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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1047664-1
COMMISSIONER GREGORY
C2012/5249
s.739 - Application to deal with a dispute
Australian Municipal, Administrative, Clerical and Services Union
and
Menzies Aviation (Australia) Pty Ltd
(C2012/5249)
Customer Service Employees (Menzies Aviation) Enterprise Agreement 2011
(ODN AG2012/86)
[AE891356 Print PR519685]]
Melbourne
10.17AM, MONDAY, 18 MARCH 2013
Reserved for Decision
PN1
THE COMMISSIONER: Good morning, everyone. My apologies for being a little late. There was another matter I was just asked to attend to urgently. I'll take appearances with regard to this matter, thank you.
PN2
MR J. COONEY: Yes, Commissioner. Justin Cooney for the ASU.
PN3
THE COMMISSIONER: Thank you very much, Mr Cooney.
PN4
MS P. SALEWICZ: If the Commission pleases, Ms Salewicz, initial P. With me I have MS F. RODRIGUEZ.
PN5
THE COMMISSIONER: Thank you very much. All right. I've obviously read all the materials that have been submitted in accordance with the directions that were issued in regards to this matter, so thank you for that. But, Mr Cooney, over to you.
PN6
MR COONEY: Commissioner, what I was proposing, subject to what my friend says, was to go straight to the evidence and then deal with the matter after that by summation, but I understand that there might be some objection to some of the material that Ms White is putting.
PN7
THE COMMISSIONER: Okay. Ms Salewicz.
PN8
MS SALEWICZ: Commissioner, that is correct. Mr Cooney correctly says that we have some objections to Ms White's material. Our preference would be for the objections to be heard on the voir dire in the absence of Ms White, simply because there are some matters that need to be discussed which may be - I don't want to say influence Ms White's evidence, of course, but it may be prejudicial for Ms White to hear what we need to say.
PN9
THE COMMISSIONER: Yes.
PN10
MS SALEWICZ: The question really comes down to whether or not there's a factual dispute about some of the evidential points and whether or not we push the objections, and really we think that that needs to be heard in Ms White's absence.
PN11
THE COMMISSIONER: Mr Cooney, any comments in response?
PN12
MR COONEY: Your Honour, what I was going to propose is if Ms White takes the box and that we deal with those objections come to them, and if need be, then Ms White might leave the room or she might stay once we find out what is sought to be put on that evidence.
PN13
THE COMMISSIONER: Ms Salewicz, is there any reason why these matters can't be dealt with in cross-examination? Isn't that the normal way that these sorts of issues would be resolved?
PN14
MS SALEWICZ: Commissioner, what we say is there are a number of matters in this statement which are completely irrelevant to proceedings, so it's simply a matter of making sure that appropriate rules are applied and some rigour is applied to the evidence put before the tribunal. We do accept that the rules of evidence are not strictly applied here, and we're talking about questions of fairness and justice under section 577 of the Act. However, there is still some need for rigour to be applied to what is accepted by the tribunal and what can and can't be tendered.
PN15
What we would say is matters that should be given no weight, which are completely irrelevant, which are opinion evidence or which are clearly hearsay with no particular basis as to why the knowledge of there, then those matters should be properly struck from the statement as opposed to be tested on the cross-examination. There are a number of matters in this statement, particularly questions about opinion, which have no bearing whatsoever on the final issue in this matter. The matter is for determination by you, Commission, and not for opinion by the witnesses. I properly put that these objections be heard prior to Ms White being in the box.
PN16
THE COMMISSIONER: Look, I have to say my preference would be, I think, really for the statement to be admitted into evidence. If you have any objections that you then want to raise in terms of the admissibility of that statement, I'm happy to hear those at that stage, and then for any other issues to be dealt with in cross-examinations and submissions.
PN17
MS SALEWICZ: That's fine, Commissioner.
PN18
THE COMMISSIONER: All right. Thank you. Well, Mr Cooney, I think that's the way you'll proceed if that's acceptable to you.
PN19
MR COONEY: Thank you, Commissioner. Well, can I ask that Ms White be - - -
PN20
THE COMMISSIONER: Thank you.
PN21
THE ASSOCIATE: Can you state your full name and address for the record?
PN22
MS WHITE: Linda Anne White, (address supplied).
<LINDA ANNE WHITE, SWORN [10.21AM]
<EXAMINATION-IN-CHIEF BY MR COONEY [10.21AM]
MR COONEY: Sorry, Commissioner. I should have asked earlier, and I think it has actually occurred, but could the two witnesses for Menzies Aviation be excluded from the court. I note that has occurred.
PN24
Ms White, for the Court, can you please state your full name and address?---Linda Anne White, (address supplied).
PN25
You've tendered a statement in this matter?---I have.
PN26
And you have a copy of that?---I do.
PN27
Could I ask you a few questions about that statement?---Sure.
PN28
Could I take you to clause 18 of your statement. You state at clause 18 of your statement that clause 13 of the Menzies Aviation Agreement is in similar terms to clause 32 of the Qantas EBA. Could you outline what the differences are?---In Qantas, the allowances are at the back of schedule 4 and in the Menzies agreement they're detailed in the additional third paragraph. That is the only difference.
PN29
Could I ask that Ms White be shown the statement of Kogilan Moodley, please. I think she may have a copy.
PN30
MS SALEWICZ: Sorry, Commissioner. Can I ask what else Ms White has in the witness box with her?
PN31
WITNESS: Sure. I've got the total brief, so I've got all the statements that have been filed and the submissions. It's the matters that are filed. I'm happy for you to have it, and my notes. I don't need those.
**** LINDA ANNE WHITE XN COONEY
PN32
THE COMMISSIONER: Look, I'm happy to allow you to - unless there's any objection to - - -
PN33
MS SALEWICZ: I simply meant I would like to know what exactly Ms White has in the witness box with her.
PN34
THE COMMISSIONER: Okay. If the witness is being referred to certain documents, just as long as we're absolutely clear what those documents are. I understand in this case it's the statement of - - -?---I've got a copy of the statement dated 29/01/2013 with a range of attachments.
PN35
Yes. The statement of Mr Moodley dated 29 January 2013, I understand that's what you've now being referred to?---That's it.
PN36
MR COONEY: Thank you, Commissioner.
PN37
Could I take you to clause 30 of Mr Moodley's statement where Mr Moodley refers to an email from yourself to Menzies Aviation dated 2 November, where Mr Moodley says that agreement was reached to use the buddy allowance clause from what is known as the "Qantas EBA". I'll take you to clause 28 of Mr Moodley's statement. He says that you provided a buddy allowance clause to Menzies Aviation. Can I ask if you did do that?---I did do that, yes.
PN38
Commissioner, we've got a copy of that email and attached EBA where Ms White provided that clause to Menzies Aviation, if I could hand that up, please. It's in an email from Ms White to Mr Moodley dated 1 December 2011.
PN39
THE COMMISSIONER: Mr Cooney, just for the sake of trying to keep some order in terms of the proceedings, I might mark the witness statement of Ms White as C1.
**** LINDA ANNE WHITE XN COONEY
EXHIBIT #C1 STATEMENT OF LINDA ANNE WHITE
MR COONEY: Thank you, Commissioner.
PN41
THE COMMISSIONER: Now, are you wanting these documents tendered as well?
PN42
MR COONEY: If I could, Commissioner, yes, please.
PN43
THE COMMISSIONER: This is?
PN44
MR COONEY: It's the email - - -
PN45
THE COMMISSIONER: Is this a series of documents, or is this - - -
PN46
MR COONEY: It's the one email with attachments, I should say, Commissioner.
PN47
THE COMMISSIONER: Right. Look, I'll mark that C2.
EXHIBIT #C2 EMAIL FROM LINDA WHITE DATED 01/12/2011
MS SALEWICZ: Sorry, Commissioner. I've just missed - what was marked C2 exactly?
PN49
THE COMMISSIONER: C2 is the email - these documents that have just been handed up, which I understand is an email from Linda White to Mr Moodley and a series of attached documents, which - am I correct in assuming that these relate to the same email?
PN50
MR COONEY: Correct, Commissioner.
PN51
THE COMMISSIONER: Is that - - -
**** LINDA ANNE WHITE XN COONEY
PN52
MS SALEWICZ: Thank you, Commissioner.
PN53
MR COONEY: Ms White, can I ask if this draft EBA attached to the email - if I could take you to clause 13 of that draft EBA?---Could I get a copy of that.
PN54
THE COMMISSIONER: I might just indicate, Mr Cooney, these were obviously not - this is not the documentation that was previously provided - - -
PN55
MR COONEY: No, it's not, Commissioner.
PN56
THE COMMISSIONER: - - - with your submissions or the witness statements. And I'll just say, Ms Salewicz, if you feel that, prior to any cross-examination, you need some further time to look at this documentation, I'm happy for there to be a brief adjournment before you commence any cross-examination. I'll leave you to perhaps have a think about that before we get to that point.
PN57
MS SALEWICZ: Thank you, Commissioner.
PN58
WITNESS: Yes. So I'm looking at 13.3.
PN59
MR COONEY: Can I ask if the draft EBA contained a comma in clause 13.3(a) after "duties" and "this is an accurate reflection of the draft agreement you provided to Menzies Aviation"?---It doesn't have a comma after the word "duties", and it is "this was what I provided" on mine. It's the emails that I provided.
PN60
Commissioner, I'd like to tender another email with attached draft, and it's from Mr Moodley from Ms White and it's dated 5 December 2011.
PN61
THE COMMISSIONER: I'll mark that C3.
**** LINDA ANNE WHITE XN COONEY
EXHIBIT #C3 EMAIL FROM KOGILAN MOODLEY DATED 05/12/2011
MR COONEY: Ms White, if I could ask you to undertake the same exercise and go to clause 13.3(a) of the draft agreement provided to you by Menzies Aviation and can I ask you if a comma has then been inserted after the words "to perform duties"?---There appears to be, yes.
PN63
Ms White, can I ask you in the email exchanges between yourself and Menzies Aviation where a number of drafts were exchanged, was it the normal practice to highlight changes or at least track changes to the draft agreement as it was made?---Certainly it was normal to - track changes, but also generally put a document or in the covering email what the changes had been.
PN64
Could I ask you, to the best of your knowledge, the comma inserted after the word "duties", was that at the initiative of the ASU?---No.
PN65
Could I ask you when you first realised that the comma had been inserted?
---Relatively recently.
PN66
That was after the agreement was approved?---Yes, after the agreement was approved.
PN67
Was that alteration to the document highlighted to you at any time?---Not prior to it being voted on, no.
PN68
What would you have done if you had realised that that comma had been - - -
PN69
MS SALEWICZ: Objection. Relevance.
PN70
MR COONEY: Commissioner, what we say is that the comma, in effect, doesn't change the interpretation of the clause, but what we do say is that it has led to the situation where the respondent is able to say that there is ambiguity around the interpretation of the agreement, and to that extent, it does relevance, in that for the greater clarity of the clause Ms White would have highlighted the fact that it had been inserted.
**** LINDA ANNE WHITE XN COONEY
PN71
THE COMMISSIONER: Ms Salewicz, I think at this stage I do recall from the written submissions that have been provided by the respondent that there was some explanation or there was some weight attached to the placement of the comma. I think on that basis I'm prepared to allow the questioning to continue at the moment. Thank you.
PN72
MR COONEY: Ms White, can I ask how you believe the insertion of the comma in the clause changes the operation of the clause?---I don't believe it does change the operation of the clause.
PN73
Why?
PN74
MS SALEWICZ: Well, objection, Commissioner. This is opinion about the final issue in question here in this matter. It's neither here nor there what Ms White thinks about what this clause means.
PN75
THE COMMISSIONER: Yes. I think that - - -
PN76
MS SALEWICZ: The question is - sorry, Commissioner.
PN77
THE COMMISSIONER: I think, Mr Cooney, those are matters that really I will have to determine. I think there has already been evidence provided from Ms White about the fact that she was not aware that the comma was there previously. I think any conclusions that result from that are perhaps matters that I will be required to determine.
PN78
MR COONEY: Thank you, Commissioner.
PN79
Could I ask you to go to the statement of Mr Moodley again. At clauses 7 to 14 of his statement, Mr Moodley describes how training that would attract the buddy allowance applies at Menzies Aviation. Does this accord with what you understand occurs?---Yes.
**** LINDA ANNE WHITE XN COONEY
PN80
If I could take you again to clause 30 of Mr Moodley's statement, where, to paraphrase the statement, Mr Moodley says - and it begins from the fourth line down - "The rationale expressed by the ASU was that it was unfair for employees to be training other employees on the same pay level and the agreement was that the buddy allowance would be paid where an employee was training another employee on the same pay level". Is that an accurate summation of the ASU position and how the ASU presented its claim to Menzies Aviation?---It's not the same pay level. It's the same classification level and the training for somebody for the duties at that classification. So if "pay level" means classification, well, then yes, but if it means something else, then it's not.
PN81
I'll just tender that statement?---There was just a couple of - there was a change in the - - -
PN82
Sorry. I should - there's a couple of changes to - at clause 12 of the statement, Ms White says that she was part of the negotiating team - - -
PN83
THE COMMISSIONER: I wonder, Mr Cooney - it might be appropriate to ask the witness whether there are any changes to her statement
she wishes to make?
---Yes. At clause 12, it indicates that Ms (indistinct) was part of the negotiating team. For clarity, she only participated in
the last couple of meetings, not the whole way through. In relation to clause 19, the Qantas buddy allowance wasn't introduced in
EBA 9. It was EBA 6, in fact. It was continued in EBA 9 but it was actually introduced in EBA 6.
PN84
Thank you, Ms White. Look, I have already marked that statement C1.
PN85
MS SALEWICZ: C1, Commissioner? Have we got two C1s now? As I've marked exhibit C1 as an email from Kogilan Moodley dated 9 December - - -
**** LINDA ANNE WHITE XN COONEY
PN86
THE COMMISSIONER: Sorry. We're not getting off to a great start. Look, I did, I think, indicate in retrospect that C1 was the witness statement of Ms White, C2 is the bundle of documents that commenced with the email from Ms White to Mr Moodley dated 1 December 2011 and C3 is the bundle of documents that commence with the email from Mr Moodley to Ms White dated 5 December 2011.
PN87
MR COONEY: As the Commission pleases.
PN88
MS SALEWICZ: I have three emails before me, Commissioner. I'm thoroughly confused. Apologies for - - -
PN89
THE COMMISSIONER: Quite all right. I'm in the same boat.
PN90
MR COONEY: Sorry, Commissioner. That accords with what - Commissioner, if you've got an email that's dated 9 December, that one hasn't been admitted into evidence. It's two emails. C2 is 1 December and C3 is 5 December.
PN91
THE COMMISSIONER: Yes. Well, that's what I've got.
PN92
MR COONEY: Yes.
PN93
MS SALEWICZ: Thank you, Commissioner, and I thank my friend. Commissioner, if I may just be heard on the objections to that statement that I understand has been tendered.
PN94
THE COMMISSIONER: Yes.
PN95
MS SALEWICZ: Given the evidence that has come out, I did have some objections to paragraphs 18, 19, 20, 21. However, I think that would be more appropriately dealt with in submissions as to weight, so I'll leave those.
**** LINDA ANNE WHITE XN COONEY
PN96
THE COMMISSIONER: Thank you.
PN97
MS SALEWICZ: The same goes again for paragraphs 23 and 24 - - -
PN98
THE COMMISSIONER: Right.
PN99
MS SALEWICZ: - - - and again with 34. So which leaves the final objection, and the only objection, to paragraphs 35, 36 and 37. The objection to those three paragraphs is the same. It is opinion evidence about the substantive issue in this case, and as I put before in the objection to the questions in examination-in-chief, it is neither here nor there, with the greatest respect to Ms White, as to what she thinks about the question in this matter. That is properly a matter for the Commission to determine, not a matter for a witness to put into evidence. These paragraphs should properly be put in submissions and they should be struck out.
PN100
As I said before, there should be some rigour applied to the evidence which comes before this Commission. Whilst the rules of evidence don't apply, there is a recent decision of the full bench - including two senior members of the Tribunal, Lawler VP and Kaufman SDP, including also Bissett C - the VECCI case in which the ASU was also involved - in which that full bench said to the effect of that whilst the rules of evidence don't apply, that doesn't mean that we don't apply rigour to the evidence that comes before the tribunal. Where a matter has no weight - and we would say that these paragraphs have absolutely no weight - then they should be properly struck out from the evidence and not admitted.
PN101
THE COMMISSIONER: Ms Salewicz, I note those objections and I agree with the nature of the objections. In essence, those three paragraphs really go to the matters which I'm required to determine. They do not go to matters of fact in terms of evidence being provided by the witness. I'm happy to leave them remain as part of the statement at this stage, but your objection is certainly noted and understood in relation to each of those three paragraphs.
**** LINDA ANNE WHITE XN COONEY
PN102
MS SALEWICZ: Thank you. Commissioner, if we may just take a very short adjournment for five minutes.
PN103
THE COMMISSIONER: How long do you think you'll need.
PN104
MS SALEWICZ: Five minutes.
PN105
THE COMMISSIONER: Okay. Look, I'll adjourn until 10 minutes to 11 o'clock just to give you a little bit of extra time.
PN106
MS SALEWICZ: Thank you.
<SHORT ADJOURNMENT [10.41AM]
<RESUMED [10.52AM]
<CROSS-EXAMINATION BY MS SALEWICZ [10.52AM]
MS SALEWICZ: Thank you for that time, Commissioner.
PN108
Ms White, you'd agree that this is the first Menzies Agreement which has had an entitlement for the buddy allowance inserted into it, wouldn't you?---Yes.
PN109
Your evidence is that this buddy allowance or the claim for the buddy allowance was first brought up by the ASU in a meeting of 11 March 2011. Is that correct?---It was in the claim that we gave to Menzies on 11 March, yes.
PN110
And your evidence is that there were - at paragraph 14 I'm referring you to, Ms White - eight bargaining meetings with Menzies?---Yes.
PN111
It's not correct, Ms White, that there were two meetings prior to 11 March 2011 and 16 December 2010 and 24 January 2011?---Without looking at my diary, I can't say. There might have been meetings with Menzies without our delegates, but I just can't remember.
PN112
Would your answer then be the same if I put to you that there was also a meeting on 7 June 2011?---I've consulted my diary and that's what my diary said and that's what I've put in my evidence.
PN113
When this claim was first brought up, you've just given evidence that it was put into the log of claims that you gave to Menzies on 11 March. Correct?---That's my recollection, yes.
PN114
That log of claims is properly set out at annexure LW1 of your statement, which is exhibit C1 - sorry, annexure LW4?---Yes.
PN115
When you gave that log of claims to Menzies, it's correct, isn't it, that at item 18 the words "who train others in check-in" were crossed out by the ASU?---That's correct. I think "in check-in" was crossed out, yes.
**** LINDA ANNE WHITE XXN SALEWICZ
PN116
Pardon me. "In check-in"?---Yes. That's correct.
PN117
At that meeting on 11 March, it would be correct to say that you discussed the rationale for why the ASU was making that claim?---I think we went through the claims in general form and then we went through them at later dates - later meetings - in a more detailed form.
PN118
But at one of those early meetings, whether it be on 11 March 2011 or perhaps one of the meetings after that, it's correct to say that there was a discussion about the rationale for seeking a buddy allowance?---Yes, there was. There was definitely a discussion. As I said, I don't - I definitely ran through the claims, but I think we discussed more detail at later meetings.
PN119
And it's correct, isn't it, that the position that was put by the ASU was that the rationale for seeking a buddy allowance was that employees said it was unfair that they were getting paid the same rate of pay when they were training somebody else?---It was put that it was unfair that people who were training people for the same level - it was unfair that they didn't get the allowance. That was what was put. The same classification level.
PN120
In response to that, you'd agree that Menzies said that employees were getting paid for training employees because it was included
in their classification level?
---I don't recall them saying that.
PN121
It was put by the ASU in the conversation about the rationale that Menzies was asking employees to train someone on the same pay level and they weren't getting paid any more than the person that they were training. Would you agree with that?---Sorry. Can you ask that question again.
PN122
Would you agree that it was put by the ASU that part of the rationale was that Menzies was asking employees to train someone on the same level and they weren't getting paid any more than the person they were training?---It's about training people at the same - for the same classification level. That's what - - -
**** LINDA ANNE WHITE XXN SALEWICZ
PN123
Ms White, what was put by the ASU in that meeting?---That's what I put. It's about the classification level. What I put it is what happens at Qantas, and what happens at Qantas is that if you are training someone for the same - at your classification level, then you get the allowance. That's what the ASU put. It was our claim; that's what we put.
PN124
Your evidence now is that you said to Menzies when you had a discussion about the rationale for the agreement that you wanted the
Qantas clause and you wanted it to apply as per Qantas, which was that anyone training someone as part of a buddy training program
would be paid a buddy allowance. Is that your evidence?
---It's not my evidence now. It has been my evidence from day 1. That's my evidence in my statement.
PN125
Do you recall what you said during those meetings, Ms White?---I recall - I have my notes which assist my recall, and my recollection about this is that I talked about the Qantas allowance, because that's the only place we have got the buddy allowance and that's what - and my notes suggest that I did mention Qantas.
PN126
It's correct to say, though, isn't it, that you didn't tell Menzies how it applied at Qantas during those meetings?---That's not correct.
PN127
Following on from the buddy allowance being raised as a rationale being discussed, it's correct that at a following meeting, Menzies came back and agreed to insert a buddy allowance?---They were certainly discussing it. My recollection of the way the negotiations went was a total package and it took some time to get the total package. But at some stage, it was agreed that they would pay the buddy allowance.
PN128
It's correct, isn't it, that the reason Menzies told you they were agreeing to the buddy allowance is that where some employee was not being reimbursed in their current rates for training, then they would pay something?---Sorry. Can you say that again?
**** LINDA ANNE WHITE XXN SALEWICZ
PN129
Menzies' position, it's correct to say, is that they believed or they told you that employees were getting compensated for training already?---Well, the trainer is getting - I don't recall them saying that people were getting compensated for training already.
PN130
When Menzies agreed to the buddy allowance, do you agree that they said to you that they agree with the principle that if someone wasn't being paid already, they would put something in place?---No. I don't recall that at all.
PN131
You don't recall it or it wasn't said?---It wasn't said.
PN132
You can recall with recollections with evidence under oath of a meeting that occurred over two years ago on a specific issue that something didn't occur?---I know what I put and I put the Qantas clause. I know how the Qantas clause operates. It never - it was never an issue at the time as to how it operated.
PN133
What did you say to Menzies about the Qantas clause?---I explained to Menzies how the Qantas clause operated. Our one line would not have been told - in our draft resolution wouldn't have told them. I explained to them how it operates.
PN134
Where do we find that explanation in your statement, Ms White?---36 and 37.
PN135
At 36 and 37? Those two clauses - - -?---Sorry. 36, 37 and also the - 18 where the buddy training allowance was - - -
PN136
Ms White, I've asked you a question about what you said to Menzies about the Qantas agreement applying. Can you please tell me what
words or words to the effect you said during negotiation meetings to Menzies about the Qantas clause?
---I pointed out to Menzies - and if I look at my notes - I've talked to them about the - I've discussed the buddy allowance and I've
talked about Qantas. That's what I've done.
**** LINDA ANNE WHITE XXN SALEWICZ
PN137
What did you say about Qantas, Ms White?---Well, I've explained how it operates at Qantas. What I have said to them is exactly how it operates; that is, that it is about training somebody at the same classification at the duties that the classification level does. That's how it operates at Qantas. That's how I explained it.
PN138
So you are telling the Commission today that you have an independent recollection that you said to Menzies that this clause is at
Qantas, and you gave an explanation of how that clause applied at Qantas during negotiation meetings?
---That's my belief, yes.
PN139
That's your belief or is that your recollection?---That's my belief of what I said to them, based on my notes, that I've definitely raised Qantas. I definitely raised Qantas. I know how Qantas operates, and that's what I put to them.
PN140
I'm going to ask you again, Ms White, do you recall that or do you believe that that's what you said?---I recall that.
PN141
What you actually said to Menzies, Ms White, is that you wanted the Qantas rates to apply, didn't you?---No. Sorry, I said I wanted the rates, but how it operates - it was our claim. I was pretty familiar with our claim, and I put our claim; that is, the Qantas clause and the Qantas rates.
PN142
After Menzies agreed to include the buddy allowance in the agreement, it's true to say that you gave a clause to Menzies for use as the buddy allowance clause. Correct?---Yes. I gave Menzies the Qantas clause because that was our claim.
PN143
At the time you gave the clause to Menzies, you didn't explain how the Qantas clause applied, did you?---I gave it to them in an email after we'd agreed it - after we'd reached agreement, so when we were drafting the agreement. So there's nothing in my email that explains it because I've just put it in.
**** LINDA ANNE WHITE XXN SALEWICZ
PN144
If I ask that question again. When you gave the Qantas clause to Menzies, you didn't explain to them how that clause would apply, did you?---No.
PN145
Following on from the clause being sent to Menzies and the agreement being finalised, it's correct, isn't it, to say that the parties then exchanged emails to confirm the offer that was on the table. I'm happy to take you to those emails if you need, Ms White?---Yes. We did exchange emails.
PN146
If I can take you now to annexure DM3, to the statement of Darren Masters. Apologies, Commissioner and Ms White. These statements aren't numbered. If you could just take a moment to read that page, Ms White?---Do you want me to read anything in particular?
PN147
Just refreshing your memory that that is annexure DM3. Ms White, do you recognise that email as DM3?---I presume it's the email that was sent to me on 18 - 16 September.
PN148
It's correct, isn't it, that that is the email sent by Menzies to you to confirm their understanding of the offer that was being put to employees?---I believe it is, yes.
PN149
That was sent on 16 September 2011?---Yes.
PN150
If you can turn over two pages, Ms White, to annexure DM4. We have another email there sent on 24 - pardon me. Ignore that first email. That's the email where it was sent to me, Commissioner and Ms White. The email is 8 November 2011, which is a reply to an email from you on Wednesday, 2 November 2011. Do you recognise that email from you, Ms White?---Yes.
PN151
It's correct, isn't it, that this email, the email of 2 November 2011 - - -?---Sorry. I was looking at 8 November.
**** LINDA ANNE WHITE XXN SALEWICZ
PN152
Sorry. If we could turn over the page, Ms White. It's an email from you on 2 November 2011?---Yes.
PN153
And it's correct to say that that email summarises the ASU's understanding of the offer that was being put to employees?---Yes.
PN154
If we can turn back to the email at DM3, which is three pages before?---So that's 16 September?
PN155
Correct. You can see there at dot point 6, and handily enough it has a sub-bullet point, it reads, "Buddy allowances added where on same pay scale"?---Yes.
PN156
"Cost of rates level five to eight and buddy allowances equivalent to 0.7 per cent increase." Do you see that there, Ms White?---Yes.
PN157
Would it be correct to say that that is Menzies' summary of what they understood the buddy allowance to mean?---Correct, yes.
PN158
If we turn over to your email of 2 November 2011, again we can see at dot point number 6 with a sub-dot point the ASU's summary of what they thought the buddy allowance was going to mean and the offer being put to employees?---I think - so it's not just the cost of the buddy allowance. It's the cost of the rates for up to 8 as well. So there were changes from 5 to 8 as well. So it's not just - both of them was about the cost of the level 5 to 8 and the buddy allowance cost.
PN159
You'd agree, Ms White, that your summary - the ASU's summary - which is contained in that email of 2 November 2011, picks up the summary put by Menzies in their email of 16 September 2011 with the addition of the words "agreed rate same as QF rates" and in the sub-dot point "NB company says"?
**** LINDA ANNE WHITE XXN SALEWICZ
---Sorry. Is that - I think it says, "Buddy allowance is added where on same pay scale". I think that's what they're both saying. Yes. And I've added, "Agreed rates are same as QF rates".
PN160
So it's correct to say then you've read the summary of what Menzies said the buddy allowance or how the buddy allowance was to apply when you sent that email back to them summarising the ASU position?---Certainly I've read it and I believe pay scale means classification level. That's what I mean.
PN161
Following on from getting an in-principle agreement with the company about the agreement, it's normal practice for the agreement then to be finalised and put out to employees with an explanation?---Yes. Well, it's normal practice to put out the agreement.
PN162
And in this case there was an explanation also put out to employees about how the agreement would apply. Is that correct?---Not by the ASU, I don't think. I think we had meetings and explained it - - -
PN163
It was put out by Menzies?---I believe it may have been. I don't exactly know.
PN164
If I can take you to annexure KM4, which is the fourth annexure to Mr Moodley's statement, Ms White. Again, apologies for not attaching
that in these statements?
---Sorry. I can't find that.
PN165
We've got a further copy if you need one?---Yes, you'd better give it to me. I can't see it. Sorry. What am I looking for?
PN166
Annexure KM4, and Ms White, if you find any annotations on that statement, may we please have it back. I think it might be Ms Rodriguez's.
PN167
THE COMMISSIONER: We might hand that one back, I think, Ms White?
**** LINDA ANNE WHITE XXN SALEWICZ
---Sorry. It's my - I just don't know that I've got KM4. The version I have isn't marked. So which one is - so KM5.
PN168
MS SALEWICZ: KM4?---KM4 has got an email headed Hi Linda.
PN169
That's it. 13 December 2011?---Yes.
PN170
Do you recognise that email, Ms White?---I don't recognise it, but I presume it's an email I received.
PN171
That email has one attachment to it, Ms White, which is - if you look at the attachments in the subject header, it's the attachment "SydMelPaxEBAmemo12122011", which attached at the next two pages?---Yes.
PN172
You'd agree that this is Menzies telling you that this is a memo that went out to employees in conjunction with the enterprise agreement?---They're just saying here it's something they've sent out, yes.
PN173
You'd agree that you've received that email together with the memo?---I presume I have.
PN174
If the witness could please be shown a copy of this email. Commissioner, this is something that we haven't photocopied, seeing as we are in transit today. However, I do have a spare copy for my friend. Perhaps I can ask your associate to please make some more copies during the lunch break.
PN175
THE COMMISSIONER: Yes. We can do that later, but if you can provide Mr Cooney with a copy at the moment, that would be useful.
PN176
WITNESS: This has got a marking on it. Do you want that?
**** LINDA ANNE WHITE XXN SALEWICZ
PN177
MS SALEWICZ: I do have an unmarked copy now. Ms White, can I please ask you just to have a read through that email?---Which one?
PN178
The entire document, please?---Yes.
PN179
You'd agree, wouldn't you, that there is an email there dated 15 December 2011 from you to Kogilan Moodley, which is in response to an email of 13 December 2011, which is attached at annexure KM4 to Mr Moodley's statement?---Yes.
PN180
And it's correct, isn't it, Ms White - and please take the time you need to look at this - that the email in response and the email that you're holding dated 15 December 2011 is the email that appears at the bottom of the first page of annexure KM5 to Mr Moodley's statement? On the bottom of the first page earmarked 15 December 2011, 12.47 pm?---Yes. It's at KM4. It's not KM5. It's KM4, I think, isn't it? I think you said it was at the bottom of KM5. It's KM4. Yes. I agree that it appears on KM4.
PN181
So you'd agree with the proposition then that you not only received the email from Kogilan attaching that memo on 13 December 2011, which is KM4, you also replied to his email?---Yes. It appears I have.
PN182
You also asked him in that email of 15 December 2011, at KM5, to send a copy of those documents on to your colleagues Sharon Sanchez
and Jocelyn Gammie?
---Isn't it at KM4 I said that? So at KM4 it isn't - I'm looking at a thing that has that email of the 12th attached to KM4. This
email of the 15th isn't at KM4, though.
PN183
No. It's on KM5?---Yes.
**** LINDA ANNE WHITE XXN SALEWICZ
PN184
Please take a moment to read through that email, Ms White. It might be some time since you've read it?---So KM5 isn't my email on the 15th. It has got something back from Kogilan on the 15th and then it has got an email - two emails from Kogilan on the 15th. Yes.
PN185
You'd agree that that top email is an email from Mr Kogilan Moodley to your colleagues Sharon Sanchez and Jocelyn Gammie?---Yes. It appears to be.
PN186
Attaching - - -?---I wasn't copied into it, so - - -
PN187
Thank you, Ms White. Commissioner, I seek to tender the emails that I have handed to the witness.
PN188
THE COMMISSIONER: Thank you. I'll mark that S1, and if I can be provided a copy of that at some later point.
EXHIBIT #S1 EMAIL FROM KOGILAN MOODLEY DATED 15/12/2011
<RE-EXAMINATION BY MR COONEY [11.19AM]
MR COONEY: Ms White, you were asked about whether you communicated how the buddy allowance - how the buddy allowance, as you saw it, would operate at Menzies Aviation. Can I ask you to go to the annexure DM4 of Mr Masters' statement. That's the two emails; one of 2 November 2011 and I think there was a preceding email from Mr Masters?---Yes.
PN190
In that email, at the sixth point down, you were asked about buddy allowances added on "where on same pay scale, agreed rate same as QF rates". Could I ask you what you intended by that?---What I intended was that if you train somebody that is going to be on the same classification level as you, then that's what you get. We put the Qantas clause - I know how that operates - and that's what we put. So that's what I believe was a summary of what we put.
PN191
Could I take you to Mr Moodley's statement and to annexure KM3 of that statement?---Yes.
PN192
Pardon me. KM4 of that statement, I should say, and particularly the attachment, the memo. It's dated 12 December 2011?---Yes.
PN193
You had no input into the writing or the issue of that memo, did you?---No.
PN194
MS SALEWICZ: Perhaps we could have some more open questions. This is re-examination leading the witness.
PN195
MR COONEY: That's all, Commissioner.
<THE WITNESS WITHDREW [11.22AM]
THE COMMISSIONER: That completes the evidence, Mr Cooney, that you wish to bring in this matter?
PN197
MR COONEY: Yes, it is, Commissioner.
PN198
THE COMMISSIONER: Thank you.
PN199
MS SALEWICZ: Thank you, Commissioner. I seek to call Mr Darren Masters.
PN200
THE ASSOCIATE: Please state your full name and address for the record.
PN201
MR MASTERS: Darren Glenn Masters, (address supplied).
<DARREN GLENN MASTERS, AFFIRMED [11.23AM]
<EXAMINATION-IN-CHIEF BY MS SALEWICZ [11.24AM]
MS SALEWICZ: Mr Masters, can you please repeat your full name and your job title for the transcript?---Darren Glenn Masters, vice president of finance Oceania from Menzies Aviation.
PN203
Mr Masters, have you prepared a statement in these proceedings?---Yes.
PN204
And do you have a copy of that statement with you?---Yes.
PN205
Have you read that statement recently, Mr Masters?---Yes.
PN206
Do you agree that this statement is a true and correct reflection of your belief?
---Yes.
PN207
I seek to tender that statement.
PN208
THE COMMISSIONER: Thank you. I'll mark that S2.
EXHIBIT #S2 STATEMENT OF DARREN GLENN MASTERS
MS SALEWICZ: Can the witness please be shown a copy of exhibits C2 and C3. Mr Masters, I've given you two emails there. One is an email dated 1 December 2011 and the second is an email dated 5 December 2011. The email dated 1 December 2011 attaches a document which is a draft agreement. Can you please have a read through that email and the draft agreement?---Yes.
PN210
Do you recollect receiving that email, Mr Masters?---Vaguely.
PN211
The email dated 5 December 2011, again, is an email between Menzies and the ASU attaching a draft agreement. Can you please have a read through that email and attachments, Mr Masters?---Yes.
**** DARREN GLENN MASTERS XN SALEWICZ
PN212
Do you recollect receiving that email?---Again, vaguely, but yes.
PN213
If you could please turn to clause 13.3 in both of those draft agreements that are annexed to those emails. Mr Masters, you'll see in the attachment to the email of 5 December 2011 that there is a comma in clause 13.3(a) between the words "duties" and "classified" in the clause which does not appear in the attachment to the email dated 1 December 2011. Do you know anything about how that comma came to be?---No.
<CROSS-EXAMINATION BY MR COONEY [11.28AM]
MR COONEY: Mr Masters, can I take you to clause 15 of your statement. You say there, "My basis for agreeing to the claim was that I believed that employees were already adequately compensating for undertaking buddy training in their wage rate. However, I agreed that employees were not adequately compensated where the trainee was on the same rate as the trainer." Could I ask that in both of those situations, the skill and knowledge that would be imparted from the trainer to the trainee would be the same?---Yes.
PN215
At clause 26 of your statement, you say, "I recall that Linda did not say at any stage during negotiations that the buddy allowance would be applied as it was at Qantas. She also did not at any stage tell us how the buddy allowance applied at Qantas." Ms White has given evidence that she did in fact make statements during meetings - and I preface that by there may not have been meetings that you attended - but I just put it to you that she did in fact make those statements; she has given evidence to that effect?---Not to my knowledge.
<RE-EXAMINATION BY MS SALEWICZ [11.30AM]
MS SALEWICZ: You were asked a question, Mr Masters about paragraph 15 of your statement, particularly the last two lines, "However, I agreed that employees were not adequately compensated where the trainee was on the same rate as the trainer", and it was put to you that the trainee and the trainer would have the same skill and knowledge, and you agreed with that. Was that what you were referring to in your statement at paragraph 15 when you said, "I agreed that employees are not adequately compensated"?---What had been raised with us was the fact that in some cases the person doing the training was being paid the same rate of pay as the person being trained, and where our view was that the wage rates and the classifications allowed for the fact that an integral part of our business was training and that a person needed to be remunerated for that, the classifications obviously didn't cover the situation where the person was not on the same rate of pay as the person being trained. So in that scenario we saw the validity of the buddy allowance. In the other situations, we saw that the person doing the training was already on a higher rate of pay than the person being trained and that the training was clearly included in the classifications.
PN217
MR COONEY: Sorry, Commissioner. I'm not sure if the question put quite captured what I originally put to the witness, and that was that the trainer themselves - - -
PN218
THE COMMISSIONER: I wonder, Mr Cooney - it might be something that you perhaps address in submissions at a later if you choose.
PN219
MR COONEY: Thank you, Commissioner.
PN220
THE COMMISSIONER: I'm obviously aware of what has been said by the witness at this stage.
<THE WITNESS WITHDREW [11.31AM]
MS SALEWICZ: Commissioner, if I may hand over to my friend Ms Rodriguez to take the next witness.
PN222
MS RODRIGUEZ: Commissioner, could we please call Mr Moodley.
PN223
THE ASSOCIATE: Please state your full name and address.
PN224
MR MOODLEY: Kogilan Moodley, (address supplied).
<KOGILAN MOODLEY, AFFIRMED [11.33AM]
<EXAMINATION-IN-CHIEF BY MS RODRIGUEZ [11.34AM]
MS RODRIGUEZ: Mr Moodley, could you please state your full name and job title for the transcript?---Kogilan Moodley, and I am the human resources Australia for Menzies Aviation Australia.
PN226
Mr Moodley, have you prepared a statement in these proceedings?---I have.
PN227
Do you have a copy of that statement with you?---I do.
PN228
Have you read that statement recently?---I have.
PN229
Do you swear that that is a true and correct statement, to the best of your knowledge and belief?---I do.
PN230
Commissioner, if I could please tender Mr Moodley's statement.
PN231
THE COMMISSIONER: Thank you. S3.
EXHIBIT #S3 STATEMENT OF KOGILAN MOODLEY
MS RODRIGUEZ: Commissioner, if the witness could be shown exhibits C2 and C3. Mr Moodley, you've just been provided exhibit C2. It's marked up the top. It's an email dated 1 November 2011. And also exhibit C3, which is marked at the top, which is an email dated 5/11/2011?---1 December?
PN233
Sorry. One is 1 December 2011 and the other is 5 December 2011. Could you just take a moment to read through both of those documents. Mr Moodley, do you recognise those two emails and attachments?---Yes, I do.
PN234
Mr Moodley, if I could just ask you to turn to clause 13.3 and those two exhibits, the attachments?---Got it.
**** KOGILAN MOODLEY XN RODRIGUEZ
PN235
Mr Moodley, you'll see with exhibit C2 - so the cover page will be the email dated 1 December 2011 - that at 13.3(a), if I can take you to the fourth line of that paragraph, there is no comma between the words "duties" and "classified". Would you agree with that, Mr Moodley?---Yes.
PN236
Mr Moodley, if I can now take you to exhibit C3, looking at clause 13.3(a), fourth line. Would you agree that now a comma appears in between "duties" and "classified"?---Yes.
PN237
Could you tell the Commission how that came to be?---I don't actually recall.
<CROSS-EXAMINATION BY MR COONEY [11.38AM]
MR COONEY: Mr Moodley, if I can go to exhibit C3 and to the email that was sent to Ms White, and you've outlined underneath the email itself - I think there are five amendments that you say were made to the EBA attached at C3. Is it your normal practice to highlight changes that are made to an EBA in that manner?---Yes.
PN239
Can I ask did you have - were you ultimately responsible for the emails of the draft EBAs to Ms White?---Yes.
PN240
Could I take you to the statement S3. At clauses 8, 9 and 10 of your statement, you talk about the training of new employees being involved in classroom training, a mix of classroom training and on-the-job training?---Mm'hm.
PN241
You've been in this role since 2006. Has that mix altered in that time at all? So is it predominantly more classroom or more on-the-job training, or has it remained constant?---As far as I can recall, it has remained constant.
PN242
At clause 11 of your statement, you talk about a new employee having completed classroom training, then they will start work in the airport under the buddy training system and be allocated to one or two CSOs. Can I ask who chooses, or do you have knowledge of how CSOs are allocated to undertake that buddy training task? Is there a roster system that you might place yourself upon, or how that might occur?---I don't know the details about the actual allocation itself.
PN243
Can I ask you then that it may be possible for one or two CSOs to continually take on the role of a buddy trainer?---Could you repeat that, please.
PN244
Would it be possible that one or two or maybe three of the CSOs who perform buddy training do it on a regular basis as compared to other CSOs who might not act as buddy trainers?
**** KOGILAN MOODLEY XXN COONEY
PN245
MS RODRIGUEZ: Objection, Commissioner. I don't see how this question is relevant.
PN246
THE COMMISSIONER: Ms Rodriguez, I'm happy to allow the question but I'm not sure of the relevance myself. But I'm happy to allow the question to be asked and for Mr Moodley to answer the best he can.
PN247
MS RODRIGUEZ: Thank you, Commissioner.
PN248
MR COONEY: Commissioner, I won't press it. I mean, Mr Moodley has given evidence that he hasn't got direct knowledge of it.
<THE WITNESS WITHDREW [11.43AM]
MS SALEWICZ: Commissioner, there is one final statement which has been filed by the respondent in this matter. However, we understand from the ASU that they don't seek him to attend for the purposes of cross-examination. That statement is the statement of Mr Daryl Sullivan. On that basis, we'd seek to tender it.
PN250
THE COMMISSIONER: Is that correct, Mr Cooney? You don't seek to cross-examine Mr Sullivan?
PN251
MR COONEY: Sorry, Commissioner. I was - - -
PN252
THE COMMISSIONER: That's all right. I'm just asking you is it correct that you don't intend to cross-examine Mr Sullivan?
PN253
MR COONEY: Yes. Correct, Commissioner.
PN254
THE COMMISSIONER: Thank you for that. I will mark that witness statement of Mr Sullivan S4.
EXHIBIT #S4 STATEMENT OF DARYL SULLIVAN
THE COMMISSIONER: So I take it from that, Ms Salewicz, that you don't intend to call Mr Sullivan at all?
PN256
MS SALEWICZ: Not at all, Commissioner.
PN257
THE COMMISSIONER: Thank you.
PN258
MS SALEWICZ: Commissioner, just to clarify, that statement has been provided in the form of an affidavit and it has been given as sworn evidence.
PN259
THE COMMISSIONER: Thank you. All right. I understand that completes the witness evidence. Mr Cooney.
PN260
MR COONEY: Thank you, Commissioner. I'll just make a few comments further to the submission and the submission reply already filed. What we would say is that the Commission has got to be guided by the principles of interpretation. We say that they are the principles that are found in the decision of Cape Australia Holdings. I've got copies here. I can hand that up.
PN261
THE COMMISSIONER: Mr Cooney, just on that point, I think I do note that in the outline of submissions that I've received that this decision is referred to in paragraphs 14 and 18. There are references to - or extracts from the decision, but the written outline doesn't actually go on to indicate which of those extracts are, and you may well be about to tell me now.
PN262
MR COONEY: Sorry, Commissioner. I - - -
PN263
THE COMMISSIONER: Mr Cooney, I'll let you continue. If we need to clarify that at some point, we can.
PN264
MR COONEY: Commissioner, what we would say is that the construction of an agreement - the requirement for the Commission is to begin the interpretation of the agreement with a consideration of the ordinary meaning of the agreement's words, then, considering the ordinary meaning, the context in which they appear and then the overall agreement itself and other associated documents. What we would say, and also that the words of the clause must not be interpreted in a vacuum divorced from industrial realities. What we would say is that this clause 13.3 is, of itself - has a plain and ordinary meaning.
PN265
We've taken you to some evidence today about the agreement that was eventually approved, which contained a comma at clause 13.3(a) at the end of the word "employee to perform duties". What we would say is that the evidence from both the union and from Menzies Aviation was that no-one had any knowledge of how that comma was inserted, and certainly the evidence from the union was that the insertion of that clause was - sorry, the insertion of that comma into the clause did not affect how the clause should be read.
PN266
What we would say is that in reading that clause the words "classified at the same level as the employee who provided the instruction" refers back to the word "duties", regardless of whether that comma had been inserted or not. The union submit that to otherwise go to other interpretations based on extrinsic material would be to take a reading of the clause that is beyond that was otherwise intended or should otherwise make sense according to the basic conventions of the English language. The evidence has been that no-one intentionally inserted that comma into the clause, and we would submit that therefore the meaning of that clause has not changed. The evidence of - - -
PN267
THE COMMISSIONER: Can I just ask, Mr Cooney, your position is that it's unclear how that comma got there, but regardless of the fact that it is there, it doesn't change the sense of the provisions contained in clause 13.3(a) in any case?
PN268
MR COONEY: Correct, Commissioner, and we would say that on two levels. Even with the comma there, it would not change the reading of the clause, as outlined in the submissions, and also that at no stage did any of the parties intend to change the reading of that clause. Certainly from the point of the ASU and the evidence outlined by Ms White, the reading of that clause is that to qualify for the payment of the buddy allowance, the focus is on duties performed at your classification rather than any particular pay scale you might be. If I could just, on that point, go to the evidence of Mr Masters.
PN269
In response to the question about his evidence, whether you were a trainer and you were training employees, either at your classification level - as an example, classification 3 - or you were training employees, for the sake of the argument, at a lower classification - 1 or 2 - the trainer themselves still imparts the same amount of skill and knowledge in performing that training. What we would say about that is that it then makes no sense to say, "Well, it's part of your duties that you perform training as required", because you're still employing the same amount of effort, skill and knowledge whether you're training someone at your particular classification pay rate or someone at a lower pay rate.
PN270
We'd also say about that that just because, in this instance, training is part of your duties as described in your classification doesn't mean that an allowance would then apply to that particular duty, as the duties listed in a typical classification does not necessarily mean you perform all those duties but just a majority of them, or enough to warrant you being in that classification. It might well be that you get paid a particular allowance for performing a duty within that classification that you may not normally perform or that you might be required to perform to a greater level, and the course is going to be for a specific circumstance to whatever EBA would apply in that situation.
PN271
THE COMMISSIONER: Mr Cooney, what about the argument that is contained in the respondent's outline of submissions that the duties in level 3 - I think other levels above level 3 as well - already make reference to the provision of the conduct of on-the-job training if the need arises? And I understand that is part of their submission that because that is already part of the duties, they rely upon that fact in support of their submission that the allowance should only be payable when the training is being provided to someone on a comparable level rather than the other situation.
PN272
MR COONEY: What we say to that, Commissioner, is that this is a situation where you're required to train beyond what would normally be contemplated in the duties statement. I mean, we're talking here about a formal buddy training scheme which has its own structure, and therefore this is a situation where an allowance would be attracted. Mr Moodley was asked about whether particular CSOs would be utilised or any CSO. He said that he didn't have any knowledge of that. But what we say is that the particular training required is something that is beyond what is required in the classification scale, and by the same token, that skill that you apply would be equally applied to someone at your particular pay rate or someone below, or for that matter, above your pay rate.
PN273
We say it's in those circumstances that the buddy allowance is attracted.
PN274
THE COMMISSIONER: Just so I'm clear, Mr Cooney, if I'm classified at level 3, in your submission, and I'm training any employee - in this case I'm training a level 1 employee - in any duties associated with level 3, then, on your submission, I should be entitled to the allowance. Conversely, if I'm a level 3 employee training a level 1 employee about level 1 duties, then I would not be entitled.
PN275
MR COONEY: Yes. That's correct, Commissioner. That goes to the point that we're making that, in your example, that trainer at classification level 3 is training, say, in the expectation above what would normally be required, and that's why it would attract the allowance. Commissioner, we don't quibble with the principles outlined at clause 5.4 of the respondent's submission in interpreting the Commission's requirements in interpreting agreements, but what we would say is that primary amongst those requirements is the ordinary or well-understood words to be accorded their ordinary or general meaning, not to take a pedantic approach.
PN276
In effect, that's the first stopping point. Then, if still ambiguity remains, you journey down to further stopping points. But we say the effect of the clause, read with or without the comma, is the same; that clearly the line "classified at the same level as the employee providing the instruction" applies to duties and does not refer to anything else within that clause.
PN277
THE COMMISSIONER: Mr Cooney, I apologise for interrupting again, but just in terms of one further issue that I might raise, is it possible that, in regards to this matter, there is actually a genuine misunderstanding between the parties about what the clause actually means or intends; that there was in fact no meeting of the minds that perhaps Ms White, with her knowledge across the industry, was acting on the basis of an understanding about what provisions elsewhere mean but perhaps the employer in this case was acting on the basis of its view about what the claim from the ASU intended, and the agreement was to be included with perhaps both parties having a different understanding about what clause 13.3(a) required of them or entitled them to?
PN278
MR COONEY: Commissioner, what we would say about that is that characterisation would then open itself up to ambiguity, and we'd find ourselves in the position that we're in.
PN279
THE COMMISSIONER: I'll just perhaps - I should really say that I'm not implying that that is the result of ambiguity. I'm just simply saying, regardless of whether the clause is ambiguous or not - and I'm not, as I say, suggesting it is necessarily - I'm just simply saying is it possible both parties walked away from the situation where an agreement had been concluded and each of them had a different view about one of the provisions in that agreement in terms of what it obliged one party to do and what entitlements it provided for the other?
PN280
MR COONEY: Commissioner, I can only really speak for Ms White, and I think that what she says is that, yes, she has had extensive experience in the industry, and so have at least Mr Moodley, that she had a clear understanding of how the clause operated and that she believed that she conveyed that to Menzies Aviation. She was certainly willing - I think the emails exchange that - to explain how the clause operated if those questions had been asked to her. Just the final thing I say on that - and again, it's the evidence of Ms White - that she didn't realise the comma had been included. The only reason I say that is in response to your question that - again, I can't speak for Ms White - if she had noticed that, it might have led to a deeper explanation of the clause at the time.
PN281
I only say that because she might then have been alerted to the fact that Menzies Aviation required a further explanation. The only final thing we say, Commissioner, is that, certainly in the submission of the ASU, this provision of the clause should be read to the benefit of the employees; that it was an agreement between two parties. It's to improve on what's contained in the BOOT test on the award, and on that basis, we would say that it's open to the Commission to take the more beneficial view of the clause. I think there's nothing further, Commissioner.
PN282
THE COMMISSIONER: Thank you, Mr Cooney. And, Mr Cooney, just for the sake of keeping things in order, what I will do if there's no objection is mark the applicant's outline of submissions C4 and the outline provided in response to the respondent's submissions C5.
EXHIBIT #C4 OUTLINE OF APPLICANT SUBMISSIONS
EXHIBIT #C5 OUTLINE OF APPLICANT SUBMISSIONS IN RESPONSE
MR COONEY: Thank you, Commissioner.
PN284
THE COMMISSIONER: Okay. Ms Rodriguez, you're doing the honours?
PN285
MS RODRIGUEZ: I am, Commissioner.
PN286
THE COMMISSIONER: Thank you.
PN287
MS RODRIGUEZ: I don't want to hold up these proceedings, but can I please have a short adjournment.
PN288
THE COMMISSIONER: You may indeed. How long would you like?
PN289
MS RODRIGUEZ: I would personally like an hour, but 15.
PN290
THE COMMISSIONER: Okay.
PN291
MS RODRIGUEZ: It's my birthday, Commissioner.
PN292
MS SALEWICZ: It's her 30th as well, Commissioner.
PN293
MR COONEY: Isn't it your 21st?
PN294
MS RODRIGUEZ: Thanks, Justin.
PN295
THE COMMISSIONER: Mr Cooney, that's one of the most crassest attempts I've heard of trying to gain some sympathy for your position. All right. I've been told there's some security issue in the building at the moment - I'm not being facetious about this - and we've been asked to remain in secure areas until further notice. I presume we're in one now. I'm happy to allow an adjournment for 15 minutes.
PN296
MS RODRIGUEZ: Thank you.
PN297
THE COMMISSIONER: Look, can I just ask - and I'm not by any means trying to restrict the time - is it likely then that you would conclude - how long do you think then your submissions would take?
PN298
MS RODRIGUEZ: Before lunch.
PN299
THE COMMISSIONER: Yes. I'm not trying to put it in question. I'm just trying to get an understanding of where things sit. Okay. If that's acceptable, we will adjourn until 20 past 12, but I think I need to say that people need to remain in these surrounds. You can go into the rooms next door. There might be some issue that I'm not exactly aware of that we need to just be a little bit cautious about. Okay. We're adjourned until 20 past 12. Thank you.
<SHORT ADJOURNMENT [12.07PM]
<RESUMED [12.27PM]
PN300
THE COMMISSIONER: Ms Rodriguez.
PN301
MS RODRIGUEZ: Thank you, Commissioner. I might just start handing up some cases that I may refer to in my closing submissions. Commissioner, our submissions are that this case is pretty simple. There's really just one question that needs to be answered, and that is what is the meaning of the buddy clause that we find at clause 13.3. Now, the ASU has set down the relevant principles, and to a degree, I agree with those. However, their case is that the way that you interpret an enterprise agreement is that you look at the plain meaning of the words used and nothing else, unless the Commission is not satisfied by their plain reading of the clause or there is an ambiguity. What we say is that this is simply not true.
PN302
The High Court has said - and the decision I've provided for that is Residual Assco Group Ltd - at paragraph 27, and the second last sentence of paragraph 27, what the High Court said is, "We should always keep in mind what learned Hand J said in Cabell v Markham". I won't repeat the entire clause, what was said is that you can't create a fortress out of the dictionary. You can't just focus at the plain meaning of the word. There are two other elements, and that was outlined in many decisions well known to the Commission, and in fact the Commission that Mr Cooney has cited in his submission. That is, you've got to examine the ordinary meaning of the words, you need to look at its context, you need to look at its purpose; the purpose of the provision.
PN303
Now, because the ordinary meaning needs to be interpreted in light of the context and the purpose of the provision, I propose to deal with those two aspects first, and then I'll move to the ordinary meaning of the words. In respect to context - and we've set out in our submissions what the relevant principles are for interpreting an enterprise agreement and I don't intend to go through those again unless, Commissioner, you'd like me to. However, the main ones are that it's a well-established principle that the Commission must consider the context, which includes where the clause appears in the agreement, but it also includes the entire agreement and associated documents.
PN304
There's another well-established principle as well. The High Court in CIC Insurance v Bankstown Insurance Club - and I am going to apologise because I don't have copies of those, but I will read out - that is principle for the fact that context is used in its widest sense. Context also includes the mischief that the clause intends to cure. So if we go to the facts in this case, and if I can turn, Commissioner, you to the old agreement; the 2007 agreement. I have a copy here. Commissioner, I won't take you to the classification structure of that agreement. I think it's well known that the classification structure in this agreement is exactly the same as the current agreement that's in the dispute.
PN305
But if I could turn to, Commissioner, 13.3 of the old agreement - not 13.3, but 13.2, "All employees will be required to coach other staff on a one-to-one basis by the use of personal instruction demonstration". I won't read the rest of that clause to save time. The point that I would like to make, Commissioner, is that that clause and the classification structure existed prior to the agreement that's currently in dispute. The reason why I make that point is this: under this agreement, or up until the time that the new agreement started to be negotiated, it was a fact of life that employees had to participate in a formal buddy training program, and the wages that they received in this agreement compensated employees for the fact that they did have to participate in this buddy training program.
PN306
The new agreement - the only thing that's really new - with respect to the buddy allowance clause. I don't want to mislead the Commission if there is anything else in the agreement that has changed - is the fact that employees now receive a buddy allowance in circumstances where they provide on-the-job instructions to an employee that's classified at the same level as they are. The introduction of the clause, if you look at its context, isn't to pay the employees twice for training. The introduction of the clause to pay employees in circumstances where at the end of the day they go home and they take the same amount of pay as the person they trained. In some respect, the mischief, if I can call it that, is that employees were reimbursed for training, however, there were circumstances where two employees were being paid the exact same.
PN307
One was training and the other wasn't. One was sharing his skills and knowledge to the other person and they were both walking out with the same dollars in their pocket. The cure to that mischief was 13.3 of the agreement. That cure is to provide a buddy allowance so that employees didn't go home at the end of the day and think it was unfair that they took the same amount of dollars in their pocket as the employee they had just shared their knowledge and skills with. In respect of purpose, the Acts Interpretation Act - and I have a copy here, Commissioner, if you would like to see it.
PN308
THE COMMISSIONER: Look, if you've got copies there, I'm happy to - - -
PN309
MS RODRIGUEZ: I do. It's well known to the Commission that the Acts Interpretation Act applies to the interpretation of enterprise agreements by virtue of section 46 of this Act. If I could take you to 15AA, which is on page 19.
PN310
THE COMMISSIONER: Thank you.
PN311
MS RODRIGUEZ: This Act makes it clear that the interpretation that would best achieve the purpose is to be preferred to each and every other interpretation, and we say that the interpretation that would best achieve the purpose of provision 13.3 that should be preferred over the other interpretation is ours, because ours fits in with the purpose. The evidence that you've heard today from Mr Masters and Mr Moodley, they both gave evidence that the ASU explained to them that the reason why the wanted a buddy allowance was because it was unfair that employees were taking home the same rate of pay as the employee they were training.
PN312
What we say is Mr Masters and Mr Moodley's evidence should be preferred over Ms White's for a couple of reasons. Both Mr Masters and Mr Moodley gave evidence which confirmed each other's recollection - that supported each other's recollection. Also, Mr Masters - and it formed part of his statement - after the meeting, wrote briefing notes of his recollection of those meetings, and Mr Moodley gave evidence in his written statement that he saw those briefing notes and he agreed with that recollection. There were other ASU delegates at those meetings. There's no evidence as to why they're not here today. For that reason, we ask the Commission to draw a Jones v Dunkel inference that Mrs Sanchez's evidence would not have supported their case.
PN313
Now, Mr Cooney, he may want to provide an explanation in his closing submissions as to their whereabouts, but I'd ask the Commission not to give any weight to those submissions. That explanation should have been provided in evidence.
PN314
THE COMMISSIONER: Ms Rodriguez, can I just ask, in terms of purpose, you've indicated the view as to why the allowance was accepted by the employer. In terms of purpose, I took it from the submission of evidence from the ASU that there is perhaps also another purpose from their point of view, and that is that the way in which training is being provided by the employer in this matter has changed over time; that rather than being more classroom base, it has shifted to training that is more - has a greater component of on the job, and that there was an element, from their point of view, associated with why the claim was pursued as well, in addition to, I guess, the purpose that you've outlined, being that you've got a situation where two employees are being paid the same rate where one has been asked to provide training to the other.
PN315
Do you give any weight to that view in terms of an additional purpose? It might be a different situation now from what has existed in the past.
PN316
MS RODRIGUEZ: If I recall correctly, Commissioner, my recollection - or the evidence that Mr Moodley provided is that there wasn't much change - there wasn't a change to the training that they had done, and what I would say is that Mr Moodley's evidence should be preferred. He works in business. He deals with this on a daily basis. Menzies knows what changes what doesn't. The ASU may say that it's changed, but where is there evidence for that? So in terms of weight, I say that more weight should be put on the evidence that Mr Moodley provided today than to what the ASU has.
PN317
All I would like to say, if I could go slightly back to context, is that it is our submission that in the classification structure in the agreement - let's go back to the 2007 - that that was on-the-job training. That was the buddy formal training; there's no difference, essentially. I don't want to repeat my submissions. However, the buddy allowance really was a cure for the mischief, and that was people taking home the exact same pay where one has shared their skills and knowledge with the other.
PN318
THE COMMISSIONER: Thank you. I understand that.
PN319
MS RODRIGUEZ: If I can now go to the ordinary meaning of the words, which is the primary consideration - it's the first - but it doesn't stop there. When you read those words in light of the context and purpose, it is our submission that the only conclusion that one can draw is that the buddy allowance is paid where the employee is on the same classification level as the employee that they are training. I will make the point that Ms White did give evidence that she thought that the pay scale meant the same classification level. Same pay level, same classification level. The evidence wasn't - that was put here today - that the duties classified at the same level.
PN320
I just want to turn, Commissioner, to the point about the ambiguity. It is our position that it's not ambiguous. You look at the ordinary words. You don't build a fortress around the dictionary; you look at its context and your purpose. There's only one thing that it can mean, and that is that you pay it when the employees are classified at the same levels. Not the duties. But I want to touch on ambiguity. If the Commission is doubtful of the intention of the parties or if the Commission is of the view that both the ASU's and our interpretations are in line with the meaning of the clause, then we say that the Commission must find that the clause is ambiguous.
PN321
In terms of how you determine whether or not a clause is ambiguous - this is a big learning curve for me - - -
PN322
THE COMMISSIONER: Sorry. Just so I understand that submission, you're saying that if I come to the view that the parties have a different view about the intention of the words, then therefore it must be ambiguous?
PN323
MS RODRIGUEZ: Or if the Commission is doubtful of the intention of the parties or if the Commission finds that both those interpretations are valid, then the Commission, we submit respectfully that the Commission must find there is an ambiguity. In terms of determining whether or not a clause is ambiguous, I think that it's relevant, Commissioner - and once again I apologise. I don't have copies of this case - but the Federal Court in Wentworth District Capital v Commissioner of Taxation held that the use of the word "ambiguity" in the context of statutory interpretation is not restricted to lexical or verbal ambiguity and syntactic or grammatical ambiguity. It extends to circumstances in which the intention of the legislature is, for whatever reason, doubtful.
PN324
So in terms of what Mr Cooney said in respect to the ambiguity, what we're saying is that you don't just look at the words and say, well, those words look ambiguous. You've really got to look at the purpose, the context and the words, and if you find this is doubtful for whatever reason, then an ambiguity does exist. We've outlined in our submissions, from clause 5.1 to 5.6 in our outline of submissions, what the principles are for interpreting an enterprise agreement and the principles for interpreting an enterprise agreement where the clause is found to be ambiguous. The ASU, in their submissions, stated that they don't dispute these principles, so the principles are not in dispute.
PN325
Just to summarise, in terms of an ambiguity, what needs to be looked at or the extrinsic material that needs to be looked at is the surrounding circumstances, which includes the negotiations. In terms of the facts that you look at, they're the objective background facts that were known to both parties. So, Commissioner, I just want to start my submissions on this point with what we say the objective background facts are that are not known to both parties, and the fact that these facts are not known to both parties means that they're irrelevant. It's our submission that the Commission cannot consider them in their deliberations.
PN326
What's not relevant is what Ms White intended the clause to mean. What's not relevant is what Mr Moodley or Mr Masters intended it to mean. Their expectation is irrelevant; of all the witnesses that gave evidence today. What they wanted it to mean is also irrelevant. How it applied in Qantas, we say, is also irrelevant. Mr Moodley and Mr Masters both gave evidence today that Ms White did not explain to them how the clause operated in Qantas. It's not in dispute that she said, "These are the Qantas rates", but how it actually applied. When Ms White, in cross-examination, was asked to point to her statement where there's an explanation of what it is that she said to them in respect of how it applied, she referred to clause 35, 36 and 37 of the witness statement.
PN327
That doesn't provide the explanation, doesn't provide any evidence of what she said, and Ms White hasn't provided any evidence of what she said. What is also not relevant is the intention of the comma or anyone's intention of changing the comma. Mr Cooney, in his closing submissions, said that Linda White was certainly willing to explain how it applied in Qantas if those questions were asked of her. I think that assumes that maybe what they're saying is that those questions weren't asked. It's all well and good to have a willingness to provide an explanation, but for it to be an objective fact known to both parties, that explanation would have to be given to Menzies, and we say it wasn't; the evidence shows that it wasn't.
PN328
What are the relevant facts known to both parties are set out in our submissions. Actually, if I can just go back to the objective facts not known to both parties. I also want to point out that in the ASU's submissions in reply, what they've said is that - they submit at clause 17 of their submissions in reply - the applicant submits the facts outlined at item 6.8 and 6.9 allow the conclusions at item 6.10 to be made. Our conclusion at 6.10 is that there is no evidence that the ASU told Menzies that, and in fact both Mr Moodley and Mr Masters deny that any of these things occurred.
PN329
Our conclusion at 6.10 is that there is no evidence that the ASU told Menzies that - and in fact both Mr Moodley and Mr Masters deny that any of these things occurred. So arguably, they agree with that on those points. The facts that were known to both parties and what must be relied on in terms of the Commission's deliberations of what is the meaning of the buddy allowance if you find that there is an ambiguity is the evidence that Mr Masters and Mr Moodley have provided the Commission today that the ASU told them that the reason why their members wanted a buddy allowance clause is because they thought it was unfair that they would train another employee, take the same amount of pay home as that employee, yet they spent the day sharing their skills and knowledge.
PN330
What is relevant and known to both parties is Mr Moodley and Mr Masters' evidence that they agreed to cure this mischief by introducing the buddy allowance clause. But the most striking thing of the evidence is the emails. It may be, Commissioner, that both of them had a different view, although I submit that that's not relevant. What's relevant is what a reasonable person would have concluded, had they given all the mutual facts to them, and what a reasonable person would have received in an email from Mr Masters - I apologise, an email to Ms White from Mr Masters stating that the in-principle agreement, the package, was that the buddy allowance would be paid where they were on the same level.
PN331
The most striking part of the evidence is that Ms White has looked at that email, made amendments to that email and sent back, and said, "This is our understanding: it's whether employees are classified at the same pay level". That's the objective facts, that if a reasonable person had, one could only assume that it be paid where the employee was classified at the same level, not whether duties are classified at the same level. Commissioner, it's my submission that the memos that Menzies had sent out to their managers and their employees and the ASU - because the evidence that the Commission has is that the memo to employees was provided to Ms White - is confirming what was said in those emails, and that's why the evidence should be preferred, because there is written documentation that supports Mr Masters and Mr Moodley's recollection of what was said.
PN332
Commissioner, can I just take one minute.
PN333
THE COMMISSIONER: You may.
PN334
MS RODRIGUEZ: Commissioner, I also want to point out, if I understood Mr Moodley correctly, he made some comment to the BOOT test - Mr Cooney - - -
PN335
THE COMMISSIONER: Mr Cooney I think we might be talking about, yes.
PN336
MS RODRIGUEZ: Mr Cooney, sorry. Mr Cooney made some reference to the BOOT test and that it should be beneficially interpreted because the employees have got to be better off overall et cetera. There is no authority, and if there is, Mr Cooney may be asked about where it comes from that in terms of interpreting an enterprise agreement, you need to look at the BOOT test. The agreement has gone to the Commission, or Fair Work Australia as it was. They've made the determination it passes the BOOT. I think the analysis in terms of the BOOT test can stop there.
PN337
But just to summarise what our submissions are, Commissioner, the main point is this: it is our case that when you look at the ordinary meaning of the words, the context and purpose, the meaning is that it's paid to employee if they someone classified at the same level. But if the Commission is of the view that the intention is, for whatever reason, doubtful, then those principles that we've set out need to be applied, and they're not disputed from the ASU. So whatever way the Commission goes, it is our case that the only conclusion really is that this clause means nothing else but curing a mischief that needed to be cured. If you've got no further questions, Commissioner, those are our submissions.
PN338
THE COMMISSIONER: Ms Rodriguez, thank you very much for that. I don't have anything further for the moment. Mr Cooney, anything in response?
PN339
MR COONEY: Just a couple of things, Commissioner. The point the ASU made about the skills and knowledge that a trainer imparts or they imparted to a level 1 or a level 2 or a level 3 still involves the same amount of effort still, I think, stands. And just on the point of the principles in interpreting an agreement, we agree with those principles, but what we say is that it's a tiered approach. There's a starting point, and that's the ordinary, well-understood meaning of the words. I've only got the one copy, but Kucks' case - and I think that has been cited in earlier submission by the respondent - makes the point and in the case cited by the ASU, Cape Australia Holdings - again that's in paragraph 9 - quoting the judgment from French J in Wanneroo:
PN340
PN341
The reason we say that it's a step process and that the primary - or initial step at least - is that ordinary, well-understood words in general to be accorded their ordinary or usual meaning is that we're talking about an agreement that can run anywhere from six months to four years, and that there is a public policy interest in holding people to those agreements. So an assertion of ambiguity, which could then open up that agreement to becoming something that wasn't intended, the ASU would submit, needs to be avoided. That's the only point I make on that, Commissioner.
PN342
THE COMMISSIONER: Thank you very much, Mr Cooney. Can I say at this point thank you to and Ms Rodriguez - I'm sure you'll agree that it's hard to think of a better place to be on your birthday - and also to Ms Salewicz. Thank you very much for the submissions and the evidence that has been provided in these proceedings. Look, I do intend at this stage to reserve my decision. I will endeavour to hand down a decision as soon as possible, but until that time, the tribunal is adjourned.
<ADJOURNED INDEFINITELY [12.55PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
LINDA ANNE WHITE, SWORN PN23
EXAMINATION-IN-CHIEF BY MR COONEY PN23
EXHIBIT #C1 STATEMENT OF LINDA ANNE WHITE PN40
EXHIBIT #C2 EMAIL FROM LINDA WHITE DATED 01/12/2011 PN48
EXHIBIT #C3 EMAIL FROM KOGILAN MOODLEY DATED 05/12/2011 PN62
CROSS-EXAMINATION BY MS SALEWICZ PN107
EXHIBIT #S1 EMAIL FROM KOGILAN MOODLEY DATED 15/12/2011 PN189
RE-EXAMINATION BY MR COONEY PN189
THE WITNESS WITHDREW PN196
DARREN GLENN MASTERS, AFFIRMED PN202
EXAMINATION-IN-CHIEF BY MS SALEWICZ PN202
EXHIBIT #S2 STATEMENT OF DARREN GLENN MASTERS PN209
CROSS-EXAMINATION BY MR COONEY PN214
RE-EXAMINATION BY MS SALEWICZ PN216
THE WITNESS WITHDREW PN221
KOGILAN MOODLEY, AFFIRMED PN225
EXAMINATION-IN-CHIEF BY MS RODRIGUEZ PN225
EXHIBIT #S3 STATEMENT OF KOGILAN MOODLEY PN232
CROSS-EXAMINATION BY MR COONEY PN238
THE WITNESS WITHDREW PN249
EXHIBIT #S4 STATEMENT OF DARYL SULLIVAN PN255
EXHIBIT #C4 OUTLINE OF APPLICANT SUBMISSIONS PN283
EXHIBIT #C5 OUTLINE OF APPLICANT SUBMISSIONS IN RESPONSE PN283
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