do that?---She made two piles, basically: one for, one against.

PN2163

During the course of that exercise, was any objection raised about the validity of any particular ballot paper?---Yes, because they could see from - it was a clear ballot box - - -

PN2164

When you say "they", who is they?---Sorry, Eddie Bland made a comment and my explanation is that because it was a clear ballot box, you could see all the folded ballots in there and they all had signatures on them, so the comment was made that it had been tampered with. But as I just explained before, that was the process of why we did it that way, so that it didn't appear that Paul and I had any inkling or opportunity to tamper with them.

PN2165

What role were Mr Bland and Mr Bragdon and Mr Sweeper performing in that?
---They were just there to inspect and make - not make a comment, but just to basically inspect and visualise the opening of the ballots.

**** PHILIP MARK GRAY XN MR REIDY
PN2166

Can you recall any challenge being made to any particular ballot paper?---No. Mr Eddie Bland made comment that it had been tampered with, basically, because they had signatures on the outside.

PN2167

Can you recall any explanation being given for that?---No, I don't recall the explanation.

PN2168

But apart from that objection, can you recall any other objection?---No, I don't.

PN2169

That's the evidence of this witness.

PN2170

MR REIDY: I just want to check with the documents that have been provided for A14. I don't know which version the witness has in front of them. He probably hasn't got A14?---I haven't got A14 here.

PN2171

If your Honour could just check what version of A14 you have, because I think some of them have ended up just with the notice without the attachments. It should have, "Important notice to staff", and three pages referring to clauses and then followed by drugs and alcohol policy.

PN2172

THE SENIOR DEPUTY PRESIDENT: That's correct. That's what I have.

PN2173

MR REIDY: You do have? Yes. Mr Crank hasn't got that version. I didn't have that version. So we just wanted to make sure everyone had the same - - -

PN2174

THE SENIOR DEPUTY PRESIDENT: Did you need further evidence - - -

PN2175

MR REIDY: I might just put this document to the witness.

PN2176

MR CRANK: I think he has already said - he asked a question an hour or two ago about this document, and he said it was Paul involved with setting it out, not him.

**** PHILIP MARK GRAY XN MR REIDY
PN2177

THE SENIOR DEPUTY PRESIDENT: Maybe it's easier if the witness is able to confirm the response in the context of that document.

PN2178

MR REIDY: Yes. Can you have a look at the entirety of the document?---Yes.

PN2179

Were you aware that that document was being sent out?---Yes, I was.

PN2180

Who physically attended to sending it out?---Paul Costello.

PN2181

Do you see two names under "regards"; Paul and Phil? Who is that? On the notice on the front page?---Yes.

PN2182

Who are Paul and Phil?---Paul Costello and myself. Paul and I discussed the increase or - we felt that this - the difference - - -

PN2183

THE SENIOR DEPUTY PRESIDENT: You've answered the question.

PN2184

MR REIDY: If you go to the attachment, you'll see three pages that refer to various clauses. Can you see that?---Yes, the rates.

PN2185

Do you recall that any meetings that you attended at sites subsequent to this document discussing or giving information about the matters contained in this document?---Yes. I did tell the employees it was probably an easier thing to deal with if we - because of the small amounts of money that was - between what was being proposed by the union and what was being proposede by QPS, so to make that a less of an issue, which these were basically the main topics of discussion at any of the site visits. We've aligned them with those rates.

PN2186

So if we go to 5.3, "Redundancy", did you discuss - what did you discuss about the content of that?---We discussed that the rate that we were offering in all these categories - ours was based on a 3 per cent increase from what they were currently on. Basically, I discussed that we matched was being offered by the union proposal.

**** PHILIP MARK GRAY XN MR REIDY
PN2187

Is that the same explanation that applies to 6.4?---Yes. That's right.

PN2188

If you go to 6.8 - - -?---We made an inclusion in there on 6.8 of the $250.

PN2189

What explanation was given to the staff about that?---We basically - we increased the rate of living away from home to $40 which still doesn't align itself. It's actually a better rate than what the union was offering because of the fact that we're covering them for their accommodation. So it was a top up on top of that again.

PN2190

Do you recall explaining 7.3 on any of your visits?---Yes. Again, it was the same. We aligned it with the proposed - - -

PN2191

And clause 5.5, what explanation did you give for clause 5.5?---I addressed the drug and alcohol policies in regard to the understanding that that was part of their employment. It was part of the induction process that QPS adopted. So they were all aware of the fact that what the conditions of the drug and alcohol policy were.

PN2192

What was the explanation you gave about clause 5.5?---That they should all have a copy of the drug and alcohol policy, and the company would follow that, and that the that - on most of the sites that we – basically all the sites we worked on, it’s required of us to have our workers in a fit and healthy state and we had to enforce the fact that we do reserve the right to introduce the drug and alcohol policy at any time or testing.

PN2193

That’s the only evidence of this witness.

PN2194

THE SENIOR DEPUTY PRESIDENT: That’s the evidence, thank you.

PN2195

MR REIDY: Thank you.

**** PHILIP MARK GRAY XN MR REIDY
PN2196

THE SENIOR DEPUTY PRESIDENT: We will adjourn until 2.15.

<LUNCHEON ADJOURNMENT [1.12PM]
<RESUMED [2.18PM]

PN2197

THE SENIOR DEPUTY PRESIDENT: Thanks, everyone. Cross-examination?

PN2198

MR CRANK: Yes, your Honour.

PN2199

THE SENIOR DEPUTY PRESIDENT: If the witness could return to the witness box.

PN2200

I remind you, Mr Gray, you remain under oath?---Yes.

<CROSS-EXAMINATION BY MR CRANK [2.18PM]

PN2201

MR CRANK: Mr Gray, how many employees were at the meeting on 14 December 2011?---That, I can't recall.

PN2202

Do you recall approximately?---In the order of 30-something.

PN2203

Do you recall which of the employees were not at the meeting?---No, I don't. I'll have to look back on the records.

PN2204

QPS has an existing enterprise agreement that has been approved by Fair Work Australia that applies to just a single project, namely Legacy Way, doesn't it?
---That's right.

PN2205

Can I ask the witness to have a look at exhibit A2. So I'll just ask you to read the first paragraph of that notice, exhibit A2?---"Queensland Pre-Stressing Pty Ltd gives notice that in its bargaining in relation to an enterprise agreement Queensland Pre-Stressing Enterprise Agreement 2011, which proposes to cover those employees that work for Queensland Pre-Stressing Pty Ltd, subject to enterprise agreements already in place."

**** PHILIP MARK GRAY XN MR CRANK
PN2206

All right. So the Legacy Way enterprise agreement was an agreement which was already in place when this notice was provided to employees, wasn't it?
---Probably would have been, yes.

PN2207

So the meaning of that first paragraph is that this notice is being given to those employees who are going to be covered by a proposed new agreement but not those employees who are covered by the Legacy Way agreement. That's correct, isn't it?

PN2208

MR REIDY: Can I object to this because the question is premised on this employer being covered by the Legacy Way agreement. I'm actually looking at that agreement at the moment and the employer listed in the agreement or referred to in the agreement is - Transcity Joint Venture is the employer.

PN2209

MR CRANK: I'm not talking about that agreement.

PN2210

MR REIDY: Then it might be useful to put the particular agreement to the witness so that we know which one we're talking about.

PN2211

MR CRANK: The witness has already agreed that there is such an agreement that exists that applies to QPS only in respect of Legacy Way. It has already been dealt with. Now I'm simply asking him what's the meaning of the first paragraph of the notice which is exhibit A2.

PN2212

THE SENIOR DEPUTY PRESIDENT: Do you know which agreement we're now talking about?

PN2213

MR REIDY: I have no idea.

PN2214

MR CRANK: I must apologise for putting my friend at a disadvantage. I don't have a copy of it, your Honour. I knew it would be a matter within the knowledge of the witness so I haven't arranged for copies to be here.

**** PHILIP MARK GRAY XN MR CRANK
PN2215

THE SENIOR DEPUTY PRESIDENT: Do we know the title of this agreement or an agreement number or - - -

PN2216

MR CRANK: I don't know the number, your Honour, but the agreement will certainly include the words "Queensland Pre-Stressing" and "Legacy Way" and "enterprise agreement".

PN2217

THE SENIOR DEPUTY PRESIDENT: You really need to look at the application clause, I presume. Is that right?

PN2218

MR CRANK: I don't need to look at anything, your Honour. I'm - - -

PN2219

THE SENIOR DEPUTY PRESIDENT: In order to (indistinct) the devices out of those and we'll just see where we get to. All right. How are you placed now, Mr Reidy?

PN2220

MR REIDY: I have found a copy of it.

PN2221

THE SENIOR DEPUTY PRESIDENT: Yes. I can identify - - -

PN2222

MR REIDY: We can proceed with the questions.

PN2223

THE SENIOR DEPUTY PRESIDENT: Yes. Please proceed.

PN2224

MR CRANK: Thank you, your Honour.

PN2225

Mr Gray, did you approve this notice in exhibit A2?---This would have been a notice in relation to the job specific Legacy Way project, I take it?

PN2226

Well, is it?---Well, I've only got this page of it. The rest of the document - - -

**** PHILIP MARK GRAY XN MR CRANK
PN2227

Do you recall seeing exhibit A2 prior to today?---I would have to say no, I haven't.

PN2228

But having read the first paragraph now, you understand that the meaning of that first paragraph is that the notice, or the effect of the first paragraph in your understanding is that the notice is in relation to a bargaining process being commenced for employees who are not covered by the Legacy Way enterprise agreement, isn't it?---No. I understand it as being for the Legacy project alone.

PN2229

I think the previous evidence given by at least one other witness in this matter for the company is that this was a notice issued in respect of the agreement that is before his Honour at the moment for approval, not a notice in relation to the Legacy Way agreement, but a notice in relation to the agreement that we're dealing with here in these proceedings. Do you understand that?---Yes, I understand that.

PN2230

So that being the case, the effect of the first paragraph in your understanding is that the notice is that a bargaining process is commencing for employees at the company except those who work on Legacy Way. Correct?---Yes, I would assume so.

PN2231

How many employees were working on Legacy Way in February of this year, working for QPS of course?---Probably not that many because the Legacy Way project was very stop, start.

PN2232

So how many?---Could be one, could be 12.

PN2233

It was a large project though, wasn't it? One of the largest projects?---It doesn't matter. We couldn't do anything on the project when we didn't have work for us to do, and we were - we had a big spell of work - a big period between those - roughly - approximately those dates where we had nobody on site.

**** PHILIP MARK GRAY XN MR CRANK
PN2234

You have given evidence about you having attended a meeting on that site - - -?
---Yes, could have been there for - - -

PN2235

- - - on 22 February. Are you now telling us you don't recall how many people you spoke to?---On that site?

PN2236

On that site on - - -?---There could have been four people there. There could have been 10 people there.

PN2237

You don't recall?---No.

PN2238

Well, however many people were there that you spoke to, there were some, weren't there?---Yes, there could have been for one day. They could have been there for two days. It doesn't mean that they were there for the entire week of that - employed by that site for that week.

PN2239

But the effect of that notice was that the employees who worked on Legacy Way were not to be covered by the bargaining process that was being commenced by this notice in exhibit A2. Correct?---Yes, they were, because the agreement that we're talking about now is for the next three-year period for any sites. Those workers could have been on that site for Monday and Tuesday of a week and may not go there for another month, so obviously there has got to be an agreement that covers them in the interim.

PN2240

So when the employees are working on Legacy Way, which agreement was intended to apply to them? The Legacy Way agreement?---On the Legacy Way, yes.

PN2241

Or this other agreement?---No, on the Legacy Way agreement. When they worked on that site they were on the Legacy Way agreement.

**** PHILIP MARK GRAY XN MR CRANK
PN2242

So why were you having meetings with the employees on the Legacy Way project in respect of this agreement?---Because they're employees of the company.

PN2243

But not to be covered by this agreement while they were working on Legacy Way?---They would be covered by the Legacy Way agreement while they're working on the Legacy Way project.

PN2244

What's your email address, Mr Gray?[e-mail].

PN2245

Has that email address changed? Is that the same email address you had in 2011?
---Yes, it was.

PN2246

Can the witness be shown this document. If you look at the document, Mr Gray, can you see your email address near the top of the first page in the field which says "2"?---Yes.

PN2247

So you received this document from the union on 24 June 2011?---I did not.

PN2248

How can it be that the document was sent to your email address on that date and that you didn't receive it?---I never received a copy of this from the union. The only copy I ever received of this document was handed to me from Declan Hartley.

PN2249

How can you be sure about that?---I can be positive of that. You have to take my word for it.

PN2250

When did you receive the copy of the union's proposal from Declan Hartley?
---It was some time in the latter part of last year.

PN2251

The latter part of last year, all right?---Between July and December, I would say.

**** PHILIP MARK GRAY XN MR CRANK
PN2252

Between July and December. Can you be more specific?---Not really.

PN2253

All right?---I mean, there was a lot of talk about the union agreement and it being out there, but, no, not till I spoke to Declan near the - at one point I asked him if I could - get me a copy of it.

PN2254

You attended a meeting with leading hands to discuss enterprise bargaining in mid-to-late July of last year, didn't you?---I'm not sure of that. I'm not sure.

PN2255

I put it to you that Mr Hartley agreed that he attended a meeting with the company and the other leading hands in mid-to-late July. Do you think Mr Hartley is wrong about that?---He could be. The exact dates and when it happened, lots of things happen in regard to these things that you don't remember everything.

PN2256

What did you say in that meeting with the leading hands?---I don't recall the meeting. I can't respond on what I said.

PN2257

You don't recall the date of the meeting or you don't recall the meeting occurring at all?---The meeting could have happened. I mean, I constantly keep in communication with my leading hands and company representatives about minor - they could be minor issues or they could be just general conversation about different topics at hand at the time.

PN2258

So when do you recall first discussing anything about enterprise bargaining during 2011 with any leading hands?---I had numerous calls from my two main leading hands at the time which were Declan and Mick Turner about starting the bargaining process and my response to them, and they were satisfied with that, was that - well, they asked the question, "When can we start the bargaining process?" My response was that, "Nobody else in our particular field had started negotiations or signed an EBA or close to signing any EBAs," and I told them that I didn't want to go and be the first one forward because it was a very sketchy market and I already - they already were aware of the fact that they were being paid well over the current rates of union rates and I didn't want to put myself up on a pedestal where I had - you know, it could be a detriment to the business long term, so there was a - - -

**** PHILIP MARK GRAY XN MR CRANK
PN2259

When did you have that discussion with the union?---Those discussions happened over a few months from - - -

PN2260

Beginning?---Probably end of February, March 2011, through to probably July-ish.

PN2261

On 14 July 2011 at 11.35 am a union organiser, Eddie Bland, sent a text message to your phone, your mobile phone, asking for a meeting on 19 July, didn't he?
---I spoke to him about that, yes.

PN2262

I'm not asking you if you spoke to him?---Yes, he did.

PN2263

I'm asking you if he sent you a text message?---Yes, he did.

PN2264

You called Eddie Bland after receiving that text message and said to Eddie that you have got no need to start talking to him, didn't you?---I actually spoke to Eddie for a short period because Eddie sent me - have you got the copy of the text that Eddie sent to me?

PN2265

THE SENIOR DEPUTY PRESIDENT: The question is very specific, Mr Gray. It needs a, "Yes, I did," or, "No, I didn't" answer. Can you repeat your question.

PN2266

MR CRANK: Yes.

PN2267

After you received that text message from Eddie Bland you rang him back and you said to Eddie Bland you are not interested - sorry, "I have no need to start talking to you"?---I don't recall that.

PN2268

You said to Eddie in that conversation, "I do work all over the country and I do not want to enter into an agreement for the state." You said that, didn't you, to Eddie?---I do not recall that.

**** PHILIP MARK GRAY XN MR CRANK
PN2269

On 5 October, Eddie Bland telephoned you and left a voice message asking you to contact him regarding EBA negotiations, didn't he?---No. I don't recall that phone call. I only recall having one phone call with Eddie.

PN2270

The following day, on 6 October, Eddie sent you another text message to your telephone asking again for negotiations. You again telephoned him back and said, "I'm not interested in negotiating." That's correct, isn't it?---No.

PN2271

Well, what did you say on that occasion?---I don't recall that conversation. I had one conversation, that I recall, with Eddie.

PN2272

Do you recall saying to Eddie on that occasion that, "We are not in negotiations"?
---No, I don't recall that.

PN2273

Do you recall Eddie replying to you that, "We have spoken to your men and they want us as their bargaining representative"?---No. The only time I got that - no, is the answer to that.

PN2274

Do you recall Eddie asking to meet with you next week, obviously "next week" at that time?---No.

PN2275

You replied to Eddie that you haven't got the time to talk to him?---That's not true.

PN2276

That's what you said to him, wasn't it?---No.

PN2277

Concerning the first phase of the alleged agreement, QPS never met with the union ever, did it?---First phase, no.

PN2278

You say that you had a copy of the union's proposal that Mr Hartley gave you. You never provided a response to the union about that proposal, did you?---No. I had no reason to.

**** PHILIP MARK GRAY XN MR CRANK
PN2279

But you understood it was the union's proposal?---Apparently. It had "CFMEU" on the document. It made no mention of - - -

PN2280

So when Mr Myles attended a bargaining - Joe Myles, the union organiser. Do you recall him?---Yes.

PN2281

Attending a meeting on 1 February?---Mm'hm.

PN2282

He was quite adamant, wasn't he, that he was after an agreement as proposed by the union?---Yes.

PN2283

What he was referring to was the document that Mr Hartley had given you?---I don't know whether it was referring to that. He just said what we were proposing was a non-union agreement.

PN2284

And that he wanted a union agreement for QPS - - -?---Whether the agreement was the same as the one that Declan had, I don't know.

PN2285

What did you think Mr Myles meant when he said he wanted a union agreement?
---I don't know, because he had a chip on his shoulder the minute he walked in the door, and for someone to come into a bargaining meeting and state that they wanted a union agreement without even looking at our agreement, how does that mean that he's there for bargaining purposes?

PN2286

So because you thought Mr Myles was not prepared to look at QPS's proposal - - -?---He hadn't looked at it.

PN2287

- - - that was QPS's reason for refusing to consider the union's proposal?---No, because if you go back to the discussions I had with Eddie Bland, my representatives for the company, and the rest of the company, said they wanted - they were happy with a non-union agreement, as we were already working under, they just wanted an agreement put in place.

**** PHILIP MARK GRAY XN MR CRANK
PN2288

Because you had heard that employees would be happy with a non-union agreement, you didn't consider the union's proposal at all, did you?---I hadn't seen the union's proposal at that stage.

PN2289

Yes, you had. You said you had seen it from Mr Hartley?---Yes, later at this day - later in the year.

PN2290

No. You said you saw that early in 2011?---No, I didn't.

PN2291

I think you said around March or thereabouts?---No, I didn't. I said I saw it after July. Between July and the end of the year.

PN2292

All right. Well, if you saw it between July and the end of the year, that was well prior to the meeting that Mr Myles attended on 1 February this year, wasn't it?
---Yes, and Mr Myles also had plenty of time to read our document before he came to the meeting.

PN2293

Because you thought he didn't read your document before he came to the meeting, you weren't going to be reading the union's document. Isn't that right?---No, because - - -

PN2294

MR REIDY: I object to this because when my friend is asking about the union document, he needs to clarify what the union document is, because he has already asked questions about the union proposal and this witness has said there was no union proposal.

PN2295

THE SENIOR DEPUTY PRESIDENT: Can you just be precise with reference to the document.

PN2296

MR CRANK: When I say the union document, I mean the document that Mr Hartley gave you, which you have appeared to be the union's proposal?

**** PHILIP MARK GRAY XN MR CRANK

---Appeared to be, yes.

PN2297

So you were of the view that Mr Myles had not considered QPS's proposed agreement and therefore the company wasn't going to be considering the union's proposal. Correct?---No. I was expecting Mr Myles, or the first person that was to represent the union at that meeting, to put forward a document that they were wanting to negotiate over.

PN2298

So you were expecting that?---The union to, yes.

PN2299

You say the union didn't do that?---They never spoke to me about it.

PN2300

If you were expecting the union to put forward a document and you say that the union didn't, did you ask the union if they had a document?---This conversation I had with Eddie Bland was that - - -

PN2301

I'm talking about the meeting on 1 February attended by Joe Myles, the union organiser?---Can you repeat the answer - the question, please?

PN2302

I'll repeat the question. You said you expected the union to provide a document and you also said that the union didn't provide a document?---If the union was representing the workers - - -

PN2303

I haven't finished the question?---Yes.

PN2304

You said you expected the union to provide a document, but that the union didn't do that. Why did you not ask the union for their document, or what their proposal was if you were expecting us to provide one?---Well, the union - what is the union representing if they are turning up to a meeting with - what are they going just to defend our document? You had a copy. There was - a week, or a week and a half prior to that meeting a copy was sent through.

**** PHILIP MARK GRAY XN MR CRANK
PN2305

I'm not asking you about QPS's proposed agreement. I'm asking you about the union's proposed agreement?---So why didn't the union come with our proposed agreement and say, "No, we - - -"

PN2306

I'm asking - - -?---"- - - wanted to negotiate"?

PN2307

You don't get to ask any - this is not a negotiation for EBAs. This is a - I ask the questions, you answer them. You're the witness?---Okay.

PN2308

You were expecting the union to provide a document. You say the union did not do that?---Not at that meeting, no.

PN2309

Why did you not follow up your expectation with a question to the union like, "Is this your document - - -"?---Wrong use of - - -

PN2310

- - - the one that Mr Hartley gave me"?---"Expect" is probably the wrong choice of words. I would have assumed.

PN2311

If you assumed the union would have given you a document, whichever word you use, "expect" or "assume", you were anticipating the union giving you a document. You say that one wasn't given, except through Mr Hartley. Why did you not attempt to clarify that matter with the union?---Why was there a need to when they were already going to be attending the first bargaining meeting?

PN2312

It was exactly at the first bargaining meeting where you had the opportunity to say to the union, "I'm expecting a document from you. Is this one it? The one Mr Hartley has given me, is that it?" You didn't ask that question?---No, I didn't.

PN2313

In relation to that meeting on 1 February that was attended by Joe Myles, you said in your evidence earlier before lunch that after hearing from Mr Myles you came to the view that there was no point proceeding, that you had been through - you said, "We had been through this numerous times with the others," meaning the other bargaining representatives. Is that who you were referring to?---That's right.

**** PHILIP MARK GRAY XN MR CRANK
PN2314

So there was no point proceeding in talking to Mr Myles. Is that right?
---Mr Myles hadn't read the bargaining agreement that we had put forward to you some week and a half prior to it.

PN2315

But you decided there was no point proceeding and talking to Mr Myles?
---Because he - - -

PN2316

Because you had been through all the issues with the other bargaining representatives on other occasions?---No. Mr Myles openly said he was not allowed to make comment.

PN2317

Not asking what Mr Myles said?---You just did.

PN2318

No. I'm asking you what your thoughts were?---My thoughts were - - -

PN2319

In relation to your previous testimony, you previously said there was no point proceeding?---Mm'hm.

PN2320

After Mr Myles had spoken you decided there was no point proceeding, "We had been through this numerous times with the other." The others being the other bargaining representatives. So from the point of time when you formed that view, you had no interest in talking or negotiating any further with Mr Myles, did you?
---Not when he hadn't read the agreement before he even turned up, and made the comment that he wasn't there to make comment at that meeting.

PN2321

When were these previous occasions when the company had been through the relevant issues numerous times with the other bargaining representatives?---State the question again.

PN2322

You testified earlier, "We had been through this" - meaning the EBA issues - "numerous times with the other bargaining representatives." I'm asking you when were those occasions when the company had been through - - -?---Periodically.

**** PHILIP MARK GRAY XN MR CRANK
PN2323

- - - EBA bargaining with the other bargaining representatives?---Just periodically.

PN2324

Can you be more specific?---It was a lengthy process from when our EBA completed in March 2011 through to the latter part of last - 2011. There was conversation about what the company was proposing and what we thought we would be proposing. There was many discussions about what we were looking at doing.

PN2325

So because of those numerous lengthy discussions between March 2011 and the end of 2011, there wasn't really much left to talk about or bargain for come February 2012, was there?---As far as QPS employees and QPS management, we had discussed almost all the issues and were at an amicable result, yes.

PN2326

All that was left to do by February was to go through the motions with the union, have them at a few meetings and then get the thing out to a vote. Is that the process?---Probably, yes.

PN2327

By the time the union attended the first meeting on 1 February, the content of the agreement was essentially in your mind anyway between the company and the employees and the three employee bargaining reps?---Well, a lot of it stems back to the conversation I had with Eddie Bland.

PN2328

Nothing in what - you didn't discuss any of the content of the agreement with Eddie Bland though, did you?---Yes, I did.

PN2329

What did you discuss with him?---Basically it was rates of pay. I said to Eddie Bland that, "I understand that you're pushing for a five plus five plus five plus five." I said, "In this current climate the company needs to look at this seriously to maintain its position in the industry and be able to offer the services we do," and I said, "We'll be looking for more like a three plus three plus three," and his comment to that was, "That will not happen."

**** PHILIP MARK GRAY XN MR CRANK
PN2330

Was that the phone call you had with Eddie on - - -?---Would have been the first - - -

PN2331

- - - 14 July?---The first phone call I had.

PN2332

Around 14 July?---I was overseas actually. I was just on my way back from an overseas trip so could have been around then, yes.

PN2333

Once you and Eddie had disagreed on the phone about rates of pay there was no point in the mind of the company talking to or negotiating with the union any further?---Well, not with Eddie Bland. If you had a tape message of the phone conversation, then you wouldn't want to talk to anybody like that again either.

PN2334

You testified earlier that on 22 February you went to all the company sites in Brisbane. You mentioned Legacy Way, RNA, Triple 1 Eagle, Ann Street, and one more. Can you recall now what that other one was?---I'm pretty sure it would have been Cunninghams Gap.

PN2335

Cunninghams Gap, all right. And another site at Ipswich?---Ipswich wasn't running at that stage I understand, if I recall properly.

PN2336

So you didn't go to any site at Ipswich on 22 February?---I'd have to look back to see whether that site was running that day.

PN2337

Of those sites that you say you went to on 22 February, which did you go to first?
---On the 21st - 22nd I mean?

PN2338

22 February?---Legacy Way.

PN2339

What time did you arrive there?---I was there at the night shift - the night work, sorry.

**** PHILIP MARK GRAY XN MR CRANK
PN2340

So what time was that?---12.00, 1 o'clock in the morning.

PN2341

12 midnight or - til 1 am in the morning?---Yes.

PN2342

Then what time did you leave Legacy Way?---I was there for a few hours because we've been doing what - night works there.

PN2343

So what time did you leave Legacy Way?---Probably 2 o'clock or something like that.

PN2344

What site did you go to after that on 22 February?---Probably RNA I think was the first site I went to in the morning.

PN2345

What time did you get to the RNA?---I don't recall. I didn't write these times down.

PN2346

Approximately?---8.00, 8.30, something like that I would assume.

PN2347

What time did you leave?---I was there for half, three-quarters of an hour, something like that.

PN2348

What time did you get to the next site after that? Where did you go to from the RNA?---Honestly I don't recall where I went from there because I visit various sites on numerous days, so outlining that down to the particular day that was there - I spoke to my supervisors and found out where the workers were working, and that's where I just - that's where I went.

PN2349

So you were at the RNA for about half to three-quarters of an hour. Would that have been about the same time as you were on the other sites that you say you were on on 22 February?---Yes. Yes, it would have been roughly the same.

**** PHILIP MARK GRAY XN MR CRANK
PN2350

Out of that time, how much time would you have spent actually explaining the agreement to the employees?---Yes, basically - - -

PN2351

Would take some time to get onto the site. These are large sites, aren't they? Take some time to round up the employees, get them to the - - -?---No, not - - -

PN2352

- - - shed or wherever you took them?---Not when you ring the supervisor in advance and get him to get them together.

PN2353

How long do you say you spent explaining the agreement to employees on each of the sites?---Half to three-quarters of an hour.

PN2354

You say you got through all that detail that you gave in answer to Mr Reidy before, all that detail that you claim to have explained to employees, you got through all of that in half an hour?---A lot of it I can breeze through because the fellas are very familiar with the union document - well, the previous documents, yes.

PN2355

When you say "breeze through it," you mean you gave the explanation in a shorter form to what you gave Mr Reidy?---No. Very close to what I gave Mr Reidy, but just flowed through. The boys don't ask - they never ask too many questions except for when it came to monetary items.

PN2356

How long did the employees ask - stand asking questions about - the questions and the answers relating to monetary matters, how long did that take?---Very short period of time.

PN2357

How long?---10 minutes.

PN2358

10 minutes. So if you take the 10 minutes out of the half to three-quarters of an hour, you're saying in that remaining time you managed to get through all the detail that you gave Mr Reidy in answer to his questions before about the terms of the agreement that you explained to employees?---Three-quarters of an hour could mean an hour too, you know. I went through the document with the boys on site, yes.

**** PHILIP MARK GRAY XN MR CRANK
PN2359

You didn't record which employees attended those meetings?---No, I didn't because I got a list of the employees from my supervisor who was on what sites.

PN2360

Do you have that list with you?---No, I don't.

PN2361

Is there any reason why you couldn't have brought it today?---My supervisors carry that list. I just rang them and tell them - find out where the site - which sites are working and how many - not how many, but which sites are working and that covers all the employees.

PN2362

You could have asked your supervisors to provide you with that information for today, couldn't you?---A lot of the time they don't keep a copy of it but, yes, I can ask them.

PN2363

You said a few of the employees that you met on 22 February had said they didn't receive the agreement?---Yes.

PN2364

Did you give them copies at that time?---No, I didn't.

PN2365

So you were attempting to explain something to them that they hadn't seen?
---Yes. The mail process obviously takes sometimes more than one day.

PN2366

Did you go back to the office between Legacy Way and attending the RNA on 22 February?---No. From Legacy Way?

PN2367

Yes?---No.

PN2368

You see Mr Costello says the agreement was posted to employees on 22 February, so I'm wondering how it is that very soon after midnight on 21 February you were out there explaining a document to employees that wasn't posted until presumably later that day. Can you explain that?---Yes. I had a copy of it.

**** PHILIP MARK GRAY XN MR CRANK
PN2369

MR REIDY: I object because that's not what evidence was given. There's a distinction drawn between the posting on 16 February of the agreement, and then the posting on 22 February of the addendum. The question is confusing the two, and the questioner needs to identify which of those two documents he's talking about, rather than refer to them compendiously.

PN2370

THE SENIOR DEPUTY PRESIDENT: Mr Crank, just identify which one and which people.

PN2371

MR CRANK: All right. I nearly asked the question on the addendum, but the witness had given evidence about what had been posted out on the 22nd being the agreement, so I'm trying to use his language.

PN2372

Mr Costello said that on 22 February the addendum was posted to employees. So I'm wondering how it is that you might have been out explaining what was in that document to people very soon after midnight on that day. Can you explain that?
---Well, that was the addendum that we had put forward and I had night works happening at Legacy Way which at that point had a number of employees there. Somewhere - eight. Eight or 10 employees there.

PN2373

When did you receive a copy of the addendum for the first time?---On the 21st. The day it was mailed out.

PN2374

Mr Costello says it was mailed out on 22 February, not the 21st?---21st, 22nd, yes.

PN2375

Which day was it?---Obviously I had a copy of it before I went to the site, so it might have been agreed to on the 21st, and might have been mailed on the - late 21st, or early 22nd.

**** PHILIP MARK GRAY XN MR CRANK
PN2376

What time was the meeting of the bargaining representatives on 21 February?
---6 or 7 o'clock, I think, in the morning.

PN2377

In the morning, all right. When did you receive a copy of the addendum on that day? What time?---Well, I'm nearly sure Paul and myself discussed it through the day and put that together - the addendum.

PN2378

So do you want to answer the question?---Repeat it.

PN2379

What time did you receive a copy of the addendum on 21 February?---I don't know. Some time through the day.

PN2380

If it was created some time through the day on 21 February, is there a reason why it wasn't posted to employees? Why wait an extra day to post it to employees if it was created the day before?---I don't know.

PN2381

You testified earlier that on 22 February you told employees that most of them were paid above the agreement. Is that correct?---That's correct.

PN2382

Now, that was part of the explanation of the agreement to employees?---That was part of the explanation, yes.

PN2383

The agreement doesn't say anywhere in it, does it, that anyone will be paid above the agreement? If I am wrong, you tell me the clause number?---I don't believe so.

PN2384

You don't believe that the agreement provides anywhere that someone will be paid above the agreement?---That's right.

PN2385

So when you told employees that they would be - in explaining the agreement to employees you said to them that most will be paid above the agreement, you were misleading them, weren't you?---No. I said most of them are being paid above the agreement.

**** PHILIP MARK GRAY XN MR CRANK
PN2386

That's not an explanation of the terms of the agreement, is it? This is what you said to people about the pay rates in the agreement, was that most of them were being paid above the rates that are in the agreement. That's not an explanation of what's in the agreement, is it?---If they see evidence of the base rates of pay, and then I inform them that, you know, that a majority of them are paid above those rates, that's referring that from those rates, isn't it?

PN2387

If you're explaining the terms of the agreement to employees and you tell them that they're going to be paid - are all going to be paid above the agreement - - -?
---They are currently being paid above the agreement, yes.

PN2388

What's the point of telling them that?---To get them to understand the reasons why we're offering 3 per cent, not 5 per cent.

PN2389

To get them to support the agreement?---Yes.

PN2390

Even though the agreement doesn't provide anything about them getting paid above the agreement?---That was a thing that grew over the years as a - like a - not so much a bonus, but an incentive for the workers of QPS that grew from the year I took it over - the year I started it.

PN2391

What did you explain to employees about the terms of the agreement in relation to the living away from home provisions?---Yes. I told the employees that the living away from home allowance was when they are working away from home, they get paid their daily rate, which at the time was $30 an hour - $30 a day, and the company foots the bill for the accommodation.

PN2392

You said before, didn't you - you testified earlier that you told employees in that explanation that what the company was offering with respect to living away from home entitlements was higher than what the union was offering?---Yes.

**** PHILIP MARK GRAY XN MR CRANK
PN2393

How was it higher?---You do seven - you know, you multiply the daily rate by the - if you're talking a weekly allowance, you multiply the daily rate by the seven days and then add the $250 a day accommodation - $250 a week.

PN2394

So how is it that you can tell employees that you are offering more than the union, and yet you claim the union never gave you a proposal?---I glanced - I'd seen - the four or five obvious things were poked in my face regularly because we did do - as I said, there was a lot of our work was done out of the metro area and a lot of the fellas were questioning the living away from home allowances. So I knew exactly what the union rates were, which was somewhere in the order of $60 a day.

PN2395

You understood the union wanted those rates and the other terms in the union's proposal for QPS employees?---Yes. I can go and pay my boys $60 a day and they would be worse off. So that's got to mean that ours is better, hasn't it?

PN2396

You testified earlier that you explained the agreement to employees in this way, that the employees progress from CW1 to CW2 classification after six months. There's nothing in the agreement that provides for that, is there?---Maybe not.

PN2397

You also testified earlier that in explaining the agreement to employees that you said what the classification structure meant is that if you show leadership, you progress from there. You said that earlier, didn't you?---Yes.

PN2398

There's absolutely nothing in the agreement that says that if you show leadership, you will progress through the classification structure, is there?---Probably not.

PN2399

You said you didn't explain anything about BERT because you said workers know what BERT is. How did you - or which workers told you that they knew all about BERT?---All workers know about BERT. They know it's their redundancy - - -

**** PHILIP MARK GRAY XN MR CRANK
PN2400

That's not the question. The question is which workers told you that they know all about BERT?---I can't be specific on who.

PN2401

So there is no basis for that claim by you, is there? You have no idea what workers know about BERT. You haven't tested them, have you?---Probably not.

PN2402

You said earlier that when you were explaining the drug and alcohol policy that's in the alleged agreement to workers that they were given that at their induction. Is that correct?---Mm'hm.

PN2403

There was no other explanation given by you to them about the drug and alcohol policy, was there?---No.

PN2404

You said 99 per cent of the company's employees are permanent. How many employees does the company have?---Ranges. Can be from - one moment it's 25, 22. Can go up as far as 40.

PN2405

Has it ever been as high as 100?---No.

PN2406

So therefore it's impossible that 99 per cent of your employees - unless we're somehow dividing bodies up into pieces, it's impossible that 99 per cent of your employees - - -

PN2407

MR REIDY: I object to this question.

PN2408

THE SENIOR DEPUTY PRESIDENT: Yes, it's - - -

PN2409

MR REIDY: It's really a nonsensical question.

PN2410

THE SENIOR DEPUTY PRESIDENT: Can you just go back a little bit? Going to ask this question again or - - -

**** PHILIP MARK GRAY XN MR CRANK
PN2411

MR CRANK: Your Honour, in my submission, the evidence that has to be given to this tribunal has to be accurate. It's not a matter of giving evidence to this tribunal that is vague or unsubstantiated or, you know, in the nature of cliches. If figures are given to this tribunal they have to be accurate, that's my submission, and I'm entitled to put the proposition to the witness that the figure that he has given is not correct.

PN2412

THE SENIOR DEPUTY PRESIDENT: Well, put it to him and we'll see what answer we can reasonably obtain?---A fair majority of the employees.

PN2413

MR CRANK: So 99 per cent is wrong, is it?---Yes, it must be.

PN2414

You said that you explained clause 6.5 of the alleged agreement, which relates to income protection insurance, you said that you explained that clause to employees by saying, "It had been increased by 3 per cent". Is that what you said before?
---I'm not sure if income protection was actually raised by 3 per cent or whether it was a nominated figure from - - -

PN2415

I'm just asking you about what you said earlier?---Well, we probably would have - - -

PN2416

You said earlier though, didn't you, that the explanation you gave to employees about the income protection clauses, that the rates contained in that clause have been increased by 3 per cent. That's what you said before?---I probably said that, yes.

PN2417

That's not correct, is it?

PN2418

MR REIDY: Well, could he have a look at the agreement that he's asking him about.

**** PHILIP MARK GRAY XN MR CRANK
PN2419

MR CRANK: I'm asking him about the explanation he gave to employees.

PN2420

MR REIDY: No. He's asking him about what's in the agreement.

PN2421

THE SENIOR DEPUTY PRESIDENT: In the aid of accuracy let's (indistinct) the question (indistinct) is a matter of some (indistinct) let the witness have a look at the agreement and we'll see what he says.

PN2422

MR CRANK: Just let me know when you have had a chance to read clause 6.5?
---Yes, the employer will pay the higher rate if the rates that we have noted there aren't equal to or greater than at the time.

PN2423

Prior to paying $18 per employee in respect of income protection how much was the company paying per employee?---No, I'm not sure. I'll have to check.

PN2424

I put it to you that it was $16.50 and that's the same amount for every employee that is part of SupQ. Do you accept the figure of 16.50 as being the figure QPS previously paid before paying $18?---No, I would have to check. I can't confirm that.

PN2425

So if you don't know what was previously paid, there's no basis for you telling employees that it's a 3 per cent increase, is there?---Well, it probably - - -

PN2426

You just made it up?---No, I didn't make up.

PN2427

Well, how did you calculate the figure of 3 per cent in relation to income protection insurance that you explained to employees?---I assumed it was 3 per cent because all the other rates we based them on but SupQ is the only one that actually stands out as being the commitment that the - if the rate was not equal to, then it would have been, or above, it would have been paid at that SupQ rate.

**** PHILIP MARK GRAY XN MR CRANK
PN2428

So you didn't make a calculation in respect of income protection insurance. You made an assumption. Is that what you're saying?---Yes.

PN2429

Your assumption is incorrect?---It appears in that instance, yes.

PN2430

You testified earlier in explaining at clause 6.8 to employees that you told the employees that if they wanted to find accommodation themselves then they would be paid the rates in one of the boxes rather than the other in clause 6.8. Is that correct?---That's true.

PN2431

Nowhere in clause 6.8 or elsewhere in the agreement is there any reference to employees finding their own accommodation, is there? In other words, you gave employees the impression in your explanation that the agreement would entitle them to making their own choices about accommodation, about where they stayed. In fact there is no such entitlement in the alleged agreement, is there?
---The employees were given the option of whether they wanted to source their own accommodation and a hundred - all employees said, "No, we're happy with the process that's in place. You provide the accommodation," because from location to location accommodation can go from $500 a week to $1000 a week for the same type of accommodation. So the reason for that boxing to go in there was if someone wanted to go and live in a caravan or happy to just take the money as a weekly rate or a daily rate on that basis.

PN2432

But there's nothing in clause 6.8 or anywhere else in the alleged agreement, is there, that says anything about employees making a choice as to the form or cost of accommodation, is there?---Well, I can nearly guarantee that that is a duplication of the BLF enterprise agreement wording.

PN2433

Yes, but sensible employees don't run around telling people about BLF agreements, what you have told your people about your agreement. There is nothing in the agreement, is there, which gives workers the choice about accommodation that you explained to them they would have under the agreement, is there?---Ask the question again, please.

**** PHILIP MARK GRAY XN MR CRANK
PN2434

There is nothing in the agreement that provides any entitlement for workers to make a choice about the form or cost of accommodation?---What do you mean by "entitlement"?

PN2435

A right?---In the text that you - well, obviously they're going to be able to work out how they're going to be more beneficial, aren't they.

PN2436

Well, remember I'm asking the questions?---No, there's nothing in the agreement saying that.

PN2437

All right. You testified before that when you were explaining clause 6.9 to employees, which concerns the industry allowance, that that was an allowance that was created with the union. That's absolutely untrue, isn't it?---No. That is an agreement that was made with Junior back in 2006 - agreement.

PN2438

Did Junior have any part of the negotiations for this agreement?---No.

PN2439

So therefore what's in clause 6.9 cannot possibly have been something that was agreed to by Junior?---You would have to refer back to the agreement in 2006 and 2011 because I'm fairly sure they are a duplicate of each other.

PN2440

Wasn't the 2006 agreement a non-union agreement as well?---2006 to 2008 was a union agreement as far as I remember.

PN2441

I can't recall if it was this witness but I have certainly heard evidence today that it wasn't.

PN2442

MR REIDY: Well - - -

PN2443

MR CRANK: Sorry. That's just a comment. I will withdraw that. It's not a question.

**** PHILIP MARK GRAY XN MR CRANK
PN2444

MR REIDY: Yes. Well, you can withdraw it because it's wrong.

PN2445

MR CRANK: In any case what's in clause 6.9 is not the same as anything that has been in a previous agreement, is it? Obviously the rates, for starters are quite different?---Yes, they're higher. The wording, I would nearly say, is the same.

PN2446

What's in clause 6.9 is nothing like what the union has proposed in this bargaining process, is it?---I don't believe so.

PN2447

You said, in explaining to employees, clause 7.1, concerning RDOs, that you told employees that what that clause means is that as long as the employees give us a week's notice they can have their RDO. That's what you explained to employees, wasn't it?---Outside the two blocks of RDOs, yes.

PN2448

What are those two blocks?---The Easter long weekend - the Easter period and the Christmas period.

PN2449

So what you explained to employees, the effect of it is that employees can take an RDO whenever they wanted as long as they gave a week's notice, except for those Easter and Christmas periods?---That's correct.

PN2450

The agreement provides nothing of the sort though, does it? The agreement provides no right whatsoever for employees to have RDOs whenever they want?
---It does. It says, "The employee will provide the employer at least one week's notice prior to the proposed RDO to be taken."

PN2451

It doesn't say they can take them when they want, does it, because the agreement goes on to say that - sorry, it doesn't go on to say. Before that sentence you just read it says, "The taking of RDOs will be subject to mutual agreement and at times convenient to the requirements of the project." That's completely the opposite of saying an employee can have an RDO whenever they want, isn't it?

**** PHILIP MARK GRAY XN MR CRANK

---Yes, but it's not - - -

PN2452

If there's no mutual agreement the employee doesn't get the RDO when they want it, do they?---Yes, that doesn't happen.

PN2453

I'm not asking you about what happens. I'm asking you about what's in the agreement?---Yes. Well, the last sentence is what it's all based on. That's how it's operated by - has done for the whole period, whole four, five years.

PN2454

This agreement hasn't operated for the last four or five years, has it?---No. So perhaps we need to take that line out of there.

PN2455

In relation to clause 7.3 concerning meal breaks and rest pauses, you testified earlier that you explained to employees that that clause meant that they could have an extended lunch break if they prefer. That's what you testified earlier, wasn't it?
---Morning tea break, smoko break, yes.

PN2456

I put it to you your earlier testimony was about a lunch break, not about a smoko break?---I said it was a smoko break of half - an extended smoko break of half an hour.

PN2457

Whereas the agreement provides, "The rest pause will be 20 minutes' duration and paid." You told them it's half an hour. Your explanation was completely wrong, wasn't it?---No, they have half an hour that's paid.

PN2458

The agreement says, "The rest pause will be 20 minutes' duration and paid." 20 minutes, not half an hour. Your explanation of the paid break is completely wrong, isn't it?---The wording "20 minutes" is, yes, but "30 minutes" in lieu of that in its place.

PN2459

So your explanation to employees that the agreement entitles them to a 30-minute paid break is completely wrong, isn't it?---It's not completely wrong, no.

**** PHILIP MARK GRAY XN MR CRANK
PN2460

What, you mean it's only wrong by 10 minutes, therefore it's not completely wrong?---That's right. It's a break and it's paid.

PN2461

All right. Touche. Well, the - - -?---If the - - -

PN2462

Well, you're talking about the duration of the paid break was exaggerated by one-third, wasn't it?---No, because if they wanted to take the lunch break - - -

PN2463

So it's exaggerated by 50 per cent.

PN2464

MR REIDY: Can the witness finish the question?---If they want to take a lunch break it's at their discretion, then they have 20 minutes as a paid break for smoko. If they choose to work through their lunch break and leave site at 2 o'clock or 2.30 so they take - - -

PN2465

MR CRANK: The agreement doesn't say that either. The agreement says nothing about people not having a lunch break and finishing early, does it?
---You can go and talk to all my employees if you like and you won't have one person part of the union because - - -

PN2466

Is that a threat?---This is the choice of the - this is their choice, not my choice.

PN2467

So what are you going to do to make sure people aren't part of the union?---I'm not going to do anything. It will be their decision. The fact of the matter is the workers have chosen to do this. I can go and stipulate to them and enforce them to have a 20-minute smoko break and half an hour lunch break - - -

PN2468

THE SENIOR DEPUTY PRESIDENT: You're straying somewhat from what was the question here. The issue is what do the words say and what did you communicate to the employees?---I communicated to the employees what I just said. If they want to work through their lunch break then they can have an extended 30-minute smoko break paid for. If they don't want to work through their lunch break and they want to have a meal then it's 20 minutes' smoko paid and then half an hour unpaid.

**** PHILIP MARK GRAY XN MR CRANK
PN2469

MR CRANK: What you just said has nothing to do with what's written in this alleged agreement, does it?---Well, it does. What I've just looked at does.

PN2470

Which words in the agreement have the effect that you described in your previous answer?---If a meal is taken - shall be 30 minutes' duration and will be unpaid.

PN2471

Unpaid, yes?---Yes, and a rest pause - - -

PN2472

Not paid?--- - - - will be 20 minutes' duration and paid. It's exactly what I said.

PN2473

No, it's not?---Because I used the word "smoko"?

PN2474

No, because you said, "The agreement provides people to have a paid 30-minute break." It doesn't. It provides for an unpaid 30-minute break and a paid 20-minute break, and the agreement provides nothing whatsoever about people foregoing their lunch break and finishing early, does it?---No.

PN2475

In relation to clause 7.4, you said you explained to employees that, "We don't do shift work." Is that right?---That's right.

PN2476

And yet you say you were at Legacy Way somewhere between midnight and 1 am talking to your company's employees?---Yes, doing night works, yes.

PN2477

Do you think night work is not shift work?---Yes. Shift work is a regular type of work. It's where you have rotational shifts. You work a week on a night shift and you go and work a week on at day shift. These guys are working on night works and sometimes that night works can be one night, two nights, three nights. It can be three weeks at night work.

PN2478

Have you read the award clause about shift work?---No, I haven't.

**** PHILIP MARK GRAY XN MR CRANK
PN2479

You explain in clause 7.5 short-term night work to your employees. You said that you told them that that clause means that they will be paid as they're supposed to be. Is that right?---That's right.

PN2480

You didn't explain to them what you meant by "supposed to be"?---Well, in relation to requirements of Fair Work Australia.

PN2481

What requirements are they?---Whatever they are to meet those short-term night works. I believe it's like a double time all night and so forth so - - -

PN2482

But you don't know what the requirements - - -?---No, because we don't - - -

PN2483

So obviously you wouldn't have been able to explain them to employees?---Not entirely, no, but I covered it by saying that it would be in accordance with the Fair Work Australia Act.

PN2484

In relation to clause 7.6 you said you explained to employees that when there's wet weather they spend four hours in the shed before going back to the yard. Is that correct?---No. They spend four hours on site if it's continual rain, yes.

PN2485

Then after that?---If there's four hours of continual rain they go home.

PN2486

I'm sure you said something in your answer before to Mr Reidy about employees going back to the yard in connection with your explanation to employees at clause 7.6. Can you tell us what you meant by - - -?---I never said anything about them going back to the yard. If it rains on a site it's as per the union requirement and it always has been.

PN2487

Did you say anything to employees about their entitlements when there's other types of inclement weather, not being rain?---No, considering it's just wet weather.

**** PHILIP MARK GRAY XN MR CRANK
PN2488

So the agreement provides no entitlements for employees in respect of forms of inclement weather which are not rain?

PN2489

MR REIDY: Again. I object because he needs to say what that inclement weather is.

PN2490

MR CRANK: Do you understand that there are forms of inclement weather other than rain such as dust, high temperature, cold, high wind? Do you understand that?---Yes.

PN2491

Did you tell the employees in your explanation to them of the agreement anything about their entitlements with respect to those other forms of inclement weather which are not rain?---No, I covered them for the wet weather. The dust and wind is not - if a site is dusty it's dealt with.

PN2492

How does the agreement deal with a site being dusty?---Well, the agreement doesn't, but the job site is dealt with, yes.

PN2493

MR REIDY: Well, again I object to this because, whilst the heading is Wet Weather, the clause itself refers to inclement weather which is much broader than wet weather so if Mr Crank is going to be putting things to the witness he should put them precisely according to what the agreement says.

PN2494

THE SENIOR DEPUTY PRESIDENT: The witness is giving his view about what this means. I don't think he has been led into that position. I'll let you keep asking these questions, Mr Crank.

PN2495

MR CRANK: Thank you, your Honour.

PN2496

In the first paragraph of clause 7.6 it says, "During periods of inclement weather that prevents work from being performed on site, the employer, where practical, will transfer employees to an alternative site not so affected or to the employer's depot/yard to perform maintenance, service-type duties or training." You said before that you explained to employees that they're able to go home after four hours of wet weather on a site. That's not what the agreement provides though, is it?---Well, I merely think that again - no, it doesn't, but that's a copy of the - a duplication of the union agreement.

**** PHILIP MARK GRAY XN MR CRANK
PN2497

No, it isn't. So the agreement provides no entitlement for employees to go home after four hours of wet weather on site, does it?---The words aren't in there, no.

PN2498

No. In clause 8.1.4, the taking of annual leave, you said that you - the only thing you mention in connection with - that might be connected with that was in your earlier evidence was that you explained to employees that the company would need as much notice as possible for the taking of annual leave. That's all that was explained to them about the taking of annual leave, was it?---Pretty much, yes.

PN2499

So you didn't explain to employees the difference between the award entitlement with respect to the taking of annual leave during an annual shutdown compared with what's in the agreement?---Well, we don't really have an annual shutdown.

PN2500

It's in the agreement, isn't it?---Yes.

PN2501

In relation to clause 8.5 you testified that you explained to employees that long service leave was paid weekly. Now, the enterprise agreement doesn't provide anything like that, does it? It's paid weekly or monthly however the contribution is made. I'm not asking you how it's paid. I'm asking you what the agreement says about - I'm putting to you that the agreement does not say that long service leave will be paid weekly, does it?---Well, it says, "All employees shall be entitled to long service leave in accordance with the relevant state legislation." Obviously that has payment periods and everything attached to it.

PN2502

I'm not asking you about what the legislation says. I'm asking you about what the agreement says?---No, it doesn't.

PN2503

I was a bit confused by your answer to Mr Reidy previously about what you explained to employees about the redundancy entitlements that were set out in the addendum to the alleged agreement. What did you explain to employees in that regard?---Sorry, I'm just looking for it. I explained to them that the redundancy was paid as a weekly contribution to the BERT fund.

**** PHILIP MARK GRAY XN MR CRANK
PN2504

You said something before about 3 per cent and matching the rate proposed by the union. Can you just explain that, your answer - - -?---I'm not positive that our original proposal was at the current rate and then each year after that was a 3 per cent increase, but then when the addendum came through we changed that rate. I believe the redundancy rate was one of the ones that got changed.

PN2505

I'm asking you about the explanation that you gave employees about the redundancy provisions of the addendum. What did you tell them? You said before you told them something about 3 per cent increase and matching rates proposed by the union. So what did you tell them in that regard?---Our rate was obviously - and our initial proposal was less than the union proposed rate.

PN2506

That's what you told them in explaining the addendum?---I said - in the addendum, yes, it was one of the five or four or five allowances that we increased to take away the question as to whether we were trying to take everything away from the employees rather than just adjust their rates of pay.

PN2507

But you told them that it was a 3 per cent increase that was provided in the - - -?
---I believe I did, yes.

PN2508

That's wrong, isn't it?---Well, I don't have the figures in front of me of what the union has got.

PN2509

So when you told employees that there was a 3 per cent increase, you were just making it up. You had no basis for that figure at all?---I can't recall exactly the words I used at the time. That was three months ago.

PN2510

Well, I'm not asking - you've already said what you said at the time, that was that it was a 3 per cent increase. Now I'm asking you about the basis that you had for making that statement to your employees, and I'm putting to you that you had no basis. You can't tell me now how you calculated it. So now I'm putting to you that the figure is wrong, and you said - - -?---Well - - -

**** PHILIP MARK GRAY XN MR CRANK
PN2511

- - - you couldn't answer that because you don't know what the union rates are?
---Just check - - -

PN2512

I'd say if you don't know what the union rates are, then you have no basis for telling your employees that it was a 3 per cent increase, do you?---I would have at the time, because I would have had the rates in front of me. So yes, our rates were 3 per cent on top of the existing rate that they were on, which was $75?

PN2513

Well, which rates are you referring to?---77.25 is - without a calculator, I would nearly guess it's 3 per cent on top of 75. The union rate in the proposal was 79 at the same period, for 1 January 2012.

PN2514

So you're saying - which figure - - -?---Well, the $75 was our rate at the time, and if you add 3 per cent to that, do you not get 77.25?

PN2515

Well, you're giving evidence here?---I don't have a calculator in front of me.

PN2516

Well, how did you work - is that how you worked it out at the time?

PN2517

MR REIDY: It's solved by using a calculator, and it's precisely right. I've just done it.

PN2518

MR CRANK: Well, in that case, the rates were not - you explained to employees that you were matching the union rates, weren't you?---In the addendum, we increased the rates to what the union was offering, yes.

PN2519

The rate of the addendum from 1 January 2012 for BERT, is $77.25. Correct?
---I don't have a copy of the addendum here. Yes, whichever is greater.

PN2520

Can I ask the witness to have a look at exhibit A19, that's the union proposal?

**** PHILIP MARK GRAY XN MR CRANK

---Don't I have a copy of that already? I'm not sure. No, that's - - -

PN2521

Can I ask you to turn to page 7 and look at clause 16?---Page 7? This starts at 205.

PN2522

I'm sorry, page 7 at the top. At the bottom it's 216?---Yes.

PN2523

Have a look at clause 16.2?---Mm'hm.

PN2524

You'll see there it's $79 per employee, effective first pay period, January 2012?
---Yes.

PN2525

Have a look across at the addendum again, and from the same date, the rate in the QPS proposal is $77.25. Do you agree with that?---That's correct.

PN2526

Then from 2013, the QPS proposal is $79.50, the union proposal is $83?---That's correct.

PN2527

Then from 2014, the QPS proposal is $82, the union proposal is $87, and the union proposal has another rate from - - -

PN2528

MR REIDY: I object to this use of "union proposal" and - - -

PN2529

THE SENIOR DEPUTY PRESIDENT: I know the qualification (indistinct) document and whether it was part of the process. So I recognise the qualification.

PN2530

MR CRANK: Then the union proposed from 2015 that the rate for BERT be $92. Do you see that?---Yes. Our proposed - - -

PN2531

So when you explained to your employees that the QPS proposal matched the union's proposal, that was a lie, wasn't it?---Well, no.

**** PHILIP MARK GRAY XN MR CRANK
PN2532

How can it be not a lie, given what we've just been through with the different rates - - -?---Read the last line of the addendum. "Or the following weekly amount, whichever is the greater."

PN2533

There's no reference there to the union proposal. That's a reference to - - -?---No, it's the official BERT site.

PN2534

- - - official BERT web site?---Yes, the official BERT web site.

PN2535

Well, that's not the union proposal?---Okay, wrong choice of words, sorry.

PN2536

THE SENIOR DEPUTY PRESIDENT: Well what (indistinct)?---Well, it's the official BERT web site.

PN2537

When you were referring to the union proposal, or whatever words you were using in respect of the deal, were you using the reference to those to the BERT web site. Because - - -?---Yes. Well, it's in the union agreement, yes. But it's obviously the union has put forward that they want the BERT fund to represent their members. So yes, wrong choice of words. The official BERT web site is the one that controls the amount of money, and that last phrase says - the last part of the sentence says, "Or the following weekly amount, whichever is the greater."

PN2538

MR CRANK: So when you explained to your employees that BERT rates and the QPS proposal matched the union rates, that was a lie, wasn't it?---Matched the rates that were put forward from the union. Well, they are matching the rates that were put forward from the union. BERT did not send me any documentation to tell me what their rates of pay are - their rates for the fund are. The union did.

PN2539

Precisely. So when you told employees that the QPS proposed agreement matched the union rates with respect to BERT, that was a complete lie, wasn't it?

**** PHILIP MARK GRAY XN MR CRANK

---I don't believe so.

PN2540

Can I ask you to have a look at clause 4, please, of the QPS alleged agreement? Clause 4? Clause 4 provides, "The purpose of the agreement is to provide comprehensively the wages and conditions of employment for the work performed described herein. The agreement is a stand-alone document, and applied to the exclusion of any applicable award." You didn't explain anything to employees about what the effects of that last sentence in the agreement were, did you?---No.

PN2541

You didn't explain that the award provided for a range of allowances that they would not be entitled to under this agreement, did you?---Well, I don't believe there's any of the allowances that the union puts forward that are applicable to my workers.

PN2542

For that reason, you decided not to explain that fact about your agreement to the employees?---The document that the union puts out is a pretty generic document. There's allowances in there for plasterers - - -

PN2543

I'm not asking about the union proposal?---Okay, well that's why I chose to - - -

PN2544

I'm asking about the award, and in particular your explanation to employees as regards the impact of this alleged agreement upon their award entitlements?---No, I didn't explain anything to them regarding that.

PN2545

Clause 5.2 of the agreement, I'd ask you to read that, please. That provides, "A full-time employee's termination shall be in accordance with the provisions of the Fair Work Act 2009, and the Building and Construction General On-Site Award 2010. You didn't explain anything to any of the company's employees about what the Building and Construction General On-Site Award 2010 provided for in relation to termination of employment, did you?---I explained to the employees that termination was based on a minimum of eight hours, which is in accordance with industry practices.

**** PHILIP MARK GRAY XN MR CRANK
PN2546

You didn't say anything to the employees about the award provisions, with respect to termination of employment, did you? I'm not asking about industry practice, I'm asking about the award provisions?---I said to my representatives that should anybody have any questions about any of the - - -

PN2547

Sorry, who are your representatives?---Declan Hartley, Michael Turner, Joe Sweeper - that if they had any questions about any of this, to check on the Fair Work Australia web site, to see where they sat.

PN2548

In clause 5.4 of the agreement, it provides that employees will comply with the relevant acts, regulations, codes of practice and the company's occupational safety policies and procedures, as amended from time to time. You didn't explain to employees what the relevant acts were, did you?---That would have been explained to them on their - provided on their first day of employment, when they did their company induction.

PN2549

So as part of the making of this alleged agreement, there was no explanation - - -?---No, that's dealt with.

PN2550

- - - given to employees about which are the relevant acts that are - - -?---No, that's dealt with differently, I suppose.

PN2551

Similarly, there was no explanation provided to employees of which were the relevant regulations referred to in clause 5.4. Was there?---Not at my meeting with the employees, no.

PN2552

Similarly, there was no explanation to employees of what were the relevant codes of practice, was there?---No. Again, this was all dealt with at - first day of employment.

**** PHILIP MARK GRAY XN MR CRANK
PN2553

There was no explanation on 22 February or at any other time as part of this agreement-making process as to what were the relevant company occupational safety policies and procedures, were there?---Could you repeat that question again, please?

PN2554

There was no explanation given to employees, since 14 December 2011, as to what were the relevant company occupational safety policies and procedures, was there?---Not in this agreement there's not, but that's not they're not being informed of it.

PN2555

The clause provides that those policies and procedures can be amended from time to time?---That would be right.

PN2556

The agreement doesn't provide anywhere, does it, that employees have any role in agreeing to those policies and procedures before they are amended?---I wouldn't think so.

PN2557

No. You testified earlier that in relation to clause 5.5, which concerns drug and alcohol testing, that the clause meant that employees could be subject to drug and alcohol testing. Is that right?---That's correct.

PN2558

You didn't explain anything to them about how that testing would be done, or how employees might be selected for it, or anything like that?---It was a clause that was put in there, but we don't carry out internal company testing, but there is - every worker is subject to testing from every single builder that we work for.

PN2559

So the answer is no? You didn't explain, for example, that the clause would allow the company to take blood samples from workers to be tested for alcohol or drugs?---Yes, I explained - - -

**** PHILIP MARK GRAY XN MR CRANK
PN2560

MR REIDY: I object to that because where in the clause does it say that? It just doesn't say it.

PN2561

MR CRANK: It doesn't prohibit it.

PN2562

MR REIDY: Well - - -

PN2563

MR CRANK: Blood testing is a form of testing for alcohol and - - -

PN2564

MR REIDY: (indistinct) can I finish? Can I finish my objection? It's no answer to the objection to say that it doesn't prohibit it. The question that has been put is on the basis that it permits it, and now the response is, "Well, because it doesn't prohibit it, it must permit it." Well, that's not correct and if the question is about the clause permitting it, then Mr Crank has to identify where in the clause it says that, and the answer to it is that the clause doesn't say that. It provides no permission for that.

PN2565

THE SENIOR DEPUTY PRESIDENT: I think you have answered the question for the witness in any event. Well, the witness can answer the question on the basis of his knowledge presumably. We might just test that avenue first of all.

PN2566

MR CRANK: All right.

PN2567

So would blood testing be permitted by the clause in the agreement concerning drug and alcohol testing in your understanding?---Well, drug and alcohol testing can be introduced by the company, yes.

PN2568

And that can include blood testing?---If that's the process that's needed to determine what's in someone's system, yes.

**** PHILIP MARK GRAY XN MR CRANK
PN2569

So the company would have the power to say to a worker, "Under the agreement we can test you. You must provide us - you must undergo this blood test," which involves them having a needle inserted into them and a blood sample removed?
---That's correct, because the drug and alcohol policy does deal with the employee that potentially comes - you know, has a drug and alcohol issue.

PN2570

You didn't explain anything to employees about the potential for this clause to allow them to have needles stuck into them, did you?---No.

PN2571

You didn't explain anything to them about how employees might be selected for such testing?---No, I didn't.

PN2572

For example whether it would be random or targeted based on reasonable suspicion?---No, because I said, as it says in there, that we reserve the right. We haven't actually implemented it so, yes, I - - -

PN2573

You basically - the clause reserves the right for the company to do whatever it likes with respect to drug and alcohol testing of employees, doesn't it?---Yes.

PN2574

But you didn't explain that to employees, did you?---It was explained to employees on the day that they were employed in their inductions in the drug and alcohol policy which is a separate document.

PN2575

You're telling me that the company told workers on - very early in their employment when they are being inducted - - -?---They got re-inducted when - - -

PN2576

- - - that, "We can do anything we like to you in the name of drug and alcohol testing"?---When re-induction was done when we introduced the drug and alcohol policy some 12, 18 months ago, every employee was re-inducted about the process in which the company was going to deal with drug and alcohol - not so much abuse, but use.

**** PHILIP MARK GRAY XN MR CRANK
PN2577

Are you going to answer the question?---Say it again.

PN2578

Are you telling us that when - very early in the employees' employment when they are being inducted, that the company told them, "We can do whatever we like to you in the name of drug and alcohol testing?" I put it to you that was never said to employees by the company?---If you read the drug and alcohol policy however it's written, that's how it was explained to them.

PN2579

When they were inducted?---Yes.

PN2580

That the company can do whatever it likes to them in the name of drug and alcohol testing?

PN2581

MR REIDY: He's given the answer to the question.

PN2582

MR CRANK: All right.

PN2583

That explanation wasn't provided since 14 December 2011, was it?---I don't believe so.

PN2584

THE SENIOR DEPUTY PRESIDENT: How much longer will you be with the witness?

PN2585

MR CRANK: Possibly half an hour, your Honour.

PN2586

THE SENIOR DEPUTY PRESIDENT: We're going to spill over to tomorrow in any event, it would appear. Do we have any other witnesses after this?

PN2587

MR REIDY: No.

**** PHILIP MARK GRAY XN MR CRANK
PN2588

THE SENIOR DEPUTY PRESIDENT: No other witness. No, look, we'll keep going for another 10 minutes with this witness, then we'll adjourn and we'll resume in the morning for closing submissions after the completion of the cross-examination.

PN2589

MR CRANK: Your Honour, with respect to closing submissions, I would like to be able to refer to the transcript. I think there are a lot of details and inconsistencies and gaps that should be addressed by looking at the transcript in final submissions so - - -

PN2590

THE SENIOR DEPUTY PRESIDENT: You'll have the transcript - are we on a same day transcript?

PN2591

THE ASSOCIATE: (indistinct)

PN2592

THE SENIOR DEPUTY PRESIDENT: Do you need the transcript early in the day?

PN2593

MR CRANK: Yes.

PN2594

THE SENIOR DEPUTY PRESIDENT: We can organise that.

PN2595

MR CRANK: Yes, your Honour.

PN2596

THE SENIOR DEPUTY PRESIDENT: Or I can also give you some time too after the completion of - if that will assist you, I can give you some time after the completion of cross-examination for further examination of the transcript from today, if that will assist.

PN2597

MR CRANK: And also tomorrow's transcript as well.

**** PHILIP MARK GRAY XN MR CRANK
PN2598

THE SENIOR DEPUTY PRESIDENT: Yes. That will be reasonably short I presume.

PN2599

MR CRANK: Hopefully.

PN2600

Mr Gray, could you have a look at clause 6.3 of the agreement?---Casual employees.

PN2601

Casual employees. It provides that casuals will not get any other full-time entitlements that do not apply to casuals. Do you agree that's what it provides?
---Yes, that's correct.

PN2602

Now, you didn't explain to employees what are the other full-time entitlements that do not apply to casuals, did you?---No, I didn't.

PN2603

Neither in clause 6.3 nor in any other term of the agreement is there a provision for a minimum engagement for casual employees, is there?---Engagement on a day-to-day basis?

PN2604

Yes?---No, there's nothing stipulating the minimum time.

PN2605

You did not explain to employees that the award provides a four hour minimum engagement, and the agreement provides none, did you?---Well, I did explain to them, but it's not written in the document, yes.

PN2606

You - - -?---Explained that - - -

PN2607

In explaining to them the terms of the document, you explained to them something that was not in the document?---No. I explained to - like I said, there was very minimal - and I'd have to check the list of employees as to who was there that was possibly casual, but I would have explained that the casual base is on a minimum of four hours, but with the intention of an eight-hour day. But, yes, it's not written in the document.

**** PHILIP MARK GRAY XN MR CRANK
PN2608

Right. So you told workers that they are entitled to a four-hour minimum, and hopefully eight in most cases, but that's not written anywhere in the agreement?
---No, it's not in the agreement, no.

PN2609

So employees were misled then about what was in the agreement - - -

PN2610

MR REIDY: Well, he can't give evidence - - -

PN2611

MR CRANK: - - - by that explanation.

PN2612

MR REIDY: He can't give evidence about the state of mind of employees, so he can't ask a question about that - - -

PN2613

MR CRANK: No, I - - -

PN2614

MR REIDY: - - - and the witness can't give that evidence.

PN2615

MR CRANK: I agree, your Honour. I'll withdraw that.

PN2616

What did you intend when you told employees that they were entitled to a four-hour minimum, when in fact there is nothing of the sort in the agreement?
---Say that again.

PN2617

What did you intend when you told your employees that they were entitled to a four-hour minimum engagement? What did you intend when you told them that, given that there is no such provision in the alleged agreement?---Well, I basically told them that the minimum that they could have would be four hours, but the intention was to employ them for eight.

PN2618

I'm asking you what you intended in telling workers - - -?---I just told you that.

**** PHILIP MARK GRAY XN MR CRANK
PN2619

- - - about something that's not in the agreement?---I just told you what my answer was.

PN2620

I think you told me what you told them?---Mm.

PN2621

You haven't told us yet what your intention was in telling them about - in explaining the agreement to them, you told them about something which is not in the agreement. What was your intention in doing so?---Perhaps I copped a question from one of the casual employees what - how it was going to be dealt with if there was the chance that they were going to be sent home early.

PN2622

Could I take you back to clause 6.8 which provides for a reduction in the living away from home allowance from $65.48 per day to $30 a day where there is a company-contributed accommodation cost up to $250 a week. Do you agree that that's what the clause provides?---That's correct.

PN2623

A company-contributed accommodation cost, did you explain to employees what that meant?---Yes. The company would pay for the accommodation and the normal practice within companies when the workers go away, we - - -

PN2624

I'm not asking about the normal practice of the company. I'm asking about what's in the agreement and what you explained to people about what's in the agreement. Okay?---That's what I'm explaining to you.

PN2625

Well, no. Your answer is about the normal practice of the company?---Okay.

PN2626

I'm not asking you about that?---The supervisor finds the accommodation - - -

PN2627

I'm not asking you about the normal practice of the company. What did you explain to employees was meant by the phrase "company-contributed accommodation cost"?---The company will pay a minimum - or a maximum, sorry, of $250 per week per employee on top of their daily allowance.

**** PHILIP MARK GRAY XN MR CRANK
PN2628

Why is the word "cost" in there?---I don't know.

PN2629

You don't know. All right. So the effect of that last sentence means the employee may still be required to pay a substantial amount in respect of the accommodation. Correct?---No, it doesn't.

PN2630

Well, where does it say there that the employee will not have to pay anything for the accommodation?---Where does it say they have to? If you read - - -

PN2631

I'm asking the questions?---Yes, of course.

PN2632

Where does it say that employees will pay nothing for accommodation? It doesn't say that, does it?---No, it doesn't say that.

PN2633

If the effect of that strange sentence is that the company might contribute up to $250 a week, any amount less than $250 makes that last sentence applicable, doesn't it?---Makes it applicable to what?

PN2634

It means that the lower rates of allowance, the $30 allowance, would be payable rather than the $65.48, will be payable to the employee in the event that the company pays anything less than $250 a week in respect of accommodation, doesn't it? So, for example, if the company decided to pay $10 per week in respect of accommodation, then the worker's entitlement drops from $65.48 to $30 per day, doesn't it?---No, it doesn't.

PN2635

MR REIDY: Well, again, I object to this, because this is asking questions about an interpretation - - -

PN2636

THE SENIOR DEPUTY PRESIDENT: Yes, I think we can just stick to the question of what was said and what is in the witness's knowledge about the memory of the agreement.

**** PHILIP MARK GRAY XN MR CRANK
PN2637

MR CRANK: Well, I can focus it more on explanation, actually.

PN2638

So my question now is: if the company pays even a small amount, for example $10, towards the cost of accommodation, you did not explain to your employees that the living away from home allowance entitlement drops from $65.48 to $30, did you?---I explained to the employees that the company will pay up to $250 per week per employee, plus the daily amount of $40 per day. That's what I explained to them.

PN2639

So the answer to my question is no?---Well, we're not talking $30. That's not even in the question. We're already past 1 January 2012, so it's $40 that they're getting paid per day. But it's up to $250 per week, and I don't know where you've been accommodating yourself, but there's not much you can get under $250 a week. So if I paid $10 a week to each employee, I wouldn't have any employees. Surely commonsense has got to prevail there.

PN2640

The agreement doesn't provide, in your understanding, does it, for any minimum?
---No. You can manipulate it whichever way you want.

PN2641

The company can pay as little as it wants towards the cost of accommodation, and when it does that - - -?---It doesn't do that.

PN2642

- - - the amount of the allowance payable to the employee drops from the amount in the higher box from 1 January 2012, $67.44, it drops down to $40, doesn't it?
---You can manipulate it whichever way you want to. It doesn't work that way, never has, never will.

PN2643

So the matters I've addressed in my recent questions were not explained to employees at all, were they?---No, because I don't manipulate stuff that way.

**** PHILIP MARK GRAY XN MR CRANK
PN2644

Clause 6.9, I'll just ask you to have a look at that. It provides that the industry allowance applies "in lieu of site allowance and any special or disability allowance in the industry". Do you agree with that?---That's correct.

PN2645

You didn't explain to any employees how much the site allowances are in the industry, did you?---They know what they are.

PN2646

You haven't tested their knowledge, have you?---Yes, they know what they are. I did speak to them about the fact that this is based on an average, and that previously a lot of employees got zero.

PN2647

Well, telling people that previously they got zero is not the same as telling them what the current industry site allowance is, is it?---The current industry site allowance is based generally on height allowances; our work is done in the ground. It's based on the value of a project; projects in most cases are divvyed up to cover a small amount of money that's in the massive amounts that are in that table.

PN2648

I'm not asking you to justify how you came up with the amounts that you came up with in that clause. What I'm putting to you is that you didn't explain to employees how much were the site allowances that the clause says they're not going to be paid?---No, I didn't.

PN2649

You didn't explain to employees how much the disability allowances in the industry were either, did you?---No.

PN2650

Tony Lopez is a QPS employee who would be covered by the alleged agreement, wouldn't he?---That's correct.

PN2651

The first language that Tony Lopez learned to speak was Spanish, wasn't it?

**** PHILIP MARK GRAY XN MR CRANK

---News to me.

PN2652

The first language that Nicolo Abbato learned to speak was Italian, wasn't it?
---I don't know. They speak very good English.

PN2653

Troy Kopitki is also an employee of QPS, isn't he?---Yes.

PN2654

The first language he learned to speak was Greek, wasn't it?---Wouldn't have a clue. They all speak English very well.

PN2655

Dane Zimili, he is also a QPS employee who would be covered by the alleged agreement, isn't he?---Yes.

PN2656

The first language he learned to speak was not English, was it?---I don't know.

PN2657

Jake Akut is also a QPS employee who would be covered by the alleged agreement, isn't he?---No, he is not.

PN2658

He's not? What does he do?---He's a diesel fitter.

PN2659

All right. So in relation to the four employees, that is, Tony Lopez, Nicolo Abbato, Troy Kopitki and Dane Zimili, you made no attempts whatsoever to find out whether they were from non-English-speaking backgrounds, did you?---I didn't know they were.

PN2660

THE SENIOR DEPUTY PRESIDENT: Is this a convenient spot?

PN2661

MR CRANK: Yes, your Honour.

PN2662

THE SENIOR DEPUTY PRESIDENT: Okay. Given the circumstances, would you prefer to delay the resumption tomorrow morning till, say, 11.00? Give you some more time to get the transcript?

**** PHILIP MARK GRAY XN MR CRANK
PN2663

MR REIDY: I'm happy with that, your Honour.

PN2664

THE SENIOR DEPUTY PRESIDENT: Or we can start at the normal time, then take a break for an hour or two.

PN2665

MR REIDY: Well, I'm keen to see if we can get the submissions done tomorrow. Is that what your Honour has in mind?

PN2666

THE SENIOR DEPUTY PRESIDENT: Yes, I'm trying to keep this matter contained within tomorrow, by all means.

PN2667

MR REIDY: I would prefer an earlier start. I'm not sure still on Mr Crank's position with his witnesses, and therefore how long that will take.

PN2668

MR CRANK: At least one, your Honour, I need to just think about the evidence that has been given today and work out if I need to call others.

PN2669

THE SENIOR DEPUTY PRESIDENT: Well, on that basis we'll resume at the normal time, and we'll try and use the time such that we bring the matter to finality tomorrow.

PN2670

MR REIDY: Thank you.

PN2671

THE SENIOR DEPUTY PRESIDENT: (indistinct) thank you, everyone. Thanks very much. Court is adjourned until tomorrow morning.

<ADJOURNED UNTIL TUESDAY, 29 MAY 2012 [4.23PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

DECLAN JOSEPH HARTLEY, AFFIRMED PN1615
EXAMINATION-IN-CHIEF BY MR REIDY PN1615
EXHIBIT #A19 COPY OF EBA AND INOVOICE FROM UNION OFFICE PN1638
CROSS-EXAMINATION BY MR CRANK PN1754
RE-EXAMINATION BY MR REIDY PN1912
THE WITNESS WITHDREW PN1923
PHILIP MARK GRAY, AFFIRMED PN1928
EXAMINATION-IN-CHIEF BY MR REIDY PN1928
CROSS-EXAMINATION BY MR CRANK PN2200