Home
| Databases
| WorldLII
| Search
| Feedback
Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1050637-1
COMMISSIONER BULL
B2014/1057
s.437 - Application for a protected action ballot order
National Union of Workers
and
Phillip Leong Stores Pty. Ltd.
(B2014/1057)
Sydney
2.18PM, MONDAY, 15 SEPTEMBER 2014
PN1
THE COMMISSIONER: All right, then. We will just take appearances, thank you.
PN2
MR S. MUELLER: If it pleases the company, Mueller, initial S. I appear for the National Union of Workers. With me is MS M. BERNARDI, she's also an NUW organiser.
PN3
THE COMMISSIONER: All right. Thank you, Mr Mueller.
PN4
MR J. JOLLY: Thank you, Commissioner. My name is Jolly, initial G. I seek permission to appear on behalf of the respondent to the application, Phillip Leong Stores Pty Ltd. With me is MS J. MIDDLEBY-CLEMENTS from my office. If the commission pleases.
PN5
THE COMMISSIONER: All right. Thank you. Mr Mueller, what do you say about that?
PN6
MR MUELLER: I've got no objections to Mr Jolly appearing for the respondent.
PN7
THE COMMISSIONER: All right. Thank you, Mr Mueller. Based on the apparent complexities involved in this application, leave is granted, Mr Jolly.
PN8
MR JOLLY: Thank you, Commissioner.
PN9
THE COMMISSIONER: Mr Mueller, what do you want to do?
PN10
MR MUELLER: Thank you, Commissioner. I think it's clear that the only objection taken by the respondent employer is on the basis that the NUW has not genuinely tried to reach an agreement with the respondent employer, and that submission is based on: (a) the quantum of some claims; and (b) the conduct of the bargaining representative, which is the NUW, in representation by Mr Nero and Ms Bernardi during the actual course of bargaining.
PN11
I think if the tribunal is minded to agree to that course, I would deal with the preliminary matters as to the requirements for a bargaining order to be made: that is that the NUW is a bargaining representative; that there's no dispute that the application clearly specifies the group - the group of employees that are to be balloted; and the questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action; there can be no dispute that the nominal expiry date of the previous agreement has passed; and the NUW served a copy of the application on the employer and the Australian Electoral Commission as the nominated ballot agent.
PN12
We have received the submissions and a statement filed in these proceedings. On the basis of these, I call Mr James Nero, who's here with us today. And I would seek, in addition to the evidence that we filed, try to address a few additional matters. It will be short. And my friend has then a chance to put any questions he might have to the witness, Mr Nero. If it pleases.
PN13
THE COMMISSIONER: Yes, that's fine. Thank you.
PN14
THE ASSOCIATE: Please state your full name and address.
MR NERO: Yes. It's James Nero, and the address is (address supplied).
<JAMES NERO, SWORN [2.22PM]
<EXAMINATION-IN-CHIEF BY MR MUELLER [2.22PM]
MR MUELLER: Mr Nero, your working address is 3-5 Bridge Street in Granville. Correct?---That's correct.
PN17
And you're employed as an organiser with the NUW. Correct?---That's correct.
PN18
And you've prepared two statements for these proceedings, and I understand you have copies of these with you. One is dated 9 September
2014. Do you see this?
---Yes, I do, yes.
PN19
And the second statement has today's date, 15 September?---That's correct.
PN20
Do you say that these statements are true and correct - - - ?---I do.
PN21
- - - to the best of your recollection?---Yes, I do.
PN22
I tender those two statements.
THE COMMISSIONER: All right. We will mark the statement of James Nero; the one of 9 September as A1, and the one of 15 September as A2.
EXHIBIT #A1 WITNESS STATEMENT OF JAMES NERO DATED 09/09/2014
EXHIBIT #A2 WITNESS STATEMENT OF JAMES NERO DATED 15/09/2014
PN24
MR MUELLER: I would like to hand up a log of claims to you, Commissioner.
PN25
**** JAMES NERO XN MR MUELLER
I understand, Mr Nero, you have a copy of (indistinct) do you recognise this document, Mr Nero?---Yes, I do.
PN26
This is the log of claims you refer to at paragraph 5 of your first witness statement, which is A1?---That's correct.
PN27
I tender that log of claims.
THE COMMISSIONER: We will mark the log of claims. Mark the NUW log of claims made against the Sydney Liquor Distribution Centre site as A3. That's dated 21 July.
EXHIBIT #A3 NUW LOG OF CLAIMS AGAINST SYDNEY LIQUOR DISTRIBUTION CENTRE DATED 21/07/
PN29
MR MUELLER: During the negotiations I understand you attended - and that's at paragraph 7 of your first statement - six - there were six meetings, and there was a seventh last Friday. Is that correct? It's paragraph 7 of your first statement?---Yes. I'm just reading through them now. I can't remember exactly. There was one meeting that I didn't attend, but Mr Meaney attended. I can't remember which one that was, but those dates were all attended by the NUW. But I can't remember, I did - I do apologise - there was one meeting that I wasn't in attendance at.
PN30
And you spoke to - who's Mr Meaney?---Mr Meaney is the assistant secretary of the union.
PN31
And you spoke to him about that meeting?---He rang me straightaway after it, yes.
PN32
And reported what happened?---He did, yes.
**** JAMES NERO XN MR MUELLER
PN33
If you look at the log of claims, did you make any concessions to that log of claims during the negotiation?---During the negotiations, yes. There were a number of things that weren't pressed forward once the company basically gave their responses as to Nos. I'm happy to run through the claim if that suits.
PN34
Yes?---Okay. There were no real contentions around the 1 and 2, we worked through those issues. Point 3 on our log of claims where it talks about wages and allowances of 6 per cent per annum for a two-year agreement, during negotiations we did, after meeting with the members a fortnight ago - could have been a little bit more - that we've agreed to take that down to 5 per cent; and also the company's request for a three-year deal, as opposed to the two. On point 4, the mandatory consultation and flexibility, we still need to go into wording, but there are no real contentions around that. Number 5, again there was agreement about that for the negotiations for a replacement agreement. Clause 6, where it talks about requiring the company to offer permanent employment to casual employees after six months, it's just a matter of employment, the company objected to that and we didn't press any further. I can't remember exactly what meeting it was, but it was quite some time ago. That claim was never pressed forward from there. Number 7, a clause requiring you only use (indistinct) in accordance with the proposed agreement, that claim remains on foot, but the six-month (indistinct) systematic employment to offer permanent - employment, sorry, that there was never pressed forward since the company said that that was never part of a MAU, so the company said that, no, they wouldn't go for that. So we never pressed forward on the six-month conversion. Number 8, again the company first spoke about that and we thought it was all tidied up with - it would get tidied up with 7, and never pressed forward on clause number 8 - sorry, claim number 8. Claim number 9, there were never any contentions around that between ourselves and the company and the company agreed. We've just had to work out some wording around that. Claim 10, a clause providing a percentage of casual and contract employees don't exceed 20 per cent of the permanent workforce. The company said that the way the liquor distribution centres are run, that 80:20 just wasn't possible and would prefer the 70:30 ratio, and that's why the movement from us to agree to a 70:30 rather than an 80:20, because the fluctuations in work, but the company went into some detail to explain that to us. Claim 11, union definition clauses, there was never any contention around that; it was just a matter of where that was going to go. Claim 12, rest pauses: part (a) of that, the company said "no way" to that. There was a massive increase in the cost and we backed away from that claim; (b), there was an agreement on that; and also (c), we had agreement on that. Claim 13, annual leave: annual leave is to be responded to within seven days. The company said that wouldn't go into an agreement and we didn't press any further on that. And (b) and (c), I believe we had agreement and we're just working out some wording. Claim 14, public holidays clause, we had agreement on that from the company. Claim 15, there has been no agreement on that. The company said no and we haven't pressed that issue any further.
**** JAMES NERO XN MR MUELLER
PN35
You have not, sorry?---No, we have not, no. Claim 16, number 1, to adjust or allow progression to level 2, that claim has maintained, and we still maintain that claim. We haven't come to an agreement on that as yet. Claim 17, sick leave to increase to 10 days per year. The company said no on that and we haven't pressed that issue any further. We've accepted the hours rather than the days, so we backed away from that claim; and (b) no documentation for all single day absences, we have done some negotiating around that point. We've met, sort of, half way. We haven't got all single days without a certificate, but we did get some improvement on that, so we withdrew that claim but accepted the negotiation point that we came up with. Claim 18, 10-minute wash-up time to be included. The company was quite adamant no way on that, and we again backed away from that claim and haven't pressed any further. Claim 19, cleaning to be a storeperson's function, except toilets. We've had some confusion around the answer on that. I still really don't know the answer. Hoping to get some sort of clarity from that. Claim 20, "Redundancy provisions," agree with the wordings and wording on that. So there's no real contentions there. 21, "Vacancies. All jobs on site to be advertised internally". Again, we still need to talk a little bit more around that. We haven't just agreed on the exact outcome of the wordings on that. Claim 22, "10-hour shifts to be paid at double time from commencement of overtime." The company said, "No," quite adamantly on that, and we haven't pressed that any further. Claim 23, "Casuals to have first preference for permanent jobs," and that sort of flows into 24 where it says, "Casuals have the option to become company casuals." Again on the first point in 23, the company said that we'll talk a little bit more around that. We haven't come to any conclusions on that one, but on 24 they did say that they just would not be employing from agencies to casuals at this stage and we haven't pressed that any further. Claim 25 for checker forklift and loader allowance, the company explained and we understood that they had a multi-purpose rate on site. They said they would be paying no allowance for any of those functions. We backed away from that claim. 26, "Days in lieu be paid out on request." We got agreement on that. Claim 27, "Ability to bank five RDOs." We have agreement on that. Claim 28, "Casuals to be paid overtime after eight hours per day," we have no agreement on that and we haven't pressed that any further and the company said, "No," on that point.
**** JAMES NERO XN MR MUELLER
PN36
Are there any further meetings planned, negotiation meetings?---Not at this stage. We did meet last Friday. The company, Shauna gave me a call. I'm just trying to think, it was last Wednesday, to see if we could meet at the earliest convenience. I said to her I had the Friday and the Monday available and we booked in last Friday. We said we would meet again, did they want to meet, and they said they would get back to us on that point. I didn't insist that we did want to keep meeting but, yes.
PN37
Have you had the chance to see the submissions filed by the respondent in this matter?---I did have a look, yes.
PN38
Are you aware that the company states or - the submissions are made on behalf of the respondent that you did not - the NUW did not make any concessions about the substantive claims or abandon any of their log of claims, with one possible exception that the NUW reduced its wage (indistinct) to 5 per cent - - -
PN39
THE COMMISSIONER: (indistinct)
PN40
MR MUELLER: If the witness could be shown the outline of submissions.
PN41
MR JOLLY: It's leading and, your Honour, it's just not appropriate.
PN42
MR MUELLER: Sorry.
PN43
MR JOLLY: Commissioner, it's not appropriate for the witness to be shown the submissions and to be asked whether matters on submissions are correct or otherwise. It is, in any event, quite leading.
PN44
THE COMMISSIONER: Fair enough. You don't need to show him the submissions, but broadly speaking though, Mr Mueller, you say that - well, the company are alleging that there have been no concessions made, so what questions do you want to ask, the witness has already gone through and purportedly said there has been a number of concessions.
**** JAMES NERO XN MR MUELLER
PN45
MR MUELLER: I think - did you make only one concession about the substantive claims being put forward?
PN46
MR JOLLY: Again, this is leading. Yes or no - - -
PN47
MR MUELLER: How many - - -
PN48
THE COMMISSIONER: Help me, Mr Mueller. I don't know what others (indistinct) you've got 28 there, what's the substantial claim, what's the definition of that?
PN49
MR MUELLER: I don't know.
PN50
THE COMMISSIONER: You don't know either.
PN51
MR MUELLER: It's the main argument why the company believes we shouldn't go forward and get (indistinct)
PN52
THE COMMISSIONER: If you don't know the answer, that's fine, but you can't expect the witness to know the answer then, can you?
PN53
MR MUELLER: I won't press that question. I think it's been answered. I have got no further questions.
PN54
THE COMMISSIONER: All right, thank you. Before you ask - I take it you've got some cross-examination, Mr Jolly.
PN55
MR JOLLY: Yes, I do, Commissioner, thank you.
PN56
THE COMMISSIONER: Before you do that, Mr Nero, you say that you reduced your claim in terms of the wages, which I assume is one of the substantial claims. Has there been an offer put to you in terms of wages?---There has, Commissioner, yes.
**** JAMES NERO XN MR MUELLER
PN57
That's what?---That is 3.8 per cent. There's two offers I should say, so there was an offer (a) and an offer (b) at the very last - second-last negotiations I probably should say. One was for 3.8 and one was for 3.6 and they had certain conditions on that for those two different offers.
All right, thank you. Yes, Mr Jolly.
<CROSS-EXAMINATION BY MR JOLLY [2.36PM]
PN59
MR JOLLY: Thank you, Commissioner.
PN60
Mr Nero, you're an experienced union organiser?---Yes.
PN61
In addition to being a union organiser, you used to work at Woolworths, didn't you?---That's correct.
PN62
You worked as a storeperson at Woolworths?---That's correct.
PN63
For approximately 10 years?---Around that, yes.
PN64
You have been organising at the Sydney liquor distribution centre for approximately 12 months?---Give or take, that's correct.
PN65
Mr Nero, you would be aware that there are a significant number of casual employees at the Sydney liquor centre engaged by labour hire agencies?---Yes.
PN66
They're not employees of Woolworths?---That's correct.
PN67
Just to simplify the cross-examination I'll refer to them as agency casuals - - -?
---Sure.
**** JAMES NERO XXN MR JOLLY
PN68
- - - from this point onwards. Now, you would also be aware that most of the agency casuals are level 1. Is that correct?---Yes.
PN69
You would also be aware that there are no employees of the company, that is, Phillip Leong, who are level 1?---I became aware of that during the negotiations, that's correct, yes.
PN70
You have got no reason to doubt that that's correct?---No.
PN71
You met with your members on a number of occasions during the course of negotiations?---I have.
PN72
And prior to then presumably. That's correct?---Prior to the log of claims being served, that's correct.
PN73
Yes, thank you?---Yes.
PN74
Those meetings included agency casuals?---They have been mixed.
PN75
Those meetings have included agency casuals - I'm sorry, I withdraw the question. Agency casuals have attended those meetings. Is that correct?---Not all, but they have attended, I think, two.
PN76
I see?---Yes.
PN77
Now, I put it to you that a significant number of the claims in the log of claims concern agency casuals?---A significant number?
PN78
Yes?---I wouldn't say "significant", no.
**** JAMES NERO XXN MR JOLLY
PN79
Would you accept that a number of the claims concern the agency casuals?---I think off the top of my head is four, maybe three.
PN80
Feel free to refresh your memory - - -?---Yes.
PN81
- - - by reading the log of claims?---Yes, I think seven, point 9, point 10, and it depends if you talk about inductions, maybe 11. I think that's - - -
PN82
Point 6, is that a clause requiring you to offer permanent employment to casual employees after six months regular and systematic employment?---No, that's company casuals.
PN83
I see. Clause 7 clearly does?---Yes.
PN84
Clause 8 also clearly does. Is that correct?---Yes.
PN85
Clause 9 does?---Correct.
PN86
Clause 10 does?---Correct.
PN87
You have indicated that clause 11 is designed to pick up agency casuals as well as company employees. Is that correct?---That's both, yes.
PN88
Yes, I see. The rest pauses, that's would presumably apply to agency casuals as well. Is that correct?---I guess if we go back to point 7, "Persons are employed on such basis in accordance with the proposed agreement," I guess you could say that the whole agreement and claims would effectively affect them if claim 7 is agreed to.
PN89
Yes, I see. So 12 concerns both company employees and agency casuals on that basis, and the same presumably with clause 13. Is that correct?---Clause 13, no, they wouldn't - agencies wouldn't get any of those things in clause 13.
**** JAMES NERO XXN MR JOLLY
PN90
Yes, because they're casual employees?---Correct.
PN91
Clause 14?---No, they wouldn't, no.
PN92
On the same basis?---Yes.
PN93
Clause 16, "Allow progression to level 2 team member after a maximum of six months on level 1"?---Clause 16, definitely, yes.
PN94
Because the agency casuals are providing (indistinct) there are no company employees at level 1, are they?---No, by company design, they're all agency casuals at the moment, yes.
PN95
So clause 16 then only concerns agency casuals?---Sorry.
PN96
Clause 16 of the log of claims only concerns agency casuals?---No. It wouldn't only concern agency casuals. As I explained to the company, if they decided tomorrow to employ 100 direct casuals, it directly applies to their casuals and also permanent employees that enter the business.
PN97
Yes. So let's take that one step at a time?---Yes.
PN98
At the present point in time - - -?---Yes.
PN99
- - - you have agreed that there are only agency casuals in level 1?---Correct.
PN100
So at the present point in time then, paragraph 16 only concerns agency casuals. Is that correct?---At the present it would only apply to them, yes.
PN101
Yes, I see. It would only apply to company casuals in the future if - sorry, I'll withdraw that. It would only apply to company employees in the future if there were level 1 employees employed by the company?---If the company employed direct, yes.
**** JAMES NERO XXN MR JOLLY
PN102
It would only apply to company employees if the company employed level 1 employees in the future?---Sorry, I don't understand the question.
PN103
I'm sorry, I'll repeat it again. It would only apply to company employees if at some stage in the future the company employs level 1 employees?---Yes, if they decide (indistinct) yes.
PN104
Thank you. 17 presumably wouldn't apply to the agency casuals because it's sick leave?---That's correct.
PN105
18 would apply to agency casuals, "10 minutes' wash-up time." Is that correct?
---If the company had have agreed, yes.
PN106
If the company had agreed, sorry. Clause 19, "Cleaning to be a storeperson's function." So as I understand it, that's a claim that only company employees, is that correct, would perform cleaning?---Well, anybody on the site who would come under the terms and conditions could be asked to do any of those functions under the agreement, so I don't think it would only restrict to permanents.
PN107
At the present point in time, cleaning is outserviced, isn't it?---That's my understanding, during negotiations again, that became clear, yes.
PN108
So effectively then clause 19 would require - if it was accepted, would require the company to cease outsourcing the cleaning. Is that correct?---Not entirely. The other DCs outsource their work as well in regards to the toilet cleaning, so it would probably be general cleaning, yes.
PN109
So it would require them to cease outsourcing the general cleaning, with the exception of the toilets?---If they had accepted the claim, that's my understanding.
**** JAMES NERO XXN MR JOLLY
PN110
If they accepted the claim. Yes. You said that agreement for that claim was still on the table, in effect, before your response to Mr Mueller's question?---No, I think what I said was I'm still a little bit confused with the answer from the company on that point, so I'm still seeking some more clarity to find out where that sits.
PN111
I see. But unlike some aspects of the log of claims, you haven't withdrawn them, because there are some - - -?---No, that's correct.
PN112
So you haven't withdrawn it. Thank you. Redundancy provisions. Presumably that wouldn't apply to casuals?---That's correct.
PN113
Clause 21, "Vacancies. All jobs on site to be advertised internally." Presumably that impacts on agency casuals?---Yes, you could say that.
PN114
"10-hour shifts to be paid double time from commencement of overtime." That presumably applies to casuals as well, does it?---Yes.
PN115
Agency casuals, I'm sorry?---Yes.
PN116
Paragraph 23, "Casuals to have first preference for permanent jobs," that applies to agency casuals as well, does it?---That's correct.
PN117
24, "Casuals to have options to be company casuals." That's clearly agency casuals. Is that correct?---That's correct.
PN118
THE COMMISSIONER: Mr Jolly, a number of those items you have just taken the witness to, I thought he said that some of them hadn't been pressed or are no longer pressed.
PN119
MR JOLLY: Yes, that is correct, Commissioner. I am nonetheless simply trying to tick through the log of claims to understand what relates to agency casuals and what doesn't.
**** JAMES NERO XXN MR JOLLY
PN120
THE COMMISSIONER: Is it relevant, in your submission, to the claims that are no longer pressed at the time of the application?
PN121
MR JOLLY: It will be indirectly relevant, Commissioner.
PN122
THE COMMISSIONER: All right.
PN123
MR JOLLY: In any event, I don't think I need to take this any further. I think I have demonstrated the point and that's the - - -
PN124
MR MUELLER: Objection. It's a submission. I thought it was a submission that he made, I wasn't sure - - -
PN125
MR JOLLY: I won't say anything further on that. I'll save my ammunition for later. Okay, thank you.
PN126
THE COMMISSIONER: While you're getting your thoughts there, Mr Jolly, let me just ask the witness a question.
PN127
MR JOLLY: Of course.
PN128
THE COMMISSIONER: I haven't had the benefit of looking at the existing agreement, Mr Nero, but some of these general claims you have put in the log of claims and in response to Mr Jolly you have said that they impact on agency casuals, for example, the one about vacancies to be advertised internally?---Yes.
PN129
You said that would apply to agency casuals, and there was another one, I think, I didn't quite understand. Is it expected that the proposed agreement makes reference to agency casuals, does it, and says that they're covered by these provisions if you're successful in it, or what happens? How does the agreement at the end of the day impact on the agency casuals?---Yes, Commissioner. I think at claim 7 where it talks about agency casuals (indistinct) "Such persons are paid in accordance with the proposed agreement." So the "proposed agreement". So we say the terms and conditions of the end enterprise agreement - - -
**** JAMES NERO XXN MR JOLLY
PN130
No, I understand that one. That's fairly clear?---Yes.
PN131
What about the one about rest pause? How does that affect casuals, the agencies who are not covered by the agreement?---I guess if you say if the company agrees to the fact that the terms and conditions apply, then the rest pauses would apply also.
PN132
So if the company agrees that the terms and conditions of the agreement apply to all agency casuals. Is that what you're saying?---Correct, Commissioner.
PN133
Which one of those dot points - not points, numbered log - which one of those claims is that claimed? All the terms in the agreement cover agency casuals, is that what you're saying?---Yes, they could affect any casual, whether it be company casual or agency casuals, those terms and conditions, Commissioner.
PN134
Where is that in your log of claims?---I guess where we say at clause 7 - sorry, point 7, where it says, "Such persons are paid in accordance with the proposed agreement."
PN135
Yes. That means all other conditions as well, does it, like rest pauses, for example?---Correct, Commissioner.
PN136
All right, thank you.
PN137
MR JOLLY: Now, the NUW has a significant membership of employees on site at the SLDC, don't they?---Correct.
PN138
It would be in the order of 90 per cent or so, would that be an over estimate?---I haven't done the exact number but, yes, probably up around that.
**** JAMES NERO XXN MR JOLLY
PN139
Yes. Okay. So that sounds roughly correct?---Roughly, yes.
PN140
Yes, thank you. That includes the agency casuals, does it?---Yes.
PN141
So you have got around about 90 per cent membership of the agency casuals who work at the SLDC?---I think as an overall it would be around 90 per cent. I actually haven't done those figures.
PN142
I understand. But you have a significant membership - - -?---Correct.
PN143
- - - of agency casuals, suffice to say. So presumably claim on behalf of the agency casuals are important to the NUW. Is that correct?---I'd say a lot of these claims are on behalf of our permanent members.
PN144
Yes, but just repeating the question. The agency casuals are important to the NUW. Is that correct?---Correct.
PN145
They're important because you've got a large membership amongst the agency casuals. Is that correct?---Yes.
PN146
The claims that are made on behalf of the agency casuals are important to the NUW. Is that correct?---Well, actually these claims are made on behalf of the permanents. That's who I met with to endorse the log of claims. The permanents endorse these log of claims. We haven't got endorsement from the agency casuals.
PN147
You haven't. I see. But you've accepted that most of the claims in the log of claims concern the agency casuals either exclusively or together with company employees. That's correct, isn't it?---They would definitely benefit from it, yes.
PN148
Yes, I see. You have also accepted that approximately 90 per cent of the agency casuals would be members of the NUW?---Like I said, I could only give an approximate. I think as an overall site between (indistinct) 90 per cent density, without having exact numbers in front of me.
**** JAMES NERO XXN MR JOLLY
PN149
Yes. Accepting that that's an approximate?---It's a possibility, yes.
PN150
Yes, I see. So it's important to the NUW to get the claims accepted by the company, which would benefit agency casuals.
PN151
MR MUELLER: Objection. It's not relevant what's important to the NUW. This is a negotiation about a log of claims that has been endorsed by the permanent employees and they are the only people that can take protected industrial action, and that's the focus on this application today. There is also other things important to the NUW and that - - -
PN152
MR JOLLY: I'll move on.
PN153
THE COMMISSIONER: I think I don't know, Mr Jolly, but I think the line of questioning goes to the whole point as to whether these are permitted claims on the basis that they're sought to benefit agency casuals as opposed to permanent employees. But anyway Mr - unless I'm misunderstanding Mr Jolly's line of questioning.
PN154
MR JOLLY: Yes. Thank you, Commissioner.
PN155
THE COMMISSIONER: Just before you ask a question, Mr Mueller, can you say this, has the employer got any casuals of their own?
PN156
MR MUELLER: I'm not 100 per cent on that. I know that during negotiations the delegates talked about there was one or two employees that asked to go from permanent to casual. I don't know if they're still casual. Sometimes the company allow it. I couldn't answer that honestly, Commissioner. I think there may be one or two, but the company might be able to answer that better than me.
**** JAMES NERO XXN MR JOLLY
PN157
THE COMMISSIONER: The reason I asked that - for a number of reasons, but one of them was that you said this was a claim for permanent employees, but you don't know whether they've got any casuals or not.
PN158
MR MUELLER: That's correct, Commissioner.
PN159
THE COMMISSIONER: All right. Well, Mr Jolly might be able to tell us.
PN160
MR JOLLY: Yes. Thank you, Commissioner.
PN161
Can I turn now to deal with the claim that level 1 move to level 2?---Mm'hm.
PN162
Now, originally that was a claim that they move from level 1 to level 2 after six months' employment. Is that correct?---That's correct, yes.
PN163
That's now, as of Friday, become a claim that they move after 12 months. Is that correct?---No. That was before Friday.
PN164
I see. But the current position is nonetheless that they move from level 1 to level 2 after 12 months?---Correct.
PN165
Is that correct?---Yes.
PN166
Thank you. That would represent a very significant increase in the pay of an employee moving from level 1 to level 2, wouldn't it?---Unfortunately as we've gone through the enterprise agreements that's correct, and that's why it's ended up quite a large gap as opposed to initial negotiations were - I think it was only about a dollar gap from level 1 to level 2.
PN167
I see. Would it surprise you if I said that the increase is in the order of 17 per cent?---No. I believe it's fallen backwards. It wouldn't surprise me at all.
**** JAMES NERO XXN MR JOLLY
PN168
Thank you. So that's obviously a matter of some importance to the agency casuals because that's a significant increase in their pay?---That's certainly very important to the permanents that I've met with.
PN169
Yes?---(indistinct) fixed.
PN170
Also important to the agency casuals?---As a result they would benefit, yes.
PN171
Yes. It would be a substantial benefit, wouldn't it?---Correct.
PN172
Because it's only the agency casuals, at least at the moment, who are employed at level 1, isn't it?---At the moment, yes.
PN173
Yes. So as it stands the claim to move from level 1 to level 2 after 12 months is a claim that, at least in the immediate term, would only benefit the agency casuals. Is that correct?---Depends how you look at benefiting. The permanent employees, it will even be of benefit to them to have the whole site multiskilled as well when those employees move up as well and not stay under that grade for eternity. So it's been quite important to them. But yes they will benefit.
PN174
Just let me see if I understand the claim correctly though. That's a claim for automatic progression after 12 months, isn't it?---Correct.
PN175
So it has nothing to do with the casual employees having obtained more skills?
---Well, I was lucky enough to negotiate a greenfields agreement that was done on that site and initially the company put forward
that multiskilled rate and said at the time they needed six months to get all those people up to level 2. Now we've gone to 12 months.
So hopefully the company will finish that training as they've agreed to elsewhere to get everyone trained up to be able to move
up to that. So, yes, it is an automatic progression after 12 months that hopefully they are multiskilled and trained by then.
**** JAMES NERO XXN MR JOLLY
PN176
Yes. But the point is it's automatic progression, not progression based on skills obtained?---Correct. That will be a training rate, yes.
PN177
Now, you are also seeking that the benefits of the agreement be extended to agency casuals?---Yes.
PN178
That's in paragraph 7 of the log of claims and paragraph 8 of the log of claims if I remember rightly?---Paragraph 8 yes also.
PN179
Now, that would be a benefit of great significance to the agency casuals, wouldn't it?---Naturally they'd benefit, yes.
PN180
It would be a significant benefit, wouldn't it?---Depends what you call significant.
PN181
In the ordinary sense of the word, they would be significant benefits?---Yes. They don't believe it would be significant, no, because they (indistinct) and they believe they should be progressing like the rest of the other ones, but negotiations from 2011 froze them. They've had to accept that, so that's - - -
PN182
Let me ask the question another way. That would mean that the agency casuals would be significantly better off than they would be under the modern award. That's correct, isn't it?---Under the modern award - - -
PN183
MR MUELLER: Objection. What is the relevance to referring these questions to the witness? We wouldn't negotiate - we agree that casuals would be better off than under the award. I mean this is irrelevant. What's the possible relevance of that question other than (indistinct) flavour in terms of our submissions that we already know which will be made. There is no - - -
PN184
THE COMMISSIONER: All right. Mr Jolly will tell us what - - -
**** JAMES NERO XXN MR JOLLY
PN185
MR MUELLER: (indistinct) relationship.
PN186
THE COMMISSIONER: Mr Jolly will tell us the relevance of it.
PN187
MR JOLLY: Would you like me to repeat the question?---Yes, please.
PN188
Sure. It would be the terms of the agreement are significantly more beneficial to the agency casuals than the modern award. Is that correct?---Yes. I hope to all.
PN189
Yes. Sorry, I wasn't meaning to cut you off. Had you finished?---Yes. No. Yes.
PN190
Thank you. So in that sense the agreement represents a significant benefit to agency casuals. Is that correct?---As opposed to the award, yes.
PN191
You have confirmed that you are continuing to press the claim that there be a 70:30 ratio of agency casuals to company employees. Is that correct?---The company put the 70:30 to us. We had a claim of 80:20.
PN192
Yes?---The company said (indistinct) wouldn't be able to work. They gave the example of (indistinct) they said the fluctuation with the weekend was very different and the 70:30 suited them better.
PN193
I'll rephrase the question?---Yes.
PN194
The NUW's current position is that there should be a 70:30 ratio of company employees to agency casuals. Is that correct?---No. We've agreed with the company on the 70:30, but our claim was 80:20 like I said, but we have agreed to the 70:30 so we backed away from the 80:20 claim. Correct.
PN195
I think you misunderstood my question?---I think I have.
**** JAMES NERO XXN MR JOLLY
PN196
It's all right. You've answered it in the process. But the point is that the NUW's present position is 70:30?---Yes.
PN197
That's the point. Thank you. Your present position also is that that should be included in the enterprise agreement. Is that correct?---Correct.
PN198
Thank you. Can we now turn to the negotiations? Now, the log of claims was originally served of course on 21 July?---Yes.
PN199
I'm not trying to trap you here, but there's been, as I counted, eight meetings since that time. I think that when Mr Mueller asked you the question you might have missed the initial meeting. Can I just get you to just confirm that. Take your time. It's in your witness statement?---The initial - the very first meeting are you talking about where we explained the log of claims? I was definitely present then.
PN200
Yes. No. Sorry. I was just trying to identify the total number of meetings, that's all?---Sorry.
PN201
What I'm putting to you is that there were in fact eight meetings, not seven. Nothing turns on it?---Okay.
PN202
I'm just trying to be accurate, that's all?---If there was eight, I stand corrected. I may have missed - - -
PN203
I think your statement is actually correct in that regard. You might just - you look at your first statement?---Yes. It goes to 31st, 7th, 15th, 26th, 2nd and 5th.
PN204
Yes. I think where everybody is falling into error is if you look at the previous paragraph you attended the first meeting, but that's actually not in the bullet points, if you like. It's in the previous paragraph of your statement. Do you see what I mean?---On the 24th. You're talking about point 6.
**** JAMES NERO XXN MR JOLLY
PN205
That's right. So point 6 is the first meeting?---Yes.
PN206
Then point 7 is the next six meetings, and then there was a meeting on Friday?
---There was a meeting on Friday, yes.
PN207
So that makes a total of eight meetings?---My apologies. Yes.
PN208
Just merely doing that for abundant clarity. Now, there were minutes taken of the bargaining meetings. Is that correct?---Yes. The company provided me with the first two. I haven't seen anything from the third meeting onwards.
PN209
I see. Is it your understanding that the minutes were provided to the NUW delegates after that time?---My understanding is that they were going to be provided to the delegates, yes.
PN210
You're not aware of whether that happened or not?---No, but I'm sure they would have let me know, so I can only assume that that was done.
PN211
Right. I see?---Yes.
PN212
Equally if there were any corrections required to the minutes, you would presumably have raised that at the next enterprise bargaining
meeting?
---I would hope that that would be raised with the union, yes.
PN213
Were there any corrections that you sought to the minutes?---Not that the delegates informed me of, no.
PN214
Right, okay. So from that we can take it that the delegates accepted the accuracy of the minutes that were provided to them?---Yes.
**** JAMES NERO XXN MR JOLLY
PN215
Thank you. Now, I'm going to ask you a series of questions about the meetings before the meeting last Friday?---Right.
PN216
So the next few questions until I change tack are going to consider the meetings up to but not including the Friday. I'm just making this clear. I can simplify when I ask you the questions and it's still clear what I mean. Now, the company has made some five formal offers. Is that correct?---I would have to have a look at the file. Five - - -
PN217
Does that sound about right?---It's about right, yes.
PN218
Okay. The NUW has rejected each of those offers. Is that correct?---On behalf of the members yes.
PN219
Thank you. Now, can I put it to you that there hasn't been very much movement from the NUW in its claims on the meetings not including last Friday?---No, I wouldn't say that, no.
PN220
I see. So you've moderated your wage demands from 6 per cent to 5 per cent and you've agreed that movement from level 1 to level 2 is after six months. That's correct?---After 12 months.
PN221
Sorry, after 12 months?---That's correct, yes.
PN222
You haven't made any other - sorry, I withdraw that. You haven't put any positions in writing to the company since the log of claims on 21 July. Is that correct?---In writing that's correct. No.
PN223
Yes, I see. Can I put it to you that with the exception of the 6 per cent to 5 per cent and moving from six months to 12 months from level 1 to 2, with those two exceptions prior to Friday you didn't withdraw any part of your log of claims?---As I said when we went through the log of claims, when the company has put their position with us and those certain points that I went through had been (indistinct) when the company explained their positions on those points, we pressed those no further and in fact have not been part of negotiations since. So we'd only been stuck on a few points.
**** JAMES NERO XXN MR JOLLY
PN224
When you say you didn't press a matter, does that mean you simply didn't raise it again?---We accepted their position, yes.
PN225
Did you communicate that acceptance to the company?---Yes.
PN226
Okay. You did that prior to the meeting last Friday?---I believe I was clear, and hopefully I was. I believe that that was, and the minutes will be able to show whether they were pressed any further or we did accept at the time, and for the ones I read through we definitely accepted at the time. That was our position.
PN227
Can I put it to you that the minutes show no such thing?---You can.
PN228
We have the minutes here if you want to check through them?---I'm hoping that you're correct on that, so I'll take your word for it that they're not in the minutes.
PN229
So can I put it to you that rather than advising the company that you weren't pressing the claims, you simply decided to keep your options open and instead stayed silent on particular matters?---No, I wouldn't say that, no.
PN230
I see?---We've also had draft agreements put to us that had been highlighted in green and red and all sorts of things, and those matters have definitely not been pursued right through that. Like I said, we're just stuck on a couple of things.
PN231
Did you ever provide a draft agreement to the company?---No. The company did all the drafting.
PN232
You never though responded with your own mark ups or drafts?---No.
PN233
Thank you. Now, if you weren't pressing particular aspects of your log of claims, why wouldn't you put that in writing to the company?
**** JAMES NERO XXN MR JOLLY
PN234
MR MUELLER: Objection. Relevance.
PN235
THE COMMISSIONER: I'm sure Mr Jolly is making a point that he made earlier, that the company were unaware of these concessions that were being made. Is that right, Mr Jolly?
PN236
MR JOLLY: Well, yes. There are other things that I will develop in my submissions as well, Commissioner.
PN237
THE COMMISSIONER: For example - I don't know if we can speed this up or not but, Mr Nero, your clause 7 which you've got. It's not clause, claim 7?---Yes.
PN238
You said in your evidence-in-chief there that the six month conversion, you would drop that. Right?---Correct.
PN239
Right. So how did you let the company know that and when did you do that, if you ever did?---Commissioner, over the negotiations I can't remember exactly when I did, but we accepted the company's position when they said to us that that isn't in any of the other DCs, and the ratio that was put to us would that be acceptable, and we said yes, as opposed to the six month conversion. I can't remember the date of that meeting, Commissioner, but definitely we accepted the ratio rather than the conversion, and that was said at that, whichever meeting that was where the 70:30 was put to the NUW.
PN240
All right. Well, we don't have the minutes in front of us, but even though Mr Jolly said they don't reflect it, the minutes really should reflect such a significant concession I would have thought?---I agree.
PN241
Right. Yes, Mr Jolly.
**** JAMES NERO XXN MR JOLLY
PN242
MR JOLLY: Thank you.
PN243
So, Mr Nero, I put it to you that what actually happened was you ran silent on particular claims rather than withdrawing them at best?---I wouldn't say that at all, no. I wouldn't say that at all. To put - are you saying because that wasn't put in writing that's the suggestion?
PN244
Well, I think if you simply focus on answering the question, Mr Nero?---My apologies. Could you ask it again then?
PN245
Yes, of course.
PN246
THE COMMISSIONER: Well, he's given the answer and that is "no".
PN247
MR JOLLY: Thank you, Commissioner.
PN248
Let's turn now to what happened on Friday?---Yes.
PN249
So what happened on Friday is the NUW put a definite position to the company. Is that correct?---Correct.
PN250
At that time, you told the company that you weren't pressing particular aspects of the log of claims?---That's correct, because during the negotiations on that day they said that we hadn't agreed on anything, and I explained to them that there may have been some confusion there, but the fact that we hadn't pressed forward on any of those other issues and we had accepted a lot of the positions of the company, that that clearly showed that. But that was explained again at the Friday meeting.
PN251
Yes, I see. So I put it to you that the first time the NUW made its negotiating position clear was at the meeting on Friday. Is that correct?---To put our final position to the company, that's correct. See, we've been negotiating the whole way through trying to get to a point, up until Friday. After the two A and B offers were rejected, the company then asked us, well, what would get us across the line, where were we, and that was explained in clear detail from that point.
**** JAMES NERO XXN MR JOLLY
PN252
I'll ask the question again. The question was; on Friday last, that was the first time that the NUW made its negotiating position
clear to the company, wasn't it?
---I thought we were clear the whole way through. But there was definitely, once the rejections were put forward, Desmond put a position
to them in regards to, "This would clear it up. This would finalise negotiations."
PN253
So on Friday you told the company that you rejected particular points of their offer?---Correct.
PN254
I think it was points 1, 2 and 11?---Correct. That was on offer A.
PN255
Yes, on offer A, sorry?---Yes.
PN256
On offer 5A, as it was termed?---Correct.
PN257
You indicated that you'd accept points 3 to 10 of 5A?---Correct.
PN258
You indicated that you'd accept an increase of 5 per cent per annum, which grades wages and allowances?---Correct.
PN259
And so on, and I put it to you that that was the first time that the NUW clearly articulated its position in negotiations?---You could put that. I believe that they've been quite clear in negotiating through. But when we had the A and B offer, there was definite points there that we had agreed on them the whole way through, and we were just stuck on those few outstanding issues.
PN260
I see. Now, this application was filed on Tuesday last week?---That's correct.
PN261
Now, as an experienced organiser, you're aware of the requirement that the NUW as bargaining representative genuinely try to reach agreement with the company?
**** JAMES NERO XXN MR JOLLY
---Definitely.
PN262
You're aware of that requirement?---Yes.
PN263
I put it to you that there was a change of position by the NUW on Friday. That it took a different approach to negotiations to what it had taken in the negotiating meeting previously. The change was that it clearly articulated its position for the first time. Do you wish to confirm that or otherwise?---Well, I believe we've been negotiating the whole way through trying to get to certain points. Like I said, from when we got the A and B offer, there was clear points we had agreed to. There was some still outstanding issues that we hadn't. We get past those we had an agreement.
PN264
Can I suggest to you that this change of position was because the NUW had filed this application and the company had indicated that it was opposing this application?---You're suggesting that that's why the position was on Friday?
PN265
That was why the NUW changed its approach to the negotiations?---No, the company requested a meeting on Friday.
PN266
But can I put it to you that the NUW's approach at the meeting on Friday changed because it knew that the company was asserting that it wasn't genuinely trying to reach agreement?---I would disagree with that.
PN267
Yes, I see. Now, Mr Nero, can I also ask you this; that you would be aware that an enterprise agreement can't prohibit, qualify or restrict the use of contractors or labour hire agencies. Are you aware of that?---Restrict in what way? Prohibit the use?
PN268
Prohibit, restrict or qualify the use of independent contractors or labour hire agencies - - -
**** JAMES NERO XXN MR JOLLY
PN269
MR MUELLER: I object. That proposition is wrong in law.
PN270
MR JOLLY: Well, I think that's a matter for final submissions.
PN271
THE COMMISSIONER: Yes, but it shouldn't be put to the witness.
PN272
MR MUELLER: It's a wrong proposition.
PN273
THE COMMISSIONER: Well, what part is wrong then?
PN274
MR MUELLER: Prohibition is correct.
PN275
THE COMMISSIONER: Yes. So it's restricted to that, is it?
PN276
MR MUELLER: Yes.
PN277
THE COMMISSIONER: All right then. Well, what section of the Act are you referring to, Mr Jolly?
PN278
MR JOLLY: This is in fact - it's actually common law, Commissioner. Something we'll have to develop in submissions. But I just need to test this and if we're going to go any further on this I think we'll need to do it in the absence of the witness.
PN279
THE COMMISSIONER: Well, when you say common law, you mean decisions in this tribunal?
PN280
MR JOLLY: Decisions of this tribunal, the High Court and the Federal Court, commissioner.
PN281
THE COMMISSIONER: All right. Well, I don't know whether - - -
**** JAMES NERO XXN MR JOLLY
PN282
MR JOLLY: I can elaborate on the reasons for the relevance of this line of - - -
PN283
THE COMMISSIONER: I think I can guess what they might be. But you don't want to restrict the question to what the Act says then?
PN284
MR JOLLY: Well, the Act doesn't in terms deal with the matter, Commissioner. It's left to the common law to deal with.
PN285
MR MUELLER: That's incorrect there too. It's not left to the common law, the Act deals with it quite explicitly.
PN286
MR JOLLY: I don't think we should deal with this here and it's not correct in any - - -
PN287
THE COMMISSIONER: Well, if you need to press this point, I just want you to put to the witness - - -
PN288
MR JOLLY: Yes. Well, we should, I quite agree, Commissioner, we do need to be precise about this. Okay, sorry.
PN289
So, Mr Nero, are you aware that you cannot include in an enterprise agreement a provision that prohibits, restricts or qualifies the use of an independent contractor, or a labour hire agency.
PN290
MR MUELLER: Objection. My objection hasn't been ruled on.
PN291
THE COMMISSIONER: Well, he can just - if he's not aware of it, he's not aware of it. It's not a - - -
PN292
MR MUELLER: But it confuses the witness. It's just a question of incorrect.
**** JAMES NERO XXN MR JOLLY
PN293
MR JOLLY: Well, Commissioner - - -
PN294
MR MUELLER: If an experienced lawyer puts a question to the witness that is - - -
PN295
THE COMMISSIONER: Yes. But, Mr Mueller - - -
PN296
MR MUELLER: - - - at best controversial, at worst wrong.
PN297
THE COMMISSIONER: Yes. But, Mr Mueller, we're not going to find out whether that's correct or not correct in the next five minutes, so we - - -
PN298
MR MUELLER: That's why it shouldn't be put that way.
PN299
THE COMMISSIONER: You can make that statement in your submissions.
PN300
MR JOLLY: Thank you. I will - sorry, Commissioner, I wasn't meaning to interrupt.
PN301
THE COMMISSIONER: Yes, go on.
PN302
MR JOLLY: I better repeat the question.
PN303
So are you aware that an enterprise agreement can't contain a provision which prohibits, restricts or qualifies the employer's right to use independent contractors or labour hire agencies?---I have a limited understanding of that, and that is the fact that you can't restrict the use of them. So to that point, yes. So I don't believe still any of my claims have done them.
PN304
With seeking a ratio of 70:30, that means that the company couldn't use agency casuals after it reached the 30 per cent mark, if you like. That's correct, isn't it?
**** JAMES NERO XXN MR JOLLY
PN305
MR MUELLER: Objection. That is incorrect - that's not a question, that's a submission. Because the answer to that can only be yes. If there's a ratio now that is implied that if 70 per cent - or if the number of casual employees exceeds the threshold, these employees would not be able to be hired. That is clear. That is just not a question, that's a submission. What possibly could the witness say to that? It's like one and one is two.
PN306
THE COMMISSIONER: Well, I think that Mr Jolly is trying to point out the folly of the - if it was in any way an incorrect answer. But the answer was that he didn't believe he was restricting the employment of casual agency employees, so Mr Jolly said, "Well, doesn't your 70:30 ratio do that?" If it does, it does, if it doesn't, it doesn't. It's a simple answer, isn't it?
PN307
MR MUELLER: Yes, I think it's inherently unfair to - - -
PN308
THE COMMISSIONER: What is that?
PN309
MR MUELLER: Because it's an incredibly complex area of law and I think it's inherently unfair to put these questions to that degree and attach any relevance to it in these proceedings.
PN310
THE COMMISSIONER: Well, we're not going to ask the witness anything about the complexity of the law. It's just simply a question; does the ratio restrict the employment of casuals or not? Now, Mr Nero - - -
PN311
MR MUELLER: That is a very complicated legal question.
PN312
THE COMMISSIONER: Well, I don't think there's anything legal about it.
PN313
MR MUELLER: Well, I think (indistinct) at the end of the day, the question goes to whether or not it pertains to the employment relationship. I don't think it's appropriate for these questions to be put to an NUW organiser.
**** JAMES NERO XXN MR JOLLY
PN314
THE COMMISSIONER: He's aware what the law says, to the extent that he wasn't able to restrict the use of agency casuals. The question is; well, doesn't your claim, that 70:30, do that? Is he not entitled to answer that question?
PN315
MR MUELLER: No, I don't think so.
PN316
THE COMMISSIONER: All right. Well, I think he is entitled to answer that.
PN317
MR JOLLY: So to repeat the question; where the 30 per cent mark is exceeded, there would be a prohibition on engaging further agency casuals. That's correct, isn't it, if your claim was accepted?---We allow some fluctuation. But yes, by naturally, 30 per cent, above that in normal circumstances, it does stop then.
PN318
So it stops engaging, subject to - - -?---Fluctuations, peak periods, all that sort of stuff, yes.
PN319
- - - and so on, it would prohibit the company from engaging an agency casual where they exceeded the 30 per cent threshold?---Yes, which I think is self-explanatory.
PN320
Yes, I just wanted to clarify that. Now, you've indicated that you've attempted to guide the NUW delegates in relation to what's permitted to be included in the agreement and not included in the agreement?---Yes.
PN321
That's correct, and you've done that yourself. Is that correct?---Both organisers from the site have, yes.
PN322
Yes, I see. Thank you, I have no further questions, Commissioner.
PN323
THE COMMISSIONER: All right, thank you. Any re-examination, thank you?
**** JAMES NERO XXN MR JOLLY
PN324
MR MUELLER: Yes, thank you.
<RE-EXAMINATION BY MR MUELLER [3.23PM]
PN325
MR MUELLER: Mr Nero, you were asked questions about the time when you communicated the NUW's position at various meetings. Do you
recall that?
---Yes.
PN326
I want to ask you now, if you could have a look at your log of claims, A3. Now, you said earlier that the NUW changed the decision from the initial claim of 6 per cent to 5 per cent and there was a change from a two year agreement to a three year agreement, correct?---Correct.
PN327
Did you communicate that to the company?---Yes, and that's reflected in the draft. The three year agreement is reflected in the draft, draft documents. I can't remember from what date, but the company's own drafting reflects the three year agreement and the 5 per cent was related to Joel, who's the HR for the site, and that was approximately a week and a half to two weeks ago, whenever that meeting date was.
PN328
When did you receive the draft?---We've received a number of drafts, and that's been in almost every draft we received is the three year.
PN329
You stated earlier as well that in relation to clause 6 - or claim 6, I should point out?---Yes.
PN330
That you did not press that claim?---Correct.
PN331
Was that communicated to the company?
PN332
MR JOLLY: Objection. I mean, we're getting into leading questions again.
**** JAMES NERO RXN MR MUELLER
PN333
THE COMMISSIONER: Well, we're just going over what he already answered. But anyway - - -
PN334
MR JOLLY: He was initially - - -
PN335
THE COMMISSIONER: Sorry?
PN336
MR JOLLY: The problem came in when he asked the question, "Did you communicate this to the company." That's a leading question. It's a yes or no answer.
PN337
MR MUELLER: I think we're making too fine a point about these proceedings. These are proceedings in this tribunal - sorry, we're nearly finished. These are proceedings in this tribunal where it should be assessed whether or not the union has been trying to genuinely reach an agreement. It should be a simple, straightforward process in which the applicant has to show that they genuinely tried to reach an agreement. We're getting into technicalities in here to an extent that cannot be envisaged by firstly the frames of this Act, and secondly it should be a simple non technical process, and it's been put - - -
PN338
THE COMMISSIONER: Yes, I know that. But it's just a question as to whether it's a leading question or not, that's all.
PN339
MR MUELLER: It's been put to the witness that the applicant did not communicate prior to the Friday any of the concessions that we put on record. Now, I can have a 15 minute lead up to each claim, which I'm more than happy to do.
PN340
THE COMMISSIONER: Sorry, I don't believe the respondent went as far as to say "any". He may have.
**** JAMES NERO RXN MR MUELLER
PN341
MR MUELLER: Prior to Friday he said there was none. That was the gist of - that's what had been put to the witness - - -
PN342
THE COMMISSIONER: (indistinct) yes, Mr Jolly.
PN343
MR JOLLY: This is an objection to a leading question, Commissioner. I accept that it's a valid area to re-examine on. But the question can't be asked in that way.
PN344
THE COMMISSIONER: Right, well just - - -
PN345
MR MUELLER: It's not leading because it can be - the question is, if the rejection - - -
PN346
THE COMMISSIONER: If you just rephrase the question, say it properly.
PN347
MR MUELLER: - - - has been communicated, correct. It's not leading, it's a question of, has the claim 6 when you withdrew it communicated to the company.
PN348
MR JOLLY: I mean, a good definition of a leading question is it susceptible to a yes or no answer. It leads the witness because it guides them towards the answer that the person wants.
PN349
MR MUELLER: Well, I probably have to take this very slowly (indistinct)
PN350
What did you tell the company about clause 6 - the claim 6?---With the company and ourselves, they were sort of read in conjunction with 6, 7, 8, 9, 10. So there were certain points where we said, just the ratio, site rates of pay and conditions, as per the previous MOU, that would settle those claims. That was put to the company before they drafted the MOU to us to look at the new one. So I can't remember which meeting that was. But the minutes would be when the company provided us with a new MOU and they were articulated just before that was provided to us.
**** JAMES NERO RXN MR MUELLER
PN351
What did you say in relation to claim 6 to the company?
PN352
MR JOLLY: I have to say, having indicated - I'm sorry, I do have an objection to this line of questioning. What's becoming apparent, that we're now going into deducing additional evidence. I mean, really, this should have been adduced in chief. I mean, because I've asked some questions - what's happening is we're getting new evidence being adduced, he's not simply responding to the cross-examination.
PN353
THE COMMISSIONER: Well, I think it does arise out of your cross-examination, Mr Jolly, surely. You put to the witness that there was, if any, a very minimal lack of feedback to the company as to the concessions they made, and Mr Mueller is now trying to clarify whether that is the case or not. So I think he can proceed down that path.
PN354
MR MUELLER: Thank you.
PN355
Do you want me to repeat the question?---Yes, please.
PN356
What did you tell the company about claim 6?---Claim 6, as I said, was part of all things and we said as long as the ratio was sorted out, site rates, terms and conditions were sorted out, that that would be enough to settle from 6, 7, 8, 9 and 10.
PN357
Who did you tell this to?---Both Joel, who is the HR that was negotiating at the time, and Shauna Brennan. Then they provided us with an MOU that - - -
PN358
Where did you tell them that?---At the DC.
PN359
Where at the DC?---In the meeting room that we'd negotiate in every time.
**** JAMES NERO RXN MR MUELLER
PN360
What's the name of the meeting room?---I don't think it has a name - not that I've noticed.
PN361
Who else was present?---I can't remember exactly which delegates but we always had a number of delegates. On the majority of occasions I know at that time Shauna was there, Joel was there. I don't know who else from the company. They mix up the minute papers from HRs from each of the other DCs that are present during those negotiations. So I'm not exactly sure who was taking the minutes on that particular moment before they handed us the MOU.
PN362
When did you communicate your position to claim 6?---Again, I'd have to look at the minutes. It was just before they provided us with a draft MOU, so I would have to have a look at the minutes and whether that's been reflected in the minutes but they definitely provided us with an MOU after that meeting where that was spoken about.
PN363
An MOU?---Correct.
PN364
And what was in the MOU?---There was - - -
PN365
THE COMMISSIONER: I don't think Mr Jolly raised anything about an MOU.
PN366
MR MUELLER: What did you communicate about claim 7, if you have a look at it?---Again, the first part of claim 7 where it requires (indistinct) agreement, that again that would be acceptable in what was given to us but the second part of that for the six-month systematic employment and offer permanent jobs, we backed away from that claim - well clear of that because again the MOU has reflected that.
PN367
Who communicated that to the company?---I think both myself and Melissa spoke about that during those meetings.
**** JAMES NERO RXN MR MUELLER
PN368
Where did those meetings take place where that was communicated?---In the same meeting room where we would always meet with the company.
PN369
Who was present at that meeting?---Again, I know Shauna - the main negotiators for the company was Shauna and Joel in HR. I can't remember - like I said, they rotate all different HRs through as minute-takers. Sometimes they have different people from the DC in there but the two main negotiators at that point was definitely Shauna and Joel.
PN370
What was that - - -
PN371
MR JOLLY: I'm sorry, Commissioner, I don't wish to keep bobbing up but the problem of this evidence is becoming more and more apparent as the re-examination is going on. It might be best that this be done in the absence of the witness but the problem in a nutshell is that the witness is giving evidence in terms that are completely vague and certainly don't involve any direct speech. It's very difficult to actually know what value to attach to this evidence.
PN372
MR MUELLER: That's ultimately a matter for submissions.
PN373
MR JOLLY: For the NUW maybe. NUW could have been more specific in the supplementary witness statement that they provided. They had our submissions; they chose not to do so. We put all the evidence of the minutes, which are quite clear in their terms. The difficulty with this evidence is it's simply too vague to be at all compelling or really admissible.
PN374
THE COMMISSIONER: That may be the end result, Mr Jolly. Mr Mueller, you can keep asking those questions and we'll have to make a decision as to whether the responses are sufficient enough to be of any use to the tribunal in its decision-making process.
**** JAMES NERO RXN MR MUELLER
PN375
MR MUELLER: Did you tell the company about claim 8?---Again, they were bundled with 6, 7, 8, 9, 10. We spoke about that as a whole and that would be reflected - and I know I keep saying the same thing - but reflected in the MOU.
PN376
THE COMMISSIONER: When did all this happen, Mr Nero? What date was this roughly?---Commissioner, I could only - - -
PN377
You've got your statement there. You've got six dates at least?---Yes, I do, and I'm sorry, Commissioner, I - - -
PN378
That's okay. Which dates do you rule out then?---I wish - again, Commissioner, I apologise. If I had copies of my emails and when I received them from the company. They definitely sent us a draft copy of a draft document and with that was a draft memorandum of understanding. So the company may be able to help with that date they sent that to us but I haven't got that in front of me and I wouldn't be able to rule it out. Off the top of my head, Commissioner, I can't remember the exact - I've received a number of drafts, so the company definitely sent a draft document with a draft MOU, and I can't remember whether that was four or five weeks ago approximately.
PN379
If you don't know, you don't know. Yes, Mr Mueller.
PN380
MR MUELLER: Who was present when you communicated the union's position above claim 8?---The same people as the previous one; it was all done in the same meeting.
PN381
Which was?---So that was the main negotiators for the company, Shauna Brennan and Joel HR. Just to elaborate on that 8, they basically said that if the first part of 7 was fixed and put into that document that referred to as an MOU, that naturally 8 then would be cleaned up and it wouldn't have to be part of it, and we agreed to that point. That draft MOU, the union has reflected that as well.
**** JAMES NERO RXN MR MUELLER
PN382
You stated earlier that in relation to claim 10 that the NUW agreed to a percentage of 30 per cent?---Yes.
PN383
Do you know when that was communicated?---I believe it would have been the second to third meetings. It would be right at the very start of negotiations, quite quick. That was relayed first of all by Joel and supported by Shauna.
PN384
You said in relation to paragraph 12 that the company raised cost reasons to reject claim 12A. Do you recall that?---Yes.
PN385
You said that was - and you used the word "that was dropped"?---Yes, we accepted the company's position on that and we basically - I guess by saying the words, "Okay."
PN386
Who did you tell that to?---Again, it was Shauna and Joel.
PN387
Where did that happen?---In the same meeting at the DC.
PN388
You also said that there was no agreement reached on claim 15. Do you recall that?---That's correct. The company was pretty clear that they just couldn't do that.
PN389
You said earlier that wasn't impressed?---That's correct.
PN390
So who did you communicate that to?---Again, the main negotiators were always, except for I think one meeting - Joel wasn't present at the last one - but the main negotiators at those meetings were Joel and Shauna. Again, there was no arguments around that and the company put their position forward.
PN391
You also referred to claim 17A and you refer to "that was dropped"?---Yes. I think you might - you'll find that highlighted in the draft document provided by the company - at least in the very last draft provided by the company that it reflects I think 76 hours rather than 10 days. That was the company's position.
**** JAMES NERO RXN MR MUELLER
PN392
Who did you communicate that to?---Again, Joel and Shauna. Again, I think you'll find it's highlighted in green, which meant agreement.
PN393
You referred to claim 18 in which you stated you dropped that claim. Who did you communicate that to?---Both Shauna and Joel. That would have been approximately three meetings ago because that one there was very close to one of our delegate's hearts. They had it once before and was trying to seek it again and was loud and clear that the company know that there's no further issue in regards to that.
PN394
Do you recall when that was communicated?---It was approximately the third meeting ago, and that was to both Shauna and Joel who were present at that meeting. There was a bit of chuckles around that one and certain promises that were made and that was reminded of those - I'm sure that's not reflected in the minutes. They're not word for word those minutes, but there was a bit of laughing around that point and they were clear that was gone.
PN395
"They were" - who are "they"?---Both Shauna and Joel.
PN396
Claim 22, the 10-hour shifts and the claim for payment of double time on the commencement of overtime. You stated previously that that was dropped. Who communicated that to the company?---I guess when I said it wasn't pressed the company said there was no way they'd be in a position to be able to do that. Currently they would be either casuals and the part-timers and I think some permanents work up to 10 hours. Again, from that point it was just never pressed again with the company. There was no arguments around that and I think again you can see the draft document they provided us. Without having it in front of me - there's not been any contention around that since that was raised.
PN397
Do you recall what you said?---The exact words, no.
**** JAMES NERO RXN MR MUELLER
PN398
Words to the effect?---Again, I think on a lot of these points when the company has put their position, where we've said, "Okay," and basically just acknowledged their position. Whereas if we'd had any contentions around it and we wanted to press it forward, we would have been loud and clear to say that that is still an issue for us and we will be continuing to press forward on those things. So we've made it loud and clear where we haven't given concessions, I guess you could say. On points where we haven't pressed any further, we've just acknowledged that's their position and never pushed them again since.
PN399
What did you tell the company about claim 25, about the check forklift and (indistinct) allowance?---Again, when they spoke to us about adding the multipurpose rate that was designed for the site and they said that that would just be astronomical costs, we accepted that position again. We acknowledged, we said, "Okay," and never, ever pressed it again.
PN400
What about claim 23. I missed that one when I - - -?---So casuals have first preference for permanent jobs.
PN401
What did you communicate to the company?---There wasn't too much discussion on that. The company basically said to us that it's common practice that that would happen anyhow. There wasn't any arguments about that and again we didn't press it to be in the document.
PN402
Claim 28, "Casuals to be paid overtime after eight hours per day," what did you say to the company?---Again, when the company said that would just add dramatic costs to the business because currently they can work up to 10 hours, we accepted that position and never argued that point and said we'd be pressing further on about it.
PN403
So who did you tell that to?---Joel - again, the main negotiators were Joel and Shauna and they were both present at that meeting and all meetings had taken place at the site.
**** JAMES NERO RXN MR MUELLER
PN404
When you say you didn't press that any more, what do you mean?---We just accepted their position and, like I said, on positions where we haven't accepted we've let them know loud and clear that we're still pushing forward on that, we don't agree with their position, and we've argued the points on that to and fro. But on certain positions where they've come out and explained it clear, we have accepted those positions. We've only been stuck on a few things. Look, I believed everyone was clear on that. There was only a few outstanding things left.
PN405
THE COMMISSIONER: Refresh my memory, Mr Nero, what are the outstanding issues that are left?---Okay, Commissioner. From our point of view the outstanding things, apart from - on (indistinct) the company gave us certain things and I haven't got the offer here in front of me but we agreed to points from 3 to I think it's 10. The issue - - -
PN406
Just go through the number claims because I don't have that (indistinct) Okay. So point 3 is outstanding. That's the wages?---Point 3 is outstanding, Commissioner, yes.
PN407
What else?---We're stuck with the 7 and 8 at the moment about the site rates and the conditions. That's been evident from the discussions we've had. The only thing we're stuck in regards to - sorry, point 9, the company has said that they're happy to put that into an MOU, Commissioner. Number 10, the only thing we've got outstanding is - we've agreed with the company's position that 20 per cent was too tight for them, and they need a 30 per cent ratio (indistinct) We agreed on that point. It was just about where it went; whether that would be made a new issue and so it should have went into the agreement. That's the only contention we have in regards to the 70:30. The union recognition clause, again the company - it's current site practice as far as that, and we just wanted that reflected in the document. I believe that we've come to an understanding on that in an agreement. 12, we have nothing outstanding, Commissioner, I don't believe. 13, we have nothing outstanding in regards to that. 14 is part of that offer, offer A, where we're talking about different numbers. I believe the 14 was part of that. 15 we're pressing. 16, Commissioner, is outstanding. I'm sorry, you don't have the offer right in front of you but point 1 of that offer was in regards to a (indistinct) where we don't still have agreement for level 1s to make level 2 after 12 months, so that's outstanding.
**** JAMES NERO RXN MR MUELLER
PN408
THE COMMISSIONER: Maybe I have it. I have it in the material that's been provided by the employer?---Sure. Nothing outstanding on sick leave. Nothing outstanding on the wash-up time. Like I said, the company was aware that that had gone. Like I said on 19, we just want some clarity about the company's position but that's not one of those pressing issues for us. We just want some clarity on that, where we were. 20 I believe is resolved. 21, 22, 23 - 23 is just the current site practice anyhow. We just asked for that to be reflected. 24, again the company's position was they were not going to employ any casuals from agency casual to company casual. So at this stage we've accepted their position on that. 25, we haven't pressed that issue. Like I said, Commissioner, that's not outstanding for us. 26 has been sorted. 27 (indistinct) 28 again is one of those things that we backed away from. So what's outstanding - and I hope you have got the documentation, Commissioner - is we've got the level 1s, the level 2 and the money outstanding, and whereabouts some of this stuff goes - whether it's in the document or an MOU, that's it, Commissioner. The rest of those points were agreed upon.
PN409
But clause 7 is a fairly significant clause, is it not? It's requiring labour agents to be paid the same?---Which is current site practice.
PN410
But together with the conditions?---Same, current site practice again, Commissioner, yes. That's not, yes, an extra cost by any means. That's current - that's just about where that goes.
PN411
I must have misunderstood somewhere along the line. All the labour agency casuals are paid the same and receive the same conditions
as the employees?
---Currently, yes.
PN412
Thank you.
PN413
MR MUELLER: What did the company tell you about the legality of these clauses?
**** JAMES NERO RXN MR MUELLER
PN414
THE COMMISSIONER: I don't think that was raised, was it?
PN415
MR JOLLY: No, it wasn't.
PN416
MR MUELLER: It arises out of the questions asked about the legality and the witness knowledge about whether or not a restriction and/or - - -
PN417
THE COMMISSIONER: Yes, I understand all that, but I don't think Mr Jolly talked anything about what the company said or didn't say.
PN418
MR JOLLY: That's correct, Commissioner.
PN419
MR MUELLER: What is your understanding about - - -
PN420
THE COMMISSIONER: You can ask one of the witnesses from the employer, surely, that question.
PN421
MR MUELLER: Yes, I take that (indistinct) yes. However, others, one other thing that arises. You were asked questions about your attempt to guide the delegates through the negotiations about what is prohibited, non-permitted or unlawful?---Correct.
PN422
There were the questions being asked about it. What is your understanding of what is prohibited, non-permitted and unlawful content based on?---My understanding of that was - and it was quite (indistinct) more to the point about my understanding of what I was allowed - I believe that what I was allowed to negotiation - my understanding was I couldn't restrict, and say, "You can't use agency casuals on this site," but my experience through - especially through dealings with the commission itself and a case I was involved in through (indistinct) Logistics in 2011 about what I could bargain for and what I couldn't, out of that I believed still to this day that that allowed me to bargain for ratios and site rates of pay for agency casuals, and that was a full bench decision. And I can only go on what, at the time, when we spoke to barristers in regards to that, and also a QC that also informed me that that wasn't part of the prohibited content. In fact, that was quite legal for me to bargain for. So still to this day I believe that's so.
**** JAMES NERO RXN MR MUELLER
PN423
What were the names of these QC and barristers you spoke to?---I do apologise. I know that one of the barristers was - his name was Andrew Joseph. I can't remember the QC at the time. I can't even remember the full bench Commissioners that ruled on that. But, yes, that's where I still had my understanding that it's not prohibited.
THE COMMISSIONER: You may step down, then. Thank you, Mr Nero?
---Thank you, Commissioner.
<THE WITNESS WITHDREW [3.53PM]
PN425
THE COMMISSIONER: That's the extent of your evidence, is it, Mr Mueller?
PN426
MR MUELLER: It is, Commissioner.
PN427
THE COMMISSIONER: Mr Jolly, is it appropriate for you to call your witnesses, or what?
PN428
MR JOLLY: Certainly, Commissioner. We have our witness here. Might I simply inquire, Commissioner, how you intend to approach the matter? I just note the time.
PN429
THE COMMISSIONER: How long do you think you're going to be, then, roughly?
PN430
MR JOLLY: Certainly I won't have any examination-in-chief, so it's largely to Mr Mueller's cross-examination.
PN431
THE COMMISSIONER: Okay.
PN432
MR JOLLY: There's one correction to the witness statement, but that's about it.
PN433
THE COMMISSIONER: I think we should deal with this witness, so if we have to come back another day, we've got rid of the witnesses. Is there only one witness you have?
PN434
MR JOLLY: Only one witness, Commissioner.
PN435
THE COMMISSIONER: I think we should - do you have any time constraints, Mr Jolly?
PN436
MR JOLLY: I don't have any time constraints, no, Commissioner.
PN437
THE COMMISSIONER: Mr Mueller, do you have any time constraints?
PN438
MR MUELLER: No.
PN439
THE COMMISSIONER: I suppose you wouldn't know how long you're going to cross-examine the witness at this stage, do you?
PN440
MR MUELLER: I couldn't anticipate, no.
PN441
THE COMMISSIONER: Okay. That's fine.
PN442
MR MUELLER: I hesitated, you see - - -
PN443
THE COMMISSIONER: That's all right.
PN444
MR MUELLER: It's not only (indistinct) myself, it's how the cross-examination progresses, so that's why I'm hesitant.
PN445
THE COMMISSIONER: That's fine. We will just see if we can at least deal with this witness, Mr Jolly.
PN446
MR JOLLY: Thank you, Commissioner. I call Ms Shauna Brennan. If the commission pleases.
PN447
THE ASSOCIATE: Please state your full name and address.
MS BRENNAN: Shauna Anne Brennan, (address supplied).
<SHAUNA ANNE BRENNAN, SWORN [3.55PM]
<EXAMINATION-IN-CHIEF BY MR JOLLY [3.55PM]
PN449
MR JOLLY: Ms Brennan, will you state your full name for the record, please?
---Shauna Ann Brennan.
PN450
Ms Brennan, have you made a witness statement on Friday?---I did.
PN451
Do you have a copy of that in the witness box with you?---I have.
PN452
Do you have any corrections or changes to that witness statement?---Yes, there is a change.
PN453
Might I hand you a copy of an amended witness statement?---Thank you.
PN454
Could you affirm that that witness statement is true and correct?---Yes, correct.
PN455
Thank you. Commissioner, might I tender the amended witness statement. We have copies here with a full set of annexures.
PN456
THE COMMISSIONER: Do I need another copy of the annexures, or are you just going to give me - - -
PN457
MR JOLLY: Only if you want them, Commissioner. I can simply take out the amended witness statement and you can put in your own folder if you prefer.
PN458
THE COMMISSIONER: No, that's fine. But there are no other changes. I will take it as a bundle (indistinct) and you've told Mr Mueller what the change is?
PN459
MR JOLLY: Yes. And I'm about to hand him a copy of the amended document as well. I have no further questions.
**** SHAUNA ANNE BRENNAN XN MR JOLLY
PN460
THE COMMISSIONER: Just for my information, what paragraph got amended?
PN461
MR JOLLY: It's marked up, Commissioner. It's marked on - sorry, I've just given away my two copies. It's on the final page if I remember rightly, Commissioner.
THE COMMISSIONER: Okay, page 5, paragraph 39, okay. We will mark the witness statement of Shauna Brennan, which is dated 12 September, as R1, obviously with the attached annexures.
EXHIBIT #R1 WITNESS STATEMENT OF SHAUNA BRENNAN PLUS ANNEXURES DATED 12/09/14
<CROSS-EXAMINATION BY MR MUELLER [3.59PM]
PN463
MR MUELLER: Good afternoon, Ms Brennan. My name is Stefan Mueller. I don't think we've met. I'm the industrial officer for the National Union of Workers. I have a few questions to you, and if you don't clearly understand the questions, just indicate that to me so I find a way to rephrase them. If the NUW, who were represented by - I should start again. The NUW, as an organisation, was represented in the negotiations for the new enterprise agreement by Ms Bernardi, by Mr Meaney and by Mr Nero. That's correct?---Yes.
PN464
Were you present in all meetings where either of those three persons were present?---Yes, I was.
PN465
During those meetings did the NUW at any stage make claims for items to be included into the enterprise agreement that were political?---Political?
PN466
MR JOLLY: I think I do object to this question. I'm not really sure where this comes from.
PN467
MR MUELLER: JJ Richardson and Sons Pty Ltd v TWU (2010) Fair Work Australia full bench 9963 of 23 December 2010 is a decision that was written by Lawler VP. It is referred to in the submissions made by my friend in regards to the Federal Court proceedings. And that decision is clear authority about the applicant's effort to reach an enterprise agreement and the authenticity thereof, and clearly those questions relate to - - -
**** SHAUNA ANNE BRENNAN XXN MR MUELLER
PN468
THE COMMISSIONER: That's fine. I don't think there are any allegation that there are political claims being made.
PN469
MR MUELLER: I refer to lenience being shown to the mathematical questions of 70:30, so I'm not entirely sure why I can't ask these questions.
PN470
THE COMMISSIONER: I don't consider that lenience. I think that's a normal question that can be asked. There's no dispute about whether there are any political questions, that's all I'm saying.
PN471
MR MUELLER: Okay.
PN472
You don't give evidence that the NUW wants to take industrial action other than to further - - -
PN473
THE COMMISSIONER: Well, you don't want to give the witness the answer, do you?
PN474
MR MUELLER: Sorry?
PN475
THE COMMISSIONER: You don't want to give the witness the answer and the question, do you?
PN476
MR JOLLY: And I object to this line of questioning?
PN477
MR MUELLER: Sorry, why can't I? It's cross-examination.
PN478
THE COMMISSIONER: Sorry, my fault. You're right. Sorry, I'm getting - you're quite right.
**** SHAUNA ANNE BRENNAN XXN MR MUELLER
PN479
MR JOLLY: I do object to this line of questioning. I mean, what it amounts to, basically, is trying to put legal submissions to the witness (indistinct) otherwise.
PN480
THE COMMISSIONER: Sorry, I've confused you - or maybe at least confused myself, Mr Mueller. What is the question?
PN481
MR MUELLER: The question is - - -
PN482
THE COMMISSIONER: Just break it down a bit, might help.
PN483
MR MUELLER: The question is if it - maybe I should rephrase it.
PN484
In the meetings with the representative of the NUW was it made clear to you that the purpose of the meetings was solely to seek to negotiate a new enterprise agreement?---It wasn't made clear to me that it was solely, but that was my understanding, yes.
PN485
So you're not of the opinion that the application was made for a protected action ballot to punish your employer for some perceived wrongdoing?---I didn't think about that.
PN486
MR JOLLY: I really don't think these questions have any relevance - - -
PN487
MR MUELLER: This is - - -
PN488
MR JOLLY: This is not - - -
PN489
MR MUELLER: I wish I would show some respect for the cross-examination. My friend has seen my submission.
**** SHAUNA ANNE BRENNAN XXN MR MUELLER
PN490
MR JOLLY: This examination has to be relevant.
PN491
MR MUELLER: That's a - - -
PN492
MR JOLLY: There's no (indistinct) suggestion from this side that - - -
PN493
MR MUELLER: I don't wish to engage in a debate. I leave the Commissioner to deal with it.
PN494
THE COMMISSIONER: Mr Mueller, the issues in dispute are (1) whether these are permitted matters; whether your representatives advised the company of their concessions; and what is - maybe what is still pressed. But I don't think some of the things you're asking are in dispute, but if you think they need to be asked, then you can ask them, but - - -
PN495
MR MUELLER: Have you made Mr Mueller aware during the negotiations that you believe he's pursuing matters - or that he's pursuing
matters that are not permissible under the Fair Work Act to be included in an enterprise agreement?
---I don't believe so.
PN496
You don't believe so because it didn't?---That would be out of my knowledge, whether or not it's compliant with the Fair Work Act.
PN497
So if, for example, site rates for agency casuals has been a practice that has been adopted during the life of the previous enterprise agreement, do you agree with me with that proposition?---As far as my understanding, yes.
PN498
Yes. So in principle there's agreement that there should be site rates for agency casuals between the company and the union and the employees it represents. Correct?---Previously, I understand.
**** SHAUNA ANNE BRENNAN XXN MR MUELLER
PN499
Yes. And you have not changed that position, have you?---No.
PN500
So it is really the issue that you do not want to have this provision in an enterprise agreement. Correct?---Correct.
PN501
And you do not want this to be included in an enterprise agreement because it would enable the union to seek to enforce these provisions through a disputes procedure of the agreement. Is that correct?---I hadn't thought about it that way.
PN502
You are the representative of the company?---I am.
PN503
And you are entitled and authorised to make decisions on behalf of the company during the negotiations?---I am.
PN504
And you maintain you have no fundamental position, and in fact it has been the current practice to allow employees of labour hire agency to be paid staff rates. Correct?---It has been the practice, yes.
PN505
And your position has been that you're not willing to put that in an agreement, and that is not for legal reasons. Correct?---I don't know the actual reasons.
PN506
So you did not want to agree to that current practice, which is stated in the memorandum of understanding. Is that correct?---I'm not sure - - -
PN507
The current practice is stated in the memorandum of understanding. That's correct?---I understand so, yes.
PN508
Yes.
PN509
MR JOLLY: I think we're starting to strain the bounds of relevance here.
**** SHAUNA ANNE BRENNAN XXN MR MUELLER
PN510
THE COMMISSIONER: I think that's an appropriate question, Mr Jolly.
PN511
MR MUELLER: And, in fact, you've attached it to your statement, correct, with the NUW?---The memorandum of understanding, yes.
PN512
I haven't marked them on mine, but (indistinct) a copy. Can you point out where that is in your - it's in annexure 1, paragraph 10. Do you have that in front of you?---Yes, I'm just looking.
PN513
It's page 7?---Sorry.
PN514
It's on the top right corner there, page numbers?---Yes, I've got page 7.
PN515
I don't know if they're - I think they go through the - on most pages, yes. It's dated 1 December 2011, without prejudice.
PN516
THE COMMISSIONER: Sorry, where do I find this?
PN517
MR MUELLER: At annexure 1, Commissioner.
PN518
THE COMMISSIONER: Thank you.
PN519
MR MUELLER: This memorandum of understanding was made in relation of the existing agreement. Correct?---I wasn't present, but that's my understanding, yes.
PN520
And you note (indistinct) on page 8 - sorry, the memorandum on page - the second page, which is page 8 of the bundle?---Mm'hm.
PN521
Your company has agreed to a ratio of 70 per cent permanent labour hours and 30 per cent casual labour hours used. Do you see that?---Yes, I do.
**** SHAUNA ANNE BRENNAN XXN MR MUELLER
PN522
Just one question. I can hand you the document and - - -
PN523
THE COMMISSIONER: Yes.
PN524
MR MUELLER: You also agreed in that memorandum to continue with the (indistinct) practice of paying the same terms and conditions to contract casuals as Woolworths’ casuals, didn’t you?---I can’t see that in the document. Where’s that in the letter?
PN525
If the witness could be excused for one moment. I’m sorry, something has arisen here about a document and the authenticity.
PN526
THE COMMISSIONER: You want to address me in the absence of the witness, you say?
PN527
MR MUELLER: Yes.
THE COMMISSIONER: Yes, all right.
<THE WITNESS WITHDREW [4.11PM]
PN529
MR MUELLER: Commissioner, I’ve been handed a memorandum of understanding which is dated the 6th of - I’ve been in fact handed three memorandums of understanding. One is dated 6 December 2011and it clearly contains a clause that is not - it contains a further bullet point on page 8 which clearly states that the company would continue with its practice of paying people fairly and equitably - - -
PN530
THE COMMISSIONER: Mr Mueller, just show that to Mr Jolly and see what he says about it.
PN531
MR JOLLY: Commissioner, there’s an issue about the correct document having been annexed to the witness statement. It’s probably best if we simply resolve it in discussions between ourselves. There will be a correct document and it’s just a matter of attaching the correct one - - -
PN532
THE COMMISSIONER: Well, it’s just that I question whether Mr Mueller can ask questions about a document - I take it he wants to ask questions about - - -
PN533
MR JOLLY: One of the difficulties we have, Commissioner, is it seems that none of the MOUs are actually signed documents.
PN534
THE COMMISSIONER: No. So let me just be clear, how many MOUs are in place at any one time?
PN535
MR JOLLY: I’d need to seek instructions, Commissioner.
PN536
MR MUELLER: So do we, unfortunately.
PN537
THE COMMISSIONER: All right. Mr Jolly, you can resolve which is the right one and which is not amongst yourselves, but Mr Mueller would probably like to know what questions he can ask, that’s all.
PN538
MR JOLLY: Yes, I’m sure that’s right, Commissioner. I’m sure there’s - there presumably is a simple answer, and that’s that there seem to be a few documents floating around and we just need to identify what the correct one is. Now, if the wrong one has been annexed to Ms Brennan’s witness statement, the wrong one has been annexed. I think we can probably resolve it between ourselves and continue on from that.
PN539
MR MUELLER: I think that’s right. I think we may be able to resolve this, because there might not be a necessity even to ask Ms Brennan these questions if the document speaks for itself. She’s also already stated that she has limited knowledge about that document.
PN540
THE COMMISSIONER: Yes, all right. What do you want to do then? Do you want to adjourn on that basis, or do you want to continue to ask questions about something else or what?
PN541
MR JOLLY: Do you want to try and deal with the rest of it and we can try and resolve it overnight? We can resolve it overnight and then we can - - -
PN542
MR MUELLER: My friend’s suggestion has some merit, that we continue with the cross-examination but not on that point.
PN543
THE COMMISSIONER: Okay, well, we’ll do that.
PN544
MR MUELLER: And there’s liberty to ask further questions about this if we can actually resolve the actual correct memorandum.
PN545
THE COMMISSIONER: Okay, we’ll do that. Thank you.
PN546
MR MUELLER: Sorry for the inconvenience.
PN547
THE COMMISSIONER: Just for my information, Mr Jolly, the other documents that Mr Mueller has got, you’ve never seen those.
PN548
MR JOLLY: No, I haven’t, Commissioner. It’s possible that there’s been - possibly the wrong document has been attached. It seems that there have been a couple of documents around - - -
PN549
THE COMMISSIONER: Well, an earlier document.
PN550
MR JOLLY: Yes, and unfortunately they aren’t very clearly identified in here, but I’m sure somebody will have the answer and it’s just simply a matter of finding out what the answer is.
THE COMMISSIONER: All right. We’ll get the witness back in then, thank you.
<SHAUNA BRENNAN, ON FORMER OATH [4.15PM]
PN552
MR MUELLER: Sorry about the interruption in giving your evidence. It’s nothing to do directly with your answers. I just note for the record that there might be further questions asked about the memorandum of understanding. We had a short adjournment in which we needed to clarify certain issues and have to make further inquiries about one of the annexures, but as I previously stated, it hasn’t directly arisen out of your responses about this?---Okay.
PN553
I’ll continue the cross-examination, not on the document itself, but I might have to ask you questions later on about this once we have ascertained that we’re looking at the right document?---Okay.
PN554
One of your annexures is an email you sent. It’s dated 18 August 2014. This is referred to at paragraph 32 and is annexure 13?---13.
PN555
Do you see that?---Yes.
PN556
Sheree Moran, who is she? I show she’s described as HR specialist. What is her involvement in the negotiations?---What’s her what, sorry?
PN557
What was her involvement in the negotiations?---She collated information and prepared draft documents, that type of - - -
PN558
She acted on your instructions?---Yes.
PN559
Do you understand that the NUW as a bargaining representative has stated to you that they no longer seek to have casual employees converted to permanent employment after a defined period of time? Do you understand that has been communicated to you?---No.
PN560
Are you familiar with the term “casual conversion”?---Yes.
**** SHAUNA ANNE BRENNAN XXN MR MUELLER
PN561
You understand that the NUW no longer presses casual conversion to be included in the enterprise agreement text.
PN562
MR JOLLY: In fairness to the witness some time period should be specified here. Are we talking about the course of the series of negotiations? I think we should try and nail it down a bit more.
PN563
THE COMMISSIONER: Well, maybe if - - -
PN564
MR MUELLER: I didn’t ask when. Sorry, that’s an undue interference.
PN565
THE COMMISSIONER: Sorry?
PN566
MR MUELLER: I didn't ask when - sorry, that's undue interference.
PN567
THE COMMISSIONER: Sorry.
PN568
MR MUELLER: I didn't ask when, that's really undue interference in the flow of my cross-examination.
PN569
THE COMMISSIONER: Just take the witness - you note in the initial log of claims there was a claim for conversion of agency casuals to become permanent employees. Are you aware of that?---Yes.
PN570
At any stage were you aware that the union had changed their position on that or not?---I don't think they have changed their position on that.
PN571
All right, thank you.
PN572
MR MUELLER: So is your evidence today that the NUW has not abandoned its claim to include a provision in the enterprise agreement that casual employees are offered permanent employment after six months' regular and systematic employment? They have not abandoned that?---I don't know if they have or haven't. That hasn't been made clear.
**** SHAUNA ANNE BRENNAN XXN MR MUELLER
PN573
When you sent annexure 13 on 18 August 2014 - - -?---Sorry, could you wait one minute while I find it. Annexure 13.
PN574
When it was sent by Ms Shareen Nerang. So on page 99 of the annexure referred to, reference is made that, "The following documents were discussed at meeting held on Friday, 15 August 2014." You see that?---I can see that.
PN575
The summary document and the other three documents described at the four bullet points, they're result of discussions you had at a meeting held on 15 August. Correct?---Correct.
PN576
You understood that the - who drafted this document?---Shareen.
PN577
What was your input again?---Well, I had communications with the union and the notes were taken, and Shareen drafted the document.
PN578
That document was drafted on the basis partly of the responses of the NUW given at the meeting on 15 August 2014. Is that correct?---Yes.
PN579
So the information given to you at the meeting on 15 August 2014 enabled you to instruct Shareen to draft a summary document, an SLDC draft EA, an SLDC draft MOU and SLDC draft all in one. Correct?---Correct.
PN580
Nowhere in this draft EBA is a provision that states it's to be discussed or unclear?---Pardon?
PN581
Is there any - - -
PN582
MR JOLLY: I don't think that question is clear.
**** SHAUNA ANNE BRENNAN XXN MR MUELLER
PN583
MR MUELLER: I object and I put my friend on notice that it is undue interference in cross-examination he's making.
PN584
MR JOLLY: The question is completely unclear and I have no idea what it meant.
PN585
MR MUELLER: That is very, very borderline. If I may continue.
PN586
THE COMMISSIONER: Yes.
PN587
MR MUELLER: Do you know what the word means to be discussed "unclear"?
---We discussed - - -
PN588
Or unclear?---Or unclear?
PN589
Yes?---Yes.
PN590
Does that satisfy your objection?
PN591
MR JOLLY: I still have no idea what - the point you're trying to make.
PN592
MR MUELLER: Nowhere in that document have you indicated that certain points are to be discussed or that it is unclear what the position is of the NUW. I went through and I couldn't find it. Is that correct?
PN593
MR JOLLY: The question is going to be asked - - -
PN594
MR MUELLER: (indistinct)
PN595
MR JOLLY: The witness needs the opportunity to read the document if that question is going to be asked.
**** SHAUNA ANNE BRENNAN XXN MR MUELLER
PN596
THE COMMISSIONER: The witness can have some time to refer to the document if she needs to.
PN597
MR MUELLER: I put to you that at a meeting that occurred on 26 August with Wayne Meaney, that responses were given to your email dated 18 August 2014. That's correct, isn't it?
PN598
MR JOLLY: I think that question is completely unclear as well.
PN599
THE COMMISSIONER: So what you are saying? That on 18 August, Mr Mueller, there was an email and an attached draft offer. Is that right? From the employer.
PN600
MR MUELLER: On 26 August a meeting occurred.
PN601
THE COMMISSIONER: So, Mr Mueller, just for my information, the witness might be familiar with this, but on 18 August you have got exhibit 13.
PN602
MR MUELLER: Yes, and I refer to paragraph 33 of her statement.
PN603
THE COMMISSIONER: Yes. Right.
PN604
MR MUELLER: For the benefit of my friend who was confused by my question, it states in that, I believe he was involved in the drafting of the statement, "On 26 August 2014 the company and the NUW delegates attended the fifth negotiation meeting," and the third line, "The NUW organisers were apologies and the NUW assistant state secretary, Wayne Meaney, was in attendance." That is the statement. So that will clarify that. My question is that you discussed the documents attached to the email of 18 August 2014 which is the summary document, the draft EA, the draft MOU and the draft (indistinct) at the meeting that has occurred on 26 August 2014. Correct?---We discussed parts of it, not the full document.
**** SHAUNA ANNE BRENNAN XXN MR MUELLER
PN605
I want to move now to the point of the current site practice and your position of not being willing to include the existing site practice in relation to casuals in an enterprise agreement. You recall the earlier cross-examination on that point?---I recall it, yes.
PN606
That issue is really about where the agreement should be documented, isn't it? The agreement on the use of casuals and the ratio and the site rates for casuals should be documented for agency casuals. Is that correct?---I'm not sure what you're asking me, sorry.
PN607
The issue in relation to the agency casuals and whether or not they would be afforded site rates and site conditions and casual conversion of (indistinct) labour, there's really agreement in principle that your company would adhere to the existing practice. Correct?---I couldn't answer on behalf of the whole company, but that is the practice, yes.
PN608
So it's really about whether or not this should be documented in an MOU or in an enterprise agreement. Correct?---I think you're taking a lot of things - the number of things you're discussing is not what was in an MOU.
PN609
Do you (indistinct) with me that it is site practice to afford agency casuals site rates and conditions? Correct?---That is the current practice, yes.
PN610
It's also the current practice to apply a ratio of 70:30 of permanent to casual employees. That's correct, isn't it?---On hours, yes.
PN611
Your position is you're not willing to put these two conditions into an enterprise agreement. Correct?---That's correct.
PN612
You had no advice that this would not be possible to be done legally. Correct?
**** SHAUNA ANNE BRENNAN XXN MR MUELLER
PN613
MR JOLLY: I object. He's asking the witness to disclose legal advice. I mean, you can't ask that.
PN614
MR MUELLER: It is (indistinct)
PN615
MR JOLLY: Doesn't matter.
PN616
MR MUELLER: It's not - if we go into legal privilege - - -
PN617
THE COMMISSIONER: (indistinct) don't have to tell us what the advice is or isn't, but (indistinct) any advice.
PN618
MR MUELLER: About the legality of these clauses to be included in the enterprise agreement?---Legal advice? No.
PN619
If you look at paragraph 35 of your statement, this is the first time the company made what's described in paragraph 36 as offer 5A and offer 5B. Correct?---It's my understanding, yes.
PN620
If you look at annexure 17 - - -?---I don't have a number on - - -
PN621
You don't have tabs, do you?---No. I've got annexure 16, and then - - -
PN622
17 is (indistinct) is it?---Yes.
PN623
There might have been a mix-up?---Did you say 17?
PN624
Yes. When you look at paragraph number 1, it says number 1 there. Can you see that? And there's (indistinct) number 2. Do you see that?---Yes.
**** SHAUNA ANNE BRENNAN XXN MR MUELLER
PN625
(indistinct) agreed to put in an agreement, did you?---Sorry, could you - - -
PN626
If the union would have agreed to claim number 1, you would have had no problems to put that in an enterprise agreement?---It's a whole package. It wasn't just this particular part. The offer - - -
PN627
(indistinct) a package, yes. Thanks for clarifying that. Assuming the whole package would have been agreed to, the conditions, including condition 1, would have been put in an enterprise agreement. Correct?---Yes.
PN628
MR JOLLY: I don't wish to interrupt unduly, but I think again the relevance of this line of questioning is questionable. I mean, this is not a case on the content of negotiations, on the content of agreement, except to the extent we're talking about whether the NUW has been trying to genuinely reach agreement. Now, it's not apparent to me how this cross-examination relates to that question. Maybe it has a purpose that I don't understand, but it's really not apparent to me.
PN629
MR MUELLER: I endeavour to enlighten my friend in my submissions on that.
PN630
THE COMMISSIONER: Sorry, Mr - - -
PN631
MR MUELLER: I endeavour to enlighten my friend in my submissions on that.
PN632
MR JOLLY: (indistinct) appropriate to identify the relevance of - - -
PN633
MR MUELLER: The relevance as to (indistinct) in an objection to take away the democratic rights of a great number of NUW employees to (indistinct) ballot. That's the basis of these questions.
PN634
MR JOLLY: Well, it doesn't make it relevant in the slightest.
**** SHAUNA ANNE BRENNAN XXN MR MUELLER
PN635
MR MUELLER: (indistinct) those paragraphs he objects to in this printed statement if they're superfluous. I think it will just enable everyone to deal with it and more expedite (indistinct)
PN636
MR JOLLY: They're not superfluous paragraphs. The simple point is that they are there so the commission understands what has taken place in negotiations. It doesn't mean that you can ask extensive questions about the detail of an offer which simply has no relevance to the admitted matters or otherwise, has no relevance to the discussions that were occurring or whether the NUW was making offers. You're just cross-examining on an offer at large. It's not relevant to these proceedings. I'm simply trying to speed things along.
PN637
MR MUELLER: Of course my friend would wish that I limited my cross-examination on points that are relevant to his submission. But for obvious reasons, I can't do that favour.
PN638
MR JOLLY: I think Mr Mueller needs to identify the relevance of these questions, because simply saying, "It's about the democratic right of the NUW to take protected action," does not advance the relevance (indistinct) one bit.
PN639
THE COMMISSIONER: No, but at least you've got to understand (indistinct) both of you know more about this than I do, the details of this (indistinct) log of claims, Mr Mueller, claim number 16, that you adjust the team member to level 2 after six months. Is that right?
PN640
MR MUELLER: Yes.
PN641
THE COMMISSIONER: And you, Mr Mueller, said that that had been agreed to after - or at least the union had changed their position after 12 months. Is that right?
**** SHAUNA ANNE BRENNAN XXN MR MUELLER
PN642
MR MUELLER: Yes.
PN643
THE COMMISSIONER: Yes, and Mr Nero said that that had been agreed to after - at least the union had changed their position to after 12 months. That right?
PN644
MR MUELLER: That's right.
PN645
THE COMMISSIONER: Are you saying here this is a document from the company agreeing to that change? Is that what you're saying?
PN646
MR MUELLER: That's right.
PN647
THE COMMISSIONER: All right. So then you're asking the company whether they're prepared to put that in the enterprise agreement. That right?
PN648
MR MUELLER: That's correct.
PN649
THE COMMISSIONER: All right then. Did we get an answer from the witness or not?
PN650
MR MUELLER: No. There was an objection raised to - - -
PN651
THE COMMISSIONER: All right. I think we're entitled to know that answer then, Mr Jolly, whether that response is to go into the agreement.
PN652
MR MUELLER: Would you be prepared to putt that into the enterprise agreement?---Yes.
PN653
Thank you.
**** SHAUNA ANNE BRENNAN XXN MR MUELLER
PN654
THE COMMISSIONER: That doesn't - Mr Jolly, don't know whether that doesn't make it permitted or not permitted.
PN655
MR JOLLY: No. Doesn't seem to have any relevance at all to me, Commissioner, but probably the people involved (indistinct)
PN656
THE COMMISSIONER: Yes, Mr Mueller, keep going.
PN657
MR MUELLER: The same would go to annexure 18, wouldn't it, if that would have been accepted by the NUW. You would also not have a problem to reflect the offer in an enterprise agreement. Correct?---Correct.
PN658
THE COMMISSIONER: Sorry, which one was that, Mr Mueller, sorry?
PN659
MR MUELLER: That's annexure 18, which is offer 5B referred to in paragraph 36.
PN660
THE COMMISSIONER: Yes.
PN661
MR MUELLER: Then you state at paragraph 37(b) that prior to giving your response to offer 5A and 5B the NUW filed the present application. Do you see that?---Yes.
PN662
Do you see that as the NUW attempting not to genuinely reach an agreement, the filing of the application?
PN663
MR JOLLY: I object to that question.
PN664
THE COMMISSIONER: Yes. That's (indistinct) Mr Mueller.
**** SHAUNA ANNE BRENNAN XXN MR MUELLER
PN665
MR MUELLER: You sent an email on 12 September 2013 which is annexure 21, and it's referred to at paragraph 41 of your statement. Do you see that?---Yes.
PN666
I understand that you haven't given a response to that offer yet?---A response?
PN667
Yes, whether or not - to the offer made by the NUW. You haven't responded to that, have you? You refer to - at the second-last paragraph, "I note that this is the first time that the NUW has made a proper and complete offer since your log of claims nearly two months ago." You see that?---Yes.
PN668
You say you're going to get back shortly. You haven't done that yet, have you?
---No.
PN669
Did you get advice to send that email?
PN670
MR JOLLY: Objection.
PN671
MR MUELLER: Why?
PN672
MR JOLLY: You're asking a question about potential legal advice.
PN673
MR MUELLER: Well, are you saying there was legal advice?
PN674
MR JOLLY: I object to the question. It's an inappropriate question. You're not allowed to cross-examine witnesses about the obtaining of advice or otherwise.
PN675
THE COMMISSIONER: Don't know whether she obtained advice anyway, but in any event it stands for itself - speaks for itself. The witness sent the email. Whether she got advice or not, Mr Mueller, does it really matter?
**** SHAUNA ANNE BRENNAN XXN MR MUELLER
PN676
MR MUELLER: I think I'd be in trouble if I make submissions about this without having given the chance of the witness to respond later on.
PN677
THE COMMISSIONER: Well, Mr Jolly objects to the question anyway.
PN678
MR MUELLER: Yes. Sorry, I just wanted to cover that base.
PN679
THE COMMISSIONER: Yes, that's fine, but as the author she's responsible for it so.
PN680
MR MUELLER: Yes.
PN681
Having a look at the attachments to your statement, and particularly the email that included a draft memorandum of understanding and a draft enterprise agreement - I withdraw that. Did you during the negotiations have the opportunity to ask questions of the NUW if you didn't understand its position?---Yes.
PN682
You did that during negotiations?---Yes.
PN683
And you received responses?---Yes.
PN684
Subject to the clarification we need to seek on one of the documents and what might arise from this, I don't think I've got further questions at this stage, thank you.
PN685
THE COMMISSIONER: All right.
PN686
MR JOLLY: I have one short - - -
PN687
THE COMMISSIONER: Before you do that, I - - -
**** SHAUNA ANNE BRENNAN XXN MR MUELLER
PN688
MR JOLLY: Sorry, Commissioner.
PN689
THE COMMISSIONER: That's all right. I'll ask a question in case you have something arising out of it.
PN690
Ms Brennan, how many employees are going to be covered by this agreement if it ever gets up?---Pardon, sorry?
PN691
How many employees will be covered by this proposed agreement?---There's 176 permanents and about 120 casuals. Something like that. Labour hire agency.
PN692
Okay. We'll just clarify that. How many casuals do you actually employ yourself?---Woolworths casuals, eight.
PN693
All right. So the 126 casuals you're talking about, does that make 118, does it?
---No. There's 176 permanents, eight Woolworths casuals and then there's labour hire agency people.
PN694
Yes, but how many labour hire casuals?---Approximately 120. I wouldn't know exactly because they're on hours.
PN695
So what was it, 120?---Approximately, yes.
PN696
So what was 126 related to?---No, 120.
PN697
Sorry, it was 120, was it? All right?---Yes.
PN698
All right. That's all I wanted. Just wanted to clarify those figures, thank you. Yes, Mr Jolly?
**** SHAUNA ANNE BRENNAN XXN MR MUELLER
PN699
MR JOLLY: Thank you, Commissioner.
<RE-EXAMINATION BY MR JOLLY [4.49PM]
PN700
MR JOLLY: Ms Brennan, can I take you to page 144 I think it is, which is offer 5A? Now, Mr Mueller asked you some questions about point 1 in that document. In particular, maybe you might read point 1?---You would like me to read it.
PN701
No, sorry, just to yourself. I'm sorry. I should have been clear. Would you also see in the classification pay rates, there's a reference to, "Level 2 (new)"?---Yes.
PN702
Can you explain what that means?---That was the introduction of the new level 2 rate to essentially bring - the NUW didn't want the level 1s to remain on level 1. They wanted them to be able to progress to the next level, so we introduced a new level 2 which was going some way to increase their pay.
PN703
What would happen to the existing level 2?---The existing level 2 would move up to level 3.
PN704
I see. And level 3?---Would move to the new level 4.
PN705
I see. Thank you. No further questions, Commissioner.
PN706
THE COMMISSIONER: Ms Brennan, of your 176 permanents and eight casuals, so how many are on level 1, none. Is that right?---None.
PN707
What's the difference between level 1 and level 2 in terms of skill?---Level 1, the majority of the work is picking and packing, preparing orders for the stores. Level 2 deals with the more indirect functions such as receiving goods from vendors.
**** SHAUNA ANNE BRENNAN RXN MR JOLLY
PN708
So it's a more skilled level. Is that right?---Yes.
PN709
These 120 casual labour hire, how long, roughly, do they normally stay on level 1?---They don't progress from level 1 unless their skills are needed. So if there's a shortage in terms of we need someone to - - -
PN710
So if you're a casual labour hire, you can stay doing that job indefinitely, can you, at level - - -?---Yes.
PN711
It's only if you want some more people at L2, you then engage them yourselves, do you, as an employee of Woolworths?---Not necessarily, we do have agency casuals who are trained up in higher functions as well.
PN712
I see. I misunderstood that. So you have agency casuals level 2 as well, do you?
---Yes.
PN713
What's the percentage breakdown of that?---I wouldn't know the percentage breakdown. They get paid for the time that they do the higher function.
PN714
So it's a higher duties rate, is it?---Yes.
PN715
So they're still level 1s?---Yes. Except for the savings clause people.
PN716
Yes. But you take your permanents from the pool of casual labour hire, do you?
---Yes.
PN717
All right. Is there anything arising out of that, Mr Mueller, or, Mr Jolly.
MR MUELLER: Yes, there is.
**** SHAUNA ANNE BRENNAN RXN MR JOLLY
<FURTHER CROSS-EXAMINATION BY MR MUELLER [4.53PM]
PN719
MR MUELLER: You said when the Commissioner asked you about where agency casuals are permanently employed, you said they're all employed on level 1. Do you recall that?---Yes.
PN720
They don't only perform work in classification 1, they occasionally perform higher duties and remunerated accordingly. That's correct, isn't it?---That's correct.
PN721
It can be the case that permanent employments do level 1 work as well occasionally but their wage doesn't drop?---Yes.
PN722
Thank you for clarifying that.
PN723
MR JOLLY: No questions, Commissioner.
PN724
THE COMMISSIONER: All right.
PN725
Thank you, Ms Brennan, you may be called back depending on Mr Mueller's desires to examine you on the document that you've referred to as an MOU. While you're in the witness box, just see if you can answer this question. That annexure - what annexure was that, Mr Mueller?
PN726
MR MUELLER: The MOU was annexure 1.
PN727
THE COMMISSIONER: Ms Brennan, is that your understanding that that's the current MOU, there's no other documents that you've seen approved? I take it you weren't around when this was signed in 2011 anyway?---No, I wasn't.
PN728
But for your information, Mr Mueller and Mr Jolly are going to go and see if they can agree - they're going to find what Mr Mueller thinks is a more recent document?---No, I'm not.
**** SHAUNA ANNE BRENNAN FXXN MR MUELLER
PN729
That's the only one. Where did you get this from?---This was given to me by our HR department at the Sydney LDC.
PN730
All right. That's fine. Thank you for that. So that's what Mr Mueller and Mr Jolly are going to discuss, to see whether there's an agreement that a more recent document exists which has got different things in it. But you say you're unaware of that?---No, I haven't seen anything.
That's fine. All right. You're excused then, thank you?---Thank you.
<THE WITNESS WITHDREW [4.56PM]
PN732
THE COMMISSIONER: Mr Mueller, what do you want to do today?
PN733
MR MUELLER: If I can just get one clarification of my answer whether or not we actually need that document or the clarification of it.
PN734
THE COMMISSIONER: That's fine.
PN735
MR MUELLER: I just want to ask if there's some agreed facts which would - I may need to talk to my friend about that point which might not make it relevant to recall Ms Brennan.
PN736
THE COMMISSIONER: What I'm thinking, whether we adjourn now and come back tomorrow. I'll just check with my associate. I'm free from 2 o'clock onwards, is that right - only between 10.00 and 2.00. Let me see what's on at 2 o'clock. All right. So between 10.00 and 2.00 I'm free. Would you like to come back at 10 o'clock tomorrow morning, Mr Mueller, or, Mr Jolly, or do you want to proceed on now?
PN737
MR JOLLY: I'm certainly available at 10.00 tomorrow, if that assists, Commissioner.
PN738
THE COMMISSIONER: Your submissions may need to be tailored in view of the evidence that's been given, that's all. You might have a chance to do that overnight.
PN739
MR MUELLER: Yes. I think most of the evidence - sorry, most of the submissions have been made in writing and I think they're fairly, with respect, thorough about all aspects. We would be prepared to go to submissions today.
PN740
THE COMMISSIONER: We can proceed on today, that's fine.
PN741
MR JOLLY: I should warn you, Commissioner, we'll have to deal with the authorities at some length, so I'm going to probably be an hour and a half or more potentially.
PN742
THE COMMISSIONER: All right. It doesn't seem to worry Mr Mueller. I don't have a time frame. It's up to you.
PN743
MR JOLLY: I'm simply putting everybody on notice of that.
PN744
THE COMMISSIONER: That's fine. You say that, it will probably take longer than that.
PN745
MR JOLLY: It's a complex area, I'm afraid.
PN746
THE COMMISSIONER: I can see that in your submissions and the response from the union, and I must say, it’s not an area I’m familiar with myself in any event. Who will be going first, anyway?
PN747
MR MUELLER: I think that would be us.
PN748
THE COMMISSIONER: You can go first today and see what happens, Mr Mueller, if you want to get that off your chest. You don’t have to.
PN749
MR MUELLER: Yes, I think I’m - - -
PN750
THE COMMISSIONER: Sorry, before you do that, you say you wanted to get some agreed facts from Mr Jolly first.
PN751
MR MUELLER: Yes, on reflection I think the evidence of Mr Nero has clearly identified, with the assistance of questions from the commission, the outstanding areas of disagreement between the parties when it comes to reaching an agreement. We don’t need the agreed facts, in my submission.
PN752
THE COMMISSIONER: Okay, yes.
PN753
MR MUELLER: I’m prepared to - - -
PN754
THE COMMISSIONER: I understand you’re prepared to go on, but you don’t know whether you want to cross-examine Ms Brennan any further, though.
PN755
MR MUELLER: Well, we do not seek - - -
PN756
THE COMMISSIONER: You don’t. All right, well, you proceed then and we’ll see when you finish. We might have to come back tomorrow and hear Mr Jolly then. That gives Mr Jolly an advantage you don’t have, but if you’re happy to concede that that’s up to you.
PN757
MR MUELLER: Sorry?
PN758
THE COMMISSIONER: I said that gives Mr Jolly an advantage you won’t have, because he’ll be able to think about your submissions overnight, but that’s up - - -
PN759
MR MUELLER: Sorry, I thought we’d both finish today.
PN760
THE COMMISSIONER: Well, if you’re going to - - -
PN761
MR MUELLER: Yes, on that basis - I was misunderstanding.
PN762
THE COMMISSIONER: I don’t know if Mr Jolly is going to take an hour and - - -
PN763
MR MUELLER: Yes. Well, it’s probably best in these circumstances to do it tomorrow.
PN764
THE COMMISSIONER: If you take half an hour then we’re going to be here till 7.00 and possibly longer.
PN765
MR MUELLER: Yes.
PN766
THE COMMISSIONER: It’s no skin off my nose. I don’t have a problem with it, but - - -
PN767
MR MUELLER: All right. I think that’s more appropriate then to recommence tomorrow. I think 10 am was the - - -
PN768
THE COMMISSIONER: We can go right through till 2 o’clock. We don’t need to stop. We can have a short break, but we don’t need to have a lunch break. So I put you on notice of that. Four hours should be enough to plough through that, I would have thought.
PN769
MR JOLLY: Yes, Commissioner.
PN770
THE COMMISSIONER: Yes, all right. We’ll adjourn on that basis.
<ADJOURNED UNTIL TUESDAY, 16 SEPTEMBER 2014 [5.02PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
JAMES NERO, SWORN PN15
EXAMINATION-IN-CHIEF BY MR MUELLER PN15
EXHIBIT #A1 WITNESS STATEMENT OF JAMES NERO DATED 09/09/2014 PN23
EXHIBIT #A2 WITNESS STATEMENT OF JAMES NERO DATED 15/09/2014 PN23
EXHIBIT #A3 NUW LOG OF CLAIMS AGAINST SYDNEY LIQUOR DISTRIBUTION CENTRE DATED 21/07/ PN28
CROSS-EXAMINATION BY MR JOLLY PN58
RE-EXAMINATION BY MR MUELLER PN324
THE WITNESS WITHDREW PN424
SHAUNA ANNE BRENNAN, SWORN PN448
EXAMINATION-IN-CHIEF BY MR JOLLY PN448
EXHIBIT #R1 WITNESS STATEMENT OF SHAUNA BRENNAN PLUS ANNEXURES DATED 12/09/14 PN462
CROSS-EXAMINATION BY MR MUELLER PN462
THE WITNESS WITHDREW PN528
SHAUNA BRENNAN, ON FORMER OATH PN551
RE-EXAMINATION BY MR JOLLY PN699
FURTHER CROSS-EXAMINATION BY MR MUELLER PN718
THE WITNESS WITHDREW PN731
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/other/FWCTrans/2014/548.html