AG2013/1202, Transcript of Proceedings [2013] FWCTrans 647 (7 August 2013)

TRANSCRIPT OF PROCEEDINGS

---

Fair Work Act 2009 1048521-1

COMMISSIONER WILSON

AG2013/1202

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

Application by eStore Logistics Pty Ltd
(AG2013/1202)





Melbourne

10.09AM, WEDNESDAY, 31 JULY 2013

Continued from 12/07/2013

PN2454

THE COMMISSIONER: Good morning, and thank you for reconvening. Can I start, perhaps, by just coming to the potentially agreed statements of fact? There's been a number of documents exchanged and provided to the Commission. For the sake for completeness though I'm wondering whether it might be possible to obtain a complete bundle which are the agreed facts. Do you know if that might be possible by either of you?

PN2455

MS MURPHY: Yes, we've got a copy, sir - - -

PN2456

THE COMMISSIONER: Good.

PN2457

MS MURPHY: - - - of the complete bundle, but there's still issues and contentions with regards to the agreed facts.

PN2458

THE COMMISSIONER: All right. Which I notice from the exchange of emails. Now, in respect of that matter, how do you wish to deal with that issue?

PN2459

MS MURPHY: Sir, you may have noticed it's a little bit difficult to complete the process given the timeline, however, the NUW's concern about the - Mr Amarto's start date. Last night eStore did provide additional factual information to the NUW to Ms Beynon, demonstrating that the start date was in one of the attachments and a spreadsheet was, in fact, an error, and that the start date is - it was advised to the NUW, namely, 25 March 2013.

PN2460

And specifically what those documents were, sir, as you might have noticed, was a pay advice for Mr Amarto which Mr Beynon and Mr Mujkic have been provided with and two emails that he sent. Sorry, the acceptance of the start date, so an email from Mr Amarto himself, in addition, an email that he sent to Mr Williams shortly after he started relating to his ideas on performance management, which was also provided last night to the NUW.

PN2461

THE COMMISSIONER: Right. Is it likely, Ms Beynon, that that issue - it is possible it will be agreed, or do you think there will be a factual dispute continuing over that matter?

PN2462

MS BEYNON: Commissioner Wilson, I guess we raised this because there was two different versions of the start date in the contract, and then in schedule 1, it does clearly the 8th. We received some documentation late last night which is to, sort of, add to the - evidence - to the bundle. We say that - I means, the document is conclusive to whether or not he started then. We just say that it's a fact that remains in dispute between the parties and I'm not sure of the ongoing - whether or not the matters - that one point anyway.

PN2463

THE COMMISSIONER: All right.

PN2464

MS BEYNON: So if it is left in dispute then we can leave it in your capable hands to decide.

PN2465

THE COMMISSIONER: Thank you for that. All right. Look, that's useful clarification. I'm thankful for you both for that.

PN2466

Now, Ms Murphy, I understand there's an application where you're seeking orders from me this morning?

PN2467

MS MURPHY: Yes, sir. As you're aware, sir, I've raised - the issue remains pertinent in terms of the NUW's capacity as a bargaining agent. It's an extremely important issue with regards to this case and, indeed, with regard to the general protections application which, at least, to my knowledge, as at this time has not yet been discontinued.

PN2468

It's also very pertinent to the evidence that - or the witness that Ms Hilt has given today - that she is going to give today - and the witness evidence we've already heard from Mr Anderson as to whether the NUW does, in fact, have membership and, in particular, in relation to that key date, which we are familiar with, which is referred to in my schedule to my draft order which is specifically 8 April 2013.

PN2469

The written statement from Ms Hilt and also from Mr Anderson and, indeed, evidence from Mr Anderson has not been clear on the issue as to whether he was a member on 8 April 2013 and, certainly, with regard to the NUW's argument that they are a bargaining agent. It seems to me very pertinent that they are required to provide evidence in relationship to membership and certified evidence, sir, which is what I actually asked for, of membership - financial membership of the NUW, which was of all members working on the eStore site as of 8 April 2013.

PN2470

I've requested this information on prior occasions in conference, and I also requested it yesterday and Ms Beynon's response didn't go to my second issue, which I'll address in a second with regards to Ms Hilt's statement, but she said that she would provide details of financial membership to the Commissioner tomorrow. Sir, I see no reason why that evidence shouldn't be provided to eStore. It's extremely important to the case.

PN2471

The second item of my schedule with regard to eStore's application to seek orders, namely 592(c) goes to Ms Hilt's statement and what I requested was any documents in NUW's possession, custody or power relating to paragraphs 1 and 11 to 22 inclusive of her witness statement, dated 10 July 2013.

Ms Beynon's response to that was that Ms Hilt's statement would be tendered in evidence tomorrow, which didn't address my request.

PN2472

THE COMMISSIONER: So which paragraph of Ms Hilt's statement?

PN2473

MS MURPHY: Sir, the paragraphs 1 and specifically where she states, "Four employees of eStore became members of the NUW." 11 to 22 inclusive, because all of those clauses either refer directly or indirectly to - and are predicated by the fact that Ms Hilt is claiming that she had NUW members on site at eStore.

PN2474

THE COMMISSIONER: So the documents you seek in relation to paragraph 1 is, what?

PN2475

MS MURPHY: The document that I seek in relationship to paragraph 1, are the notes - as set out in the schedule, sir - any notes, any membership forms - - -

PN2476

THE COMMISSIONER: No, the - all right. So you're expanding the word "document" to include notes and membership forms?

PN2477

MS MURPHY: Yes, sir.

PN2478

THE COMMISSIONER: All right.

PN2479

MS MURPHY: Well, sir, it says, in point 1 there that, "Four employees of eStore became members of the NUW." I think it's reasonable to expect that there would be corresponding documentation. In fact, there would have to be corresponding documentation - - -

PN2480

THE COMMISSIONER: Okay. I'm not debating with you, I'm asking you what you're after.

PN2481

MS MURPHY: Thank you, sir.

PN2482

THE COMMISSIONER: Now, in respect to paragraph 11, what do you say the documents are there?

PN2483

MS MURPHY: Ms Hilt's notes, sir.

PN2484

THE COMMISSIONER: Does that paragraph refer to notes or imply reference to notes?

PN2485

MS MURPHY: I would presume there's an effective organiser, she would have taken notes at such an important meeting. Presumably, this witness statement is based on those notes, sir. I know I certainly take notes when I have meetings with employees.

PN2486

THE COMMISSIONER: Right. And in respect of paragraph 22 I think you said it was, which falls in the context of Mr Anderson saying certain things to Ms Hilt. Well, what is the document that you seek there?

PN2487

MS MURPHY: 22, sir.

PN2488

THE COMMISSIONER: 22?

PN2489

MS MURPHY: 22. In relationship to that clause, sir, I would like her notes for file or records of correspondence with - in relationship to her statement she could look into the matter further in terms of what she did and any communication she had to the group, which is undefined except for the inclusion of Mr Anderson. And further to that, the pay slips and any other documents that she did, indeed, gather.

PN2490

If she did not, indeed, gather pay slips and other documents, then note the file to indicate that she did not. Or in lieu of the note for file, any correspondence to any other internal organisers or other staff of the National Union of Workers or other related entities.

PN2491

THE COMMISSIONER: So let me understand the context of this if I may? The production of documents is sought with respect to - to, what, your contention that the agreement should be approved?

PN2492

MS MURPHY: Yes, sir.

PN2493

THE COMMISSIONER: In what respect? In relationship to the agreement, I would submit, sir, would already be approved had not the NUW intervened in these proceedings.

PN2494

MS MURPHY: Right.

PN2495

THE COMMISSIONER: Presumably, you seek the documents in respect of the NUW objection set out in form F18?

PN2496

MS MURPHY: Yes, sir.

PN2497

THE COMMISSIONER: Am I correct in that?

PN2498

MS MURPHY: Yes. I - - -

PN2499

THE COMMISSIONER: Those documents, I assume, would be for you to contend that the NUW has no or insufficient interests to be able to raise that objection?

PN2500

MS MURPHY: Yes, sir, that's correct.

PN2501

THE COMMISSIONER: And how you - can you describe to me, please, how those documents assist that contention?

PN2502

MS MURPHY: They assist that contention because the NUW's submission is based upon and predicated upon they are a bargaining agent and, therefore - and are relevant. And, further, sir, as set out in the F18, they claim that they are entitled to represent industrial instruments of those employees in accordance with section 176(1)(b) of the Act. So, therefore - - -

PN2503

THE COMMISSIONER: So it would be the case, of course, that the union can represent its members - - -

PN2504

MS MURPHY: Indeed, sir.

PN2505

THE COMMISSIONER: - - - so the facts that you would be seeking in respect of that part of your claim would be that people are not members and that the relevant consideration for you is to - if there are no members then your point is correct. Am I correct in that?

PN2506

MS MURPHY: Yes, in terms of that being part of the reason that I'm seeking - - -

PN2507

THE COMMISSIONER: Right. And the further reason is?

PN2508

MS MURPHY: The further reason, sir, is that that information is very pertinent to the claims in Ms Hilt's witness statement that she's put forward. That documentary evidence in terms of the very serious claims that she's put forward in her witness statement should, presumably, be able to be backed up by documentary evidence. And - - -

PN2509

THE COMMISSIONER: Well, the trouble with that though is that the evidence has not yet been heard - - -

PN2510

MS MURPHY: No.

PN2511

THE COMMISSIONER: - - - and the admissibility by paragraphs has not been tested. Now, it may well be that what Ms Hilt has to say is either not factually correct, or it might be that it's not relevant to the matters that I have to determine. So in respect of the documents that you seek, bringing it back to your objection to the NUW objection, if I can put it that way, how do those documents take you forward on that - that part of the claim?

PN2512

MS MURPHY: Documentary evidence is important evidentiary proof of whether the NUW are, in fact, able to represent the members that they claim that they're representing and in a way that they claim that they represented them.

PN2513

THE COMMISSIONER: And the representation though, ultimately, is a matter of fact, isn't it?

PN2514

MS MURPHY: Yes, sir.

PN2515

THE COMMISSIONER: Members are either members of not?

PN2516

MS MURPHY: Yes. They're either members or not on key dates, and the key date, obviously, is 8 April - potentially 5 April was also the date, but in the order that I've sought here I've nominated 8 April, and - but it's a key date in that it will require - - -

PN2517

THE COMMISSIONER: So if the - there might be an issue in respect of whether certain people are members, but then there's the secondary issue if they're not in respect of notes and so on and so forth that Ms Hilt might have kept.

PN2518

MS MURPHY: That's right.

PN2519

THE COMMISSIONER: So in respect of the notes and the other materials, how do they assist the probative purpose?

PN2520

MS MURPHY: They assist the purpose by providing information to - I understand what you're saying: there are a number of - what we would examine in cross-examination baseless assertions - however, the assertions are there and I think it's reasonable in determining the truth of this matter for eStore to seek documentary evidence to support Ms Hilt's claim.

PN2521

THE COMMISSIONER: All right.

PN2522

MS MURPHY: The information that's sought is just as important, sir, I would submit, as the documentation that was sought and provided by eStore to the NUW.

PN2523

THE COMMISSIONER: See these documents, the ones that you seek, take you forward in respect of the application you have before me for the NUW application to be struck out in accordance with section 590 of the Act?

PN2524

MS MURPHY: Yes, sir.

PN2525

THE COMMISSIONER: In what way?

PN2526

MS MURPHY: In terms of the application that I have before you to have the application struck out, it's a question of jurisdiction, sir, which still hasn't been addressed.

PN2527

THE COMMISSIONER: Does jurisdiction come in within 590? 590 is effectively saying that the - - -

PN2528

MS MURPHY: I haven't - - -

PN2529

THE COMMISSIONER: Sorry, not 590, I've made a mistake. It's - - -

PN2530

MS MURPHY: 587.

PN2531

THE COMMISSIONER: 587.

PN2532

MS MURPHY: So - - -

PN2533

THE COMMISSIONER: 587 is about contending that the application is hopeless, that it has no foundation. It should be dismissed without hearing the merits. So where does the - where does the documentary request you make, where does that take forward that particular aspect of your claim?

PN2534

MS MURPHY: It's to provide evidence to support that the NUW is, in fact, a bargaining agent, point 1.

PN2535

THE COMMISSIONER: Yes.

PN2536

MS MURPHY: Point 2, that the NUW was ever given any instructions by anybody to proceed in the way that they have - - -

PN2537

THE COMMISSIONER: All right.

PN2538

MS MURPHY: - - - and that core issue, sir, we seek documentary evidence to demonstrate that they were, in fact, given instruction by members who were directly impacted by the enterprise agreement to seek to obstruct its approval.

PN2539

THE COMMISSIONER: All right. Okay. Ms Murphy, why is the application made yesterday and not before?

PN2540

MS MURPHY: Sir, I've noted that in terms of time limits of the directions, as I've raised with you before, the NUW has on every occasion not met the deadlines for directions, therefore, although it's not something that I would normally, sir, I would say on this occasion - particularly, in relationship to the very large amount of information that I got yesterday at 6 o'clock, which was days late. I would apologise for the lateness of this application to seek orders but it was occasioned by receiving documentation that Ms Beynon had provided at 6 o'clock.

PN2541

THE COMMISSIONER: And I note that Ms Hilt's statement was provided to you, I think on 10 July, is that correct?

PN2542

MS MURPHY: Yes, it was, sir. The day before the last arbitration, again late, by some 11 days, I believe.

PN2543

THE COMMISSIONER: In any event though, there's some gap between 10 July and today, so what do you want to say to me about the explanation for the making of the application for the documents yesterday and not more proximate to 10 July?

PN2544

MS MURPHY: I would say, sir, in terms of the complexity of these matters and also in terms of the leniency that I think that you granted to the NUW, which had been appropriate, I think, in terms of ensuring that all of the facts of these matters comes out and it can be demonstrated that the eStore agreement is a genuine agreement and that eStore have all the correct processes and that the employment by APS of some personnel was all done properly. I think it's reasonable that the NUW have been given a leniency that they have been given with regard to missing, I believe, all of the dates at the directions, and I would ask that the same leniency - on the basis that the orders requested are key to this matter, sir - the documentation to be provided is extremely important, both aspects.

PN2545

And I think it will assist you, sir, in terms of making a determination on the matter.

PN2546

THE COMMISSIONER: Right. Are you aware of any precedent or binding authority which I need to take into account in making this decision?

PN2547

MS MURPHY: No, sir. But if you would like - I'd have to ask for an adjournment if you wish me to provide authority in relationship to an order - the documentation which I think is very important, sir.

PN2548

THE COMMISSIONER: Well, look, of course, it's your application but I'm just inviting you to put that if you have any.

PN2549

MS MURPHY: No, sir.

PN2550

THE COMMISSIONER: Right. Is there anything else you want to say at this stage, Ms Murphy?

PN2551

MS MURPHY: Yes, sir - and I foreshadowed this is to your associate - I do want to note that in perusing the transcript I note that neither Mr Williams or Ms Clementson's statutory declarations are noted as evidence. Now, that may be my error in not having said the words, but I wish to have them tendered. I actually thought I had, but if I didn't do that I may not have. I apologise that I would seek to have those statutory declarations tendered, sir.

PN2552

THE COMMISSIONER: All right. I don't have the exhibit list in front of me. Thank you. Ms Murphy, if I can go through the bundle that I have here? The affidavit of Sami Maher has not been tabled. Do you want that to be tabled?

PN2553

MS MURPHY: Sorry, sir, I couldn't hear you? Beg your pardon?

PN2554

THE COMMISSIONER: The affidavit of Sami Maher, do you want that to be tabled?

PN2555

MS MURPHY: Yes, please, I do, sir.

PN2556

THE COMMISSIONER: Okay. We'll mark that E4.

EXHIBIT #E4 AFFIDAVIT OF SAMI MAHER

PN2557

MS MURPHY: Thank you, sir.

PN2558

THE COMMISSIONER: Ms Clementson, we'll mark her statutory declaration as E5.

EXHIBIT #E5 STATUTORY DECLARATION OF MS JILLIAN CLEMENTSON

PN2559

THE COMMISSIONER: Mr Williams's statutory declaration we'll mark as E6.

EXHIBIT #E6 STATUTORY DECLARATION OF MR LEIGH WILLIAMS

PN2560

THE COMMISSIONER: Does that complete the documentary gap, Ms Murphy?

PN2561

MS MURPHY: No, sir. I apologise, Mr Kieran Boyce as well, his statutory declaration. It's not listed.

PN2562

THE COMMISSIONER: I know I have it. Let me find it. In any event, we'll mark that E7.

EXHIBIT #E7 STATUTORY DECLARATION OF MR KIERAN BOYCE

PN2563

MS MURPHY: That's all, sir. In exhibit NUW 2, the bundle of documents, colloquially referred to as the bundle of documents, I think that - can I just - could I possibly just ask to see what's in the bundle of documents? Because I recall there were two and I just want to make sure, Mr Mujkic, that all of those documents were actually tendered. That's all, sir. I have nothing else, sir, in relationship to - - -

PN2564

THE COMMISSIONER: So that is all, Ms Murphy?

PN2565

MS MURPHY: That is all, sir - the separate proceedings, but I would like to request a conference at some point to confirm where the NUW's application - (indistinct) protections application is in terms of has it been discontinued. As I mentioned before, I did request confirmation of that and I haven't received it. So I would request, given we have a limited timeframe today, probably if it's convenient for you for that to be confirmed sooner rather than later, with respect, sir.

PN2566

THE COMMISSIONER: Well, of course, that matter is not before me at the moment and it was adjourned indefinitely but with liberty to either party for the re-listing of the matter. Now, all I can suggest is that you speak with Ms Beynon about that matter. I don't think it's properly that - well, maybe it is a subject matter of this hearing but in the first instance I'd suggest that you speak with the NUW about that.

PN2567

MS MURPHY: I have communicated with the NUW, sir.

PN2568

THE COMMISSIONER: And what was the result of that?

PN2569

MS MURPHY: The result of that was - I think Ms Beynon's words were, "The NUW does not intend to proceed with this at this time."

PN2570

THE COMMISSIONER: Right. All right. Well, maybe if I can ask Ms Beynon. Is that where's up to?

PN2571

MS BEYNON: Yes, thank you, Commissioner. We've communicated clearly. The only thing that hasn't been completed is the notice of discontinuance. We've just been preparing for this at the moment and that will be done probably at the end of today.

PN2572

THE COMMISSIONER: Sure. Okay.

PN2573

MS BEYNON: Yes.

PN2574

THE COMMISSIONER: Thank you. That completes that. Ms Beynon, or Mr Mujkic, in respect of the request for documents - the request for an order for documents, what do you have to say about that?

PN2575

MS BEYNON: Thank you, Commissioner. We've got a couple of comments. In respect of the - I might just actually just take you to point number 2 on that order first where Ms Murphy is requesting a certified copy of evidence of financial membership. We understand that evidence of membership does go to the matter - it's sort of the (indistinct) matter of whether or not the NUW is a bargaining agent and was so at the relevant time.

PN2576

On that point we do say that there is already evidence before the Tribunal that has been tested in the witness stand in Mr Anderson's evidence, in particular, at paragraph 1927 of the transcript. Ms Murphy put it to Mr Anderson that, "A couple of months later in the start of 2013 you became an NUW member again," to which Mr Anderson agreed.

PN2577

At paragraph number 1932 yourself, Commissioner - sorry, I should take you to paragraph 1931, it was put to Mr Anderson what date was that, and - we're talking about February 2013.

PN2578

So there already is some evidence before the Tribunal which has been tested in oral testimony but Mr Anderson was a member of the NUW at the relevant time. Further to that we do have some copies of financial status of members that goes to the date that Ms Murphy has identified as the key dates in her order which we are happy to take the Commission through to demonstrate that the NUW did have membership at eStores at the time.

PN2579

The issue, I guess, for us in respect of giving that information to the other party is that we have some concerns that those members might be targeted for their union membership on site.

PN2580

With respect to point number 1 of Ms Murphy's order for documents, we just understand this is a bit of a fishing expedition. There's no - there's nothing in Ms Hilt's statement that says that there's any documentation or alludes to any documentation that exists around these conversations but for the membership issues which we've already addressed, and if Ms Murphy wants to tease out whether or not there are notes that pertain to these points in Ms Hilt's statement, that is the subject of cross-examination.

PN2581

Thirdly, I don't think Ms Murphy has been able to demonstrate what the relevance of obtaining that documentation is to the application that's on foot. And we don't see that this documentation that may or may not exist is relevant.

PN2582

THE COMMISSIONER: Yes. Ms Beynon, if I were minded to grant the application, are these documents present this morning?

PN2583

MS BEYNON: Commissioner, we have membership documentation here that we are happy to provide to the Tribunal, but with respect to point number 1 of this order, we don't believe that there is any such evidence.

PN2584

THE COMMISSIONER: Well, you need to be careful with that submission. Are you saying that there are no notes, or log books, or something of that nature?

PN2585

MS BEYNON: Sorry, Commissioner, we just don't know.

PN2586

THE COMMISSIONER: You don't know.

PN2587

MS BEYNON: Yes.

PN2588

THE COMMISSIONER: Okay. So you'd have to go through the process of establishing whether or not they existed and then tabulate the material and then disclosing it if you were so ordered.

PN2589

MS BEYNON: Yes, thank you, Commissioner - sorry, just to clarify we don't - not we - there isn't any, but that we don't know of their existence.

PN2590

THE COMMISSIONER: Sure. That's fine.

PN2591

MS BEYNON: Yes.

PN2592

THE COMMISSIONER: Okay. Ms Beynon, in respect of the form of order itself, if - did you have anything to say about that? It's referred to being brought against you personally care of the National Union of Workers. Now, is that the proper entity, I suppose, is the question?

PN2593

MS BEYNON: I don't believe so. Yes. Thank you for raising that, Commissioner. The order should just be to the National Union of Workers as the property entity.

PN2594

THE COMMISSIONER: Okay. Can I take you to Ms Hilt's statement - no, I withdraw that. I don't have any further questions of you, thank you.

PN2595

MS BEYNON: Thank you, Commissioner.

PN2596

THE COMMISSIONER: Ms Murphy, is there anything in response to that?

PN2597

MS MURPHY: Yes, sir. The order that I've requested, sir, and the date that I identified in particular with regard point 2 of the schedule is 8 April 2013. The items identified by Ms Beynon in the transcript, namely PN1927 does not address that concern in evidence. It states, "A couple of months later at the start of 2013 you became an NUW member again?" And Mr Anderson answered "Yes". And PN1931, the second item, has nothing to do with the order that I've sought. It was a clarification that I sought as to when Mr Anderson was employed by eStore as opposed Austar. It had nothing to do with the NUW membership, sir.

PN2598

THE COMMISSIONER: Well, the transcript reads:

PN2599

A couple of months later at the start of 2013 you became an NUW member again?---Yes

PN2600

Is that correct?---That's the first time we'd seen a delegate or the union people ever on site at eStore.

PN2601

MS MURPHY: Sorry, you became an NUW member again when you were at Austar?---No, with eStore.

PN2602

When you were employed by Austar?---No, when I was employed by eStore.

PN2603

What date was that?

PN2604

THE COMMISSIONER: February 2013. Ms Murphy, is that right?

PN2605

MS MURPHY: Yes. February 2013.

PN2606

So I'm not sure that's correct, Ms Murphy.

PN2607

MS MURPHY: Well, I'm sorry, Ms Beynon, did you mean the rest of the items, you actually only identified one. But, in any event, sir, in terms of reading of the transcript it still doesn't refer to 8 April 2013.

PN2608

THE COMMISSIONER: So your contention is that he may have resigned at some stage between 20 February 2013 and 8 April 2013?

PN2609

MS MURPHY: Indeed, sir. That's exactly the contention. And with regard to - with regard to the notion that it's not appropriate to provide the documentation that Ms Beynon says she actually has here in relationship to membership documentation on the basis that those members will be targeted, the response has been offensive to eStore. There's no base for that whatsoever. It's not reasonable. These matters are already very much on foot. If Ms Beynon is referring to Mr Anderson, it's already - he's already involved in the matter and I think it's a baseless accusation which simply cannot be taken into account as to whether the documents requested, and now an order sought for, should be provided with regard to these matters.

PN2610

In relationship to the comments made about Ms Hilt's documentation, or the corrected comment, made about the likelihood of there being any documentation that Ms Hilt has in relationship to the aspects of her witness statement that I identified, I think it's reasonable to say - given the content, as I said before - the content of her witness statement, the documentary evidence is sought now, prior to my opportunity to cross-examine her because my opportunity to cross-examine her will not be subject to sufficient information provided in her written statement.

PN2611

So I don't think the answer provided that - which I think is the answer - that Ms Beynon hasn't had an opportunity to do that yet, is a sufficient reason why there should not be an order made.

PN2612

THE COMMISSIONER: Well, that's not what I heard Ms Beynon say. What I heard her to say is that the examination of what documents may exist has not yet been undertaken, which is a - potentially a statement of fact. Now, presumably if the order were to be made then it would be necessary to undertake that submission.

PN2613

MS MURPHY: Yes, but - - -

PN2614

THE COMMISSIONER: What I heard Ms Beynon to say is that that hasn't happened so far.

PN2615

MS MURPHY: Okay. Sir, if that's the statement of facts that it hasn't so far as opposed to what I took it to be an inferred part of her reasoning for not providing the information. I would agree that is a statement of fact. I think it's - - -

PN2616

THE COMMISSIONER: Right.

PN2617

MS MURPHY: It's possible for her to have done that between the time - last night, unless she was with Ms Hilt at the time and we all had access to them - already had them, indeed, sir, which would have been a possibility.

PN2618

THE COMMISSIONER: All right. I'll adjourn to provide my ruling.

PN2619

MS MURPHY: Thank you, sir.

<SHORT ADJOURNMENT [10.46AM]
<RESUMED [11.12AM]

PN2620

THE COMMISSIONER: The originating in this matter is an application by eStore Logistics Pty Ltd for the approval of an enterprise agreement called the Supplement Support Agreement 2013.

PN2621

Following the originating application there have been two significant procedural developments, which I shall refer to as the procedural applications. Firstly, the NUW provided notices that it opposed the application for approval and submitted that it has or had members who would be covered by the agreement. That notice was provided by way of a form 18, which is a declaration of employee organisation in support of application for the approval of an enterprise agreement.

PN2622

In that declaration, the union indicated that it was a bargaining representative for the agreement, its - one or more members of the union are employees who are covered by the agreement.

PN2623

In addition to making that declaration the union indicated that it does not support the approval of the agreement, and it set out relevantly five grounds objection about that matter.

PN2624

Secondly, eStore Logistics sought for the NUW opposition to the application for approval to be struck out in accordance with the provisions of section 587 of the Act which gives the power to Fair Work Commission to dismiss applications for certain reasons, including that the application is not made in accordance with the Act, that the application is frivolous or vexatious, or that the application has no reasonable prospect of success.

PN2625

In accordance with amended directions given by me on 14 June 2013, and the result of discussions by me with the parties in conference on 11 July 2013, which was prior to the commencement of the hearing, which related, inter alia, to the procedures to be followed by the Commission in relation to these matters. I determined that both the procedural application should be heard concurrently with the originating application.

PN2626

Those amended directions included deadlines for the filing of outlines of submissions and list of witnesses. One such deadline was that the list of witnesses were required to be filed no later than 21 July in respect of the National Union of Workers; and 28 June 2013 - I might have said 21 July in respect of the NUW, I meant 21 June. The amended directions did not refer to the filing of witness statement.

PN2627

Outlines of submissions, list of authorities and list of witnesses, were filed by both parties on the date specified in the amended directions, although the NUW list of witnesses referred only to Ms Hilt. Notwithstanding that, the NUW disclosed later intention to call a further witness, Mr Shannon Anderson. There was an exchange of views between the parties on this possibility, the result of which was agreement that Mr Anderson could be called as a witness if his witness statement provided to eStore Logistics - if it was provided to eStore Logistics in advance of him being called to give evidence.

PN2628

Mr Anderson's witness statement together with that of Ms Hilt's was filed in the Fair Work Commission on 10 July 2013. Mr Anderson gave his evidence on Friday, 12 July 2013. Why Ms Hilt had been warned of giving - warned of the need for giving her evidence on 12 July, that did not occur due to the expiration of available time and she's now to give evidence today.

PN2629

With the exception of Ms Hilt, all witness evidence was completed, being given on the last day of the hearing, which was on 12 July 2013.

PN2630

On Tuesday, 30 July at 4.42pm in an email to the NUW, it was copied to my Chambers' email address, eStore Logistics put the NUW on notice that it sought various documents from the NUW pertaining to the witness statement of Ms Hilt, who is yet to give evidence, and Mr Anderson, who completed giving his evidence on 12 July.

PN2631

eStore Logistics put the NUW on notice that failing agreement to provide the documents as sought by the company that eStore would request an order for the production of documents from Fair Work Commission under section 590(2)(c).

PN2632

An application to my Chambers' email address for such an order was then made by the advocate for eStore Logistics at 8.09pm on Tuesday, 30 July 2013 and it was pressed at the commencement of the hearing today, Wednesday, 21 July 2013.

PN2633

The application for an order is for a summons against Imogene Beynon, care of the National Union of Workers, requiring her to produce any two categories of documents, namely, those documents in her possession, custody, or power, relating to paragraphs 1 and 11 to 22 inclusive of Ms Kathryn Hilt's witness statement, dated 10 July 2013 and; secondly, a certified copy of evidence of financial membership of the National Union of Workers of Mr Shannon Anderson and all other former or current eStore warehouse employees, such membership being current and effective as 8 April 2013.

PN2634

In considering this application for an order, I've given an opportunity to the parties to address me on the application and I summarise their position as follows. In respect of eStore Logistics, Ms Murphy argues that provision of the documents goes directly to whether or not the National Union of Workers is entitled to claim that it is a bargaining representative.

PN2635

She submits that the interests of the National Union of Workers has not been established yet in these proceedings and that provision of the material she seeks is directly relevant to her forthcoming cross-examination of Ms Hilt. While I take it to accept Mr Anderson was a member of the NUW in February 2013, she submits it is not known whether he was a member at 8 April 2013.

PN2636

She also submits that Ms Hilt would have or ought to have kept notes of her interactions with employees on the site, and that provision of those documents are needed for her cross-examination of Ms Hilt.

PN2637

In relation to why the application has been made so late in the proceedings and not proximate to the date on which Ms Hilt's statement was provided to her, Ms Murphy submits that there is a complexity associated with these proceedings and that as latitude has been given to the NUW on occasion - I'm sorry - that as latitude has been given to the NUW on occasion regarding their keeping with deadlines so too should latitude be given to her.

PN2638

In respect of the NUW, Ms Beynon submits that the NUW has information regarding membership at the eStore site available for inspection by the Commission today, but that the NUW objects to the information being made available to eStore for fear the relevant employees may be in her words "targeted for their membership."

PN2639

Ms Beynon also objects to the production of Ms Hilt's notes and other papers and, in any event, submits the NUW is the answer to conduct the search of what documents do exist. Ms Beynon also drew my attention to the evidence of Mr Anderson, which confirmed his members of the NUW at least in February 2013.

PN2640

I now give consideration as to whether or not I should grant the application. The provisions of section 590 set out the power of the Commission to inform itself in order to properly discharge its functions. Section 590(1) refers to the FWC may accept as provided by this Act inform itself in relation to any matter before it in such manner as it considers appropriate.

PN2641

Paragraph 590(2)(c) provides in one ways in which FWC may inform itself is by requiring the person to provide copies of documents or records or to provide any other information to FWC.

PN2642

The section sits within a suite of other provisions of the Act which both bind and guide the Commission about the conduct of matters. In deciding this procedural matter, I note especially provisions of section 577, which go to the performance of functions et cetera by the Fair Work Commission. I particularly take note of the need for the functions to be exercised in a manner that is fair and just, and also a matter which is quick, informal, and avoiding unnecessary technicalities.

PN2643

In addition, I take note of 578, which goes to the matters that Fair Work Commission must take into account when performing its functions. In particular, the objects of the Act and the need for equity, good conscious, and the merits of the matter.

PN2644

I further note the provisions of section 591 of the Act, which provides that the Fair Work Commission is not bound by the rules of evidence and procedure in relation to a matter before it.

PN2645

Beyond the provisions of the Act it is also relevant for me to take account of the principles of procedural fairness. The Full Bench of the Commission held the following in the matter of Galintel Rolling Mills Pty Ltd trading as the Graham Group (2011) FWAFB 6772, the quorum was Vice President Watson; her Honour Senior Deputy President Acton; and Commissioner Cambridge.

PN2646

From paragraph 27 of that decision the Bench said:

PN2647

It has been long established that members of Fair Work Australia and predecessor bodies are bound to act in a judicial manner and apply rules of natural justice. The fundamental nature of that obligation was emphasised by Justice Gibbs in Regina v Moore ex parte The State of Victoria, when he said, 'The members of the Commission are bound to act in accordance with the rules of natural justice.' I must, therefore, afford any party to a dispute a proper opportunity to be heard before making any order that effects him and, indeed, in inherent in the very notion of arbitration that there shall be a hearing of the dispute and a procedure which produced an award without a proper hearing would be outside the constitution of power.

PN2648

Paragraph 28:

PN2649

The requirements of natural justice depend on the nature of the inquiry, the circumstances of the case, the subject matter being ruled on in other relevant matters. The High Court has said that one aspect of the duty to act judicially as the duty to hear a party and to allow a reasonable opportunity to present the case coupled with the duty to consider the case put.

PN2650

In the case of re ARU, a High Court said that:

PN2651

What is reasonable will depend on the circumstances of the case.

PN2652

In that case, the parties were given an adequate opportunity to call evidence and put submissions, but that evidence and those submissions were directed to the issue of whether an interim award should be made and the contents of any such award.

PN2653

The Commission made a final award without giving the parties an opportunity to call evidence and make submissions on that type of outcome. The High Court held that there was no reasonable opportunity provided to the parties to put whatever case they wished to put in opposition to that course and granted writs of prohibition to prevent the Commission from making the award, it had decided to make without providing that opportunity.

PN2654

Paragraph 30:

PN2655

In a matter concerning an application for approval of an agreement, it will usually be a duty of Tribunal members to provide parties to the agreement an opportunity to lead evidence and make submissions on issues that may lead to the rejection of the application.

PN2656

I omit the remainder of paragraph 30 and I omit the case notes in that reference.

PN2657

In relation to this matter, procedural question surrounds potentially different considerations. Whether any or which of the materials sought by eStore Logistics are required to reasonably press its case: firstly, the agreement should be approved; and secondly, that the NUW has no relevant interest in the matter and whether my obligations to ensure a fair and just hearing, together with the need for the hearing to be quick, informal, and with the avoidance of unnecessary technicalities might require the application, or part of it, be denied.

PN2658

My decision, therefore, takes the following circumstances into account: I take into account that Ms Hilt's witness statement, together with the references in paragraphs 1, 11 to 22, have been available to all parties including eStore Logistics from, at least, 10 July 2013.

PN2659

I take into account that Ms Murphy's application for an order under section 590 for the production of documents was not foreshadowed by her until 4.40pm - 4.42pm on 30 July and not pressed before me until this morning.

PN2660

I take into account that this is the last day of proceedings and that exceeding to certain parts of the request has the potential to delay the finalisation of the proceedings.

PN2661

I take into account that certain parts of Ms Hilt's witness statement, in paragraphs 1, 11 and 22, go to assertions of fact; and other parts go to assertions of what people said to her.

PN2662

I take into account that eStore Logistics gave latitude to the NUW for the addition of Mr Anderson as a witness at late stage, and the proceeding on 12 July is germane insofar as it indicates similar latitude might reasonably be enjoyed by eStore Logistics.

PN2663

I take into account that Mr Williams's witness statement refers to him seeking legal advice on the enterprise bargaining project, and that he repeated having sought advice in the course of his examination-in-chief, and also in cross-examination.

PN2664

I note in this regard the NUW did not cross-examine him about what the advice did or did not say. This is germane in as much as it goes to whether the same respect of confidential material and advice should be accorded to the NUW witnesses.

PN2665

Finally, I take into account that when Ms Clementson sought to rely on things she said were commercially in confidence I ruled that she needed to reveal details of what she was referring to if she wanted that part of her evidence to be relied up.

PN2666

After consideration of the application now made by Ms Murphy I rule as follows: I will not issue an order in the manner set out in item 1 of the schedule. I am not persuaded the documents have a reasonable probative purpose of that Ms Murphy will be disadvantaged if they are not provided.

PN2667

On the other hand, I am of the view that ordering production of the documents will cause unnecessary delay to these proceedings.

PN2668

I have decided that while I will not issue an order in the terms set out in item 2 of the schedule 1 - sorry, in the terms set out in item 2 of the schedule, there is a probative purpose for the information of the type required to be provided albeit in a different way to that envisaged in the draft order.

PN2669

The order I will, therefore, make is that the NUW will be directed to provide to a delegate of the general manager of the Fair Work Commission evidence of the financial membership, Mr Shannon Anderson, and all other members of the union at the eStore site as that membership stood at 8 April 2013.

PN2670

The evidence to be provided will disclose the names of the members, the date on which they became members, and whether it was active - the membership was active as at 8 April 2013. The NUW will be ordered to provide that evidence to the delegate of the general manager of the Fair Work Commission no later than 5pm on Thursday, 1 August 2013, and I will then direct the delegate to provide me with a report of the relevant information with names removed, no later than close of business on Friday, 2 August 2013, after which information will be provided to the parties to this matter.

PN2671

An order to this effect will be issued to the National Union of Workers by the end of today.

PN2672

Having - I note, however, that - obviously, Ms Hilt is yet to provide her evidence on - and I note that should she endeavour to rely in her evidence on documents that I have ruled not need - that I have ruled need not be produced, and if the questioning is considered to be allowable to the proceedings, then the subject of what documents are required for production may need to be revisited.

PN2673

Having so ruled, I reserve the right to edit or to expand on these Reasons for Decision if necessary in my final published decision in relation to the substantive matters.

PN2674

If we can proceed, please?

PN2675

MR MUJKIC: I think we need to call Ms Hilt, unless Ms Murphy has any other matters?

PN2676

THE COMMISSIONER: Sure. We might just wait a second.

PN2677

MS MURPHY: Yes.

PN2678

THE COMMISSIONER: Mr Mujkic, I presume we can proceed?

PN2679

MR MUJKIC: Yes.

PN2680

THE COMMISSIONER: Ms Murphy, is there anything you want to put?

PN2681

MS MURPHY: Sir, I would appreciate, please, if you could repeat what you said about obliterating the names, if you don't mind, in terms of your - what you just read out. It just would be useful for us to consider the current situation with regard to what's to be provided to eStore, please, sir.

PN2682

THE COMMISSIONER: Certainly. The order that I indicated I would make is that the NUW will be directed to provide to a delegate of the general manager, evidence of the financial membership of Mr Shannon Anderson and all other members at the eStore site as that membership existed at 8 April 2013. The evidence to be so provided will disclose to the general manager's delegate, the names of the members, the date on which they became members, and whether membership was active as at 8 April 2013.

PN2683

The NUW will be ordered to provide that evidence to a delegate no later than 5pm on Thursday, 1 August 2013, and I will direct the delegate to general manager to provide me with a report of the relevant information which names of the members omitted, no later than the close of business on Friday, 2 August, after which it will be provided to the parties to this matter.

PN2684

MS MURPHY: Sir, could we have just a two minute adjournment, please? I need to confer with my client with regard to the impact of your decision, sir.

PN2685

THE COMMISSIONER: Certainly.

<SHORT ADJOURNMENT [11.34AM]
<RESUMED [11.43AM]

PN2686

THE COMMISSIONER: Yes, Ms Murphy.

PN2687

MS MURPHY: Sir, eStore would like to make some additional comments and make an additional suggestion with regard to the order. I'd like to explain why. With regard to the date that you've identified, 8 April 2013, as being an important date for these proceedings, with regard to the process that's envisaged in your order, there's a distinct possibility if not probability that the list of anonymous names will be artificially inflated because it will not have - it may have on it the names of persons who have already left eStore. The key names are names who are still employed directly by eStore, or alternatively, are those names that have now been identified in the agreed statement of facts as the employees who were transferred to APS. So, we know what those names are.

PN2688

I understand that you've made an order with regard to eStore not being given the names of NUW members. However, in terms of the outcome of the report, which will just be a number, my alternative suggestion is that eStore gives you a list and provides the same list to the NUW of the names of the people who are eStore employees directly who were rostered on that day and the names of people - so, there are three categories: eStore direct; transitioned; ex-eStore employees to APS; and just APS employees. Otherwise, potentially the list will actually have no meaning to these proceedings. It could very well have - I don't know what it's going to have on it, but it could have people who have always been APS employees.

PN2689

So, my suggestion would be eStore would give to the general manager that list and it would only be the people who appear on both lists that would form the subject of the final report. Mr Williams has just pointed out further that the attachment already has all the names, so we have the names already there. They're already faxed. They're already part of the agreed statement of facts, sir.

PN2690

THE COMMISSIONER: Ms Murphy, do you concede this: if Mr Shannon Anderson was a member on 8 April 2013, then the NUW hasn't established a sufficient interest in this matter?

PN2691

MS MURPHY: No, sir, because they're not asking for the agreement to be approved. I would say that would establish their interest if they were asking for this agreement to be approved and indeed if they were asking to be a party to this agreement, but they're not, sir. Well, Mr Mujkic, in terms of what you actually asked for in form F18 - - -

PN2692

THE COMMISSIONER: No, Ms Murphy. I'm not inclined to go down that path. You've put a proposal to me on which I have ruled. I don't - it's not proper to negotiate rulings, is it?

PN2693

MS MURPHY: Sir, I - with regard to the sections that you pointed out and in terms of the proceedings of Fair Work Commission not being a court, I think it is reasonable. I want to point out to you, with respect, that I understand that you're trying to take everybody's interest into account. The outcome of your ruling will actually not produce any relevant information - it won't - with a slight change to that order, it will provide the relevant information required without prejudicing the NUW's interests, and quite expeditiously and quite easily because we already have that list as part of the agreed statement of facts.

PN2694

THE COMMISSIONER: Thank you, Ms Murphy.

PN2695

MS MURPHY: Thank you, sir.

PN2696

THE COMMISSIONER: Ms Murphy, what are the categories that you are seeking - the subject of categorisation?

PN2697

MS MURPHY: Sir, what I'm seeking is for the general manager of Fair Work Commission to provide a report with regard to the commonality of names provided on the list by the NUW with effect to 8 April 2013 and the list of attachment 4 of the agreed statement of facts.

PN2698

THE COMMISSIONER: I don't know what "commonality of the names" might mean.

PN2699

MS MURPHY: The names that are on both lists, sir.

PN2700

THE COMMISSIONER: Okay.

PN2701

MS MURPHY: The number of names that are on both lists.

PN2702

THE COMMISSIONER: What are those two lists? I don't have that attachment in front of me.

PN2703

MS MURPHY: Attachment 4 of the agreed statement of facts. Can I provide that to you, sir. Sorry, sir. I'll have to correct that. It's attachment 4 and attachment - attachment 4 is the transition. There's another attachment with the three employees of eStore on it, so it's the - the two categories are attachment 4 and then there's another attachment with the three eStore employees that are the subject of the enterprise agreement. The comparison would be between attachment 4 and that attachment together and the list provided by the NUW of any members.

PN2704

THE COMMISSIONER: So, the issue is attachment 4 and 5?

PN2705

MS MURPHY: Thank you, sir.

PN2706

THE COMMISSIONER: For the purposes of discussion, not for the purposes of ruling, the proposal would be that the first part of my order stands - that is, that the NUW is directed to provide certain information to the delegates - the second part of the order stands - which would be to disclose the names, the dates on which they became members et cetera - then the third part would be amended - no, the third part will stand as well. The National Union of Workers will be ordered to provide that evidence to the delegate no later than 5 pm on Thursday, 1 August 2013, and I will direct the delegate to provide me with a report of the relevant information with names removed no later than close of business on Friday, 2 August 2013, after which it will be provided to the parties of this matter.

PN2707

I would then run on with the fourth element. In preparing the report to me, the Fair Work Commission general manager delegate will be asked to divide the people so listed and de-identify them into two categories: category 1, those whose names appear in attachment 4 of the agreed statement of facts; and category 2, those whose names appear in attachment 5 in the agreed statement of facts.

PN2708

MS MURPHY: Yes. That's right.

PN2709

THE COMMISSIONER: Okay. An order in those terms will be issued later today.

PN2710

MS MURPHY: Thank you, sir.

PN2711

THE COMMISSIONER: Thank you. Mr Mujkic.

PN2712

MR MUJKIC: Yes. We'd like to call Ms Hilt, please.

PN2713

THE COMMISSIONER: Thank you.

PN2714

THE ASSOCIATE: Please state your full name and address.

PN2715

MS HILT: Kathryn Louise Hilt, and (address supplied).

<KATHRYN LOUISE HILT, AFFIRMED [11.55AM]
<EXAMINATION-IN-CHIEF BY MR MUJKIC [11.56AM]

PN2716

MR MUJKIC: Ms Hilt, do you have with you a copy of a document titled Witness Statement of Kathryn Hilt, three pages and 23 paragraphs in length dated 10 July 2013?---Yes, I do.

PN2717

Is that a copy of a statement you've prepared for this proceeding?---Yes, it is.

PN2718

Are the contents of that statement true and correct?---Yes, they are.

PN2719

I'd like to tender that statement.

PN2720

THE COMMISSIONER: I knew you would. What number are we up to?

PN2721

MR MUJKIC: Good question.

PN2722

THE COMMISSIONER: NUW3, unless anyone has got a higher number.

PN2723

MR MUJKIC: I think that's correct, Commissioner. We've only tendered two documents; the witness statement of Mr Anderson and the bundle of documents that we put to Mr Anderson.

EXHIBIT #NUW3 STATEMENT OF KATHRYN LOUISE HILT

PN2724

MR MUJKIC: Thank you. There'll be no examination-in-chief, Commissioner.

PN2725

THE COMMISSIONER: All right. Thank you. Ms Murphy.

<CROSS-EXAMINATION BY MS MURPHY [11.57AM]

PN2726

MS MURPHY: Ms Hilt, in point 1 of your witness statement you say that on 23 August 2012, four employees became members of the NUW. What's your understanding of how that's relevant to today's proceedings?---It's relevant purely because it does obviously suggest membership.

**** KATHRYN LOUISE HILT XXN MS MURPHY
PN2727

It suggests membership?---Yes.

PN2728

Meaning that four employees became members in 23 August 2012?---Yes.

PN2729

But now we're in July 2013?---Yes, I understand that.

PN2730

So, how is it relevant, please.

PN2731

THE COMMISSIONER: Ms Beynon.

PN2732

MS BEYNON: Thank you, Commissioner. I don't think it's for the witness to determine the relevance of that matter.

PN2733

THE COMMISSIONER: I tend to agree. That's for me to determine.

PN2734

MS MURPHY: Why did you include that in your witness statement?---Because I felt it was relevant.

PN2735

Can you explain why you felt it was relevant, Ms Hilt?---In my statement, I put in whatever facts I felt were subject to my experience with the site and my knowledge, and that's what this statement essentially goes through between - obviously I have been to the site since then, but I end during the period where we discovered this EBA and after I'd had conversations with members and potential members regarding that. But my experience with the site starts on 3 April. I had some knowledge of what had occurred at the site before then, and that is what that first point refers to.

PN2736

When you say 3 April - - -?---That's the first time I attended eStore.

PN2737

And you had no knowledge of eStore prior to that?---I'd heard it mentioned but I hadn't been there, no, or had any contact with management or members.

**** KATHRYN LOUISE HILT XXN MS MURPHY
PN2738

What is the source of the information in point 1 of your witness statement?---Both subject of discussion and records that we've had members join on that day.

PN2739

And you've got records that Matt Toner and Luke Fitzpatrick were there on that day?---I'm not entirely sure what records we have. We may very possibly have it. I'm sure that they would have record of it.

PN2740

The four employees of eStore that became members of the NUW in accordance with point 1 of your witness statement, are they the same employees that you make reference to in point 13 of your witness statement?---I'm not sure.

PN2741

How can you not be sure?---I'm not sure.

PN2742

THE COMMISSIONER: She said she's not sure.

PN2743

MS MURPHY: Okay. Well, if I could help you clarify, Ms Hilt, who were the members that you referred to in point 13?

PN2744

THE COMMISSIONER: I don't propose to go into it. I've already ruled on it. You don't need to discuss the names of those people.

PN2745

MS MURPHY: So, sir, it makes cross-examination very difficult, given the group is referred to on multiple occasions in her witness statement.

PN2746

THE COMMISSIONER: Ms Murphy, Ms Hilt asserts membership of the union by certain people.

PN2747

MS MURPHY: Yes.

PN2748

THE COMMISSIONER: I've already ruled that union is provide information disclosing who is or is not a member. That information can go in a couple of directions, one of which it corroborates Ms Hilt's evidence, another of which it completely shows her evidence to be wrong. If it shows it to be completely wrong, then that's an issue of merit, and frankly there would be for Ms Hilt.

**** KATHRYN LOUISE HILT XXN MS MURPHY
PN2749

MS MURPHY: I understand that, sir, but I don't know how that evidence is going to show that she's wrong when it just makes reference to the group throughout her written statement.

PN2750

THE COMMISSIONER: Well, ask her questions about that point.

PN2751

MS MURPHY: I'm trying to, sir.

PN2752

THE COMMISSIONER: I'm not about to - if you want to move into a debate about - for the purposes of cross-examination where you need to know the names of the people concerned, then we need to have that, because it would not be consistent with the ruling that I've just given.

PN2753

MS MURPHY: My difficulty, sir, is - and I'm happy to go into it point by point - but my difficulty is that the assertions - presumably the sworn evidence now - the factual statements here in relationship to what various members of the group have said. It's important to know who those people were because it's a key feature of Ms Hilt's witness statement. Throughout the witness statement, the only person who is named is Shannon Anderson in point 11. There's a reference to another name in point 8, which is an ex-eStore employee. For example, in relationship to point 13, no members of the group were aware of an agreement. I don't know how I can cross-examine on that, sir, to press my client's case without having some kind of information on who was in that group.

PN2754

THE COMMISSIONER: So, we say to you that the member's name is Mary Smith. What questions would you lead as a result of that knowledge?

PN2755

MS MURPHY: I would ask specifically what Mary Smith said and what John Brown said and what Toby Moore said, and what did Toby Moore and John Brown say together. The relevance of the individual people - I don't know who Ms Hilt spoke to. I don't know and can't cross-examine her on how that relates to other things she may have spoken to them about. For example, in relationship to the events of the 5th, in terms of the meetings that they attended, I'm unable to know how her evidence relates to other key aspects of this case, sir. She is the only union representative. The other organisers haven't been called. In terms of the issues that she's raising, they're important issues and the detail is necessary.

**** KATHRYN LOUISE HILT XXN MS MURPHY
PN2756

At point 12 again, "I specifically asked". Who did she ask? It says "specific", but - - -

PN2757

THE COMMISSIONER: Ms Murphy, I understand what you're saying, on reading the statement.

PN2758

MS MURPHY: Thank you, sir. Mr Mujkic, do you have anything to say on that?

PN2759

MR MUJKIC: I think so, yes, just quickly. The group that's identified in paragraph 11 in the statement is a group of other workers; NUW member Shannon Anderson and a number of other workers. There's no suggestion whether those people are members of the NUW or not. They are just workers. Now, I think if Ms Murphy wants to question the witness about who those workers are, I think that's allowable. But Ms Murphy shouldn't go into questions about whether that person is or was at any time a member of the NUW, putting Mr Anderson to one side. He has given his own evidence about that.

PN2760

If the purpose of the questioning is to try and identify people and what they said, then I think that's okay so long as we're not going into whether those people were members of the NUW or not because, Commissioner, you've ruled on documents that we need to provide to establish that.

PN2761

THE COMMISSIONER: Ms Murphy, would that be a way forward?

PN2762

MS MURPHY: Yes. I'm happy with that.

PN2763

THE COMMISSIONER: All right. We'll proceed on that basis. Thank you.

PN2764

MS MURPHY: So, if we just stick to point 12 for the moment. Who did you ask?---As I referred to, I was on the gate when people finished work. The workers who were leaving work at that time were a mixture of eStore employees - I guess who you've referred to in this forum as "transitioned employees". That might be the easiest way to put it - - -

**** KATHRYN LOUISE HILT XXN MS MURPHY
PN2765

Can I clarify. I'm asking for names. Who did you ask? You've got four specific things in inverted commas so you obviously have a clear recollection of what you actually said. What's your clear recollection of who you asked each of those four points too, Ms Hilt?---What I would say to you is that I had discussions around some of these points with everyone who left. Some of them I don't know particularly well because this was only the third time that I had been to the site, and the APS casuals do tend to churn in and churn out a little bit, so there were some of them that I had not met before. But the questions I asked them were more along the lines of, "Were you aware there was an agreement?" and when they weren't, there wasn't really a lot further I could go with that. The people that these four questions were most pertinent to and I had discussions with would have been Jamie, Mark and Shannon, who are the three transitioned employees.

PN2766

Jamie Calendar?---Yes.

PN2767

Did you specifically ask Jamie Calendar, "Has management consulted with you about an agreement"?---Yes.

PN2768

Did you ask him the other three points or any of those - - -?---Yes.

PN2769

So, you asked him all four points?---I believe so, yes.

PN2770

Does that mean you did?---Yes, to my memory. Yes, I did.

PN2771

Mark, Mr Mark Glasper. Did you ask him each of those questions?---Yes.

PN2772

What did he say?---He was not aware of an agreement. He - - -

PN2773

What did he say, Ms Hilt?---I haven't got a verbatim - - -

**** KATHRYN LOUISE HILT XXN MS MURPHY
PN2774

Do you have records of that?---No, I don't. I don't tend to record conversations with our members or potential members.

PN2775

If you could say to the best of your knowledge what he said rather than paraphrasing it?---To the best of my knowledge, "No, I haven't. What are you talking about? I haven't heard anything about it."

PN2776

Is that the answer to 12(a), what he said?---Yes.

PN2777

What was his answer to 12(b)?---I had to explain what a notice of representational rights was. After I'd done that, he said he had not received one.

PN2778

And 12(c)?---"No" was the answer.

PN2779

And 12(d)?---Again, "no" was the answer. He was aware of who Brendan Brown was.

PN2780

So, you spoke to him individually?---I believe on that date he - I believe he was individual, but there were other people who were coming out at the same time so there was some crossover. I think there may have been some APS casual in the group, but they didn't stay around because it didn't really apply to them or they didn't feel it did.

PN2781

Could you - - -?---I think it was possible that Jamie was there as well.

PN2782

But you're sure that Mr Glasper answered each of those questions in the way you've just described?---Yes. I'm very sure.

PN2783

How did this work, Ms Hilt? Did you sort of have a list of questions and you were interviewing them individually?---No. Because I was aware of the fact an EBA had been lodged for the purposes of approval, and I am aware of what criteria needs to be met, and when I was having this discussion with the - let's call them "transitioned employees" - to my knowledge and to their knowledge, they were eStore employees. So, as far as I was concerned, that was the criteria for what needed to happen for an EBA to be approved.

**** KATHRYN LOUISE HILT XXN MS MURPHY
PN2784

The three transitioned employees, that was your understanding on 22 May?---Yes.

PN2785

Those three employees that you nominated before; Jamie, Mark and Shannon?
---Yes.

PN2786

How did you know that?---Well, I knew that they had been eStore direct employees and as far as I knew on that date, they were still eStore employees.

PN2787

So, you didn't know that they were transitioned employees?---No, but I'm calling them "transitioned employees" because it's very difficult otherwise for us to identify the different groups.

PN2788

You can just call them by their names. I think we're familiar with the groups by now. So, what I'm getting to, Ms Hilt, is that on 22 May you didn't know anything in particular about Jamie, Mark and Shannon?---As far as I knew, they were eStore employees who are subject to an agreement that we had found that we had not been aware of, and we wanted to speak to them about it.

PN2789

Did you ask these same questions in 12(a), (b), (c) and (d) to employees who were not affected by the transition as you now know it?---Are you referring to APS casuals, or - - -

PN2790

Yes?---I would say that I've probably asked them the first one, or who their employer was, but to be honest, I wouldn't have expected points (b), (c) or (d) to be very applicable.

PN2791

These questions that you asked them, is that the first set of conversations that you had with employees?---Yes. Well, that would have been the original - the initial discussion regarding the EBA, yes. I mean, I possibly had some smalltalk beforehand. It was an informal discussion.

**** KATHRYN LOUISE HILT XXN MS MURPHY
PN2792

In relationship to point 8 of your witness statement, with regard to the communication that Matt Toner advised you of, does your point there mean that his communication, as he told you - you may not know, but his communication with Mr Leigh Williams was on 5 April 2013?---I am not sure.

PN2793

THE COMMISSIONER: Ms Murphy, I'm not sure what the question is.

PN2794

MS MURPHY: The question is, sir, the wording here is, "On 5 April 2013, Matt advised me that Hayley (indistinct) at eStore had been terminated. Matt was in contact with Leigh in respect of this matter." My question is does the second sentence also refer to 5 April 2013, meaning, was Matt, to the best of your knowledge, in contact with Leigh Williams on 5 April 2013?---To be honest, I am not sure. I know that Matt spoke to me on that date, but I don't know when he spoke to Leigh, other than the fact he did. We would need to speak to Matt.

PN2795

On 5 April 2013, did Matt tell you that he was on contact with Leigh?---No. Matt informed me of what had happened to Hayley, and he registered with me that he was going to need to approach eStore to deal with it. But other than that, I was not part of those discussions.

PN2796

Did he tell you on 5 April that he had already approached eStore at any time to deal with it?---No, not to my memory.

PN2797

Now, turning again to point 1 of your witness statement; the four members of the NUW on 4 August 2012. When you became an active organiser in April 2013, as you mentioned before, on the site, do you know whether there'd been any approaches to eStore for an enterprise agreement?---No, I don't.

PN2798

You don't know or there weren't?---I don't know that there weren't. I don't believe there were. There was none that I was aware of, but that doesn't mean they didn't occur.

**** KATHRYN LOUISE HILT XXN MS MURPHY
PN2799

Were you debriefed when you became an organiser?---I was at the time assisting Matt, and that was my role.

PN2800

Were you given any background information of how the site was progressing?
---Yes, as it was pertinent to the site visits that I participated in.

PN2801

Enterprise bargaining wasn't pertinent?---I wasn't dealing with management at that point. I was speaking to members and potential members.

PN2802

With what purpose?---The purpose of discussing their rights in the workplace and the union.

PN2803

For the purpose of recruiting them?---I suppose it's always part of what a union organiser does, yes.

PN2804

But not for the purpose of organising an enterprise agreement?---Well, that would be more something that in most circumstances would be determined: (1) by the main organisers by the site; and (2) by the wishes of our membership. So, it's probably a bit premature.

PN2805

How is it premature?---At the time, I was there to speak to people about their rights in the workplace and, yes, forming an enterprise agreement may have been one of them, and also other rights and their rights to join a union and just to talk to them about that. That's the purpose of my visit. I was certainly not there to try and negotiate an EBA.

PN2806

Ms Hilt, did anyone from the NUW say that an enterprise agreement wouldn't be pursued on site until there was a majority sufficient to maintain a scope order?---I don't know.

**** KATHRYN LOUISE HILT XXN MS MURPHY
PN2807

THE COMMISSIONER: Is that part of your case? If it is part of your case - - -

PN2808

MS MURPHY: Yes, sir, it is.

PN2809

THE COMMISSIONER: Well, yes, if it is, if you have information to that effect, you will need to put it to the witness.

PN2810

MS MURPHY: Did you ever mention that to Mr Leigh Williams that in fact you needed a majority before you will proceed?---I can't remember doing so. I would say that obviously I know there is a threshold where we cannot force employees and oblige to bargain with us until we have 50 per cent plus one.

PN2811

Did you have that threshold?---I'm not sure.

PN2812

When you were having your discussions in relationship to the group, your discussions referred to in paragraph 12 and in other points, did you mention the prospect that the NUW would have negotiated an enterprise agreement for eStore?---I think I would have discussed with them what a union - what the process would generally be for a union agreement, particularly regarding consultation and the role of employees and members in that. That would have been a normal thing to discuss, given there are - or there were at the time - a couple people who had been involved in EBAs in the past with union EBAs, so they could have some knowledge of what the general process would have been regarding bargaining, having meetings about it, being consulted, all the rest of it.

PN2813

Would you say you were experiencing regular communication with - - -?---At what period?

PN2814

Well, in relationship to the period that you're talking about in point 12. I don't need to know who the members were, but was there regular communication between you and your members on site?---I would say that certainly there was an increase in communication, yes, after the matter regarding this agreement was raised. Yes.

**** KATHRYN LOUISE HILT XXN MS MURPHY
PN2815

And prior to that?---Prior to that - - -

PN2816

THE COMMISSIONER: Ms Beynon - I'm sorry, Ms Beynon. Ms Murphy, I'm sorry. What do you mean by "regular"? There are people I'm contact with once a year. I call that regular. There are other people I'm in contact with hourly. I call them regular.

PN2817

MS MURPHY: Thank you, sir. I appreciate it is important to clarify that. By "regular", I mean that the employees would be able to contact you readily and did so, and you would expect that they would if they had queries relating to their employment conditions?---I would say that's possibly true always, particularly people who are members of the NUW know how to contact us, be it myself, someone else from our office. But they know how to contact us and I would expect that it would be normal and natural for them to do so should they have any queries about their workplace, be it regarding an EBA or not.

PN2818

Did anyone contact you on 5 April from eStore; any of the employees?---Not me myself. Matt was the predominant organiser at that point.

PN2819

Who contacted Matt?---I don't know - - -

PN2820

THE COMMISSIONER: No. That's not within her knowledge.

PN2821

MS MURPHY: Was Matt contacted in relationship to the meeting that occurred on 5 April?

PN2822

THE COMMISSIONER: How can the witness answer that question?

PN2823

MS MURPHY: Well, sir, again this is actually very important in terms of the nature of this case.

**** KATHRYN LOUISE HILT XXN MS MURPHY
PN2824

THE COMMISSIONER: The witness can only answer what she knows; the things that she saw, heard, read.

PN2825

MS MURPHY: Are you aware that there was any contact from any eStore employees to the NUW on 5 April 2013?---I honestly can't answer that question. I don't - - -

PN2826

No. Do you know?---I don't know of any. There was none to me.

PN2827

None to you?---No.

PN2828

Between 5 April 2013 and 22 May 2013, is it correct - my understanding from what you've just said - that you weren't aware that eStore employees had transferred over to APS. Is that correct?---I wasn't aware, no.

PN2829

Was anybody in NUW aware?---No, I - - -

PN2830

THE COMMISSIONER: Don't answer that.

PN2831

MS MURPHY: To the best of your knowledge, was anyone in NUW aware?
---To the best of my knowledge, no-one was aware until I was given information by our members and potential members, and I believe I referenced the date in my statement regarding their shift to APS or what they felt was APS paying their wages.

PN2832

Specifically, Shannon Anderson didn't contact you any time between 5 April and 22 May being concerned about the status of his employment in relation to eStore and APS?---Until I had the discussion with him regarding APS paying his wages, he let me know that as far he was aware, he was still employed by eStore. So, he didn't feel, I guess, that he had any reason to be concerned. His employment, in his opinion - this is what he told me - was that eStore was employer.

**** KATHRYN LOUISE HILT XXN MS MURPHY
PN2833

Did he show you any pay slips?---On which days?

PN2834

On any day?---I have seen pay slips of his. I did not see them on the 22nd.

PN2835

Would you - sorry, sir. I have to hesitate. It's very hard to construct the questions without the names of the people involved.

PN2836

Just one other question on that point. You're saying that members can readily ring you or any other organiser at the NUW if they've got a query?---Yes.

PN2837

And you get those sorts of queries regularly?---I get those queries about workplace rights and such hourly; probably every 10 minutes.

PN2838

Appreciating what the Commissioner has told me, that I can only ask you about you, you had no such queries from anyone at eStore between 5 April and 22 May. Is that correct?---Me personally?

PN2839

Yes?---Not to my memory.

PN2840

To the best of your knowledge, no-one else from the NUW had any such queries?
---It's very difficult for me to answer that except that I'm not aware of it.

PN2841

That's fine. You're not aware of it.

PN2842

THE COMMISSIONER: I think her answer was that it's very difficult for her to answer it because she's not aware of it.

PN2843

MS MURPHY: Sir, if she's the eStore organiser, and has been for - - -

PN2844

THE COMMISSIONER: Ms Murphy, put your question. We don't need to debate the evidence at this stage. You are characterising the evidence in some way. I was correcting that characterisation.

**** KATHRYN LOUISE HILT XXN MS MURPHY
PN2845

MS MURPHY: Thank you, sir.

PN2846

At point 15, Ms Hilt, you say that the group was concerned whether this meant there would be a change to their pay. What did you say to Jamie about that?---I believe my response to all of them would have been similar, which would have been I had copies of the EBA that had been lodged with the Fair Work Commission with me. I gave it to them and told them to go home and look at their pay, and look at it and see whether it matched; whether it made sense.

PN2847

You didn't say that they were being disadvantaged?---In my opinion, not negotiating and EBA is a - - -

PN2848

No. What did you say? I'm asking you what you said?---I'm answering. In my opinion - - -

PN2849

No. You're answering with an opinion.

PN2850

THE COMMISSIONER: Ms Murphy. Ms Hilt?---In my opinion - and this is what I communicated with our members and potential members - if an EBA is rolled out without it being negotiated, then you're automatically disadvantaged because it's not necessarily going to reflect your needs in the workplace.

PN2851

You didn't reference any particular pay rate?---I assume I would have referred to the pay rate that's in the EBA.

PN2852

But did you refer to a particular pay rate and say that the pay rate was wrong?
---Wrong compared to what?

PN2853

I'm just asking you did you say that?---Well, it can't be - it is just what it is in the EBA. I don't understand what you're asking me.

**** KATHRYN LOUISE HILT XXN MS MURPHY
PN2854

I'm happy to clarify. The purpose of my question is did you say to any of those employees that the impact of the enterprise agreement would be that they would be paid less?---I believe I would have said to APS casuals that as they were not covered by the EBA, there was nothing protecting their current rates. They are getting paid significantly above the award. So, yes, I would have told them that they were in danger, and that - - -

PN2855

Who do you mean by "the APS casuals"?---Anyone who is employed by APS.

PN2856

In terms of the terminology, your argument is not accepting they're APS employees. Who do you mean exactly?---When I was having this discussion, the way my discussion went with people as they left was firstly to let them know that there was an agreement that had been lodged and to try and discover whether that was something that had been legitimately negotiated or not. When we were having that part of the discussion - - -

PN2857

Ms Hilt, you've already gone over that. I'm asking you about what you said about pay rates - - -?---I'm trying to answer your question.

PN2858

I just want to hear what you said about pay rates specifically. Nothing more?
---My view is that you're trying to get an understanding of the transitional employees, what I've told them. That's - - -

PN2859

That's correct?---So, I'm attempting to answer that question for you.

PN2860

If you could answer that question, that would be great?---I wasn't aware that people had had their employment changed from eStore to APS until later in the conversation, until after we looked at the EBA. And even then, I wasn't sure what had happened until I saw some pay slips and did some more digging. So, for that reason, when I was having a discussion with them about their pay rates, I was having a discussion with them assuming they were eStore employees and the rates in the EBA would apply to them.

**** KATHRYN LOUISE HILT XXN MS MURPHY
PN2861

What did you say?---I said to them, "These are the rates in the EBA. If they're less than what you're currently getting, then they would apply."

PN2862

You didn't say, "They're less than you're currently getting"?---I don't even know what they're currently getting off the top of my head right now.

PN2863

Exactly. That's what I would have thought?---That would have been part of the discussion.

PN2864

So, you would have asked them what they're currently getting?---I'm sure I would have, yes.

PN2865

When you got that answer, did you say "you'll be getting less"?---I don't recall. Quite possibly, yes.

PN2866

In relationship to Jamie Calendar, Mark Glasper, Shannon Anderson, are you still in regular communication with them as part of your role as the organiser?---I would say that Matt is actually taking a greater lead at the site at the moment.

PN2867

I don't know what that means. Does that mean that you're not in communication with them?---I would say I visited the site last week and spoke to some of them, but that Matt is taking a greater lead at the site at the moment, which means he would be the more regular contact for our members at that site at this point in time.

PN2868

You're referring to that you didn't know what people's pay rates are. You know what they are now, though, do you?---My understanding is that there is quite a wide spread of varying rates. There isn't one rate that everyone is paid. There is a lot of discrepancy between them all.

**** KATHRYN LOUISE HILT XXN MS MURPHY
PN2869

Do you know what the rates are?---Not off the top of my head. Like I said, as far as I can tell, it seems like a lot of different people are earning a lot of different rates.

PN2870

Do you know how the rates compare to the enterprise agreement?---They would all depend differently depending on their roles and depending on what their current rates are.

PN2871

Less or more?---I think maybe a mix.

PN2872

But you don't know?---No. I haven't done a cross reference of everyone who turns up to work at eStore.

PN2873

Wouldn't you have done that in relationship to being the eStore organiser, given this matter is on foot - - -

PN2874

THE COMMISSIONER: Ms Murphy, that's argumentative.

PN2875

MS MURPHY: It's just very puzzling, sir.

PN2876

Your argument is, in terms of what you said you said in general, that such an enterprise agreement would not benefit the employees. Is that correct?---I don't think that's exactly what I said. I believe what I stated was that an EBA that wasn't negotiated with employees, according to what their wishes and needs were in the workplace would possibly not really reflect their best interests, and that people are - their best interest is to actually participate in enterprise bargaining, which is the intent of the Act, I think.

PN2877

You actually don't know whether the proposed enterprise agreement benefits your members or not?---I believe it's probably a matter of opinion.

**** KATHRYN LOUISE HILT XXN MS MURPHY
PN2878

It's a matter of quantitative fact. There's a better off overall test provided under the Act. I mean, all of the documents - I'm happy to give them to you - in terms of current pay rates and conditions, but it's a question of fact?---Would you like me to answer that question, or - - -

PN2879

MS BEYNON: I'm not quite sure how the witness is - I don't believe she would have done a BOOT test herself. I'm not quite sure where this question is going.

PN2880

THE COMMISSIONER: Ms Beynon, Ms Murphy, I'm gratified to hear that the better off overall test is a quantitative one. There is an awful lot of subjectivity in making those assessment, let me assure you. I'm not really sure where that takes us, and frankly the issue at the end of the day - that issue is for me to determine.

PN2881

MS MURPHY: Yes, sir. However, the NUW are pressing on to say that this enterprise agreement does not benefit their employees.

PN2882

THE COMMISSIONER: Ms Hilt is - - -

PN2883

MS BEYNON: Sorry, Commissioner. I don't really believe that has formed part of our case. What Ms Hilt said and what we understand is that they didn't get an opportunity to bargain, and that has been our case the entire time.

PN2884

MS MURPHY: Thank you for that clarification.

PN2885

THE COMMISSIONER: Ms Murphy, that is what Ms Hilt - I heard her to say. Leaving aside whether that proposition is correct or not, I certainly understand the import of that submission. It is one that is heard many times in respect of enterprise bargaining. Because I am not involved in a collective agreement process, I am ipso facto disadvantaged.

**** KATHRYN LOUISE HILT XXN MS MURPHY
PN2886

MS MURPHY: Yes, sir.

PN2887

THE COMMISSIONER: Ultimately, that is a matter for the tribunal to determine.

PN2888

MS MURPHY: I understand that, sir. All I'm trying to do is confine Ms Hilt's opinion whether that's all she thinks notwithstanding that - is that all you are saying, that the only disadvantage with regard to the proposed enterprise agreement, as far as you are aware, is that employees were not given any opportunity to have the NUW assisting them?---I think there is the attached issue of the transfer of employment of three people, which I think certainly affects their job security and is, in my opinion, a disadvantage. I think that's the second glaringly obvious one. I also think that when people haven't been given an opportunity to bargain, therefore they haven't been given the opportunity to perhaps get what they would like out of their work for the next four years. The loss isn't - it isn't just a measure of "are you going to be earning an extra 50 cents" - - -

PN2889

I understand that. I've heard that argument. I just wanted to contain that - it's the totality of your argument that in fact you are not saying that the employees are directly suffering a detriment or lack of benefit as a consequence of the proposed enterprise agreement - - -

PN2890

THE COMMISSIONER: I think Ms Beynon has an objection.

PN2891

MS BEYNON: Commissioner, I believe that the witness has now sought to answer that question three times and her evidence has been consistent that there are detriments beyond what is quantifiable in terms of the pay rate. She has given examples of that.

**** KATHRYN LOUISE HILT XXN MS MURPHY
PN2892

MS MURPHY: I respectfully disagree. But in terms of those detriments - - -

PN2893

THE COMMISSIONER: And I respectfully disagree with your respectfulness. I have heard those things as well.

PN2894

MS MURPHY: I'm not clear what the detriments were that she identified, sir.

PN2895

THE COMMISSIONER: They'll become clear in the transcript. Ms Murphy, let's continue. You've heard the objection and I've upheld it.

PN2896

MS MURPHY: With regard to security of employment with APS, what do you mean by that?---An APS employee, be they casual or full time does not, in my opinion, have the same security of employment as a direct employee.

PN2897

How is that?---Because they're essentially being held accountable to a labour hire agency. A labour hire agency may or may not have work in an ongoing fashion for them, depending on the decisions of a completely external employer - completely external company, in this case eStore. It could refer to anyone.

PN2898

Did you have an opportunity to review any of the items of the agreed statement of facts in terms of the documentation that these people that you're talking about, Jamie, Mark and Shannon, signed with APS?---I haven't actually seen that, no.

PN2899

Would you say there could be documentation which would ensure that employees had equal security of employment with APS compared with - - -

PN2900

THE COMMISSIONER: Ms Murphy, if you have such a document that you wish to ask questions on, you need to put it to the witness.

PN2901

MS MURPHY: Yes. Thank you, sir.

**** KATHRYN LOUISE HILT XXN MS MURPHY
PN2902

I'd like to tender these as evidence, sir.

PN2903

THE COMMISSIONER: Well, no. You were saying that they were part of the agreed statements of fact.

PN2904

MS MURPHY: I thought you said if I had documents relating to security - - -

PN2905

THE COMMISSIONER: I didn't say that. Your question was in respect of had Ms Hilt been able to peruse the documents which comprised the statements of fact. Is that correct?

PN2906

MS MURPHY: Yes. I said that prior to that. Then you said to me, I thought, sir, if I had any documents in relation to asking Ms Hilt her understanding of - - -

PN2907

THE COMMISSIONER: I was following on from that chain. What are these documents?

PN2908

MS MURPHY: These documents relate to documents given by APS to the employees in the question and acknowledged.

PN2909

MR MUJKIC: We've got evidence of that, do we?

PN2910

MS MURPHY: No. I'm presenting it as evidence.

PN2911

THE COMMISSIONER: No. Look, we've had this conversation on the last occasion. If you want to provide documents to the witness, they need to be documents that already are in evidence or that the witness is capable of actually saying they have seen on a previous occasion.

PN2912

MS MURPHY: I understand what you're saying, but I also understand in relationship to the order that you said before that Fair Work Commission is not always bound by the rules of evidence, and I think this is an example of it. This document is germane to this matter. It's germane also to the evidence of Ms Hilt and it's germane to sort of certainty or lack thereof of the transitioned employees.

**** KATHRYN LOUISE HILT XXN MS MURPHY
PN2913

THE COMMISSIONER: May I see the document, please.

PN2914

MS MURPHY: Sir, may I just add Mr Williams - - -

PN2915

THE COMMISSIONER: Hold on. I rule against the tabling of these documents.

PN2916

MS MURPHY: May I ask why, sir?

PN2917

THE COMMISSIONER: The documents are dated 30 July 2013 if I'm correct. I don't have them in front of me at the moment. They go to assurances given to employees about their future pay. They are not employees - but because they are future dated and because they have the capacity to - I'm struggling for the word.

PN2918

MS MURPHY: Sir, they're not future dated.

PN2919

THE COMMISSIONER: What is the date?

PN2920

MS MURPHY: They were handed out yesterday to (indistinct)

PN2921

THE COMMISSIONER: Look, I understand that, but they go to issues which are not presently before the Commission. If you wish to make submissions, I'll allow you to make submissions in the way of "the conduct of the employer is such and you should take that into account", but I don't think properly it should be subject to questions to the witness. They are not within her purview of knowledge.

PN2922

MS MURPHY: Okay. When can I make such submissions?

PN2923

THE COMMISSIONER: In your closing submissions if that's what you wish to do, and then I'll make some findings as to whether I have to take them into account or not.

**** KATHRYN LOUISE HILT XXN MS MURPHY
PN2924

MS MURPHY: And table those documents at that time but not as evidence is what you're - - -

PN2925

THE COMMISSIONER: No. You're not introducing evidence. You've closed your case. It's not material that can be provided to the witness for the reasons that I've outlined. If you wish to make submissions at a later time about the conduct of the company more recently, then you can. If you feel the need to enclose those at the thing at the back of your submission, you can. But of course the NUW may well wish to make some comment about that material and the weight that I should put on it.

PN2926

MS MURPHY: Yes, sir. I understand that. I would like to say, though, it is - I understand your point in relation to Ms Hilt. It is, however, relevant documentation with regard to Mr Williams - - -

PN2927

THE COMMISSIONER: None of that information is within Mr Williams' evidence, or can you draw me to - - -

PN2928

MS MURPHY: He was cross-examined by Mr Mujkic.

PN2929

THE COMMISSIONER: Can you bring me to the paragraph it refers to, please.

PN2930

MS MURPHY: What I'm saying is he was cross-examined in relationship to enforceability of his personal guarantee.

PN2931

THE COMMISSIONER: You can make that in your submissions but not at this stage.

PN2932

MS MURPHY: Thank you, sir. That's fine.

**** KATHRYN LOUISE HILT XXN MS MURPHY
PN2933

Do you have an enterprise agreement with APS?---Directly with APS?

PN2934

Yes?---Not to my knowledge.

PN2935

To your knowledge, have the NUW ever sought an enterprise agreement with APS?---Not to my knowledge but it could have occurred easily without me being present.

PN2936

To the best of your knowledge, there's no impediment of the Fair Work Act or any other impediment with regard to the rules or policies seeking an enterprise agreement with APS?---Seeking that enterprise agreement with a labour hire agency would be - is not usually how we negotiate. However, I'm not aware of there being an impediment as such.

PN2937

In relationship to not normally how you negotiate, does that form part of the disadvantages of people transferring to a labour hire agency?

PN2938

THE COMMISSIONER: I'm not sure I understand the question.

PN2939

MS MURPHY: Well, Ms Hilt said - I assume she's relating to NUW when she says "our" - my question is the employees are now employed by APS, which as far as you're aware doesn't have an enterprise agreement. As far as I'm aware, those employees have an equal opportunity under the Fair Work Act in relation to any other employees of any other employees to negotiate an enterprise agreement seeking the assistance of the union should they wish to do so. Is that correct?
---My understanding is that regarding the three employees, Shannon et cetera, my understanding is who their current employer is perhaps subject to what's going on in this room, so that's probably a matter that's outstanding. What I would say is that, yes, you are correct. Labour hire employees could bargain with their direct employer, being the labour hire company. I would say that we have a lot of APS casuals that are employed at other sites - let's say Americold or big sites like that that are covered by EBAs that relate directly to their place of work rather than their legal employer, and their legal employer is obliged to pay those conditions, which is generally how I would say most of our APS casuals and members are covered by the EBAs. That would form the majority.

**** KATHRYN LOUISE HILT XXN MS MURPHY
PN2940

However, my question was if those employees - if the outcome from the proceedings were in fact that they were APS employees, is the NUW still available to negotiate an enterprise agreement with APS?

PN2941

MS BEYNON: I'm not quite sure (a) that question is relevant or whether Ms Hilt can step into the shoes of the NUW and say whether or not we're available to negotiate agreements with APS in general.

PN2942

THE COMMISSIONER: The proposition that it's not relevant is compelling. The issue before me is a narrow one about the formation of this agreement, not the formation of any other agreement. I uphold the objection.

PN2943

MS MURPHY: My understanding in terms of what you just said, Ms Hilt, is that you consider the fundamental detriment of what you say occurred to these employees to be their lack of opportunity to negotiate an enterprise agreement. Is that right?---My concern is probably twofold. The legal entity by whom our members are employed and potential members are employed. So, whether that be eStore or whether that be a labour hire company, and the second one being whether they've actually had a right to negotiate legitimately, as per the Fair Work Act, their own EBA.

PN2944

Sir, as you foreshadowed before, I would like Ms Hilt to be given the bundle of materials, which is the NUW exhibit, please. I don't have it.

PN2945

THE COMMISSIONER: I'm not sure where it is. Sorry. What exhibit number is it?

PN2946

MS MURPHY: Have you seen those documents before, Ms Hilt?---No, I haven't.

PN2947

If we could just have a moment. Sorry, sir. Can I just have a moment. I'm without my associate today.

**** KATHRYN LOUISE HILT XXN MS MURPHY
PN2948

Ms Hilt, in your witness statement you say - I'll just try and find my - if you would look into it in relationship to your discussion after 22 May?---Yes.

PN2949

What did you mean by that?---So, I had raised with me or the members or potential members had raised with me the fact that APS was paying them at the moment, which as I state in my statement is very unusual. For a labour hire agency to operate as a payroll facility is not something I've heard of before. Due to their confusion and due to my confusion about understanding exactly what had occurred, I requested from them any documents that they signed. They did inform me that they didn't have copies immediately available. Any other pieces of paperwork that they had received from me, the APS or eStore, so I could figure out what had occurred. That's what I mean.

PN2950

Did Shannon or any of the other three - let's focus on Shannon. Did Shannon tell you that he signed documents that you can see in front of you there in that exhibit?---This is the first time I've actually seen these, but my belief is he did refer with me to being called into a meeting with eStore or APS employees present, being informed that there was an issue internally with the company and therefore he would be paid by APS for a while, and having some forms put in front of him to sign which he does not have copies of. I assume these are those forms, but I am assuming that. I have not seen them.

PN2951

Did you ask him to request copies?---Yes.

PN2952

Did he do so?---I don't know.

PN2953

Did you follow it up with him as to whether he got copies?---It became a subject of discussion that Imogen and Daria have been involved with, as I think it's pertinent to this case.

**** KATHRYN LOUISE HILT XXN MS MURPHY
PN2954

I just need a moment. Ms Hilt I just need to show you another document, please, which is the - Mr Shannon Anderson's contract, which is attached to Ms Clementson's witness statement. I apologise. The documents are in various places. That particular document is attached - I thought it was in that pile that's not attached to Ms Clementson's witness statement. If I can just show you that, please.

PN2955

THE COMMISSIONER: Do you have a clean copy of that? I'm not sure I do.

PN2956

MS MURPHY: Yes. So, in point 19 of your witness statement, you say that Shannon had been asked to sign a form. Did he say only one form?---I don't know if he was overly specific. What he was referring to was forms that were necessary for him to be paid by APS, which, by implication, are more than one. Because there would have been one for super, one for tax. As I referred to at that point, he, I think, had a basic understanding of what he had signed which clearly wasn't correct. For that reason, he didn't know specifically what it was. That is why I asked for copies, because he was certainly vague, and his understanding that APS was just paying him was to me, as I said before, highly unusual and unlikely in my opinion.

PN2957

Did he mention if he'd signed a contract of engagement?---No. He wasn't clearly on exactly what he had signed.

PN2958

Did any of the other employees you spoke to mention they signed a contract of employment?---They were all of the opinion that what they had signed would enable APS to pay them until eStore had sorted out their payroll issues.

PN2959

Did they tell you that they'd signed a contract of engagement?---They told me they had signed paperwork to allow that to happen. They did not use the phrase "contract of engagement", no.

**** KATHRYN LOUISE HILT XXN MS MURPHY
PN2960

Or similar "contract" or "employment offer" - - -?---No.

PN2961

In relationship to the comments that you made before about your concerns as an organiser about the transfer of employment, you see those documents now which you hadn't seen before, you said - none of them - in relation to the employees, you still have a concern?---Yes.

PN2962

You still consider those employees not to be APS employees?---I think from my knowledge from discussions with the people who had signed these - and I've just got the one from Shannon in front of me - my knowledge from what they said to me is that my belief that they were not aware of what they were signing. And their understanding of what they were doing was very different to what apparently eStore's understanding was. My understanding is that they understood they were going to be paid by APS, but remained eStore employees. To transfer employment over to APS was a very different position to what they thought they were entering into. That is my understanding and my knowledge. So, yes, I do think they are indeed disadvantaged, regardless of this paperwork.

PN2963

You spoke to Jamie Calendar; he was one of the people that you spoke to?---Yes.

PN2964

You say that Jamie Calendar as well as the others told you about the conduct at the meetings on 5 April?---Yes.

PN2965

Did Jamie Calendar mention to you that he had asked a question about how overtime is going to be calculated when he was an APS employee?---I believe the discussion I'd had with him was that he had been reassured that nothing would change in practice in terms of his wages, and I believe that my response to him was that I needed to see what was put in front of him because it depended very much on what he signed what the obligations were on APS to pay him in terms of both wages and conditions such as overtime.

**** KATHRYN LOUISE HILT XXN MS MURPHY
PN2966

Did you see what he signed?---No, I haven't seen what he signed.

PN2967

Did he ask for a copy?---I don't know if he has asked for a copy or not.

PN2968

Did you tell him to?---Yes. I told all of them to.

PN2969

When you say that he said he was reassured, what does that mean? What did he say exactly?---It means that he was informed, as I believe Shannon was and Mark that their wages and conditions wouldn't change, just as their duties wouldn't change.

PN2970

Again, are you saying that he didn't tell that he had asked a question about overtime?---I don't believe we had that explicit discussion. We may have, but I don't believe so.

PN2971

But you did have a one-on-one discussion with him?---Yes. I've had quite a number of discussions with Jamie over an extended period of time.

PN2972

I have nothing further, sir.

PN2973

THE COMMISSIONER: Thank you. Any re-examination, Mr Mujkic?

PN2974

MR MUJKIC: No re-examination.

PN2975

THE COMMISSIONER: Thank you. You're released, Ms Hilt. Thank you.

<THE WITNESS WITHDREW [12.58PM]

PN2976

THE COMMISSIONER: All right. That now completes the evidentiary case for the NUW, correct?

PN2977

MR MUJKIC: Yes, Commissioner.

PN2978

THE COMMISSIONER: Thank you. So, we'll be standing adjourned now for the final stages, which obviously is to receive and exchange information in respect for membership. The order that I make will be issued later this afternoon, and then it turns to the written submissions of the parties, the dates of which are set out in the directions already issued. Is there anything from either party at this stage?

PN2979

MR MUJKIC: No, not us, Commissioner.

PN2980

MS MURPHY: No, sir.

PN2981

THE COMMISSIONER: In that case, we'll adjourn.

<ADJOURNED INDEFINITELY [12.59PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #E4 AFFIDAVIT OF SAMI MAHER PN2556
EXHIBIT #E5 STATUTORY DECLARATION OF MS JILLIAN CLEMENTSON PN2558
EXHIBIT #E6 STATUTORY DECLARATION OF MR LEIGH WILLIAMS PN2559
EXHIBIT #E7 STATUTORY DECLARATION OF MR KIERAN BOYCE PN2562
KATHRYN LOUISE HILT, AFFIRMED PN2715
EXAMINATION-IN-CHIEF BY MR MUJKIC PN2715
EXHIBIT #NUW3 STATEMENT OF KATHRYN LOUISE HILT PN2723
CROSS-EXAMINATION BY MS MURPHY PN2725
THE WITNESS WITHDREW PN2975