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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1035376-1
COMMISSIONER ROBERTS
C2012/5230
s.739 - Application to deal with a dispute
Mr Jeffrey Lamb
and
Bunnings Group Limited
(C2012/5230)
Bunnings Warehouse Agreement 2010
(ODN AG2010/10443)
[AE884757 Print PR507789]]
Sydney
10.07 AM, FRIDAY, 21 DECEMBER 2012
PN1
THE COMMISSIONER: Good morning, I'll take the appearances.
PN2
MR A. ROGERS: Commissioner, Mr Rogers, I appear for the applicants.
PN3
MR DERAMS: May it please the Tribunal, with permission Mr J. Derams. I also seek permission for my instructing solicitor Mr A. Goonrey. I also have at the bar table with me Mr J. Newman, human resources manager New South Wales and ACT for the respondent.
PN4
THE COMMISSIONER: Thank you. I take it Mr Rogers was seeking permission as well?
PN5
MR ROGERS: Yes, sorry, Commissioner, I should have sought leave.
PN6
THE COMMISSIONER: There being no opposition from either side permission is granted in all cases as sought. Let's go, Mr Rogers.
PN7
MR ROGERS: Commissioner, I understand you have conciliated the matter and have some passing knowledge, would that be correct?
PN8
THE COMMISSIONER: Yes, I have some background knowledge, I'll put it that way. I might say in conciliating it I formed no specific view as to merit.
PN9
MR ROGERS: No. I only ask that for the reason I don't want to give an unnecessarily lengthy background.
PN10
THE COMMISSIONER: You're just one step ahead of me. I will tell the parties this, I do not want an unnecessarily lengthy background. I have looked at the number of witnesses and the rest of it. This case must be explored to the extent the parties think it should be, but I am determined it will finish today and I hope it finishes in something less than a day and I expect it to be moved along because the issue itself is fairly narrow.
PN11
MR ROGERS: Yes, might I simply say this. You will have received and read the submissions by the parties and I don't really want to enlarge upon them, save that I might be able to narrow some of the issues from the point of view of the applicant.
PN12
THE COMMISSIONER: Let's go to the applicant's outline of submissions which I for convenience I will mark.
EXHIBIT #SDA1 APPLICANT'S OUTLINE OF SUBMISSIONS
PN13
THE COMMISSIONER: So that's in evidence. You filed written submissions haven't you?
MR DERAMS: Yes, we have. They were filed at the same time as the witness statements, Commissioner.
PN15
THE COMMISSIONER: They just haven't been printed into hard copy for me, but when they are the outline of submissions - - -
PN16
MR DERAMS: Can I give you a copy now?
THE COMMISSIONER: That's helpful.
EXHIBIT #BUNNINGS1 OUTLINE OF RESPONDENT'S SUBMISSIONS
PN18
THE COMMISSIONER: For those who are keeping score we have SDA1 and Bunnings1 so far. Do you need to say anything more in opening, Mr Rogers?
PN19
MR ROGERS: Only to identify very quickly the way in which both my final submissions will proceed because it might enable the Commission to consider how we will be putting the matter at that time after the evidence has emerged. The short propositions we will be putting are these. Apart from the question of construction, which is clearly enough articulated in the submission and I will only deal with in final submissions, but the short propositions are these. The issue arose as a result of a complaint if I could so describe it by Mr Green. The complaint so identified was that he was being in substance left alone to work on Saturdays. There was no actuation in the matter related to what are loosely described as the operational requirements of the company, it was to satisfy a complaint legitimate or otherwise by Mr Green.
PN20
We don't know the extent to which and we won't know the extent to which Mr Green's complaints were valid. I don't say there is any criticism. He has not been called to give evidence so we simply have to work on the assumption that there was a complaint for good or bad which was addressed. That having been addressed and apparently on the assumption of Mr Green is not now complaining at least satisfactorily that having been addressed the matter has now morphed into one of operational requirements, that is when Mr Lamb complains that the rostering arrangements are difficult for him, the employer - I don't say moved the goal posts, has simply added a few extra yards to the field, to say not only will we address Mr Lamb's problems but there are all these other reasons. We say that's a matter the Tribunal should have proper regard to in considering the matter. It doesn't appear in our submissions but it seems we would say - - -
PN21
THE COMMISSIONER: It's also logically permissible to think that there is a possibility that Mr Green's complaint could have led to an examination of organisational requirements which then led to where we are.
PN22
MR ROGERS: That is tangentially referred to in the evidence and I don't dispute that. The point we make is this, however, if the problem that actuated the complaint has been addressed or can be addressed in any way other than by interfering with Mr Lamb's familial obligations then the proper result should be that the company deal with the matter in that way and we say that the offer the Commission will be aware of by Mr Smith to work on Saturdays would be a sufficient and satisfactory mechanism for resolution of the matter. If there were no other options, no other intelligent options the company may well have a legitimate argument to say there are some intelligent options and the company has not availed itself of them. That's all I've got to say - - -
PN23
THE COMMISSIONER: But is it open to you representing Mr Lamb or me to impose alleged or so-called intelligent options on the employer, is that not a prerogative they have to be unintelligent in the running of their business? A reminder, I think it was Commissioner Blair who uttered the immortal words once, the employer is entitled to be a dill.
PN24
MR ROGERS: My own enunciation of that is a person is entitled to run his or her own business as badly as he or she wishes.
PN25
THE COMMISSIONER: Exactly, put more elegantly, Mr Rogers, that's the way it is.
PN26
MR ROGERS: But nevertheless, if the consequence of so doing is to interfere impermissibly with the at least prima facie rights of the employee then the Tribunal is empowered by section 739 to so prevent that. If the employer then still choses to as it were be in the words of Commissioner Blair a dill and not take advantage of that, that's the employer's prerogative as well.
PN27
THE COMMISSIONER: I may be slandering Commissioner Blair, it's just a vague memory. Don't tell him I said it.
PN28
MR ROGERS: A somewhat familiar quote, but it reflects my own
articulation - - -
PN29
THE COMMISSIONER: But what you are saying strikes at the nub of this issue and that is the issue that we are exploring in my view, so thank you for that and I think the parties can concentrate on that reasonably narrow focus.
PN30
MR ROGERS: Yes, I don't wish to - - -
PN31
THE COMMISSIONER: Would you like to share my cough lollies, Mr Rogers?
PN32
MR ROGERS: I shan't.
PN33
THE COMMISSIONER: If you feel the need I always have a good supply up here at the moment.
PN34
MR ROGERS: I am indebted, Commissioner. It might be the only thing I get out of the Tribunal for a long time.
PN35
THE COMMISSIONER: Take what you can get, Mr Rogers.
PN36
MR ROGERS: Nothing else in opening. Unless my friend wishes to open I would propose to call Mr Lamb.
PN37
THE COMMISSIONER: He can open later. Call Mr Lamb. There are no other witnesses in the room? No. While we're waiting on the witness what's happened about the documentation summonsed from Woolworths?
PN38
MR ROGERS: I don't know whether - - -
PN39
MR DERAMS: It's been provided, my instructing solicitor has provided it to the Commissioner's Associate.
PN40
THE COMMISSIONER: I should know, sorry about that.
PN41
MR DERAMS: That's okay.
PN42
THE COMMISSIONER: It must have been provided very recently.
PN43
MR DERAMS: Only in the last day or two. Sorry, yesterday or the day before.
PN44
THE COMMISSIONER: All right.
<JEFFREY LAMB, SWORN [10.16AM]
<EXAMINATION-IN-CHIEF BY MR ROGERS [10.17AM]
PN46
MR ROGERS: Sir, is your name Jeffrey, spelt J-e-f-f-r-e-y, Lamb?---Yes.
PN47
Lamb spelt L-a-m-b?---Yes.
PN48
Thank you. You reside at 717 Main Arm Road, Mullumbimby, is that correct?
---Correct.
PN49
Do you recollect that some time ago you made a statement in these proceedings, do you recall that?---Yes, I do.
PN50
Do you have a copy of your statement with you?---No, I don't.
PN51
THE COMMISSIONER: I remind you for your next witness and subsequent to make sure they've got a copy of their witness statement when they pop into the box will you, save time.
PN52
MR ROGERS: Yes. Mr Lamb, do you have in front of you now a copy of you witness statement?---Correct.
PN53
Is there anything in it that you wish to correct or otherwise amend?---No.
PN54
Do you swear to the truth of that statement?---Yes, I do.
PN55
I tender the statement, Commissioner, I tender its original I should say which I think should be with the Commission.
PN56
THE COMMISSIONER: I have it.
PN57
MR DERAMS: I have one objection. Paragraph 17.
PN58
THE COMMISSIONER: Let's have a look.
**** JEFFREY LAMB XN MR ROGERS
PN59
MR DERAMS: The objection is to the evidence given after the third sentence, so it's that starting, "My mother." The evidence is - - -
PN60
THE COMMISSIONER: Yes.
PN61
MR DERAMS: It's hearsay evidence, there are no statements from any of these witnesses as to their particular circumstances, in those circumstances we haven't been afforded the opportunity to determine whether to cross-examine them on those matters.
PN62
THE COMMISSIONER: Cross-examine the mother?
PN63
MR DERAMS: Sorry? We don't have any evidence from those witnesses. We had a statement from the father.
PN64
THE COMMISSIONER: I am going to allow it with the caveat that you haven't had the opportunity to explore it, but one takes it the witness would have some direct knowledge of his mother's condition. I will allow it on that basis, I won't exclude it. Is that the only one?
MR DERAMS: It is.
EXHIBIT #SDA2 WITNESS STATEMENT OF JEFFREY LAMB
PN66
MR ROGERS: Commissioner, with leave might I - there was a document tendered to a witness statement of a Mr Hoare, Daune Hoare filed for the company. With leave I'll just ask the witness several short questions about the annexure to Mr Hoare's statement.
PN67
THE COMMISSIONER: Let me try and find this. What is the fellow's name?
**** JEFFREY LAMB XN MR ROGERS
PN68
MR ROGERS: Hoare, H-o-a-r-e, and the first name might be pronounced Daune, it's D-a-u-n-e.
PN69
THE COMMISSIONER: Let's save time. Have you got another copy of that?
PN70
MR DERAMS: Yes.
PN71
THE COMMISSIONER: Hand it up please.
PN72
MR ROGERS: Mr Lamb, could I just show you a document. Do you see in front of you that you - perhaps don't close the page that you've got there, but if you just turn to the front page and confirm tat it appears to be a statement by Mr Daune Hoare, do you see that?---Yes.
PN73
Can I just ask you to turn back to the page that I had it on, do you see that the document is open at a page marked DH1, do you see that?---Yes.
PN74
Are you aware that in Mr Hoare's statement in the document you have in front of you he says that you have attended 14 training courses relevant to the area in which you presently work, do you recall him saying that?---Yes.
PN75
Have you looked at DH1 and DH2 and formed a view - sorry, you're aware that he also says he appends DH1 and DH2 as evidence that you have in fact attended 14 such courses?---Yes.
PN76
Have you looked at those documents to determine whether in fact you have attended 14 such courses?---Yes, I have looked at them.
PN77
Is it correct or is it incorrect that you had attended 14 such courses?---Incorrect.
**** JEFFREY LAMB XN MR ROGERS
PN78
How many of the courses identified on those sheets relevant to your present work have you attended?---13.
PN79
When you say 13 do you put that at a level of certainty or a level of likelihood?
---Positive.
PN80
Have you added the number of hours that you were occupied in attending the 13 courses?---19.5 hours.
PN81
That's the total of 19.5 per course?---For the 13 courses.
PN82
So an average of about one and a half hours per course?---Roughly, yes.
PN83
Thank you, may I have the document returned. I have no further questions. One quick query, Commissioner, what are the sitting hours, is there a morning tea break or are we going to one o'clock?
PN84
THE COMMISSIONER: As short as possible. I normally take a middle-aged man break about 11.30.
PN85
MR ROGERS: If it please the court.
PN86
THE COMMISSIONER: So lunch we'll do for an hour from about quarter to one and we can sit as long as we need to this afternoon provided nobody is just being annoyingly repetitive.
PN87
MR ROGERS: Thank you, Commissioner.
**** JEFFREY LAMB XN MR ROGERS
PN88
<CROSS-EXAMINATION BY MR DERAMS [10.23AM]
PN89
MR DERAMS: Mr Lamb, just briefly. What course was it you say you did not attend?---I haven't actually got the course in front of me, sorry.
PN90
THE COMMISSIONER: Is there anything crucial whether it's 13 or 14?
PN91
MR DERAMS: Yes.
PN92
THE COMMISSIONER: There is?---Laminex flooring.
PN93
MR DERAMS: Mr Lamb, when you made your written statement in this matter you did the best you can to recollect all the events that you say are important in relation to your dispute about your roster?---Yes.
PN94
In recollecting them you put them into your written statement?---Yes.
PN95
Can we assume then that if something is not - if you don't record something you regarded that as not being important in relation to these events?---Can you repeat that, please?
PN96
If something is not recorded in this statement can we assume therefore that you didn't feel that it was important in relation to the events surrounding your dispute with Bunnings?---What do you mean by that sorry? I'm just - - -
PN97
I asked you that you recorded all the important events that you remember
them - - - ?---Yes.
PN98
- - - in relation to the dispute?---Yes.
PN99
You have recorded those events in this statement?---Yes.
PN100
**** JEFFREY LAMB XXN MR DERAMS
So if some event is not recorded in the statement can we assume that you didn't believe that that was an important event in respect of the dispute?---What are you - regarding the training?
PN101
No, just about any event involving this dispute, it could be about training, it could be about conversation, it could be about going home at night for dinner?
PN102
MR ROGERS: I don't want to give the witness hints but my friend put - - -
PN103
THE COMMISSIONER: Well, be careful.
PN104
MR ROGERS: - - - two propositions to the witness and then narrowed it to one in the question. It's a bit unfair on the witness to say there are two - there are two separate propositions and then he concluded only one of them.
PN105
THE COMMISSIONER: I agree. You can deal with that, Mr Derams.
PN106
MR DERAMS: Yes. I'll start again. You were asked to record all of the events as you remember them in relation to your dispute about your roster, is that correct?---Yes.
PN107
You've done your best to recall all of those events?---Yes.
PN108
In the events that you recall you've recorded the ones that you believe were important in respect of the dispute, is that correct?---Yes.
PN109
There might have been other events about the dispute but you didn't regard them as important, the ones you can recall if you didn't regard them as important you didn't include them in the statement, that's correct?---Not necessarily, no.
PN110
**** JEFFREY LAMB XXN MR DERAMS
You refer in your statement to some conversations you had with various people, do you remember that?---Yes.
PN111
You haven't kept any notes of those conversations, have you?---I have.
PN112
You've kept notes of those conversations?---Yes.
PN113
Where are those notes?---I haven't got them with me at the moment.
PN114
Where are those notes located?---Mr Walker.
PN115
Did you take the notes at the time that you had the conversation?---When I got home.
PN116
But you don't have any of those notes with you today?---No.
PN117
Did you have regard to those notes when you were preparing this statement?
---Yes.
PN118
You didn't think to attach those notes to the statement?---No.
PN119
Mr Eastman who you worked with at Bunnings, you know Mr Eastman?---Yes.
PN120
He approached you in early May 2012, didn't he?---Yes.
PN121
And he said to you at the time that Mr Green was struggling and he asked you to change the roster, didn't he?---Yes.
PN122
You told him at that time you couldn't do it because you had family reasons?
---Family commitments, yes.
**** JEFFREY LAMB XXN MR DERAMS
PN123
That's the only reason you gave Mr Eastman at that time?---Yes.
PN124
Do you agree with me that's all you told him at the time?---Yes.
PN125
So you agree therefore the conversation with Mr Eastman was fairly short?---Yes.
PN126
You didn't say to him anything like, hang on, I'll go and speak with my wife?
---Not at that time.
PN127
You didn't record that conversation with Mr Eastman in your statement, is there a reason for that?---No.
PN128
Did you regard that as an important conversation with Mr Eastman?---It was informal.
PN129
But was it an important conversation in relation to the events about the disputes that brings you here today?---Yes.
PN130
Could I suggest to you then you didn't give the conversation with Mr Eastman much thought until you had the next meeting at which Ms Reid was in attendance, do you agree with that?---Yes.
PN131
You say that meeting happened on 19 June 2012, are you certain of that date?
---No.
PN132
Is it possible that that meeting actually happened towards the end of May 2012?
---Can you just repeat the question?
PN133
Is it possible that that meeting at which Ms Reid attended happened at the end of May 2012?---What was the original - the starting part? The starting - what date did I say it was?
**** JEFFREY LAMB XXN MR DERAMS
PN134
You said in your statement that it happened on 19 June 2012, do you see that? Do you have your statement there?---Yes.
PN135
What I asked you is are you certain that that meeting happened on that date?---No.
PN136
You have had the opportunity to read the statements filed and served by Bunnings in this proceedings haven't you?---Yes.
PN137
Do you see that those witnesses including Mr Eastman say that meeting happened about 29 May 2012?---Yes.
PN138
Do you agree that that is more likely to be the date?---It could possibly be.
PN139
But you're not certain of 19 June in any event?---No.
PN140
At that meeting Mr Hoare told you that there was a need to change the existing rosters?---Yes.
PN141
You understood that to be the roster you were currently on, being Sunday the Thursday roster?---Yes.
PN142
He also told you at that meeting that it was needed to accommodate increasing customer demand, do you remember that?---Yes.
PN143
He also said it was needed in order to support Mr Green on Fridays and Saturdays, do you remember him saying that?---Yes.
PN144
He also said in that meeting it was needed to ensure the SKF area - well SKF coverage requirements were met, do you recall him saying that?---Yes.
**** JEFFREY LAMB XXN MR DERAMS
PN145
Then Mr Hoare asked you, Mr Ward and Mr Stewart whether they wanted or would be willing to change their roster, do you remember that?---Yes.
PN146
Mr Stewart and Mr Ward obviously were present at the meeting as well?---Yes.
PN147
Do you agree with me that each of you being yourself, Mr Ward and Mr Stewart said to Mr Hoare that they didn't want to change their roster?---Yes.
PN148
Do you recall that each of you, Mr Ward and Mr Stewart gave their own different reasons as to why they didn't want to change the roster?---Yes.
PN149
Your reason was the same reason which you gave to Mr Eastman back in May, that's correct?---Yes.
PN150
That is you had family responsibilities?---Yes.
PN151
You said that the proposed roster - and you understood what roster was being proposed at that time, didn't you?---Yes.
PN152
You were being asked to work on Fridays and Saturdays for a four week period?
---No.
PN153
You disagree with that?---No, it was full time.
PN154
So you disagree that you were asked whether - sorry. In any event you were asked whether you would work on a Friday and a Saturday roster?---Yes.
PN155
So a change from your current roster?---Yes.
PN156
**** JEFFREY LAMB XXN MR DERAMS
Your understanding is what you're saying is what you were told was it would be a full time change?---Yes.
PN157
I understand that. In any event you said that wasn't suitable?---Yes.
PN158
The reason you gave was your family caring responsibilities?---Yes.
PN159
That was because your family responsibilities essentially were that you looked after your children on Fridays and Saturdays?---Yes.
PN160
That's because your wife was working those days?---Yes.
PN161
Do you recall how long the meeting went?---About 30 minutes.
PN162
You left before the meeting ended, didn't you?---Yes.
PN163
You left pretty much soon after you told Mr Hoare that you couldn't change your roster to work Fridays and Saturdays?---Yes.
PN164
You would agree with me then that you didn't say to Mr Hoare, hang on, I'll go home, let me think about that, I'll come back next week and give you an answer. You agree with me you didn't say that?---No.
PN165
You pretty much repeated the same line that because your wife worked on Fridays and Saturdays you had to look after the children?---Yes.
PN166
You didn't say I need some time to go and explore whether or not I could have someone else look after the children on those days?---No.
PN167
Before you left the meeting Mr Hoare actually acknowledged that each of you, being yourself, Mr Stewart and Mr Ward had family reasons for not working the roster, do you remember that?---Yes.
**** JEFFREY LAMB XXN MR DERAMS
PN168
You also recall though that Mr Hoare said that moving forward the change in the roster had to be a shared approach, do you remember him saying that?---No.
PN169
One of the propositions which you put forward to resolve this dispute is that you had an offer to work three days a week?---Yes.
PN170
You've made that or the representatives on your behalf have made that in this proceeding in your submissions?---Yes.
PN171
You understand that going to three days a week will mean you will have a reduction in your income?---Yes.
PN172
I just want to explore a couple of these things with you, Mr Lamb. Your wife works at Woollies, that's correct?---Yes.
PN173
She works Fridays and Saturdays?---Yes.
PN174
Your concern is that if your wife tells Woollies that each time that you work Friday and Saturday on the rotating roster, your concern is if she tells Woollies she can't work those days she won't get any further work from Woollies, is that right?---Yes.
PN175
You are concerned about the loss of income for your family if in fact your wife doesn't get any further work from Woollies, that's correct?---Yes.
PN176
You would agree with me, wouldn’t you, that either you looked after your children on the Friday or the Saturday or your wife looks after the children on a Friday and Saturday, both of those are equal positions, aren't they, do you agree with that?---Yes.
**** JEFFREY LAMB XXN MR DERAMS
PN177
So really one way around this is if your wife didn't work at Woollies she could look after the children and the Saturday, that's correct?---Yes.
PN178
That would allow you to work the rotating roster, that's correct?---Yes.
PN179
So could I suggest to you that your real concern is the financial consequences if your wife isn't given any further work at Woollies, that's really what you have an issue here, correct?---Yes.
PN180
I just want to come back to show you some documents. Can I hand you - hopefully I have given you a clean copy of that document?---Yes.
PN181
These are records that have been provided by Bunnings which set out over the last 12 months the total remuneration you have earned from Bunnings, can I ask you to have a look at that document?---Yes.
PN182
Do you agree that they are the amounts that you have received from Bunnings for your work over the last 12 months?---I would hope so.
PN183
You agree with that?---Yes.
PN184
Can I ask you to go to the last page. Can you read in the far right column, can you actually read that figure at the bottom, the total?---The grand total?
PN185
Yes?---$54,085.90.
PN186
So that's an average of the gross amount of money you have earned in the last 12 months, you accept that?---Yes.
PN187
**** JEFFREY LAMB XXN MR DERAMS
If you went to three days a week you accept you will go to - you will get less pay?---Yes.
PN188
Can you accept these figures from me, that effectively we take that $54,000 you'd be at 60 per cent of that if you work three days, do you agree with that?---In gross. Not in actually taxed.
PN189
That's correct, I want you to use gross figures, it's easy?---Yes.
PN190
Take this from me that 60 per cent of $54,000 is $34,000, would you accept that figure?---Without a calculator I wouldn't, yes.
PN191
It's about $34,000, so the result of that would be that you would lose $20,000?
---Yes.
PN192
During the last 12 months your wife's - the records from your wife's employer show that she's earned about $16,000 gross from the work at Woolworths, do you accept that?---Yes. I haven't got the records in front of me, sorry, so.
PN193
No, can I show you?---Thank you.
PN194
Can I tell you that these are records that have been produced by Woolworths and can I ask you to go to the last page?---Yes.
PN195
Do you see the far right of the page towards the bottom it says, "Report totals." Far left, sorry?---Yes.
PN196
Do you see there's a, "Number of days, 61," then there's a, "Total gross, 16,463."?---Yes.
PN197
**** JEFFREY LAMB XXN MR DERAMS
Total tax, total net. Now, if I put this proposition to you, it seems that if you were to go to three days a week you would - and your wife continued to work, your family would be in a worse position off financially overall than if your wife stopped working at Woollies, would you agree with that?---No.
PN198
Why wouldn't you agree with that?---Less travel, expenses for vehicle, maintenance, fuel.
PN199
So when you say less travel you mean for you?---Yes.
PN200
Do you say that you would save $4,000 a year in car travel expenses?---Yes.
PN201
Even if that was the case you would end up equal on those figures?---Yes.
PN202
Have you got any figures to confirm that it would - that you would be using $4,000 in vehicle expenses?---Not on me.
PN203
You've just pulled that figure out of the air?---120 kilometres round trip a day, so yes.
PN204
You haven't sat down and worked it actually out have you, the figures?---A rough sort of figure but I haven't got it on paper.
PN205
Did you sit down - sorry, no further questions.
<RE-EXAMINATION BY MR ROGERS [10.44AM]
PN207
MR ROGERS: Mr Lamb, if you went part time on three days a week that would I assume leave you free - tell me if this is wrong - leave you free to pick up work on the other two days you are off from Bunnings, would that be correct?---Yes.
**** JEFFREY LAMB RXN MR ROGERS
PN208
Would that be something you would intend to do or not intend to do?---Possibly.
PN209
No further questions.
PN210
THE COMMISSIONER: Thank you for your evidence, you are free to step down?---Did you want your statement back?
PN211
Just leave the witness box and we will deal with that.
<THE WITNESS WITHDREW [10.44AM]
PN213
THE COMMISSIONER: Who is the next witness?
PN214
MR ROGERS: I call Mrs Lamb. Renee Lamb it is, Commissioner.
PN215
THE COMMISSIONER: I have her statement in front of me.
<RENEE LAMB, AFFIRMED [10.45AM]
<EXAMINATION-IN-CHIEF BY MR ROGERS [10.46AM]
PN217
MR ROGERS: Your name is Renee, spelt R-e-n-e-e, Lamb, is that correct?
---Yes.
PN218
You live at 717 Main Road Mullumbimby?---Yes.
PN219
You are the wife of the applicant in these proceedings, Jeffrey Lamb, is that correct?---Yes.
PN220
Mrs Lamb, you have made a statement in these proceedings, do you have a copy of that statement there?---Yes.
PN221
Is there anything in your statement you wish to correct or supplement?---I am currently about to start a permanent part time contract with Woolworths.
PN222
You have referred to having casual work with Woolworths?---Yes.
PN223
When does that change?---That change will start on the 31st of the 12th.
PN224
I'll cut to the chase, will it involve any change to your obligations to work Fridays and Saturdays?---No.
PN225
THE COMMISSIONER: Do you wish to tender her statement?
PN226
MR ROGERS: I'm sorry, I'll tender the statement, yes.
PN227
THE COMMISSIONER: Have you asked her the questions?
PN228
MR ROGERS: Sorry. Ms Lamb, are the contents of your witness statement to the best of your knowledge true and correct?---Yes.
PN229
I tender the statement, the original.
**** RENEE LAMB XN MR ROGERS
PN230
THE COMMISSIONER: Any objection?
PN231
MR DERAMS: Yes, paragraph 10.
PN232
THE COMMISSIONER: Do you wish the witness here or not here?
PN233
MR DERAMS: Yes.
PN234
THE COMMISSIONER: Yes to which one?
PN235
MR DERAMS: Sorry, I am going to discuss my objection so it's perhaps best outside without the witness.
PN236
THE COMMISSIONER: That was my question. Ms Lamb, as soon as you've settled down we send you out again?---Yes.
PN237
Could you wait outside?---No worries.
PN238
My Associate will retrieve you, we'll just do a bit of legal argy bargy for a while.
**** RENEE LAMB XN MR ROGERS
PN239
<THE WITNESS WITHDREW [10.47AM]
PN240
MR DERAMS: The objection is hearsay.
PN241
THE COMMISSIONER: To paragraph 10?
PN242
MR DERAMS: 10.
PN243
MR ROGERS: I rely on it only as evidence of two things, evidence of what Mrs Lamb was told, not as evidence of the fact that there was no such possibility as articulated by Ms Armstrong but as evidence Ms Armstrong was articulating a reluctance to give Mrs Lamb any flexibility. Ms Armstrong might have been lying, I concede that, but we can only rely on what Mrs Lamb understands.
PN244
THE COMMISSIONER: I will allow it but I will be treating it as hearsay and giving it whatever weight I decide it deserves. Is that the only objection?
MR DERAMS: Yes, it is.
EXHIBIT #SDA3 WITNESS STATEMENT OF RENEE LAMB
PN246
THE COMMISSIONER: You may retrieve her.
<RENEE LAMB, RECALLED [10.49AM]
<CROSS-EXAMINATION BY MR DERAMS [10.49AM]
PN248
MR DERAMS: Mrs Lamb, who asked you to provide this statement in the proceedings?---Phil Walker.
PN249
Did you have your conversations with Mr Walker over the phone as he took your statement?---Yes.
PN250
Then he sent you the statement and you looked at it and made amendments and things like that?---Yes.
PN251
He asked you in going through that process to try and do your best to recollect the events relevant to the dispute involving your husband's roster at Bunnings?---Yes.
PN252
Of course you did your best to try and recollect those events?---Yes.
PN253
The events, could I suggest to you, that you believed were important in relation to this dispute are recorded in your statement?---Yes.
PN254
Do you agree with me then that if something you didn't believe was important in relation to this dispute you decided not to record it in the - - - ?---No.
PN255
In paragraph 10 - have you got a copy of your statement with you?---Yes.
PN256
In paragraph 10 you refer to a conversation you had with Ms Armstrong?---Yes.
PN257
You don't say there when that conversation occurred, do you?---No.
PN258
Do you know when that conversation occurred?---No.
PN259
No idea?---Not long after he discovered his roster.
PN260
So you're certain your husband had been told at that time what the roster would be?---Yes.
**** RENEE LAMB XXN MR DERAMS
PN261
If I tell you your husband knew by the latest 1 July, you agree with me that that conversation with Ms Armstrong occurred some time after?---Yes.
PN262
Would it be a month after that?---I don’t know.
PN263
Could it be a month after that?---Possible.
PN264
It was the fact that your husband came home and told you that he had been rostered to work Fridays and Saturdays that caused you to go and speak with - - - ?---Yes.
PN265
You also say in paragraph 11 that you've made inquiries of Cobbler's Childcare regarding the care of your daughter on a Friday, can you recall when that happened?---My husband did that.
PN266
When you say, "I have also made - " - - - ?---I have spoken to them. My husband has more details on that.
PN267
Sorry, but I'm just asking you on your - - - ?---Yes.
PN268
You say there you've also made inquiries of Cobbler's Childcare?---M'm.
PN269
You don't say when you made those inquiries, do you recall when you did?
---After a conversation with Phil. The second time he came to Sydney.
PN270
Sorry, after Phil Walker that is?---The second time my husband came to Sydney to see Phil.
PN271
I see. I just want you to focus and please don't look at Mr Walker, look at me?
**** RENEE LAMB XXN MR DERAMS
---Yes.
PN272
I want you to focus - I'm asking you the questions that's all, it's easier this way?
---Yes, okay.
PN273
I want you to focus on this question. When did you make inquiries of Cobbler's Childcare, when did you make the inquiries?---Well before anything happened with Bunnings, we were on a waiting list.
PN274
I'm just focussing you here on this paragraph, paragraph 11?---M'm.
PN275
You've just said your husband made the inquiries of Cobbler's Childcare?---Yes.
PN276
Do you also say you made inquires of Cobbler's?---I did.
PN277
I think you said that you made those inquiries after your husband visited Phil for the second time?---Yes.
PN278
I just want you to focus on this question. Can you tell us what date that was?
---No.
PN279
Can I suggest to you that it was after the issues involving your husband's roster at Bunnings blew up?---Possibly.
PN280
There was no other reason why your husband was coming to Sydney to speak with Phil?---Yes.
PN281
So you agree with me that it was after all these events happened?---Yes.
PN282
You would agree with me therefore that it was after your husband's roster had been set and he told you about his roster that you made the inquiries of Cobbler's Childcare?---Yes.
**** RENEE LAMB XXN MR DERAMS
PN283
You don't say anywhere in your evidence that you explored whether or not you could get a babysitter on a Friday and Saturday?---I have, that's not an option.
PN284
You don't say that anywhere in your statement do you?---Not that I'm aware of.
PN285
Is that because you haven't made those inquiries?---No.
PN286
When do you say you made those inquiries?---Well before my husband had any roster disputes.
PN287
In relation to - - - ?---In relation to me beginning work at Woolworths back before there was any issues we did investigate other childcare opportunities.
PN288
Those other opportunities were what?---Well, family, outside childcare, family day care and the babysitters that are listed in the paper.
PN289
That was before you started at Woollies?---Yes.
PN290
You didn't go and look at those options again after this all came about?---Yes. Family. We've ruled out other options.
PN291
Just the family are the options?---Our personal preference ruled out the other options.
PN292
Sorry, your personal preference - - - ?---Our personal preference to look after our children ruled out the other options in the area.
PN293
What you're saying is that your preference was it was either the family or you or your husband and nothing else?---Yes.
**** RENEE LAMB XXN MR DERAMS
PN294
So you would agree with me that you didn't explore external babysitters?---Not the second time.
PN295
Just you family and just Cobblers?---Yes.
PN296
Do you understand your husband has proposed to go three days a week?---Yes.
PN297
You understand that that will mean he will have a drop of income at Bunnings?
---Yes.
PN298
Have you had any discussion with your husband as to how much that drop of income will be?---Yes.
PN299
What did he tell you that amount would be?---I can't tell you off the top of my head. I can tell you what he earns now. I can tell you that obviously he has to lose money from that.
PN300
What do you understand he earns now?---After tax, $719.
PN301
After tax?---Yes.
PN302
Do you know what that is before tax?---No.
PN303
How do you know that?---I look after the finances.
PN304
Could I put this suggestion to you, if you looked after the finances if I said that your husband earned in the last 12 months about $54,000 gross would that be a surprising figure to you?---Yes.
PN305
**** RENEE LAMB XXN MR DERAMS
Is that because you don't work in gross figures - - -
PN306
THE COMMISSIONER: You're referring back to an existing document, do you wish to show this document to her - - -
PN307
MR DERAMS: Yes, I will show the document.
PN308
THE COMMISSIONER: - - - and do you wish it entered into evidence?
PN309
MR DERAMS: It will ultimately - it's attached to a statement.
PN310
THE COMMISSIONER: It will (indistinct).
PN311
MR DERAMS: It will come into a statement, yes.
PN312
THE COMMISSIONER: If it comes in anyway, that’s (indistinct). If you're going to ask the witness questions that relate to it give her a copy please.
PN313
MR DERAMS: Yes, I will hand you a copy.
PN314
THE COMMISSIONER: I'm sorry about the absence of my Associate on occasions, she hasn't skived off it's just extremely hectic at the moment.
PN315
MR DERAMS: One can understand that. Mrs Lamb, these are records which have been provided by Bunnings which outline how much income your husband earned in the last 12 months. Now - - -
PN316
THE COMMISSIONER: You may give the witness just a moment to look at that document. Could you examine the document?---Yes.
PN317
**** RENEE LAMB XXN MR DERAMS
The magic bits are at the bottom of the last page?---Found that.
PN318
MR DERAMS: If I take you to the last page can you see the very last figure - can you read the very last figure which is in the bottom - - - ?---$54,085.90.
PN319
These are the gross amounts your husband received in the last 12 months?---Yes.
PN320
Do you understand that? If your husband went to three days a week, your husband based upon that figure would be working out of - he would go from five days to three days, so it's 60 per cent of that figure?---Okay.
PN321
So if you accept this as a figure, that amount comes to $32,400?---Yes.
PN322
You accept that that is about a $20,000 difference?---Yes.
PN323
Do you know how much you earned in the last 12 months from your work at Woolworths?---No.
PN324
Could I show you some documents. These are records which have been provided to us by your employer. Have you seen anything like those records before?---My pay slip.
PN325
On your pay slip?---Yes.
PN326
Could I ask you to go to the last page. It says there, can you see the bottom left hand corner some figures, it says, "Number of pays 61."?---Yes.
PN327
It says, "Total gross pay," that's 16,463?---Yes.
PN328
Do you accept that that is about the amount that you earned in the last 12 months from Woolworths?---Yes.
**** RENEE LAMB XXN MR DERAMS
PN329
They're not unusual figures or anything like that?---No.
PN330
You have said in evidence today for the first time that you have now got a permanent part time role with Woolworths?---Yes.
PN331
How much money will that give you a year?---That will give me I have no idea per year, 330 around about per week after tax.
PN332
After tax. You have no idea, you haven't asked them about it?---I've only signed the contract yesterday and it was under agreement that I will still have hours added to that. This is just a base hourly rate.
PN333
But if - - -
PN334
THE COMMISSIONER: Nobody appears to be going to ask this question, so I will. The contract that you signed, what are the hours and days that you have signed up to?---Friday and Saturday with the occasional Sunday night.
PN335
Thank you.
PN336
MR DERAMS: You signed that contract in the circumstances - because you were previously a causal employee?---Yes.
PN337
You signed that knowing that your husband's employer had been asking him to work a rotating roster?---Yes.
PN338
Did you say to Woolworths there's a possibility that your husband might have to work a rotating roster on Friday and Saturdays?---My employer is well aware of where we stand.
**** RENEE LAMB XXN MR DERAMS
PN339
Where who stands?---My husband, with the proceedings, they are well aware that I am here today, I'm supposed to be at work today.
PN340
That's not my question. Did you tell your employer, Woolworths, before you signed the part time contract that requires you to work
Fridays and Saturdays that your husband might have to work Fridays and Saturdays on a rotating roster?
---Yes.
PN341
What did they say about that?---My boss said that we'll wait and see what happens.
PN342
Did you explore with them what that might mean with your employment?---No.
PN343
Wasn't that something that was interesting to you?---No.
PN344
Are you concerned that you might lose your job because of that?---I'm concerned that I may lose my job to let my husband keep his, yes.
PN345
I just want to - if - you can't tell the Tribunal that you're going to earn much more than what you had earned in the last 12 months
as a casual employee can you?
---No.
PN346
If we assume that you earned about the same, $16,000 gross a year?---Yes.
PN347
Could I put this proposition to you. It seems that if your husband goes to three days a week with Bunnings and you continue working, your family as an overall monetary unit will be somewhat worse off - - - ?---Yes.
PN348
- - - than if your husband continued to work?---Yes.
**** RENEE LAMB XXN MR DERAMS
PN349
I understood from your statement that your real concern was the financial position of your family, is that correct?---Yes.
PN350
Because an alternative to this is - and I want you to put out of your mind the fact that you have signed this part time contract now
- your concern before with going to Woollies and telling them that you couldn’t work on a Friday and Saturday every eight weeks,
your concern is that they weren't going to give you any work?
---I was already informed that it was not a viable option.
PN351
Can you just listen to my question, please answer my question. You were worried, were you not, that if you went to Woollies as a casual employee and said look, my husband has to work a rotating roster, every eight weeks he will start for four weeks Fridays and Saturdays and I am not available and you were worried that you wouldn’t get any work from Woollies, that's correct?---Yes.
PN352
You don't know that they weren't going to give you any work?---No.
PN353
You didn't actually go to them and say to them, "My husband has to work now, I can't work," to see what would happen?---I explained it to Karen, we sat down at length and she said that it was not viable for the business for me to be only available some Fridays and Saturdays.
PN354
Once the roster had been set you only had that one conversation with her, that's correct?---I've had more than one.
PN355
We don't see that anywhere in your statement do we?---Because it came back
to - - -
PN356
Can you just answer the question - - - ?--- - - - it was not a viable option.
**** RENEE LAMB XXN MR DERAMS
PN357
That's not the question. You say you have had many conversations with your manager?---Yes.
PN358
You don't say anywhere in your statement that you had more than this one conversation?---No.
PN359
I suggest to you you only had one conversation, what do you say to that?---No.
PN360
If you had more conversations I would suggest to you that that was an important matter for this proceeding?---They were not on the record with my boss, so why would I bring them up? They were in private, out of work hours, talking to her about whether she could support me or not.
PN361
That wasn't my question. What I'm suggesting to you is that you didn't have more than one conversation with your boss. The reason I'm suggesting that is because that would be an important bit of evidence in these proceedings, would you agree with that?---Yes.
PN362
You would, and you also agreed with me before that you included all of the important matters in your - - - ?---Yes.
PN363
So I want to suggest to you that you didn't have more than one conversation about this?---I had more than one.
PN364
I want to suggest that you're now making that evidence up in the witness box, what do you say about that?---That I'm telling the truth.
PN365
Could I suggest this to you, you have said that the only - you haven't looked at anyone other than the family to look after the children on the Friday and Saturday?---Friends as well.
**** RENEE LAMB XXN MR DERAMS
PN366
Friends now is it?---They're classed as family to me, there's only two of them that I would ask, a godfather and a close family friend.
PN367
We don't see any of that in your witness statement do we?---No.
PN368
Is that because those conversations didn't occur?---No.
PN369
Another alternative is that you in fact looked after the children on Fridays and Saturdays, do you agree with that?---No.
PN370
You don't agree with that? Why is that not a possibility?---Well, then I'm no longer employed.
PN371
If the result - I will put these propositions to you - if the result of your husband working three days a week means that his remuneration drops by about $20,000 with Bunnings, do you understand that?---Yes.
PN372
So that you can work Fridays and Saturdays where you might earn about $16,000?---Yes.
PN373
Do you understand that? Do you see that your family is $4,000 worse off?---Yes.
PN374
Doesn’t it make more sense if you're concerned about the financial circumstances that in fact your husband work full time at Bunnings?---No.
PN375
What other reason would there be?---Please repeat?
PN376
MR ROGERS: I object to the questions. I would ask the witness - - -
PN377
**** RENEE LAMB XXN MR DERAMS
THE COMMISSIONER: I am going to allow the question.
PN378
MR ROGERS: I was going to ask the witness to wait outside but - - -
PN379
THE COMMISSIONER: I will allow it?---Please repeat?
PN380
MR DERAMS: If your husband, and he said he will, works three days a week to resolve this dispute?---Yes.
PN381
It seems to indicate from the records that your husband will end up earning about $20,000 year less?---Yes.
PN382
You accept that. You have earned in the last 12 months about $16,000?---Yes.
PN383
Your part time contract allows you to go to Fridays and Saturdays?---Yes.
PN384
About what you were previously working as a casual?---Yes.
PN385
You can't tell this Tribunal that you are going to earn more than $16,000?---I can't say I'll earn any less than - - -
PN386
I want you to assume then that you are going to earn about $16,000?---Okay.
PN387
If your husband earns $20,000 a year less so that you can work Fridays and Saturdays?---Yes.
PN388
In which case you will only earn $16,000. Do you accept your family will be about $4,000 less financially off over the - - - ?---Yes, but that's under circumstances.
PN389
**** RENEE LAMB XXN MR DERAMS
When you say - - - ?---My base casual - like my base pay or my base hours are my base hours and I have been informed that if I am available they will give me extra shifts.
PN390
But this is all into the future, that's correct?---Yes.
PN391
You don't know what those base hours will be or anything?---No.
PN392
I have no further questions.
PN393
THE COMMISSIONER: Anything arising?
PN394
MR ROGERS: No re-examination.
PN395
THE COMMISSIONER: Thank you, Mrs Lamb, for your evidence, you are free to step down?---Thank you.
PN396
You are free to stay in proceedings now if you wish to.
<THE WITNESS WITHDREW [11.10AM]
PN398
THE COMMISSIONER: Apparently not.
PN399
MR ROGERS: Commissioner, I should say there are four witness statements but Mr Brian Lamb has not been required for cross-examination. I call William Smith.
<WILLIAM SMITH, SWORN [11.11AM]
<EXAMINATION-IN-CHIEF BY MR ROGERS [11.11AM]
PN401
MR ROGERS: Sir, is your name William Smith?---Yes.
PN402
Do you live at 5 Fletcher Road, Dunoon, is that correct?---Yes.
PN403
Dunoon is spelt D-u-n-o-o-n?---Correct.
PN404
You are an employee of Bunnings at Lismore, is that correct?---Yes.
PN405
You have made a witness statement in these proceedings, is that correct?
---Correct.
PN406
Do you have a copy of your witness statement there?---M'm.
PN407
In front of you?---Yes.
PN408
Are the contents of that witness statement to the best of your understanding true and correct?---Yes.
PN409
I tender the statement.
PN410
THE COMMISSIONER: Mr Derams?
MR DERAMS: No objections.
EXHIBIT #SDA4 WITNESS STATEMENT OF WILLIAM SMITH
PN412
MR ROGERS: Commissioner, with leave could I just ask Mr Smith one question by way of reply to some evidence that's been led in relation to his attitude to a matter. Mr Smith, are you aware of a Mr Eastman who has made a statement in these proceedings?---Yes.
PN413
**** WILLIAM SMITH XN MR ROGERS
Are you aware that his statement suggests that you have told him at least on one occasion that you are not available to work on Saturdays, is that correct?---That's correct but it's incorrect.
PN414
But you are aware that he has said that?---Yes.
PN415
Can you tell the Tribunal as best you can recall what you have said to Mr Eastman about questioned your availability on Saturdays and your unavailability on Saturdays?---In regards to hopefully resolving the situation I offered myself to be available on both Fridays and Saturdays.
PN416
Did you have a conversation with Mr Smith where you indicated anything to the effect that you were not available to work on Saturdays
or any Saturday?
---Mr Eastman?
PN417
Mr Eastman, sorry?---Yes, no, he had asked me with two days notice if I could work on that particular Saturday, I've since been rostered on both Fridays and Saturdays.
PN418
If I could just take you back to the first part of your answer. You had a conversation with Mr Eastman about whether you were available to work on a particular Saturday. Can you just explain to the Commission what happened. How that conversation came about and when it occurred?---It was actually a phone call if I remember correctly and I was asked within two days notice whether or not I could cover a shift on Saturday and I was unable to do that due to the lack of time.
PN419
In fact two days notice was that (indistinct) do I take it that was on a Wednesday or Thursday?---Correct.
PN420
**** WILLIAM SMITH XN MR ROGERS
<CROSS-EXAMINATION BY MR DERAMS [11.14AM]
PN421
MR DERAMS: I'll be very brief and I apologise for having you to come down to Sydney but as a consequence of some other evidence I'm going to be very short with you?---M'm.
PN422
In your statement you refer to events commencing on 16 July 2012?---M'm.
PN423
That's in paragraph 11?---M'm.
PN424
That's the commencement of your involvement in this dispute issue, is that correct?---Correct.
PN425
No further questions.
PN426
THE COMMISSIONER: Does anything arise?
PN427
MR ROGERS: No, nothing arising.
PN428
THE COMMISSIONER: You'll be delighted to know that completes your evidence, thank you for it, you may step down. You may now remain in proceedings if you (indistinct).
**** WILLIAM SMITH XXN MR DERAMS
PN429
<THE WITNESS WITHDREW [11.15AM]
PN430
MR ROGERS: I tender the statement of - it should be on file - of Brian Lamb.
PN431
THE COMMISSIONER: I have been trying to turn it up. I can't find it. Have you got a copy there? You don't require Mr Lamb Senior do you?
MR DERAMS: No, we indicated that before.
EXHIBIT #SDA5 WITNESS STATEMENT OF BRIAN LAMB SENIOR
PN433
MR ROGERS: Commissioner, that's the case for the applicant.
PN434
THE COMMISSIONER: You both heeded my advice, it's moving along very well isn't it.
PN435
MR DERAMS: I will keep things moving because - - -
PN436
THE COMMISSIONER: No, you won't, we're going to have our break now. I'll see you back here at 11.30.
PN437
<SHORT ADJOURNMENT [11.16AM]
<RESUMED [11.38AM]
PN438
MR DERAMS: I call Mr Chris Randell. I'm not going to do an opening, Commissioner.
PN439
THE COMMISSIONER: I've marked your outline. I think it's pretty well clear what we're doing.
PN440
MR DERAMS: Yes.
PN441
THE COMMISSIONER: Sorry, who is the first gentleman?
PN442
MR DERAMS: Mr Randell.
<CHRISTOPHER MARK RANDELL, SWORN [11.39AM]
PN444
THE COMMISSIONER: Sorry, there's something you wanted to tell me?
PN445
MR DERAMS: Sorry, Commissioner, can I hand to you before I start with Mr Randell a second statement of Mr Randell that has just been made this morning and you won't have it.
PN446
THE COMMISSIONER: A supplementary statement or a replacement statement?
PN447
MR DERAMS: No, a supplementary - additional statement I should say.
PN448
THE COMMISSIONER: Thank you.
<EXAMINATION-IN-CHIEF BY MR DERAMS [11.40AM]
PN450
MR DERAMS: Mr Randell, you're the complex manager for the Bunnings Lismore warehouse, is that correct?---Yes, I am.
PN451
You have made two written statements in these proceedings, is that correct?
---Yes, it is.
PN452
The first of those is dated 18 December 2012?---That's correct.
PN453
That's 39 paragraphs in length?---Yes.
PN454
Have you had the opportunity of reading that statement before coming here to give evidence today?---Yes, I have.
PN455
Having read that statement have you satisfied yourself that the statement is true and correct?---Yes, it is.
PN456
I tender that statement.
PN457
THE COMMISSIONER: Any objections?
PN458
MR ROGERS: Yes, the only objection is on page 3 in paragraph 18 commencing on the second last line with the final word in the second last line, "Dawn highlighted to me that," to the end of the paragraph.
THE COMMISSIONER: Yes. I will allow it in on the same basis I have allowed in material from your statements earlier, your witnesses' statements.
EXHIBIT #BUNNINGS2 WITNESS STATEMENT OF CHRISTOPHER RANDELL, DATED 18/12/2012
PN460
MR DERAMS: Mr Randell, you made another statement this morning, that is 21 December 2012?---Correct.
**** CHRISTOPHER MARK RANDELL XN MR DERAMS
PN461
Do you have a copy of that statement with you?---Yes, I do.
PN462
That statement is true and correct?---Yes, it is.
PN463
I tender that statement.
PN464
MR ROGERS: No objection.
EXHIBIT #BUNNINGS3 SUPPLEMENTARY WITNESS STATEMENT OF CHRISTOPHER RANDELL, DATED 21/12/2012
<CROSS-EXAMINATION BY MR ROGERS [11.42AM]
PN467
MR ROGERS: Mr Randell, do you have a copy of your witness statement in front of you?---Yes, I do.
PN468
Can I ask you to turn please to page 5 of the document and at paragraph 20 - if you look at paragraph 28 you see that you put a proposal to Mr Lamb that in order to accommodate his concerns it would be possible for him to work three days a week, is that so?---Yes.
PN469
That proposition was put having regard to he operational requirements of the company - of the business?---For the current operational requirements, yes.
PN470
Can I infer from that that if that were done now, Mr Lamb would not have to work on Fridays or Saturdays?---For the current period of time, yes.
PN471
When you say for a period of time, what period of time?---That's uncertain. Retail changes from day to day. The operational requirements that I require this month is different to next month.
**** CHRISTOPHER MARK RANDELL XXN MR ROGERS
PN472
But at the present time it would not be necessary for him to work on a Friday or Saturday, that's so?---Not permanently, no.
PN473
At the present time is what I'm saying. I accept that circumstances could change, you can take that as a given?---Yes, but there are circumstances that can change on a week to week and Geoff may be required to work a Friday, Saturday for cover, the (indistinct) bank of hours, things like that.
PN474
Yes, and for example if somebody was ill you might require him to work on a Friday or Saturday?---Correct, yes.
PN475
But in the present circumstances subject to that sort of vagary you don't need him to work on a Friday or a Saturday, that's so is it not?---No, I'd prefer him to work Friday, Saturday because of his qualifications. If he doesn't work on those two days it leaves me short on our two busiest trading days for that area to satisfy my customers needs.
PN476
You have already given evidence to say that having regard to the operational requirements of the company at the present time you can cope without him on a Friday or a Saturday?---Yes, but as I stated it's not ideal for us.
PN477
No, I accept that but your evidence is, and I don't apprehend that you're changing it, is that notwithstanding that it might not be ideal, having regard to the operational requirements of the company you could accommodate Mr Lamb by him working three days a week?---Yes, we could.
PN478
That was true in August this year when you had that conversation, that's correct?
---Yes.
PN479
**** CHRISTOPHER MARK RANDELL XXN MR ROGERS
It's been true throughout the period of this dispute, that's so is it not?---Sorry, (indistinct).
PN480
That proposition has been true throughout the period of this dispute, has it not?
---No.
PN481
When was it different and in what way was it different?---May I refer to my statement?
PN482
I would ask you not to for the moment but if you - do you have any recollection of when circumstances might have been different to what you say applies now and what applied in August?---I believe earlier that wasn't an option for Geoff.
PN483
Sorry, I withdraw the question. From the company's point of view it's always been an available option?---Yes.
PN484
What was it about the working of three days a week with Mr Lamb not working on Fridays or Saturdays if anything which was from the company's point of view superior to Mr Lamb simply remaining as a full time employee and not working Fridays and Saturdays?---Well, Jeff has expertise that a majority of my team don't have and he's been trained in that area for quite a few years. The products that they sell in that area are what we call big ticket items and you require certain training, certain skills, certain abilities, characteristics of being able to sell products. We're not talking about a $50 item, we're talking between two and $10,000 which is a big commitment between any customer, so the preference for us is he works in that area because he has all those skills and was a valued team member.
PN485
I probably didn't put the question as clearly as I might have. If the proposition put by yourself to Mr Lamb on 28 August this year, that is the one that is articulated or identified in paragraph 28 of your statement were given effect to, Mr Lamb would not have been working on Fridays and Saturdays but he would be a part time employee, you understand than?---Yes, correct.
**** CHRISTOPHER MARK RANDELL XXN MR ROGERS
PN486
What is it that advantages the company from Mr Lamb working as a part time employee not working on Fridays and Saturdays to his being a full time employee not working on Fridays and Saturdays?---With my operational requirements him going back to part time would then give the coordinator the ability to have flexibility to obviously work towards putting someone else in those areas for those two days.
PN487
Sorry, when you say Fridays and Saturdays?---Yes.
PN488
I'm not quite understanding. I'll give you an example, if you can explain to me how I've misunderstood. Let's assume that the three day per week for argument's sake were Sunday, Monday and Tuesday. Can you just assume that for the moment?---Yes.
PN489
Why is the company advantaged in Mr Lamb working Sunday, Monday and Tuesday, rather than Sunday, Monday, Tuesday, Wednesday, Thursday or sorry, it's an unfair question. Is the company advantaged in that way?---With the example you've given it's not really relevant to the days that we need the person. The days are Friday and Saturdays, it's our three - Thursday, Friday and Saturday are our three busiest trading days in that area, so.
PN490
But you were offering Mr Lamb three days a week including Fridays and Saturdays?---We are offering him Tuesday, Wednesday, Thursday.
PN491
Tuesday, Wednesday, Thursday if that's the example?---Yes.
PN492
How does that advantage the company in comparison with Mr Lamb working Sunday, Monday, Tuesday, Wednesday, Thursday?---With the reduced hours it gives the coordinator the flexibility to add another person in.
**** CHRISTOPHER MARK RANDELL XXN MR ROGERS
PN493
Add another person in how or where?---Well, Jeff would be going back from 38 hours or 1976 hours a year to his 1300 which frees up 676 hours a year to put into another team member.
PN494
Who might work for example on the Sunday and the Monday but - - - ?---No, they could be currently working anywhere but have the flexibility to work when we need them.
PN495
But in any event on neither analysis, the example I've given you or the proposition you put to Mr Lamb, would he be working on Fridays or Saturdays, you accept that?---Yes, in the short term, yes.
PN496
Can I ask you to just look at paragraph 32 of your statement?---Yes.
PN497
Do you see there that Mr Lamb approached you and put a proposition to you broadly apparently consistent with - sorry, you agree with me that the proposition Mr Lamb put to you was consistent with the proposition that you have just spoken about and which you suggested in paragraph 28 of your statement?---Yes, that's correct.
PN498
What was it about the existence of the current proceedings that as I understand your evidence inhibited you from reaching agreement with Mr Lamb in that respect?---Mr Lamb wouldn’t accommodate our requirements for the flexibility.
PN499
His proposal was, was it not, in order to settle all matters the same proposal as you put to him in paragraph 28?---Yes, but he couldn’t guarantee it as a permanent roster. He wanted that as a permanent roster and my operational requirements don't allow me to give somebody a permanent roster under the EBA.
PN500
**** CHRISTOPHER MARK RANDELL XXN MR ROGERS
What you actually said in your statement is that you couldn’t negotiate with him while there were court proceedings on foot?---That's correct as well.
PN501
When you say "as well" could I suggest to you that what you were in fact doing was telling him the only way you would reinstate any offers to him was if he withdrew the court proceedings?---I believe that was the process.
PN502
Nobody has explained to you that you can settle court proceedings while they're running?---I'm not qualified in that area, I'm sorry.
PN503
I didn't ask you that, no one has explained to you that you can settle court proceedings while they're running?---No.
PN504
Did you make in the course of this matter undertake any analysis of trading patterns in the SKF area in the course of various weeks - sorry, I withdraw that, in the course of a given week or perhaps a typical week?---Each department is reviewed on a regular basis, that's the job of mainly my operations manager and myself.
PN505
In the course of this dispute did you undertake any review of the trading patterns of the SKF area in the course of a typical week or a given week?---Yes.
PN506
Do you have any calculations that you've undertaken as a result of that?---Nothing written but from the figures Thursday, Friday, Saturday made up over a third - well over a third of the sales and our highest traffic flow. It's not always about sales unfortunately on those three days because as I explained earlier to buy a kitchen it can be four and five visits from a customer before they make that final decision because they're spending up to $5,000 to $10,000, so the way our systems operates a customer might sign up to a kitchen today, being a Thursday but it may not be picked up or delivered (indistinct) until the following Monday. Therefore sales don't always replicate when the work was actually done.
**** CHRISTOPHER MARK RANDELL XXN MR ROGERS
PN507
So it may be for example that the sale was effected on a Monday but because people as you say have to pick things up they might come back on the Saturday when they're off work?---Yes, well our system, even though the product is paid for today, our system doesn't generate a sales record until it's actually transferred out of the store.
PN508
So in effect the record doesn't tell us when the sale is entered into, it tells us when the sale is concluded?---Yes, that's correct.
PN509
When the item is collected and the like?---Yes.
PN510
It would come as no particular surprise that that might happen at the weekend because of course that's when many people are off work outside of the retail industry?---Yes.
PN511
Could I just ask you one other question. You have appended to your statement exhibits showing certain training that Mr Lamb has undertaken,
is that correct?
---Yes.
PN512
Do you accept or do you reject that the amount of training or the quantum of training that Mr Lamb has undertaken in relation to the SKF area is something in the order of about 20 hours, do you accept that?---I couldn’t give you an answer on the hours.
PN513
One last question is this. You have suggested that Dougal Smith lacks the expertise or the knowledge or skills of other SKF team members. Do you see that? It says that in paragraph 39 of your statement?---Yes, correct.
PN514
One doesn't take this lightly but everybody starts somewhere don't they?
**** CHRISTOPHER MARK RANDELL XXN MR ROGERS
---Correct, yes.
PN515
If Mr Smith were for example working the three days you offered him in August someone would have to go in and work on Fridays and Saturdays under the current arrangements?---Yes.
PN516
That could be as easily Mr Smith as anybody else who is not yet trained in the area?---I don't believe Mr Smith would be a candidate, no.
PN517
I take it that you don't have, other than the people you have identified in your statement, people trained in that area, the SKF area, is that correct?---There's basic people that have a role that support the key team members, but I wouldn’t call Mr Smith someone that I would move into the area because of his expertise in other areas.
PN518
But there are in fact other people who could be slotted in if needs be?---Slotted in would be the word exactly but not to be able to deliver what I need from a business point of view.
PN519
What do you mean by that?---Well, I can take Dougal Smith and put him in SKF but he'd not going to be able to close a sale to the same level of Steve Stewart, Mr Johnson Lord and Jeff Lamb. He doesn't have the expertise, his expertise is in other areas of the business and that's where he gets utilised.
PN520
That expertise is obtained, as I apprehend it, from - correct me I'm wrong - is obtained from the training, for example, that's undertaken?---That's a part of it, that's a big part of it but not the majority of it.
PN521
If we assume that's not the preponderance of it, what is?---In conjunction with the products, doing the training, learning about the features and benefits of the product it's actually on the floor training in that area, being exposed to those products on a daily - day to day basis five days a week.
**** CHRISTOPHER MARK RANDELL XXN MR ROGERS
PN522
No further questions.
PN523
THE COMMISSIONER: Anything arising?
PN524
MR DERAMS: Nothing arising.
PN525
THE COMMISSIONER: Thank you for your evidence, you are free to step down?---Thank you.
PN526
You are also free to depart proceedings or stay in them if you wish.
<THE WITNESS WITHDREW [11.58AM]
PN528
MR DERAMS: The next witness will be Mr Hoare. I think the Commissioner has got the pronunciation of "Daune" right as well.
PN529
THE COMMISSIONER: I did have it somewhere, I'll find it. I have it, yes.
<DAUNE HOARE, AFFIRMED [11.59AM]
<EXAMINATION-IN-CHIEF BY MR DERAMS [11.59AM]
PN531
MR DERAMS: Mr Hoare, you are currently employed as the operations manager for Bunnings Lismore warehouse?---Yes, I am.
PN532
You've been employed with Bunnings for approximately eight years?---Yes.
PN533
You made a statement in these proceedings dated 18 December 2012?---Yes.
PN534
Have you had a statement to read that statement before coming here today to give evidence?---Yes, I have.
PN535
Having done that do you say the information in the statement is true and correct?
---Yes, I do.
PN536
THE COMMISSIONER: Any objection?
MR ROGERS: No.
EXHIBIT #BUNNINGS4 WITNESS STATEMENT OF DAUNE HOARE
**** DAUNE HOARE XN MR DERAMS
PN538
<CROSS-EXAMINATION BY MR ROGERS [12.00PM]
PN539
MR ROGERS: Mr Hoare, could you tell the Tribunal what steps you took to analyse the difference to the business or to the shop between Mr Lamb working on a Friday and a Saturday and Mr Lamb not working on a Friday and a Saturday?---Yes, basically the process I went through there was based on sales figures over a period of time and what percentage of those sales fell on which days.
PN540
Sales figures, am I right in saying, reflect the completed sale in the SKF area, is that correct?---Correct.
PN541
That is sales not for the purpose of figures identified upon the day in which it is for a better term clinched, it's on the day in which the customer comes and collects the item, that's correct?---Correct.
PN542
When you say you did a calculation of the sales figures, do you have those calculations? Was it a calculation you did mathematically or was it more in the nature of an assessment?---It was an assessment based on figures.
PN543
Did you undertake any process by which you were able to assess the difference between Mr Lamb being present on a particular day and the figures which are or likely to be generated and the figures which were or likely to be generated when he was not present on a particular day?---No.
PN544
You attempted as I understand it from your evidence to try and accommodate or have regard to the difficulties that Mr Lamb and others suffered or said that they suffered as a result of changes in their rosters, that's correct is it?---Correct.
PN545
You were present, were you not, at a meeting - excuse me, Commissioner, there's an error in my thinking here. Were you present at a meeting which Mr Lamb attended with Mr Randell, at which Mr Randell made an offer to Mr Lamb of part time work?---Correct.
PN546
You were present at that meeting and that was an offer that involved not working on Fridays and Saturdays was it not?---Correct.
**** DAUNE HOARE XXN MR ROGERS
PN547
<RE-EXAMINATION BY MR DERAMS [12.04PM]
PN548
MR DERAMS: Just one. Mr Hoare, do you recall my friend asking you some questions about a meeting you attended with Mr Randell where an offer was made for Mr Lamb to work three days a week, do you recall that question?---Correct, yes.
PN549
My friend put to you that that offer was not to work Fridays and Saturdays, do you recall that evidence?---Correct.
PN550
Who made that offer, which person?---Chris made the offer and Jeff verified the days he would be available.
PN551
None of those days were Friday and Saturday?---Correct.
PN552
THE COMMISSIONER: Thank you. Thank you for your evidence, sir, you're free to step down?---Thank you.
PN553
You are also free to remain in proceedings now if you so wish.
**** DAUNE HOARE RXN MR DERAMS
PN554
<THE WITNESS WITHDREW [12.05PM]
PN555
MR ROGERS: Could I have a minute, Commissioner, I may not want to cross-examine the other witnesses in light of the evidence that's emerged. Could I just have two minutes?
PN556
THE COMMISSIONER: Yes, sure. We'll have a five minute break?
PN557
MR ROGERS: That would be more than enough.
PN558
THE COMMISSIONER: That would help me at the moment too.
PN559
<SHORT ADJOURNMENT [12.05PM]
<RESUMED [12.14PM]
PN560
MR DERAMS: Commissioner, I was going to call Mr Eastman next but I was told by Mr Rogers if I didn't make a submission in relation to one conversation, a Brown v. Dunn conversation, if I don't make that submission then he won't need to cross-examine Mr Eastman. I won't make a Brown v. Dunn submission.
PN561
THE COMMISSIONER: So you are tendering the statement of Mr Eastman?
MR DERAMS: Yes.
EXHIBIT #BUNNINGS5 WITNESS STATEMENT OF NOEL EASTMAN
PN563
THE COMMISSIONER: What's next?
PN564
MR DERAMS: The next witness is Mr Stewart. Mr Rogers had put a proposition to me which I was trying to get some instructions before you came back on the bench as to a question if we make some concession then he won't need to cross-examine Mr Stewart. I haven't been able to get that instruction.
PN565
THE COMMISSIONER: I see, sorry did I rush you did I?
PN566
MR DERAMS: It just popped up in the break.
PN567
MR ROGERS: I'm content. I will ask Mr Stewart the question, he may think it's a bit intrusive but it will be quicker than trying to - - -
PN568
MR DERAMS: Yes.
PN569
MR ROGERS: It will probably only take two minutes, I have very little to ask him.
PN570
THE COMMISSIONER: Let's bring Mr Stewart in.
PN571
MR DERAMS: I call Mr Stewart.
<STEVEN STEWART, SWORN [12.16PM]
<EXAMINATION-IN-CHIEF BY MR DERAMS [12.16PM]
PN573
MR DERAMS: Mr Stewart, you are employed in and work in the special orders kitchen and flooring section at Bunnings Lismore warehouse?---That's correct.
PN574
You made a statement in these proceedings dated 18 December 2012?---Yes.
PN575
Have you had the statement to read that statement before coming here today?---I have, yes.
PN576
Having done that do you say the statement is true and correct?---To the best of my knowledge, yes.
PN577
I tender that statement.
MR ROGERS: Yes, no objection.
EXHIBIT #BUNNINGS6 WITNESS STATEMENT OF STEVEN STEWART, DATED 18/12/2012
**** STEVEN STEWART XN MR DERAMS
PN579
<CROSS-EXAMINATION BY MR ROGERS [12.17PM]
PN580
MR ROGERS: Mr Stewart, I don't want to intrude into areas that might be difficult or embarrassing for you but I need to ask you
some questions. Am I correct in saying that your principal reason in June and July of this year as put to the company for resisting
the rosters involving you working on Saturdays was that you were concerned about the state of your marriage at the time, is that
correct?
---That's correct.
PN581
Again, and forgive me for asking this, is your current position that you and your wife have now separated?---That is correct, yes.
PN582
I have no other questions.
PN583
MR DERAMS: Nothing arising.
PN584
THE COMMISSIONER: That was quick, Mr Stewart?---That was very quick.
PN585
Thank you for your evidence, you are free to step down and you're free to stay in these proceedings now if you are keen?---Thank you.
**** STEVEN STEWART XXN MR ROGERS
PN586
<THE WITNESS WITHDREW [12.18PM]
PN587
THE COMMISSIONER: So that's it, isn't it?
PN588
MR DERAMS: That's our oral evidence, there's only one other thing, I just wish to tender the pay records which were subpoenaed from Woolworths.
MR ROGERS: There's no objection.
EXHIBIT #BUNNINGS7 WOOLWORTHS PAY RECORDS
PN590
THE COMMISSIONER: For the sake of completeness I think I would accept a tender from you of the other document in relation to payments made to Mr Lamb by Bunnings.
PN591
MR DERAMS: That's Mr Randell's second statement.
PN592
THE COMMISSIONER: I know that but I'll - - -
PN593
MR DERAMS: I'll tender that then.
THE COMMISSIONER: I'll mark them separately, it's just easier. Humour me.
EXHIBIT #BUNNINGS8 BUNNINGS PAY RECORDS FOR JEFF LAMB
PN595
MR DERAMS: That is the respondent's case.
PN596
THE COMMISSIONER: All right. I take it we're at the stage of submissions, you having foregone your right to make an opening submission I will move to Mr Rogers and I note I have an outline of submissions so I don't want that parroted back to me, please.
PN597
MR ROGERS: Commissioner, I don't propose to repeat what appears in the submissions. I would ask the Commission firstly to have regard to annexure C to the affidavit of Mr Lamb. That annexure is a copy of the Bunnings Warehouse agreement.
PN598
THE COMMISSIONER: Yes.
PN599
MR ROGERS: Properly entitled 2010. The relevant provision is, as you know Commissioner - - -
PN600
THE COMMISSIONER: I have no annexures to Mr Lamb's statement.
PN601
MR DERAMS: They were emailed.
PN602
THE COMMISSIONER: I don't disbelieve you, sometimes things disappear into some FWA black hole.
PN603
MR DERAMS: I will provide copies of the annexures.
PN604
THE COMMISSIONER: Very well.
PN605
MR ROGERS: I should seek leave to reopen and tender them. I had assumed they were annexed to the affidavit.
PN606
THE COMMISSIONER: I think we won't be too technical, if I get a copy I'll treat them as being part of the witness statement.
PN607
MR DERAMS: Sorry, I've just raised that with my instructing solicitor too, we will need to refer to various other clauses in the agreement as well. So whatever way we can assist.
PN608
THE COMMISSIONER: The agreement is the agreement, it doesn't matter whether it's annexed or not annexed, you can refer to it.
PN609
MR DERAMS: I'm told it was annexure B to (indistinct) submissions.
PN610
THE COMMISSIONER: That might be where it is. I have seen it somewhere. Anyway, I've got them, that's the end of it, let's move on.
PN611
MR ROGERS: I formally tender them. The relevant clause is clause 10 which appears at page 9 and the particularly provisions are those set out in clause 10.4. Apart from the general provision in clause 10.4.1 the first proposition or the first matter to which I draw attention is that clause 10.4.2 imposes a strict requirement upon each party to the agreement or at least each relevant party, that is the employee and the employer to set agreements by mutual agreement, set rosters by mutual agreement. My friend's submissions proceed on the basis that if there is an attempt to reach agreement, clause 10.4.2 has been complied with. In my submission that is a wrong analysis of the clause. The words "as far as possible" are not words of the same character or the same quality as the words "parties should attempt to reach agreement".
PN612
They actually impose a higher standard and what they logically mean is that if there is a rational and credible basis upon which the parties might reach agreement the parties should so do. That analysis is not intended to reduce the employer's right to have regard to operational requirements. But what it does is to place into a state of perhaps some fluidity the matters to which parties are obliged to have regard in determining whether they can reach an accommodation on rosters. To give an example, if parties fail to reach mutual agreement, and let's assume the fault lies upon the employee. If a party fails to reach mutual agreement for a trivial reason, that party is in breach of clause 10.4.2. So the employee, and I don't instance Mr Lamb but take a different example.
PN613
Assume an employee says I simply don't want to work on Saturdays because I have never done so and I choose never to do so. That party, if the employer had a bona fide reason for requiring the employee to work on Saturdays has not complied with clause 10.4.2 because it is raising what would only be a trivial matter. An employer who says, and in one sense this is what has been said in this case, albeit with some augmentation attached to it, an employer who says well, it is our preference that a person work on a Saturday because we apprehend there might be some advantage is not, in my respectful submission, attempting to set rosters as far as possible by agreement and that was the effect of Mr Randell's evidence.
PN614
He attempted to buttress his evidence but in substance what he was really saying, and he repeated it, it wasn't ambiguous, Mr Lamb's absence on Fridays and Saturdays can be accommodated, we would simply prefer him to be there. Now, I say that, not because clause 10.4.2 is the provision that is in issue because no agreement was ultimately reached, but it gives some character and flavour to the way in which clause 10.4.3 is to be construed. What happens is if the employer on the assumption that it has complied with clause 10.4.2, that is has attempted as far as possible to reach agreement, the employer then has a right to set rosters. But if that right is somewhat limited, firstly is the clause assumes, and this is repeated in clause 10.4.4, the clause assumes that an employer has a right to set rosters having regard to its operational requirements in the first instance, there is no debate about that.
PN615
We already know from the evidence of Mr Randell that in fact the operational requirements of Bunnings does not require that Mr Lamb be present on Fridays or Saturdays. We know that because on 28 August Mr Randell made an offer to Mr Lamb regardless of who said what words, Mr Randell didn't suggest that he didn't agree to it, in fact he accepted that it was a proposal - accepted on a number of occasion in the witness box that having regard to the operational requirements of the company they could accommodate an absence by Mr Lamb on Fridays and Saturdays. He put it no higher than a preference. If that is so then in the face of objection by Mr Lamb, Bunnings was obliged to have regard and proper regard to Mr Lamb's reasons for objection and his reasons for objection fall fairly and squarely within the characterisation of family responsibilities and to a lesser extent other significant commitments.
PN616
My friend will attack the latter of those. He will say, as I apprehend from his cross-examination, that economic circumstance is obviated by the fact that Mrs Lamb could as easily give up work as Mr Lamb could decline the current rosters. But it doesn't get over the question of family - firstly, that as a matter of fact is wrong, there are assumptions made by my friend of the witness which will not be borne out. But secondly, and more significantly, it doesn’t get over the question of family responsibilities. Mr and Mrs Lamb as you have seen in their evidence have taken great steps to try and find a way to look after their children on Fridays and Saturdays and they are unable to do so. They are not, I might add, at the top of the economic scale where it might be suggested that a loss of job here or there will not have significant consequences for them.
PN617
They are, if not at the bottom of the economic scale, tending towards it. They are in the way of people in such work making ends meet, and to require Mr Lamb in those circumstances to in effect choose between his obligations to support his family and looking after his children is to require him to make a choice which in my respectful submission is prohibited by clause 10.4.3. It is not only of course that one looks to the clause. There are two other areas where one - - -
PN618
THE COMMISSIONER: You say prohibited by 10.4.3 but it doesn't say in setting rosters Bunnings will do so within the parameters of the family responsibilities or words to that effect, does it? Have regard for, it says.
PN619
MR ROGERS: The question, and my friend adverts to this in his submissions, the question is what meaning is to be attributed to the words "will have regard". If it be thought that such an expression is simply window dressing designed to raise the consciousness of the employer as to things it might like to think about, that is to set the provision at nought, in my submission. A more likely analysis is that what the clause intends to do is to require the employer to weigh in the balance the matters identified, that is family responsibilities, significant commitments, operational requirements and the need to be fair to the team members as a whole, weigh those matters in the balance and come to a rational decision consistent with those matters having been considered.
PN620
I make this concession. If there is a reasonable decision which the employer can make which is inimicable to the interests of the employee, the employer having regard to all of those matters in the balance is entitled to make that decision. If the decision is, having weighed all the matters in the balance, and I think this is more or less conceded in my friend's submissions, if the decision is unreasonable itself then it is prohibited by the clause. The alternative construction is simply to give the clause no more weight than as I say perhaps window dressing bears, that is it requires an employer to do no more than in Mr Tonkli's submissions, give lip service to the obligation but then choose to ignore it. If that were the effect of the provision it would be inconsistent with a whole raft of matters. It would be inconsistent and is inconsistent with the Act itself.
PN621
Section 3 of the Act sets out one of the objects of the Act as being the capacity for persons to balance their work and family life. The Act sets out as you are aware, Commissioner, it provides punishments in slightly different circumstances or penalties for a person suffering adverse action as a result of family responsibilities. There is a very strong current in the Act which flows in favour of persons having or at least family responsibility being elevated above the level it might otherwise have. That isn't obviated by the clause. The clause gives effect to that. It doesn't, as it were, stand in the way. Moreover, and perhaps just as significantly, there is authority for the proposition - I'm sorry, I should say I'm moving to a slightly different point but it's not unrelated. Operational requirements of an employer carry with them a number of qualities, one of which involves - this is at common law - concern with the interests of the employee.
PN622
In Nettlefold v. Kim Smoker Pty Ltd, I can pass up a copy, Justice Lee in the old Industrial Relations Court had to consider operational requirements in relation to an employee who had been dismissed. His Honour held - if you'll just give me one moment - his Honour was considering the expression that appeared in the former legislation valid reason, and at page 372 had this to say, this is half way down the page,
PN623
As Lord Denning stated in Woods v. W.M. Car Services it is an implied term of an employment contract that an employer be good and considerate to its employees. By giving effect to the convention the Act seeks to establish a balance between the right of an employer to duly manage an enterprise in which labour is employed and the right of an employee and of the community not to have the asset represented by the capacity of employees by such labour depreciated by incompetent or capricious management of labour by an employer.
PN624
It is then said, it is not an issue in performing employment, Nettlefold did so conscientiously and his Honour then continues, about half way across the next page, this is on the third paragraph,
PN625
The Act does not define the term "operational requirements" and nor does the present Act. Obviously is a broad term that permits consideration of many matters including past and present performance of the undertaking, the state of the market in which it operates, steps that may be taken to improve the efficiency of the undertaking by installing new processes, equipment or skills or by arranging for labour to be used more productively and the application of good management to be undertaken. In general terms it may be said the determination of employment will be shown to be based on the operational requirements of an undertaking if the action of the employer is necessary to advance the undertaking and is consistent with management of the undertaking that meets the employer's obligation to employees.
PN626
So operational requirements isn't just a one way street. It actually involves the very things that are articulated in clause 10.4, that is having regard to the interests of employees. What clause 10.4 does is to centre on a very particular matter which the Act itself, and the previous Act for what its worth, but the Act itself treat as of some particular significance. So to read clause 10.4 as doing nothing more than as it were requiring the employer to turn its mind absently to a topic and then dismiss it, is to as I say fly in the face of the authorities, fly in the face of the Act and to treat, as I say, the clause as nothing more than an expression of worthiness rather than an articulation of an obligation upon an employer. My friend in his submissions does - my friend's submissions I assume (indistinct) by my friend, does raise the question of or does say that clause 10.4.3 is to be read in full context and relevantly in the context of clause 10.4.4.
PN627
So much must be right and the final sentence - sorry, the second last sentence in clause 10.4.4 provides that nothing in this clause precludes the business from being able to roster to meet operational requirements. That does not mean that the remainder of the clause simply doesn't operate. What it means is that clause 10.4.3 if after all matters are weighed in the balance results in there being a reasonable decision consistent with operational requirements than the employer can follow that, and that would be consistent with what Justice Lee said in Nettlefold. But if the employer having weighed all matters in the balance can't reasonably come to a decision consistent with what it calls its operational requirements then the decision is challengeable. It is not simply a discretion exercisable that the party is not entitled to take issue with.
PN628
THE COMMISSIONER: All right, you say it's challengeable, but is it challengeable therefore by way of me putting myself in Bunnings' shoes and deciding what should have happened?
PN629
MR ROGERS: Yes.
PN630
THE COMMISSIONER: Another question for you. Thank you for the brief answer. Another question for you, these family responsibilities just as the evidence has emerged, is it family responsibility imposed by the need to care for children on Mr Lamb or is it the family responsibility to his wife to allow her to be released to go and work for Woolworths?
PN631
MR ROGERS: Each of them is a legitimate family responsibility but if a person's circumstances are such that - sorry, perhaps I should go back one step. It is important to bear in mind the status quo difficulty. Assume a different set of facts. Assume that Mr Lamb was not working Fridays or Saturdays but nor was his wife working and he was asked to work Fridays and Saturdays and he was put on rosters that involve Friday and Saturday work. It would be no answer for him to later, when the same roster was brought out for the following 14 days say a year later, say look, I'm sorry, my wife has now taken a job with Woolworths on Fridays and Saturdays, accordingly I can't accept this roster, you're going to have to roster me differently.
PN632
That would be an untenable state of affairs because they in effect, he and his wife in effect would have brought the state of affairs about. But this is the opposite. This is a situation characterised by Mr Lamb having one roster, his wife getting a job, having a different roster and the company changing the parameters of the arrangements. In those circumstances given that Mr Lamb typically on Fridays and Saturdays was at that stage, that is in the middle of this year looking after his children on those days, it is a family responsibility to look after children. As I say they can't change the circumstance to their advantage, but if the company changes it to Mr Lamb's disadvantage the decision has to be reasonable in all the circumstances, that's the proposition. It has an obvious economic consequence, but again assume a different set of facts. My friend made something - and I can deal with this in reply - but made something of the fact that if Mr Lamb gave up work Mr and Mrs Lamb may or may not be financially disadvantaged or he suggested they might not be. That might be challengeable on a few bases. One is that Mr Lamb is in a higher tax bracket than Mrs Lamb. On her earnings in fact she pays no tax as I apprehend.
PN633
THE COMMISSIONER: I doubt I will be delving into that.
PN634
MR ROGERS: Yes, it seems to be an unproductive area of consideration, but assume a different set of facts. Assume that Mr Lamb was only earning $20 a week. It might be said that the disparity between the loss of Mr Lamb giving up two days and the loss to Mrs Lamb of giving up her $20 a week or whatever it may be is such that Mr Lamb could not, to use a term disadvantageous to my argument, take advantage of the situation. But in circumstances where at the very least it is neutral and quite probably to Mr and Mrs Lamb's disadvantage if she gives up work, the intrusion by Bunnings into Mr Lamb's freedom not to work on Fridays and Saturdays is one which in my submission the company is not free to make. But I only conclude by saying this, the evidence of what went on is clear enough. While there are some discrepancies they are not of singular importance.
PN635
If the clause is not to be simply denuded of meaning Bunnings has to do more than simply consider and dismiss a matter, they really do have to weigh it in the balance and come to a reasonable decision, that's the first proposition. The second proposition is the Tribunal is empowered to deal with the matter simply by way of resolution of the dispute, that's the effect of section 739. The form of the order might be a matter of some debate. My friend says the orders sought by the SDA are such that Mr Lamb would have an entitlement to a set roster in perpetuity. That's not right. Anymore than its right to say if Bunnings dismissed Mr Lamb and he obtained an order for reinstatement he would be entitled to be re-employed forever more. Neither proposition is correct.
PN636
The correct proposition is that if there is a finding that the company has acted so unreasonably as to offend clause 10.4.3 the Commission is entitled to make a direction or an order rather that Mr Lamb not be offered a roster involving Friday or Saturday work, save only that if circumstances change, for example if Mrs Lamb gives up work, if the operational requirements of the company change in a way that has not been demonstrated by their evidence today, the company would be entitled to provide such a roster to Mr Lamb. Logically it should come back and seek leave of the Tribunal before it does so, rather than have the parties jumping backwards and forwards but there is no inhibition upon the Tribunal making an order to settle a dispute, that would be a proper order in my submission.
PN637
THE COMMISSIONER: Mr Rogers, this matter was filed on 10 September this year. It's been through two conciliations and now an arbitration hearing. In that time what has been happening with Mr Lamb, it's of some intrigue to me.
PN638
MR ROGERS: I am instructed, and my friend presumably has the same instructions, that Mr Lamb simply has not worked on the - has taken leave without pay on the Fridays and Saturdays on the four that he has been rostered to work upon. I don't know what's happened beyond that.
PN639
THE COMMISSIONER: So Mr Lamb has - by extension Mr Lamb has adopted a three day working week?
PN640
MR ROGERS: Apparently, yes. Sorry, no, because it's only four weeks out of 12. He's not adopted the part time - - -
PN641
THE COMMISSIONER: On those weeks in which he is required by the company to work Fridays and Saturdays he has adopted a three day working week. I just wondered what had been going on over the effluxion of time.
PN642
MR ROGERS: If it please the Tribunal.
PN643
THE COMMISSIONER: Thank you.
PN644
MR DERAMS: Could I start, Commissioner, but putting the context back into the dispute. The dispute relates about the rosters which were set back in July. A lot of the evidence and a lot of my friend's time was spent today in exploring evidence which on the applicant's own evidence and that of his wife was never put to the employer at the time that it was considering the changing rosters. That's back in July. In cross-examination I explore with Mr Lamb what he told Mr Eastman originally and it was pretty short. I've got family responsibilities. He then again in the meeting in June repeated or reiterated without exploring or expanding on any of the information which we now get by way of additional evidence and it's in that context in which the rosters themselves were set in July, and that's what has been challenged in this.
PN645
Now, could I also just take it back to the actual dispute issue, and we do take issue in our submission as to what is actually at issue here and that is clearly articulated in their ground 4J. And what is at dispute here is the challenge to the rosters which had been set, as I reiterated, in April, and the issue is that the employer failed to have proper regard to the family responsibilities of the applicant. We have said this in our written submissions, if ultimately the Tribunal came to the view that that actually was - that is the employer had failed to have regard, the only we submit option open would be to go back and have some order or recommendation that they take this into account. We say you don't even get to that stage ultimately because - - -
PN646
THE COMMISSIONER: If you're wondering what you might get for Christmas I suspect it might be Mr Rogers' cough.
PN647
MR DERAMS: Mr Rogers has taken the Tribunal to the relevant sections of the agreement but we would also highlight, Commissioner, the other parts of the agreement which also all bear upon the proper construction of which we submit is of the agreement and they include the objectives of the agreement itself and that's in clause 4.1.1. One sees there that the objective agreement to enable Bunnings to establish and maintain a vital level of customer service, facilities and overall customer service. Now, Mr Randell gave evidence, Mr Eastman not that he was cross-examined, it's in his statement about the desire and the need of the organisation to provide a certain level of customers. The starting point of that obviously was put as a complaint that the approach by the other member of the team, Mr Green, who was at Bunnings permanently working - when I say that constantly working Fridays and Saturdays, indicated look, I need some help.
PN648
That then - the factual scenario that then resulted in Mr Eastman approaching the other members of the team, the other three persons who would have the relevant skills to assist on that date who weren't otherwise working Fridays and Saturdays, Mr Lamb, Mr Stewart and Mr Ward. None of them were prepared to change their roster, each of them gave similar answers or reasons why, that is their family responsibilities. Again when the employer met and spoke with them at the end of May they gave similar answers again, and the decision was made to treat the three of them fairly in relation to the roster they would ultimately set. Bearing in mind there has been no real attack, in my respectful submission, on the primary issue about the employer desiring to have someone assist Mr Green and have the appropriate skills available and rostered on Fridays and Saturdays.
PN649
Before I move from clause 4 I also highlight to the Tribunal clause 4.1.2. Again an objective is to increase customer service arrangements. One sees in that there, "Utilisation of the members' skills significantly more flexible arrangement with respect to warehouse team members time." 4.1.5, "To ensure equitable terms and conditions of employment apply to all team members at Bunnings warehouse." The evidence of the respondent was that they had regard to these matters when they were setting the roster back in July. If one then goes to clause 10.4.1 I don't think there is any dispute between the parties as to the proper principles to apply in interpreting the agreement. All of the clauses need to be read in the context of the agreement as a whole. But it's apparent when one sees what is set out in clause 10.4.4 that whilst some regard will have to be had to the matters identified in 10.4.3 ultimately it's the - and it couldn't be in any clearer terms, we say, that management prerogative to roster in respect to the operational requirements trumps those other matters.
PN650
That is not to say that - and we set out in our submissions various different ways which in construing statutes, and that's the Mann's case, Commissioner, in our written submissions. There are various different ways in which one might have regard to - sorry, how one might construe, have regard to and as the cases identify and acknowledge they go from everything from having all have to have weight in the decision down to, as long as you consider them you can give them no weight at all, down to as long as they pulled into your mind that's it effectively, but it obviously needs to be read into the context. It's clear in my respectful submission by the word - the terms that are used by the parties and there has been no evidence of any other sort of - of the discussions or the negotiations to the extent that any of that material would ultimately be relevant to the construction of this agreement that nothing in the clause, and that must be read as referring to an employee's family responsibilities or other commitments, safe transport, all those, nothing in those clauses concludes that if a decision was made on operational requirements nothing would prevent the employer rostering in that regard.
PN651
So whilst the clause provides for that, there is a limitation as to what sort of particular weight we say regard - or weight must be given to all of those factors. The facts of this case demonstrate that - and on the evidence of the applicant and his wife, all that the respondent have at the relevant time about the commitments about the three particular members, they were all at the same level. That is they all had family reasons not to or why they didn't wish to participate in the roster. Two of the members said look, we accept that look, we accept that as long as it's fair to all of us and the employer did that and came up with the roster which gave some certainty but gave them some period of time within which to adjust to the rotating nature of the roster so that they all would be treated equally in the context of being asked to work on Fridays and Saturdays. Furthermore Mr Lamb himself was rostered last in the chain so to speak.
PN652
We say that that Tribunal when it assesses the evidence will, on what was known by the employer at that particular time, be comfortably satisfied that it, that is the employer, complied with the obligations under the agreement in respect to setting the roster. In our respectful submission most of the evidence that has come subsequently, and there is a degree of weight which the latter evidence, particularly the evidence given from the witness box which wasn't put in witness statements the Tribunal would have regard to, but all that would ultimately go to in my respectful submission would be that there might be additional evidence now or additional circumstances that might invite all the changed circumstances about the - bearing in mind the change to three days which appears to be - although my friend didn't make any point of it, the employer is still not in any position as to what the primary position of Mr Lamb is.
PN653
But all of that in my respectful submission sets it back to the position of saying to the employer, well here are some circumstances, will you take these into account? But it doesn't change the fact that it complied with its obligations in respect of setting the roster and the fact that Mr Lamb has chosen not to work that roster. Now, just in relation to those family responsibilities, there's a couple of points we make. It seemed in my respectful submission to be that the real issue here wasn't family caring but it was to protect the role of Mrs Lamb at her employer. In one sense what Mr Lamb seeks here is to invert the role of another employer, his wife, at another employer or the responsibilities or the requirements of another employer instead of his particular role with Bunnings, with this employer. Now, there is no reason why or no need why this employer has to have any regard to the circumstances of another employer in that respect and no Tribunal ought ask any employer do that.
PN654
Now, when - it was clear from Mrs - and I have made this point before but I will make it one more time (indistinct), it was clear when Mrs Lamb was cross-examined that all of these particular matters which they now say, and notice that particular issues about finding care or the ability to find alternative care, all of those matters came some time well after the decision itself had been made in relation to the rosters. Mr Rogers made the point that it might be a different scenario if in fact there had been some set rosters in relation to - and this is addressing one of your questions, some set rosters in relation to Mrs Lamb's employment. We just note that that Mrs Lamb herself was a casual employee and it's only in the context of this proceeding that she now gives some evidence today about some part time - permanent part time role. But (indistinct) she didn't have a roster herself and wouldn’t have a roster herself, we would submit, until her new part time role commences.
PN655
But in any event Mr Lamb himself was subject to this agreement before Mrs Lamb commenced her role, this agreement being made - the order was made 24 March 2011. So before Mrs Lamb commenced employment in any event, and the agreement - the terms of the agreement providing that the rosters in clause 10.2 - sorry 10.4.4, acknowledgement by the employee subject to change on an ongoing basis. So it's in that context that there was an expectation irrespective of whether Mr Lamb had not previously worked Saturdays and Fridays, and one might observe in that regard that it's probably the reasons of Mr Green there's no reason to suggest that perhaps the only reason this change in roster didn't occur sooner was because Mr Green himself didn't speak up sooner. But in any event that resulted in the change to the rosters. We have set out in our written submissions the other matters.
PN656
THE COMMISSIONER: Will you be long?
PN657
MR DERAMS: No.
PN658
THE COMMISSIONER: Will you be long in reply?
PN659
MR ROGERS: No.
PN660
THE COMMISSIONER: Do you both prefer to press on?
PN661
MR DERAMS: Yes, yes.
PN662
THE COMMISSIONER: Okay, we'll press on.
PN663
MR DERAMS: I won't repeat what is set out in the written submissions but I want to draw the Commission's attention to the restriction on the actual orders that are sought by Mr Lamb. We have addressed our submissions and directed our submissions to principally this. The actual nature of the dispute which this Tribunal has to deal with, and that's the one I took the Commission to to begin with, and the second thing is the orders which are sought in settlement of that dispute. We don't accept Mr Rogers' proposition that making the orders which are sought by Mr Lamb wouldn't involve or wouldn't be prevented by sub-section 5 in section 739, because in effect that is what Mr Lamb is ultimately seeking, that is some set or standard roster in relation to his work and we say that that - the Commission being asked to do that would contravene clause 10.4.4 of the agreement and that would then result in a - well, it's an order that's prohibited under sub-section 5 of the relevant section. Other than that we are content to rely upon our written submissions in relation to the matters in dispute and ultimately say the appropriate order is to dismiss the application as the application was formulated.
PN664
THE COMMISSIONER: Thank you, sir. Mr Rogers in reply?
PN665
MR ROGERS: In relation to the question of the capacity of the Tribunal to deal with the matter by making an order, the highest in my submission that my friend can put it is to say that if an order that Mr Lamb not be offered rosters involving Friday or Saturday work is thought to give him an entitlement in perpetuity then the Tribunal would be entitled to make an order that the next roster offered to Mr Lamb not contain such a provision. Rosters under clause 10.4.1 are offered 14 days in advance and one can also conceive that a change in circumstance which would entitle the employer to change the roster such as to include Friday or Saturday work. One assumes that the employer would act in good faith and if there were not a change in circumstance would not do so. But in my submission we forwarded to my friend's instructors yesterday a form of order which we would be seeking but I don't think it's found it's way to yourself, Commissioner.
PN666
THE COMMISSIONER: Yes, it has found its way to me but is it attached to another document?
PN667
MR DERAMS: It was annexure A to submissions. The one that's been amended you do not have.
PN668
THE COMMISSIONER: That would explain it.
PN669
MR ROGERS: I will email it to the Commission. Apparently we don't have it with us in hard form.
PN670
THE COMMISSIONER: Have they seen it?
PN671
MR DERAMS: No, we haven't seen it.
PN672
THE COMMISSIONER: That won't be quite good enough.
PN673
MR ROGERS: It was sent yesterday wasn't it? I misunderstood. I withdraw that.
PN674
THE COMMISSIONER: Sorry, now I am confused.
PN675
MR ROGERS: The order as sought - the order which we seek is in substance, perhaps what I'll need to do unless the Tribunal is going to give an ex tempore judgement is forward the draft order to my friends and then by leave forward to the Tribunal.
PN676
THE COMMISSIONER: He says that he's going to, not that he has.
PN677
MR ROGERS: Yes, I had thought it had been done, I misunderstood. The draft order in substance says that Mr Lamb ought not be offered any roster which involves Friday or Saturday or cannot be offered any roster which involves Friday or Saturday work, save that if there was a change in circumstance the employer has liberty to have the matter re-listed for variation of the order.
PN678
THE COMMISSIONER: That is at its nub, isn't it, you want an order that Bunnings will not roster him on Fridays or Saturdays.
PN679
MR ROGERS: Yes.
PN680
THE COMMISSIONER: Subsequent to a finding that they haven't consulted or paid regard to his circumstances sufficiently or fairly. Which brings me to the question, can I make such an order pursuant to 739 if I only make a determination in relation to the application of the agreement?
PN681
MR ROGERS: Section 739 says that there cannot be an order made that is inconsistent with the agreement, that's section 739(5). The agreement - - -
PN682
THE COMMISSIONER: It doesn't say an order, it says a decision.
PN683
MR ROGERS: I have read - well - - -
PN684
THE COMMISSIONER: There is some conflict within the Tribunal about this, but I have taken the view that I am not empowered to issue orders pursuant to section 739 which require action by one side or the other. What I am empowered to do is determine the proper application of the agreement and then hopefully almost the same thing happens, logically one side has to do something. But if they fail to follow a course of action set out in my determination then I do not believe that I have a power to order them to do so, they would have to seek relief somewhere else. Of course I'll hear you as well, Mr Derams, on this point if you wish to (indistinct).
PN685
MR ROGERS: I must say not a matter to which I turned my attention, save only that the resolution of disputes - - -
PN686
THE COMMISSIONER: No orders.
PN687
MR ROGERS: In the nature of arbitration must involve orders.
PN688
THE COMMISSIONER: No, it can involve a determination of what should have occurred or should occur. I realise it's - - -
PN689
MR ROGERS: I don't want to get into debates, but that would be almost exercising judicial power.
PN690
THE COMMISSIONER: I've just explained that, that I can say whether a provision of the agreement was properly applied or not and in giving my reasons for why it was or it was not, then certain actions would logically flow. But I cannot make an order that a party do some particular action. I can't make an order pursuant to section 739 as I understand the position.
PN691
MR ROGERS: I am simply not able to address you on that question, and I say it with the greatest caution, but could I have leave to simply file a short submission about that if I come to a view, I'll have a look at the question over the weekend, different to that of the Commission. Manifestly it won't be (indistinct).
PN692
THE COMMISSIONER: I will consider that application. I will hear from Mr Derams if he wants to say something on that particular point. The powers under 739.
PN693
MR DERAMS: I am in a little bit of a position, I was sitting there thinking about whether there is a decision in the LW sphere about what could or couldn’t - - -
PN694
THE COMMISSIONER: LW and 739 are basically the same beast, they are enlivened by the agreement.
PN695
MR DERAMS: Correct. That's exactly right. I have something in the back of my mind of there being something along what you are saying now in respect of an LW decision but I can't for the life of me at the moment - - -
PN696
THE COMMISSIONER: I can't remember whether there were orders on LW.
PN697
MR DERAMS: No.
PN698
THE COMMISSIONER: I don't think there were, and then of course there was section 709 which is the predecessor section to 739. Look, I could be horribly wrong but that's the way I've always proceeded under 709 and 739.
PN699
MR DERAMS: Yes, I'm sorry I can't be of more assistance in that regard.
PN700
THE COMMISSIONER: But do not let it tax you too much, Mr Rogers, because I will make a determination in any event and subject to appeal rights I'm quite certain that the employer if I made a determination against them would carry out what I decided. They're not hopping up to say yes but I'm just presuming they will.
PN701
MR ROGERS: I am content to work on that assumption. If a decision were delivered, if what amounted to reasons for a view were delivered and became clear on one view or another that orders could in fact emanate, one way of dealing with the matter would simply be for us to advise the other side that we would be seeking to get the matter re-listed and explain why orders could emanate.
PN702
THE COMMISSIONER: Yes.
PN703
MR ROGERS: It may be an arid argument at the moment.
PN704
THE COMMISSIONER: It would be your best way to approach it, but I thought I should warn you when you started talking about the draft orders. Go back to where you were.
PN705
MR ROGERS: The only other matters I raise by way of reply is firstly my friend says matters which have now been ventilated were not known to the employer as of July or June this year. That misapprehends, in my respectful submission, the onus which is thrown upon the employer in clause 10.4. The employer in setting rosters doesn’t simply have to have regard to what it thinks it knows, it has to have express regard for family responsibilities, that is it has to actively seek the information. The employee of course could not refuse to give the information, but in circumstances whereas here Mr Lamb has said I cannot do this, I have family responsibilities and in the evidence of I think it's Mr Eastman it is said he left the room and said, look there is no point in me discussing this any further, I cannot do it. The employer cannot simply say, well we didn't have enough further information to come to a view, they knew that he had family responsibilities or asserted that he did. He knew he said as a matter of certainty that he was unable to comply with the roster. The employer cannot say now, well we simply didn't know enough to come to a rational and reasonable view such as we would say in light of the evidence as its emerged. That is to simply put the obligation to have regard to family responsibilities lower than it is already suggested by Bunnings, it puts it at nothing.
PN706
THE COMMISSIONER: You say all the cards are on the table, it's your position is it not that - putting it very crudely - if Bunnings fronted Mr Lamb and said, we want you to work some Fridays and Saturdays. Mr Lamb's response - total response and I think you say total answer to this would be, sorry I can't, I've got two kids, my wife works Saturdays - Fridays and Saturdays.
PN707
MR ROGERS: Yes.
PN708
THE COMMISSIONER: Therefore, I can't work for you on Fridays and Saturdays, and you say that that activates 10.4.3 from memory.
PN709
MR ROGERS: Yes.
PN710
THE COMMISSIONER: And acts as a bar to Bunnings being able to insist that Mr Lamb work those days.
PN711
MR ROGERS: Well, subject to this - - -
PN712
THE COMMISSIONER: Is there anything wrong with that sentence?
PN713
MR ROGERS: Yes, it simplifies my argument but my argument is not quite as bold as that. It is subject to this, firstly it is subject to Mr Lamb being truthful in what he says. Secondly, it is subject to Mr Lamb's attitude as to his wife's availability and the like being reasonable. If, for example, his wife were able to reorganise her affairs such as to obtain the same amount of work on different days and be available on Fridays and Saturdays to look after their children - - -
PN714
THE COMMISSIONER: We only have her word for it, I'm not denigrating her word, but it's a requirement that she work those days.
PN715
MR ROGERS: Yes, we do, but it's her sworn word.
PN716
THE COMMISSIONER: We have those two competing imperatives, don't we?
PN717
MR ROGERS: Being which?
PN718
THE COMMISSIONER: Being she cannot not work, therefore he cannot work.
PN719
MR ROGERS: It's clear enough - sorry, on our case, and we say this is what the Tribunal - - -
PN720
THE COMMISSIONER: The children are almost corollary considerations.
PN721
MR ROGERS: No, if the children were living elsewhere the issue doesn't arise. They are at the heart of the matter. You see in a funny sort of way the matter - the way my friend constructs it the matter gets sidetracked. Assume a different set of facts, assume instead of the children just simply having to be looked after, but in fact Mr and Mrs Lamb were utterly on the breadline and one of the children had cystic fibrosis or some other condition that required 24 hour care and they were doing it in turns. It could never be reasonable for the employer to say, well we're going to re-roster you so that your wife who looks after the children all the time now does it seven days a week. It could never be reasonable. That means either the clause doesn't operate at all, other than as I've described it as window dressing or ornamentation or it has a real meaning which requires a balanced view to be struck by the employer - - -
PN722
THE COMMISSIONER: In the magic words of Jim Murdoch SC, is the clause prescriptive or hortatory, that's what it comes down to.
PN723
MR ROGERS: Yes, in my respectful submission to give it the work my friend gives it is to give it no work at all. It is simply a proposition of vague will.
PN724
THE COMMISSIONER: I don't think he said exactly that.
PN725
MR ROGERS: No, they are my words. But that's the effect of it. In my respectful submission one would not assume from the way in which the clause has been drafted, one would not assume that the parties intended simply to give comfort to employees on the as it turns out perhaps vain assumption the employer would - - -
PN726
THE COMMISSIONER: What would you say would happen, Mr Rogers, if the company fell into line with the wishes of Mr Lamb and no longer roster him on Fridays and Saturdays and then Woolworths came to Mrs Lamb and said, things have changed in Lismore or wherever, we now must have you on Tuesdays and Wednesdays, and the children needed minding on those days, would Mr Lamb then have a right to demand that he not work Tuesday, Wednesday?
PN727
MR ROGERS: No, he wouldn't because it would not have been Bunnings that had actuated the difficulty, he can't demand the change in roster.
PN728
THE COMMISSIONER: That's true.
PN729
MR ROGERS: Underpinning all this, of course, is the evidence of Mr Randell who as clearly as one could do so acknowledged that Mr Lamb's presence on Fridays and Saturdays was not crucial to operational requirements. He didn't like saying it but that was the effect of the evidence. In those circumstances even if you put my friend's case at its highest the employer still doesn't get there for want of a better term. They are my submissions, Commissioner.
PN730
THE COMMISSIONER: You are the applicant, it's you case that's got to - - -
PN731
MR ROGERS: Yes, I know, I have (indistinct).
PN732
THE COMMISSIONER: Jump over little hurdles that there are. Are you finished?
PN733
MR ROGERS: Yes, they are the submissions.
PN734
THE COMMISSIONER: I do thank the parties for not dragging out a matter that I think could have been dragged out all day. I reserve my decision. I recognise there is some element of urgency in this and I will attempt to give it priority over the new year period and get it out for you.
PN735
MR ROGERS: Thank you, Commissioner.
PN736
THE COMMISSIONER: In terms of getting it out quickly, the parties looking for - I can never issue a learned decisions, long decisions, or do you wish a brief decision issued as quickly as possible?
PN737
MR ROGERS: As long as there are reasons I don't much mind whether it's long or short, but there would have to be reasons because otherwise if either of us are dissatisfied with the result we don't know what to do about it.
PN738
THE COMMISSIONER: We're headed for the long one, that's quite okay, I'll give the dictaphone a workout. I am reserved and adjourned.
<ADJOURNED INDEFINITELY [1.21PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #SDA1 APPLICANT'S OUTLINE OF SUBMISSIONS PN142
EXHIBIT #BUNNINGS1 OUTLINE OF RESPONDENT'S SUBMISSIONS PN17
JEFFREY LAMB, SWORN PN45
EXAMINATION-IN-CHIEF BY MR ROGERS PN45
EXHIBIT #SDA2 WITNESS STATEMENT OF JEFFREY LAMB PN65
CROSS-EXAMINATION BY MR DERAMS PN88
RE-EXAMINATION BY MR ROGERS PN206
THE WITNESS WITHDREW PN212
RENEE LAMB, AFFIRMED PN216
EXAMINATION-IN-CHIEF BY MR ROGERS PN216
THE WITNESS WITHDREW PN239
EXHIBIT #SDA3 WITNESS STATEMENT OF RENEE LAMB PN245
RENEE LAMB, RECALLED PN247
CROSS-EXAMINATION BY MR DERAMS PN247
THE WITNESS WITHDREW PN397
WILLIAM SMITH, SWORN PN400
EXAMINATION-IN-CHIEF BY MR ROGERS PN400
EXHIBIT #SDA4 WITNESS STATEMENT OF WILLIAM SMITH PN411
CROSS-EXAMINATION BY MR DERAMS PN420
THE WITNESS WITHDREW PN429
EXHIBIT #SDA5 WITNESS STATEMENT OF BRIAN LAMB SENIOR PN432
CHRISTOPHER MARK RANDELL, SWORN PN443
EXAMINATION-IN-CHIEF BY MR DERAMS PN449
EXHIBIT #BUNNINGS2 WITNESS STATEMENT OF CHRISTOPHER RANDELL, DATED 18/12/2012 PN459
EXHIBIT #BUNNINGS3 SUPPLEMENTARY WITNESS STATEMENT OF CHRISTOPHER RANDELL, DATED 21/12/2012 PN465
CROSS-EXAMINATION BY MR ROGERS PN466
THE WITNESS WITHDREW PN527
DAUNE HOARE, AFFIRMED PN530
EXAMINATION-IN-CHIEF BY MR DERAMS PN530
EXHIBIT #BUNNINGS4 WITNESS STATEMENT OF DAUNE HOARE PN537
CROSS-EXAMINATION BY MR ROGERS PN538
RE-EXAMINATION BY MR DERAMS PN547
THE WITNESS WITHDREW PN554
EXHIBIT #BUNNINGS5 WITNESS STATEMENT OF NOEL EASTMAN PN562
STEVEN STEWART, SWORN PN572
EXAMINATION-IN-CHIEF BY MR DERAMS PN572
EXHIBIT #BUNNINGS6 WITNESS STATEMENT OF STEVEN STEWART, DATED 18/12/2012 PN578
CROSS-EXAMINATION BY MR ROGERS PN579
THE WITNESS WITHDREW PN586
EXHIBIT #BUNNINGS7 WOOLWORTHS PAY RECORDS PN589
EXHIBIT #BUNNINGS8 BUNNINGS PAY RECORDS FOR JEFF LAMB PN594
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