|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1051529-1
COMMISSIONER ROBERTS
C2014/7494
s.739 -
Application to deal with a dispute
Transport Workers' Union of Australia
and
Linfox Australia Pty Ltd
(C2014/7494)
Linfox and
Transport Workers Union Road Transport and Distribution Centres Agreement 2014
(ODN AG2014/3548)
[AE406887 Print PR547821]]
Sydney
10.36 AM, TUESDAY, 10 MARCH 2015
PN1
THE COMMISSIONER: Mr Warnes, I have your outline of submissions. As you know, I'm allergic to the constant repetition of material which is in print.
PN2
MR WARNES: Fair enough, Commissioner.
THE COMMISSIONER: So I have your outline of submissions which I'll mark, unsurprisingly as TWU 1.
EXHIBIT #TWU1 WRITTEN OUTLINE OF SUBMISSIONS OF THE TWU
PN4
THE COMMISSIONER: Is there anything you wish to say in opening?
PN5
MR WARNES: No, not particularly.
PN6
THE COMMISSIONER: After I've discouraged you.
PN7
MR WARNES: Yes. No, not particularly, Commissioner. I generally think that the outline of submissions does that job for us. There will obviously be some things to say at the end, depending on what comes out in evidence et cetera, et cetera, and park some submissions on the jurisdictional point. But I won't bore you with any opening submissions on facts you already know.
PN8
THE COMMISSIONER: You never bore me but perhaps take too much time sometimes.
PN9
MR WARNES: So, Commissioner, if we're ready I'll call our first and only witness, Mr Williams.
THE COMMISSIONER: All right. Well, look, just for the sake of convenience and my memory I'll also mark the Linfox outline at this time as Linfox 1.
EXHIBIT #LINFOX1 WRITTEN OUTLINE OF SUBMISSIONS OF LINFOX
PN11
THE COMMISSIONER: So we'll go to your first witness, Mr Warnes.
MR WARNES: Thank you, Commissioner.
<STEPHEN FREDERICK WILLIAMS, SWORN [10.38 AM]
EXAMINATION-IN-CHIEF BY MR WARNES [10.38 AM]
PN13
MR WARNES: Your name is Stephen Williams?‑‑‑That’s correct.
PN14
Mr Williams, you've prepared a statement for the purposes of these proceedings?‑‑‑Yes.
PN15
I understand that you have a correction you want to make to paragraph 8?‑‑‑Yes, I do.
PN16
Paragraph 8 begins, "Between 2007 and 2011". What did you want to say about that paragraph?‑‑‑That I realised after I'd made it that actually once transferring into that site I fell under the Westgate Agreement prior to the change, where I'd come from the Linfox. I was unaware when I made that that the Westgate was still in practice for a few – several months before we converted over to the Linfox EBA.
PN17
So that paragraph is just not correct?‑‑‑Yes.
PN18
You wish to strike that paragraph?‑‑‑Yes.
PN19
THE COMMISSIONER: And does the attachment then have no relevance, or it does?
PN20
MR WARNES: Commissioner, it doesn’t have relevance, no, but it usefully has - that agreement has the TI state award, which is an issue in these proceedings, attached to it. So it might be useful to perhaps exhibit that separately or even just leave the attachment as is and just use it as a point of reference.
PN21
THE COMMISSIONER: I mean, it's a public document.
PN22
MR WARNES: It is.
PN23
THE COMMISSIONER: So there's no harm in striking all of paragraph 8 I would think.
*** STEPHEN FREDERICK WILLIAMS XN MR WARNES
PN24
MR WARNES: Yes.
PN25
THE COMMISSIONER: Okay, eight is gone.
PN26
MR WARNES: So Mr Williams, apart from paragraph 8 is the contents of that statement true and correct?‑‑‑I believe it to be.
PN27
Commissioner, I would seek to tender that statement.
PN28
MR LEON: Commissioner, I just have a couple of objections.
PN29
THE COMMISSIONER: Yes?
PN30
MR LEON: I'm happy to deal with them while the witness is still there if that ‑ ‑ ‑
PN31
THE COMMISSIONER: We can send him out if you want. It's inconvenient to him, but if it's not necessary to send him out ‑ ‑ ‑
PN32
MR LEON: I don't think it's necessary, Commissioner. Just the first one is just going down to paragraph 7. Mr Williams has made a reference to "we" and "us". I believe that should be "I" and "me". He can only give evidence for himself.
PN33
THE COMMISSIONER: On what basis?
PN34
MR LEON: There's no evidence of other people - Mr Williams has only given a statement of his known beliefs, what he was recalling.
PN35
THE COMMISSIONER: You can ask him a question in cross‑examination. I'm not inclined to exclude the evidence.
PN36
MR LEON: Thank you, Commissioner. In regards just to paragraph 9, the entirety of it, that's hearsay.
PN37
THE COMMISSIONER: It is. Is it in any way essential to your case, Mr Warnes?
*** STEPHEN FREDERICK WILLIAMS XN MR WARNES
PN38
MR WARNES: No, not particularly, Commissioner. We wouldn't push that.
PN39
THE COMMISSIONER: I don't think it's going to rise or fall on paragraph 9.
PN40
MR WARNES: No, I don't think so.
PN41
THE COMMISSIONER: On objection I'll strike paragraph 9.
PN42
Are you following what I'm doing, Mr Williams?‑‑‑I’m a little bit confused on some of the things.
PN43
That's why I asked, sir?‑‑‑Yes. It's ‑ ‑ ‑
PN44
What has happened is that you've said you no longer rely on paragraph 8. I take it you've got it there?‑‑‑Yes.
PN45
There has been an objection from the other side as to the contents of paragraph 9 on the basis that it happened to somebody else?‑‑‑Yes.
PN46
It's not your direct – no, I can't discuss it with you but it has happened to somebody else. It's not your direct evidence. I've agreed with that. It's out?‑‑‑Right.
PN47
So your statement so far anyway is now minus paragraphs 8 and 9?‑‑‑Right.
PN48
Continue.
PN49
MR LEON: And the last ones, Commissioner, are just 12,13 and 14.
PN50
THE COMMISSIONER: There won't be much left in there.
PN51
MR LEON: Just on the basis of relevance. The dispute has arisen. These facts have no utility.
PN52
THE COMMISSIONER: Sorry, 12? Sorry, 11?
*** STEPHEN FREDERICK WILLIAMS XN MR WARNES
PN53
MR LEON: 12, 13 and 14, apologies.
PN54
MR WARNES: Commissioner, I would like to say something about that. The submission ‑ ‑ ‑
PN55
THE COMMISSIONER: You don't need to. At the moment I'm still reading it.
PN56
MR WARNES: Okay.
PN57
THE COMMISSIONER: No, I'm the ministry of relevance in these things. You can do that in submissions.
PN58
MR LEON: Thank you, Commissioner.
PN59
THE COMMISSIONER: Yes, I'm leaving it in.
PN60
Are you up with us, Mr Williams? Your statement is now as you ‑ ‑ ‑?‑‑‑Yes.
PN61
As you've sworn to it, less paragraphs 8 and 9?‑‑‑Okay.
I'll now enter Mr Williams' statement into evidence as exhibit TWU 2 and the witness statement is as amended.
EXHIBIT #TWU2 AMENDED WITNESS STATEMENT OF STEPHEN FREDERICK WILLIAMS WITH ANNEXURES
PN63
THE COMMISSIONER: Mr Warnes?
MR WARNES: Commissioner, that's the evidence‑in‑chief.
CROSS-EXAMINATION BY MR LEON [10.44 AM]
PN65
MR LEON: Mr Williams, you've got a copy of your statement there?‑‑‑Yes.
PN66
You're a truck driver for Linfox working at the Woolworths Warnervale yard, is that correct?‑‑‑Correct.
*** STEPHEN FREDERICK WILLIAMS XXN MR LEON
PN67
And you used to be the site delegate?‑‑‑Yes, correct.
PN68
But you're not the delegate any more?‑‑‑No.
PN69
But you were the delegate from 2008 to 2013?‑‑‑I believe so, or thereabouts.
PN70
And my understanding is Kevin Beswick is the delegate now, is that correct?‑‑‑Yes, that's correct.
PN71
You say in your statement you deliver to Woolworths stores on the central coast, Newcastle and Hunter Valley, is that correct?‑‑‑Yes.
PN72
But you also deliver into Sydney, don't you?‑‑‑Well, we do deliver into the top end of Sydney.
PN73
Yes, but that’s not in your statement?‑‑‑Isn't it? I'm – where is that? Well, obviously I've left that part out. Is that an issue here?
PN74
THE COMMISSIONER: Yes, you'll find that out through being asked questions and ‑ ‑ ‑?‑‑‑Fair enough. Right, yes. Because it's sort of ‑ ‑ ‑
PN75
No, just wait.
PN76
MR LEON: Sorry, Mr Williams, it's at paragraph 2.
PN77
THE COMMISSIONER: Just hang on.
PN78
This is like a demarcation, right? Your job is only to sit there and answer his questions?‑‑‑Right. Fair enough.
PN79
MR LEON: Sorry, Mr Williams that was at paragraph 2?‑‑‑Right.
PN80
Can I take you to paragraph 4 of your statement?‑‑‑Yes.
*** STEPHEN FREDERICK WILLIAMS XXN MR LEON
PN81
You say there the majority of the fleet's trailers are 49 foot. Do you see that at paragraph ‑ ‑ ‑?‑‑‑Yes, I do.
PN82
Yes, are you talking about today?‑‑‑Today, yes and ‑ ‑ ‑
PN83
Yes?‑‑‑‑ ‑ ‑ back then, yes.
PN84
So are you talking about today or back then?‑‑‑Both.
PN85
Both?‑‑‑Both.
PN86
Both. How many trailers are there in the yard?‑‑‑There would be approximately I'd say 50 trailers. 50 to 60 trailers.
PN87
How many of them are 49 foot?‑‑‑I'd say approximately 80 per cent.
PN88
49 footers?‑‑‑Yes, 49 footers.
PN89
So you're saying there are 40 49 footers?‑‑‑Approximately, yes.
PN90
In the yard right now?‑‑‑Yes.
PN91
And how many were there between 2009 and 2011?‑‑‑Possibly the same. Our – the fleet there's only increased marginally over the last 12 months.
PN92
Possibly the same?‑‑‑Yes.
PN93
So you don't know?‑‑‑No, I don't count every single trailer.
PN94
Mr Williams, how many of them are 48 foot?‑‑‑That I know of, I'd say there would be possibly six.
PN95
Six?‑‑‑Six 48'ers, thereabouts.
*** STEPHEN FREDERICK WILLIAMS XXN MR LEON
PN96
Thereabouts. How many are 44 foot?‑‑‑We have just had some come out of the Melbourne contract over the last 12 months and I'd say we've possibly five or six as well.
PN97
Mr Williams, just to be clear. Isn't it true that even if you're entitled to this allowance, and I'm not saying that you were, the entitlement ceased in 2011?‑‑‑I believe so. You're the one that's telling me the story there.
PN98
Mr Williams, this is your evidence?‑‑‑Yes.
PN99
THE COMMISSIONER: You don't have to accept anything that he tells you?‑‑‑Yes. Right.
PN100
He's going to ask you questions and you're going to agree with him ‑ ‑ ‑?‑‑‑Right.
PN101
‑ ‑ ‑ or disagree with him, okay? Don't take his word for anything?‑‑‑Right. I don't ‑ ‑ ‑
PN102
No offence?‑‑‑I don't understand when it finished or it ceased. All I understand is I presented stuff six years ago and asked for you to look at it, end of story.
PN103
MR LEON: No, Mr Williams, I'm not sure what you presented. I'm only just going by what's in your statement?‑‑‑Yes.
PN104
And in your statement you're claiming a two year period, is that correct?‑‑‑I'm claiming whatever – what I believe I'm entitled, for whatever length until such time as the modern award changed.
PN105
Mr Williams, you're talking about a period between 2009 and 2011. That's the two year period?‑‑‑Well, obviously the award – the modern award changed after 2011 and allowances and lengths have been amended. But prior to 2011 then obviously we were entitled to that up until the change of the EBA and the award. I'm – I don't read this paperwork every day, sir. I'm not ‑ ‑ ‑
PN106
Look, Mr Williams, the question that I'm asking you and I just want ‑ ‑ ‑?‑‑‑It's misleading because I don't understand the full ‑ ‑ ‑
PN107
No, I'll ask you the question again just to assist?‑‑‑Yes.
*** STEPHEN FREDERICK WILLIAMS XXN MR LEON
PN108
The questions that I was asking about the trailers in the yard, and you've given evidence about those trailers in the yard?‑‑‑Yes.
PN109
Based on what you've said at paragraph 4, all right?‑‑‑I ‑ ‑ ‑
PN110
All I'm asking you now is that's evidence about how many trailers there are in the yard right now?‑‑‑Yes.
PN111
And what I'm saying to you is your claim is from 2009 to 2011?‑‑‑Well ‑ ‑ ‑
PN112
And I would like to know how many 49 footers were in the yard in 2009?‑‑‑I – as I said, approximately 40 to 45 49 foot trailers. Can I add to that?
PN113
No, that's fine Mr Williams. Can I take you to annexure B of your statement? It's on - I think it's on page 10 of your statement. Apologies, annexure B is on page 6 of your statement.
PN114
THE COMMISSIONER: Just tell him what it is.
PN115
MR LEON: It's a ‑ ‑ ‑
PN116
THE COMMISSIONER: It's a picture of a Woolworths semitrailer, sir.
PN117
MR LEON: It's a picture of a truck and a trailer.
PN118
THE COMMISSIONER: Or a truck?‑‑‑Yes.
PN119
MR LEON: Do you see that, Mr Williams?‑‑‑Yes.
PN120
Is that a Volvo?‑‑‑That is one of the new Volvos. That truck there would be less than three months old.
PN121
So the truck is less than three months old?‑‑‑That truck is and that one specific trailer has been in the system for 12 months.
*** STEPHEN FREDERICK WILLIAMS XXN MR LEON
PN122
Right, so Mr Williams ‑ ‑ ‑?‑‑‑ It came out of Melbourne.
PN123
Mr Williams, thank you. So the truck wasn't there between 2009 and 2011?‑‑‑No, that truck ‑ ‑ ‑
PN124
No? Thank you?‑‑‑‑ ‑ ‑ wasn't ‑ ‑ ‑
PN125
And in 2009 what kind of truck did you drive?‑‑‑An Actros.
PN126
An Actros?‑‑‑Yes.
PN127
And are Actros' the same as Volvos?‑‑‑No, they're actually longer.
PN128
They are longer?‑‑‑They're longer than that prime mover there.
PN129
So this truck has no relationship to the trucks you were driving between 2009 and 2011, does it?‑‑‑No, it doesn't.
PN130
So it's just a picture of a truck?‑‑‑That’s right, yes.
PN131
THE COMMISSIONER: How long is this truck?‑‑‑That combination there, sir, would be approximately 18.3 metres. It would be the shortest combination in the yard. The longer – the ones we were towing at the time would've been approximately 500 millimetres longer.
PN132
Thank you.
PN133
MR LEON: Now I'll come back to the Commissioner's question again in a second. Now the trailer in the photograph, do you always pull that trailer?‑‑‑No, that's – I might pull that once a week.
PN134
Once a week, so you ‑ ‑ ‑?‑‑‑On average.
PN135
Do you always pull the same trailer every shift?‑‑‑No.
PN136
Right?‑‑‑No.
*** STEPHEN FREDERICK WILLIAMS XXN MR LEON
PN137
So do you pull multiple trailers in a shift?‑‑‑I could pull at maximum possibly four trailers.
PN138
Four different trailers? So four different combinations?‑‑‑Yes.
PN139
So let me get this clear. You would hook a truck up to a trailer, correct?‑‑‑Yes.
PN140
And then you would take the trailer and perform a delivery?‑‑‑Yes.
PN141
And then you'd bring the trailer back?‑‑‑Yes.
PN142
And you disconnect from that trailer?‑‑‑Yes.
PN143
And then you connect to another trailer?‑‑‑That’s right.
PN144
And so on and so forth?‑‑‑So forth, yes.
PN145
Yes, so this picture is just a picture of a trailer, isn't it?‑‑‑It's a picture of a truck and trailer.
PN146
Yes. Thank you. So looking at annexure B - and this just goes to the Commissioner's question - my understanding is your answer was that truck and trailer is approximately 18.3 metres?‑‑‑That particular combination.
PN147
Have you actually measured that?‑‑‑Yes, I have.
PN148
You've measured this?‑‑‑Yes.
PN149
Can I take you to paragraph 4 of your statement? Sorry, before I take you to paragraph 4, is this a 49 footer?‑‑‑No. No, that is a one-off 48 foot trailer that came out of Melbourne, surplus out of Melbourne and was issued into our yard. It is a totally different combination than the other trailers. It's a foot shorter.
PN150
Totally different?‑‑‑It's a foot shorter than the 49 footers. It's got guard – all the bottom guards around the tyres is different. It's – yes.
*** STEPHEN FREDERICK WILLIAMS XXN MR LEON
PN151
Mr Williams, can I take you to paragraph 4 of your statement? Can you just have a read of it?‑‑‑"The majority" – yes, "The majority ‑ ‑ ‑
PN152
You don't have to read it out loud. Just read it to yourself, Mr Williams?‑‑‑Yes. "With trailers", yes.
PN153
And then just if you could, could you read paragraph 6. You've got that?‑‑‑Yes.
PN154
Yes, so Mr Williams did you see the second sentence of paragraph 6 you start with ,"Those trailers were and still are" and then you go on to talk about the picture and also annexure B? Do you see that?‑‑‑In six? Yes, I've presented a picture of a truck trailer. It doesn't relate to – it doesn’t specifically say it's the 49 footer. I've just presented a picture so people can actually see what we do. It's a clear picture that everybody in this room can actually see what we actually tow.
PN155
I can see that, Mr Williams?‑‑‑That's so you can -yes, so you can understand it ‑ ‑ ‑
PN156
If you don't mind, Mr Williams. I can see that. The problem that I'm having, Mr Williams, is if these aren't the trucks that you're talking about why have you attached the picture?‑‑‑Well, as the statement from a manager states that the fleet's been replaced. It's been ‑ ‑ ‑
PN157
But Mr Williams this is your evidence?‑‑‑‑ ‑ ‑ replaced. Yes it's my evidence.
PN158
I'm simply asking are you saying that annexure A is not relevant to your claim?‑‑‑It's there clearly as stated. It's a picture.
PN159
I apologise, annexure B?‑‑‑It's a picture to show you what it looks like.
PN160
I apologise, Mr Williams. Annexure B is the picture?‑‑‑The fleet's been replaced. The fleet that is in question and what we're requesting this whole matter about has been replaced. So I can't produce a photo of an Actros and a trailer to describe to you what it is due ‑ ‑ ‑
PN161
Mr Williams, it's ‑ ‑ ‑?‑‑‑Are you aware of what a Woolworths' trailer and ‑ ‑ ‑
PN162
THE COMMISSIONER: No, you don't get to ask him questions?‑‑‑Sorry.
*** STEPHEN FREDERICK WILLIAMS XXN MR LEON
PN163
That's the demarcation?‑‑‑Fair enough. Right.
PN164
MR LEON: So the bottom line, Mr Williams, and let me be clear here, because of all those factors that you just went on about you don't actually know how long the combinations were, do you?‑‑‑Yes, I do actually.
PN165
You do?‑‑‑Yes.
PN166
You've measured them?‑‑‑Yes, I have. I ‑ ‑ ‑
PN167
Okay, so you've measured the Actros and ‑ ‑ ‑?‑‑‑‑ ‑ ‑ measured ‑ ‑ ‑
PN168
‑ ‑ ‑ those trailers at the time?‑‑‑Yes, I've measured five different combinations in the yard to just get – so we could understand.
PN169
Okay, and Mr Williams just pardon me for one second, where is that in your evidence?‑‑‑It's not in the evidence. I didn't put it in evidence. I measured - you asked me if I measured it, if I measured them.
PN170
Mr Williams you understand that what you've put in evidence you've completely disavowed. You've said it's not the trucks that you're referring to. It's not the trailers you're referring to. But here you say you do have evidence about the trucks and trailers that you are referring to but you just didn't put it into evidence?‑‑‑No, I didn't put it into evidence. You asked me if I measured them and I said yes, I measured them. That's the difference. I measured them and they measured over 18.3 metres.
PN171
Mr Williams, you keep saying ‑ ‑ ‑?‑‑‑That's what you asked me.
PN172
THE COMMISSIONER: So you're saying you measured other ones?‑‑‑I ‑ ‑ ‑
PN173
Not this. This one is not the one – is not the other ones?‑‑‑This one isn't part of this claim. You're telling me this claim's from 2011. As I said ‑ ‑ ‑
PN174
The witness appears to be saying this is for purely illustrative purposes?‑‑‑Yes, that's what it was.
*** STEPHEN FREDERICK WILLIAMS XXN MR LEON
PN175
Of what a Woolworths truck ‑ ‑ ‑?‑‑‑It was a photo to explain ‑ ‑ ‑
PN176
What a Woolworths truck – hang on, sir?‑‑‑‑ ‑ ‑ and the trailer looks like.
PN177
I get priority?‑‑‑I'm sorry.
PN178
He's saying that it's purely for illustrative purposes of what a Woolworths truck generally looks like, and that's the way I'm going to take it. It's a nice looking truck so that's about the best we can say.
PN179
MR LEON: Apologies, Commissioner. I can only do one thing at a time.
PN180
THE COMMISSIONER: That's all right.
PN181
MR LEON: So Mr Williams you just said there that you've measured trucks between 2009 and 2011 and that this doesn't reflect those trucks, and they are over 18.3 metres. Is that correct?‑‑‑Yes, they are.
PN182
Yes? Do you see at paragraph 4 of your statement you say - the second sentence there, "The total length of the trailer is 19 metres". So is that incorrect or is what you're saying incorrect?‑‑‑The Actros I was towing at the time with the 49 foot trailers measured in at approximately 18.95, 50 mil short of the 19 metres which ‑ ‑ ‑
PN183
Yes so is your evidence that paragraph 4 is incorrect?‑‑‑Well, there's – I've never stated they're 19 metres.
PN184
"In total length", "The total length" – sorry, I apologise, "In total, the length of the combination, the entire vehicle and trailers, is 19 metres"?‑‑‑Well I – no, I'll say that is incorrect.
PN185
It's incorrect?‑‑‑Yes.
PN186
THE COMMISSIONER: So what is it?‑‑‑The original truck and trailer was 18.95 metres.
PN187
18.95, thank you?‑‑‑I'd like to – that truck, sir, if you don't mind me – that is my truck and that trailer. That's why I took the photo. That's what was ‑ ‑ ‑
*** STEPHEN FREDERICK WILLIAMS XXN MR LEON
PN188
It's an illustrating picture of a Woolworths truck?‑‑‑Yes, that's it.
PN189
Yes.
PN190
MR LEON: Mr Williams I don't want to harp on this point, but because you've raised again the illustrative purposes, you don't actually have any evidence, do you, to support the 18.95 metre claim that you've made, have you?‑‑‑No.
PN191
And you put ‑ ‑ ‑Not here and now.
PN192
No?‑‑‑Because we no longer have the fleet. We no longer – that fleet is gone.
PN193
Yes, and that's not what your evidence says, is it?‑‑‑Well, we've just said it was – you've already asked me once and I said 19 metres.
PN194
Mr Williams can I just deal with the truck, just for one second, and we'll use your illustration if that suits? That's annexure B. It's true, isn't it Mr Williams, that the connection point between trucks and trailers can move forward and backwards?‑‑‑Where the – you mean where the hook-up of the pin and the turntable?
PN195
Correct?‑‑‑Yes, they can be moved.
PN196
Yes, so they can be moved forward and backwards, and what about the pin on the trailer, can they be moved?‑‑‑They can only be moved by a mechanic. They can't – we can't manually move them.
PN197
No, that's not what I'm asking you?‑‑‑Yes.
PN198
I'm asking if they can be moved?‑‑‑It's a hard question to answer because when they're set up from purchase by Linfox they're virtually in a stationary position. You cannot move them unless they have to be moved for different weight reasons.
PN199
So they can be moved?‑‑‑By a authorised person, yes.
PN200
Yes?‑‑‑Yes.
*** STEPHEN FREDERICK WILLIAMS XXN MR LEON
PN201
So they can be moved?‑‑‑Yes.
PN202
So the truck and trailer combination that you measured can be altered on a daily basis?‑‑‑No. No.
PN203
Why not? You just said they could be moved?‑‑‑You've physically got to unbolt a set of axles and move them, or a set of pins. It's - and turntables.
PN204
I understand that, Mr Williams?‑‑‑It can't be done daily.
PN205
I'm not suggesting that. I'm not suggesting that you did them. I'm not suggesting that you're a mechanic. I'm just asking if they can move?‑‑‑Not daily, no. As you asked me could they be moved daily, no. It would ‑ ‑ ‑
PN206
But they can be moved?‑‑‑It would take several days in a workshop by qualified people to move them.
PN207
All right, I don't believe that's the case. That might be the case for the trailer?‑‑‑No, for the turntable as well. They're fixed turntables in the Linfox fleet.
PN208
I'm not sure that's correct?‑‑‑Well, yes, they are. Yes, they are. They're a fixed turntable.
PN209
THE COMMISSIONER: This is a debate, isn't it?
PN210
MR LEON: I apologise, Commissioner.
PN211
THE COMMISSIONER: You can hop up and give evidence yourself if you want to at some stage.
PN212
MR LEON: Mr Williams, can I just deal with going back to your statement. You've already told the Commission that you drove multiple trailers?‑‑‑Yes.
PN213
In a shift, correct?‑‑‑That’s correct.
PN214
Can you just have a look at paragraph 7 of your statement?‑‑‑Yes.
*** STEPHEN FREDERICK WILLIAMS XXN MR LEON
PN215
You see there you talk about carrying what you call an over‑dimensional permit?‑‑‑Yes.
PN216
This allows the vehicle with the trailer to be 19 metres long and you've attached ‑ ‑ ‑?‑‑‑Up to 19 metres.
PN217
Apologies, what was that?‑‑‑The permits for the trailer, because the trailer is – as you said the pin and the axle are in a different configuration than most trailers. They've got a longer overhand and are longer at the front with the fridge motor overhanging, making left and right turns.
PN218
Apologies, Mr Williams, did you say up to 19 metres? Is that what you were trying to alert me to, the permit allows the vehicle with the trailer to be up to 19 metres?‑‑‑Yes, because 19 metres is the maximum.
PN219
And you've attached what you call this permit at annexure C. Now I just want to deal with this idea of a permit. Mr Williams, are you aware that a permit is issued for a specific vehicle combination?‑‑‑Well I'm aware that the permit is issued in our site for the trailer and the refrigeration. Nothing to do with the prime mover, just for the trailer, and that's what I'm aware of. It's purely for the trailer.
PN220
Purely for the trailer?‑‑‑That's how we've been led to believe. We must carry it when we ‑ ‑ ‑
PN221
So do you know the difference between a notice and a permit, Mr Williams?‑‑‑No I don't.
PN222
For trailer only. So you're not aware that the permit details the precise truck and trailer to which the permit refers?‑‑‑No, I'm not aware of that.
PN223
So you can only get a permit for a specific vehicle combination?
PN224
THE COMMISSIONER: He has answered you twice.
PN225
MR LEON: Yes. Thank you, Commissioner.
*** STEPHEN FREDERICK WILLIAMS XXN MR LEON
PN226
So the question I'm asking you, Mr Williams, is it follows that you're not actually carrying a permit, are you?‑‑‑Well in the office we go to a folder which sits there and it says, "Over‑dimensional permits" and we ask to get one, photocopy it and if we haven't got one, we carry that. That's all I ‑ ‑ ‑
PN227
It's actually a notice, isn't it Mr Williams?‑‑‑Well it says on the folder in the office. It just says, "Over‑dimensional permit".
PN228
On the folder?‑‑‑That's what's filed in the office so I have always called it a permit. If it's a notice, it's a notice.
PN229
Can you look at annexure C of your statement, Mr Williams?‑‑‑I'll take your word, if it's a notice it's a notice. But I only go to a folder in the office.
PN230
Well, it's critical, Mr Williams.
PN231
MR WARNES: How? How is it critical? It's a word.
PN232
THE COMMISSIONER: We might find out if ‑ ‑ ‑
PN233
MR WARNES: In his evidence it says notice.
PN234
THE COMMISSIONER: Well, you might find out.
PN235
MR LEON: Yes.
PN236
MR WARNES: It says notice.
PN237
THE COMMISSIONER: But with the witness in the box I won't allow you to continue at the moment.
PN238
You go.
PN239
MR LEON: Thank you, Commissioner.
*** STEPHEN FREDERICK WILLIAMS XXN MR LEON
PN240
So looking at annexure C, and I understand that you've accepted that's a notice not a permit. Is that correct - and just I'll leave aside that this notice is from 2012 and your claim is from 2009 to 2011. Does the notice specify a truck and trailer number anywhere, Mr Williams?‑‑‑I doubt it. I'd say because it's a – as I pointed out, we're all just issued them. We photocopy them. They're handed to everybody. So it'd be - the fleet's pretty much the same fleet so I believe it would cover all of us.
PN241
And it covers the trailer?‑‑‑Well there's two permits. It has to cover the truck as – and the trailer once you're hooked up.
PN242
Sorry, notice? Notice?‑‑‑If you want to call it notice you can call it notice. I've – sorry, I've always just used the word permit. I don't ‑ ‑ ‑
PN243
Mr Williams, I understand that?‑‑‑Good.
PN244
But you specifically said it is a notice and that is relevant. The notice doesn’t specify a truck and trailer number anywhere, does it?‑‑‑I don't know. I'm not looking at it. You're telling me.
PN245
THE COMMISSIONER: Can I just make this point that it is a notice. Unless the document is fraudulent, it is a notice. It doesn’t really matter what the witness thinks it is.
PN246
MR LEON: Commissioner, I ‑ ‑ ‑
PN247
THE COMMISSIONER: Or what anyone thinks it is. It's a notice.
PN248
MR LEON: Thank you, Commissioner.
PN249
THE COMMISSIONER: If there's a difference between a notice and a permit you'll tell me all about it at a later stage.
PN250
MR LEON: I certainly have, Commissioner. I just wanted to deal with it because of the evidence, but if that's how it's accepted then I'll move along.
PN251
THE COMMISSIONER: I mean, if the witness was to maintain firmly that it's a permit that would just fly in the face of the documentary evidence.
PN252
MR LEON: Thank you, Commissioner, but he does continue to refer to it as a permit despite the point.
*** STEPHEN FREDERICK WILLIAMS XXN MR LEON
PN253
THE COMMISSIONER: I'm just telling you what my line of thinking is about it.
PN254
MR LEON: Thank you.
PN255
Mr Williams, just one point on the notice. You carry this notice every day?‑‑‑Yes, it's in my work diary.
PN256
Yes, even when you drove 48 foot trailers?‑‑‑Yes.
PN257
Even when you drove 14 four foot trailers?‑‑‑Yes.
PN258
Thank you. Mr Williams, you perform deliveries from the Woolworths DC in Warnervale into Woolworths' stores, correct?‑‑‑Yes, that's ‑ ‑ ‑
PN259
You delivered groceries, did you?‑‑‑Yes.
PN260
Canned goods?‑‑‑Hand goods?
PN261
Cans, canned goods?‑‑‑Canned, yes, all general retail.
PN262
Do you deliver anything like swimming pools?‑‑‑No.
PN263
Houses?‑‑‑No.
PN264
Telegraph poles?‑‑‑No.
PN265
No? Just groceries?‑‑‑Yes – well, no, I'll have to say no because I actually did a pickup the other day for Woolworths and it wasn't groceries. It was a load of containers and stuff for the warehouse.
PN266
When was that?‑‑‑Approximately a fortnight ago I got a phone call ‑ ‑ ‑
PN267
Two weeks ago?‑‑‑Yes, got asked would I go into a ‑ ‑ ‑
*** STEPHEN FREDERICK WILLIAMS XXN MR LEON
PN268
Was it between 2009 and 2011?‑‑‑No, I just told you it was two weeks ago.
PN269
Okay, thank you. So there's nothing special about a load of groceries, is there?‑‑‑I believe so in the sense that the vehicles we tow and where we take them and deliver, you know, I'll take a 49 foot trailer into Avalon Beach, for instance, where you really have to know what you're doing with that vehicle because that dock's designed to take a rigid vehicle yet I've got to put in a 19 metre vehicle. I get toolboxed constantly about overhang, over height and that I'm told I'm a special driver and that I should know how to do the job.
PN270
Right, so just – I'm not disputing that you may be a good driver, Mr Williams. I don't know that. I'm just asking you what's special about the load, and unless you're in the back ‑ ‑ ‑?‑‑‑Well, I have been in the back. We ‑ ‑ ‑
PN271
So you ‑ ‑ ‑?‑‑‑Back then we were in the back all the time unloading it. We had to ‑ ‑ ‑
PN272
Unloading it?‑‑‑Yes, physically unloading roll cages. Yes.
PN273
Mr Williams just moving along, can I take you to paragraph 10 of your statement?‑‑‑Yes.
PN274
Given the evidence that you've given what was in the folder that you gave Mr Quennelle?‑‑‑I gave Mr Quennelle a copy of the permits, the award, its ‑ ‑ ‑
PN275
You mean the notice?‑‑‑Notice, documentation. I gave it to him in good faith because I took Terry Quennelle to be one of the most reputable people I've ever met and dealt with. And I just said, "Terry, I'm going away for three weeks. Would you pass this on to Gaylene Earle and ask her to have a look at it. I believe there could be an allowance we're entitled to". So in good faith I passed it on and then I proceeded to go on holidays.
PN276
Thank you, Mr Williams. Just to paragraph 12 now and in fact, Mr Williams, I'm going to ask you a question just about paragraphs 12, 13 and 14 just to deal with an issue?‑‑‑So you ask away.
PN277
Isn't it true the only reason you've raised the dispute is because of the crib break issue?‑‑‑No, because what it is, I passed all the paperwork on to the now delegate who – he raised and brought all this to a head. I'm only filling in for him because he's off injured. So no, it's got ‑ ‑ ‑
*** STEPHEN FREDERICK WILLIAMS XXN MR LEON
PN278
I understand that, Mr Williams. But what I'm asking is doesn't it say there specifically on the first line of paragraph 14 ‑ ‑ ‑?‑‑‑I thought we were doing 12.
PN279
‑ ‑ ‑ that the only reason this dispute has been raised is because you believe Linfox reneged on a local matter?‑‑‑I actually read that bit and reference to the renege is that's irrelevant to this. The ‑ ‑ ‑
PN280
It's irrelevant is it?‑‑‑The renege was just a word said between me and the site manager in a conversation. So I don't even know how that got put in here or became part of it. That to me was a little bit distasteful.
PN281
Mr Williams, it's your evidence and it's your statement. So what do you say? You say it's irrelevant, paragraph 14?‑‑‑I'll re-read that. I thought we were on 12. No, it – I handed it over.
PN282
THE COMMISSIONER: Just read 14 to yourself, then if you need the question repeated it will be?‑‑‑It's possibly part of it between the new delegate and the management, the new management. I had quite a good relationship with the previous manager and myself in my time, so it possibly has been raised through change of management, change of delegates. Situations change.
PN283
MR LEON: Mr Williams, I ‑ ‑ ‑?‑‑‑That's what you asked. That's what I just said. It's possibly what you just said.
PN284
This is your statement, Mr Williams?‑‑‑Yes. Yes, well my statement it's possibly why I've said it. It's possibly what it is.
PN285
Well you have to tell me whether it is?‑‑‑Well, it is then. Yes, it is.
PN286
This is your evidence. I'm sorry, sir?‑‑‑It is. It is. Move on, please. Yes it is.
PN287
Yes it is?‑‑‑Yes, that will do.
PN288
So it's payback for the crib break issue?‑‑‑No, not payback. I don't understand what payback means. Could you please explain what payback means?
PN289
THE COMMISSIONER: Revenge?‑‑‑Right, well I'm sorry, sir, I'm not a – I'm a person that doesn't hold grudges or – I'm here to do a job. Sorry.
*** STEPHEN FREDERICK WILLIAMS XXN MR LEON
PN290
Yes, it's just a question that's being put to you?‑‑‑Yes.
PN291
If you don't agree with it, you say so?‑‑‑Well it's – if I put it in my statement I say it's possibly to do with that. But I've never heard of paybacks or revenge. I believe we do this as a job and then we move on. It's – we've all got a job and a role to play.
PN292
MR LEON: Yet here we are. Mr Williams ‑ ‑ ‑?‑‑‑This is to do with ‑ ‑ ‑
PN293
‑ ‑ ‑ just one last point?‑‑‑This is to do with an allowance.
PN294
And I'll deal with this briefly. Commissioner, I just wanted to briefly ask Mr Williams a question about annexure A to his statement, and the TWU has kindly provided a printed copy that might assist.
PN295
THE COMMISSIONER: I might say that A is unreadable on my copy, so.
PN296
MR LEON: There you go, Commissioner.
PN297
THE COMMISSIONER: There we go.
PN298
MR LEON: I just wanted to deal with this ‑ ‑ ‑
PN299
THE COMMISSIONER: If it's okay with the parties I'll just take the simple step of throwing away the original A and replacing it with this one, okay? Continue.
PN300
MR LEON: This is annexure A of your statement, Mr Williams. Is this tag from the picture in annexure B?‑‑‑I'll have to have a look at the previous one to see if it is. I would have to assume it is, looking at the first black and white one. It's not a very good print but I would say I believe it to be.
PN301
THE COMMISSIONER: Well, that has now been replaced with a very good print so ‑ ‑ ‑?‑‑‑Yes, that's what I'm saying. I believe ‑ ‑ ‑
PN302
So your question was whether this ‑ ‑ ‑
*** STEPHEN FREDERICK WILLIAMS XXN MR LEON
PN303
MR LEON: I'm just trying to clarify whether it relates to this truck.
PN304
THE COMMISSIONER: Yes, continue clarifying because I don't understand it.
PN305
MR LEON: Yes, because this was for illustrative purposes or whether or not – is this part of the picture that you've got at annexure B? Is this the tag from this truck that you've put in for illustrative purposes?‑‑‑Well, I believe so, looking at that.
PN306
Yes?‑‑‑Yes.
PN307
Okay, so ‑ ‑ ‑
PN308
THE COMMISSIONER: But hang on. Hang on.
PN309
How old do you say this truck was?‑‑‑Well, these trailers. These are the trailers we were towing.
PN310
But B, the good looking truck?‑‑‑That? That's a brand new one.
PN311
Yes?‑‑‑That's only three months old, that.
PN312
And you're saying A, attachment A, relates to that truck?‑‑‑No, not to that truck. That relates to the trailers we're referring to. That's a trailer. That's off a 49 footer. It has the model OD Trailer 3rd of the ‑ ‑ ‑
PN313
So it's nothing to do with the truck at B?‑‑‑No. No. Sorry?
PN314
It's nothing to do with the truck at B?‑‑‑Truck, yes.
PN315
MR LEON: Nothing. Thank you. Thank you, Commissioner.
PN316
THE WITNESS: That's to do with a trailer.
PN317
MR LEON: So it has got nothing to do ‑ ‑ ‑?‑‑‑That's to do with the trailer. That's to do with a trailer.
*** STEPHEN FREDERICK WILLIAMS XXN MR LEON
PN318
Yes, I understand. In regards to the trailer is this the picture from the trailer in B?‑‑‑I'd say so, looking at it.
PN319
Yes?‑‑‑Yes, that's what I said to you. Yes, this is ‑ ‑ ‑
PN320
THE COMMISSIONER: I refer them to one as one thing. You understand, yes?
PN321
MR LEON: Sorry, yes, I understand, Commissioner.
PN322
THE WITNESS: Yes.
PN323
MR LEON: So where does it say the length of the trailer on this plate?‑‑‑It doesn't say that.
PN324
It doesn't?‑‑‑No.
PN325
No?‑‑‑Well, you're reading it. It doesn't.
PN326
So Mr Williams, the trailer in B is 48 foot, is it not?‑‑‑The photo? The illustration? Yes, a different – a totally different ‑ ‑ ‑
PN327
You just said this is from that trailer?‑‑‑No, I didn't. No, I didn't. Not from that trailer. No, I said it is from ‑ ‑ ‑
PN328
THE COMMISSIONER: You said it wasn't from that truck and then I thought you said but it was from that trailer?‑‑‑No. No, this is from a trailer ‑ ‑ ‑
PN329
You're going to go back to the ‑ ‑ ‑?‑‑‑This is an 08.
PN330
You're going to get – just wait. You're going to go back to this line of questioning and we're going to get it absolutely clear.
PN331
Just listen very carefully to the question that's put to you, Mr Williams?‑‑‑Yes.
*** STEPHEN FREDERICK WILLIAMS XXN MR LEON
PN332
MR LEON: So Mr Williams, the question that I'm asking you is: is this picture in annexure A that you have in front of you from the trailer that you've taken a photo of in annexure B?‑‑‑No.
PN333
No?‑‑‑No.
PN334
Thank you. This is a different trailer?‑‑‑That’s right. I've just taken it of one of the 49 footers in the yard.
PN335
One of the 49 footers?‑‑‑Yes.
PN336
In the yard. Do the 38 foot trailers have plates on them?‑‑‑I wouldn't know.
PN337
You don't know?‑‑‑No.
PN338
And it doesn't say the actual length. It just stamps it that the trailer is – the model of the trailer, is that correct?‑‑‑That's what it says there. It's probably – it probably has another plate somewhere on the trailer. It might, but at this stage, no, it doesn't say anything.
PN339
Thank you Mr Williams.
PN340
I have nothing further, Commissioner.
THE COMMISSIONER: Mr Warnes?
RE-EXAMINATION BY MR WARNES [11.20 AM]
PN342
MR WARNES: Just briefly, Mr Williams, you were asked some questions about the difference between notices and permits and you made it clear that you just called it a permit. You don't think it's actually a permit?‑‑‑I've got no idea. I only follow the folder in the office that has got written, "Over‑dimensional permits". That's what's filed in the office, so. It's been there for many years.
PN343
And what's filed in the office is similar or the same as what you've attached to your statement?‑‑‑Those – yes. Yes.
*** STEPHEN FREDERICK WILLIAMS RXN MR WARNES
PN344
Yes, so that's what you get from the office?‑‑‑Yes, that's what we get from the office.
PN345
Now in terms of the photo that you've just been given of that plate, what is it that OD trailer means?‑‑‑I don't know.
PN346
You don't know what OD trailer means?‑‑‑I would believe – I was led to believe it's over-dimensional but – because of where the pin and the axles are. But I'm not a body builder or a mechanic so I can't give you a correct and accurate ruling on it. But I would be led to believe OD trailer would stand for over-dimensional. It ‑ ‑ ‑
PN347
Thanks for your frankness, Mr Williams?‑‑‑Yes.
PN348
Thank you, Commissioner.
PN349
THE COMMISSIONER: Mr Williams, you'll be delighted to know that completes your evidence and you're free to step down, and thank you for coming?‑‑‑Yes.
You're also free to stay here in the proceedings and observe what goes on, if you want, or you can leave.
<THE WITNESS WITHDREW [11.21 AM]
PN351
THE COMMISSIONER: Mr Warnes, that completes your witness evidence, doesn't it?
PN352
MR LEON: It does. Thank you, Commissioner.
PN353
THE COMMISSIONER: Yes. Mr Leon, I've already marked your opening.
PN354
MR LEON: Thank you, Commissioner. My witness has gone downstairs. Perhaps if ‑ ‑ ‑
PN355
THE COMMISSIONER: What a great thing that is. A 10 minute break.
SHORT ADJOURNMENT [11.22 AM]
RESUMED [11.34 AM]
PN356
MR LEON: Commissioner, there was one point that arose in cross‑examination that in fairness I should have put to Mr Williams in relation to what he had said.
PN357
THE COMMISSIONER: You want to recall Mr Williams, do you?
PN358
MR LEON: For one question, Commissioner, if it's possible.
PN359
THE COMMISSIONER: What do you say, Mr Warnes?
PN360
MR WARNES: Commissioner, I have no particular issue with it considering that complications may arise if it doesn't happen, so.
PN361
THE COMMISSIONER: Look, these things happen. I'll allow the application. Can you absent yourself, Mr Sheridan, please for a moment?
PN362
MR SHERIDAN: Sure.
PN363
THE COMMISSIONER: Mr Williams, just after I told you that you were a free man, you're not. It's back in the witness box.
PN364
MR WILLIAMS: Thank you, sir.
THE COMMISSIONER: No, no, you're not a free man. Back in the witness box. I thought I'd have to lead you out personally.
<STEPHEN FREDERICK WILLIAMS, RECALLED ON FORMER OATH [11.35 AM]
PN366
THE COMMISSIONER: You're going to be asked a further question by Mr Leon and you remain on the oath that you took earlier.
Mr Leon one question, you told me.
FURTHER CROSS-EXAMINATION BY MR LEON [11.42 AM]
*** STEPHEN FREDERICK WILLIAMS FXXN MR LEON
PN368
MR LEON: Thank you, Commissioner, yes.
PN369
The question actually relates to the evidence you gave about the number of 49 foot trailers, Mr Williams. Do you remember that?‑‑‑Yes.
PN370
If I could, just to be fair to you Mr Williams, I'll just give you a copy of Matt Sheridan's statement. Mr Sheridan has made an assertion about the number of trailers that is different to yours and ‑ ‑ ‑
PN371
THE COMMISSIONER: Well, wait till he has got the statement will you?
PN372
MR LEON: To be fair to you I'll just allow you to respond to that.
PN373
THE COMMISSIONER: Whereabouts in Mr Sheridan's ‑ ‑ ‑
PN374
MR LEON: Paragraph 18 on page 4, Mr Williams. Just 18A, do you see that, Mr Williams?‑‑‑Yes. Yes.
PN375
Mr Williams, I just wanted to put it to you that contrary to your evidence, at the time there were only six 49 foot trailers in the yard. Is that correct?‑‑‑I believe it not to be correct. I believe there was more than six trailers, yes, from – I got a fleet O1 through to fleet 30, 35. I believe there's 35 of that size.
PN376
You believe now?‑‑‑Now, as I speak now. The fleet is the existing fleet. No, I believe there is more than six.
PN377
I apologise, Mr Williams.
PN378
THE COMMISSIONER: Now or then? What ‑ ‑ ‑
PN379
MR LEON: Then?‑‑‑Now and then. Now and then.
PN380
THE COMMISSIONER: You say there's ‑ ‑ ‑?‑‑‑Only six? No, I say there's more than six.
PN381
Now?‑‑‑Yes. Yes.
*** STEPHEN FREDERICK WILLIAMS FXXN MR LEON
PN382
And back in the ‑ ‑ ‑?‑‑‑Back then, yes.
PN383
‑ ‑ ‑ appropriate time?‑‑‑They're the same trailers. Yes.
PN384
MR LEON: Thank you, Mr Williams.
PN385
That's the only point, Commissioner.
PN386
THE COMMISSIONER: Does anything arise, Mr Warnes?
PN387
THE WITNESS: Is that it?
THE COMMISSIONER: No, you're not free yet. You're keen but you're not free?‑‑‑Yes, I'm keen.
RE-EXAMINATION BY MR WARNES [11.39 AM]
PN389
MR WARNES: Yes, just one question. You just said that they're the same trailers now and back then?‑‑‑We have got a ‑ ‑ ‑
PN390
Have the trailers not changed at Warnervale between?‑‑‑I said from over seven through to probably 2013 it was pretty much the same fleet. As the business grew we increased the fleet. We had an additional six torque liners brought into the system which are a curtain side, not a pan. And as I stated earlier, that 39 which I took a photo of, it came in about the end of 2013 as a one-off and we've had about five or six shorter trailers, the 45 footers come into the system.
PN391
So there has been additions?‑‑‑Yes, additions.
PN392
To the existing fleet, rather than the existing fleet being retired?‑‑‑Yes. No, the existing fleet hasn't been retired.
PN393
It's still there?‑‑‑Yes. Yes.
PN394
Thank you, Commissioner.
*** STEPHEN FREDERICK WILLIAMS RXN MR WARNES
PN395
THE COMMISSIONER: Thank you.
PN396
You're free to step down now. You should have taken my option of escaping before, shouldn't you?‑‑‑Yes.
You will know in future.
<THE WITNESS WITHDREW [11.39 AM]
THE COMMISSIONER: Call Mr Sheridan.
<MATTHEW PAUL SHERIDAN, SWORN [11.39 AM]
EXAMINATION-IN-CHIEF BY MR LEON [11.39 AM]
PN399
MR LEON: Mr Sheridan, did you prepare a statement for these proceedings?‑‑‑Yes.
PN400
And is it 18 paragraphs in length and five pages?‑‑‑Correct.
PN401
With five annexures?‑‑‑That’s correct.
PN402
I tender that statement, Commissioner.
PN403
THE COMMISSIONER: Objections?
PN404
MR WARNES: No, Commissioner.
THE COMMISSIONER: Mr Sheridan's witness statement with its annexures will be marked as exhibit Linfox 2, and in case I forgot to say it, the same will apply to Mr Williams' statement. The exhibit includes the annexures.
EXHIBIT #LINFOX2 WITNESS STATEMENT OF MATTHEW PAUL SHERIDAN WITH ANNEXURES
PN406
MR LEON: Nothing further.
THE COMMISSIONER: Mr Warnes?
*** MATTHEW PAUL SHERIDAN XN MR LEON
CROSS-EXAMINATION BY MR WARNES [11.41 AM]
PN408
MR WARNES: Thank you, Commissioner. Sorry, the statement of Sheridan was Linfox 2?
PN409
THE COMMISSIONER: It is, sir.
PN410
MR WARNES: Thank you.
PN411
Mr Sheridan, what's your position at Linfox now? You say you're the national retail manager?‑‑‑General manager of our retail business.
PN412
General manager of retail?‑‑‑Yes.
PN413
So does that put you in charge of what contracts - or all contracts for retail?‑‑‑All Woolworths' contracts.
PN414
All Woolworths' contracts?‑‑‑Correct.
PN415
Are there many of them?‑‑‑There are. There's five secondary freight sites and we operate six states for the online business.
PN416
Okay, so you're interstate work too?‑‑‑Correct.
PN417
But you used to be a manager at the Warnervale yard?‑‑‑Yes, that's right.
PN418
Now in paragraph 7 you talk about the allowance, this so called over‑dimensional allowance - we'll call it that for the purposes of these questions – not being payable because the load that the drivers were carrying wasn't a special load. Is that what Linfox's position is in relation to the allowance?‑‑‑Yes.
PN419
Yes?‑‑‑Yes.
*** MATTHEW PAUL SHERIDAN XXN MR WARNES
PN420
And then you make some comments about your experience being – you talk about permits. Now when you talk about permits, are you talking about – we had some debate during Mr Williams' evidence about the difference between notice and permits. Can you just briefly explain what the difference is?‑‑‑Yes, my understanding of a permit is it applies to a vehicle that operates in different circumstances to what a normal truck and trailer combination would be, and I reference in my statement long and wide loads. So for example if a person was to move an excavator that was outside of the normal dimensions they would apply for a permit through the Roads and Traffic Authority to have that vehicle moved.
PN421
Sure?‑‑‑So I think a permit relates to that.
PN422
Sure, so yes, specifically in paragraph 7 you've talked about permits being required, as you've just said, in relation to where a vehicle and its load exceeds the maximum dimensions. Now that would apply, would it not, to vehicles with a load wholly inside a trailer if the trailer was over‑dimensional, so to speak?‑‑‑It depends on what you class as wholly inside.
PN423
So you've got a closed off trailer that is over the maximum permitted dimensions but the load is wholly inside a closed trailer. You'd need a permit if that trailer was over the maximum dimension limits wouldn't you?‑‑‑I believe you would, yes.
PN424
And that would include if the vehicle was, say, longer than the maximum limit, which is 19 metres I think you said in your statement?‑‑‑Yes, if a trailer was longer – if a combination was longer than 19 metres then, yes, I believe you would need a permit.
PN425
You'd need a permit?‑‑‑Yes.
PN426
Yes. Now in paragraph 8 you've traced out an exchange that happened in early September 2010?‑‑‑Correct.
PN427
And that's an exchange between you, Mr Beswick, who is the current delegate, is that right?‑‑‑Yes.
PN428
And Mr Roger and Mr Leon, that's right?‑‑‑(No audible reply).
PN429
This is a discussion about the TWU claiming that allowances are payable for the trailers that are towed at Warnervale, is that right?‑‑‑Yes.
PN430
And you, or you in conjunction with Mr Leon, have said that the allowance isn't payable because what the drivers are carrying is not a special load. Is that a correct characterization of Linfox's position on this issue?‑‑‑Yes.
*** MATTHEW PAUL SHERIDAN XXN MR WARNES
PN431
So what you're saying is the load is not a special load?‑‑‑No, we don't believe there's anything special about groceries.
PN432
Yes, and that's what you've said in your statement. So when Mr Williams has said that the trucks are longer than 18.3 metres, you didn't take issue with that, did you?‑‑‑Not specifically.
PN433
No, but you said it's not payable because it's not a special load?‑‑‑That’s right. It's not – there's nothing special.
PN434
THE COMMISSIONER: What does load relate to? Does it relate to things inside the trailer or the trailer itself, or what?‑‑‑The freight.
PN435
The freight?‑‑‑Yes, it relates to the freight being carried.
PN436
So what circumstances would it be special?‑‑‑If it was long or wide I would classify that as a special load. So if it was an over‑dimensional piece of equipment, for example an excavator or a bulldozer or long bridge pylons, something that's not normal.
PN437
Therefore it couldn't be inside, could it?‑‑‑No, it could be on top of but not inside.
PN438
So that's what I'm getting at. The special load, could it relate to items contained within the trailer?‑‑‑I don't believe it could if the trailer doesn’t exceed 19 metres.
PN439
Okay, thank you. I'm fairly new to this, so?‑‑‑Yes.
PN440
Sorry, continue Mr Warnes.
PN441
MR WARNES: No, you're all right. Thank you, Commissioner.
PN442
So if, as you've said previously in your evidence, a trailer is longer than the 19 metres and it requires a permit, you're saying that that's not a special load if the load is wholly within the trailer?‑‑‑If it was exceeding 19 metres in length it would need a permit, so that would be classified as a special load. That's what my interpretation would be.
*** MATTHEW PAUL SHERIDAN XXN MR WARNES
PN443
Okay, so you're saying that even if the load is wholly within a trailer but if it requires a permit, then it would be a special load in your opinion?‑‑‑If it exceeded 19 metres.
PN444
Okay.
PN445
THE COMMISSIONER: And therefore required a permit, so it's sort of circular, isn't it?
PN446
MR WARNES: Yes. Yes. No, I understand that, Commissioner.
PN447
But I mean the important part is even if it's wholly inside the trailer, it doesn’t require the load to breach the outer limits of the trailer in order to be a special load, in your opinion?‑‑‑Only if it exceeded 19, no.
PN448
Yes?‑‑‑So for that purpose, yes.
PN449
Yes, so what I'm saying is though the load doesn't actually have to breach the limits ‑ ‑ ‑?‑‑‑Not the width.
PN450
‑ ‑ ‑ of the trailer?‑‑‑Yes, not the width of a trailer.
PN451
Or length?‑‑‑Well, if it was not – if it was a trailer longer than 19 metres then it would be, because by definition it's longer than the standard allowable in New South Wales.
PN452
Yes, but whatever the load is. Say for illustrative purposes you're carrying a house, if the house is – a house is a bad example. A pool. A pool is wholly within the dimensions of a trailer but the trailer is a bit longer than 19 metres, then it doesn’t matter that the pool is not overhanging, you'd still say that's a special load?‑‑‑If it exceeds 19 metres.
PN453
Yes.
PN454
THE COMMISSIONER: I think it's pretty clear.
PN455
THE WITNESS: Yes.
*** MATTHEW PAUL SHERIDAN XXN MR WARNES
PN456
MR WARNES: Yes, I think so too. I just wanted to get some clarification, Commissioner.
PN457
Now you've said that all of the prime movers have been replaced. Do you recall saying that?‑‑‑Yes, that's correct.
PN458
So that's every single prime mover?‑‑‑During this period that – that's in question none of those prime movers are now onsite. They've all been replaced.
PN459
And they're the Actros and Columbia prime movers?‑‑‑Correct.
PN460
What do you use now?‑‑‑All Volvos.
PN461
All Volvos?‑‑‑Yes.
PN462
And when was that change?‑‑‑Christmas 2011.
PN463
And is that something that Linfox do habitually?‑‑‑Very regularly, yes. Four years or 800,000 kilometres, whichever comes first.
PN464
Sure. Now what about the trailers? I understand they're provided by Woolworths, is that right?‑‑‑That’s right.
PN465
So they're not Linfox's own equipment?‑‑‑That’s right.
PN466
And the trailers used from 2009 are still being used now, aren't they?‑‑‑Some of.
PN467
So have any trailers – I understand there have been trailers added to the fleet. Is that right?‑‑‑Yes, there has.
PN468
Have any trailers been disposed of?‑‑‑Yes, there has.
PN469
How many?‑‑‑I don't know the exact numbers but I believe there's about 12 that were replaced.
*** MATTHEW PAUL SHERIDAN XXN MR WARNES
PN470
Okay, and do you know what sort of trailers they were that were replaced?‑‑‑They were 22 pallet trailers.
PN471
Which are?‑‑‑44 foot.
PN472
44 footers, so the smaller trailers have been replaced?‑‑‑That’s right.
PN473
With longer trailers?‑‑‑With 24 pallet trailers or 48 footers, yes.
PN474
48 footers?‑‑‑Yes.
PN475
Okay, and you've said in paragraph 14 that 48 foot, you've usefully given us a translation to the metric system to 14.63 metres and 14.935 metres?‑‑‑Yes.
PN476
So would you say – how much of the current – do you know about the current – no, sorry, I withdraw that. The fleet in 2009, you've said in your statement that there was only six 49 footers?‑‑‑Yes.
PN477
What was the rest of the fleet?‑‑‑48 and 44 foot.
PN478
What was the break-up?‑‑‑Well, there was 12 – there were 44 trailers in total, 12 of which were 44 footers, six of which were 49 footers, which leaves the remaining 26 as 48 footers.
PN479
So how many trailers were there in the fleet?‑‑‑44 at that time.
PN480
And do you know where would someone obtain the knowledge of how long a trailer is?‑‑‑Where would they?
PN481
Yes?‑‑‑Probably from a vehicle compliance plate.
PN482
Okay, so there would be a plate on the truck which would say how long the trailer is?‑‑‑Yes, and it's generally accepted that if it takes 22 pallets only then it's a 44 foot trailer.
*** MATTHEW PAUL SHERIDAN XXN MR WARNES
PN483
How sure are you about the number of 49 foot trailers in the fleet back in 2009? That's something that you were generally – it was within your knowledge as a manager, how many trailers made up the fleet?‑‑‑Yes. Yes. Yes, I would say that there were – the 49 foot trailers were Schmitz Cargobull trailers which were imported from Germany, and there was only six of those that I can recall in the fleet at the time. The rest were a mixture of other manufacturers, locally made.
PN484
What about the length of the prime movers? So let's go to Actros just for ‑ ‑ ‑?‑‑‑Yes.
PN485
‑ ‑ ‑ illustration purposes. How long would the prime mover have been between the front number plate, say, or the furthest most front of the truck to where the trailer connected? How far – how long would the prime mover be, do you know?‑‑‑I don't know.
PN486
Okay, I'm going to hand you – and I've got one for you too, Commissioner. It's just a brochure of – it's a Mercedes truck brochure and it's the third-last page, Mr Sheridan. It's an Actros model guide. Page 30 it says on the bottom right corner.
PN487
THE COMMISSIONER: Do you want this marked, Mr Warnes?
PN488
MR WARNES: Yes, that might be helpful, Commissioner.
THE COMMISSIONER: Yes. A brochure issued by Mercedes Benz relating to the Actros, A-c-t-r-o-s, truck will be marked as exhibit TWU 3.
EXHIBIT #TWU3 BROCHURE ISSUED BY MERCEDES BENZ RELATING TO THE ACTROS TRUCK
PN490
MR WARNES: So Mr Sheridan, there are a number of Actros models on there. Would you agree that the model used by Linfox back in 2009, that was the 26XX, the second one down?‑‑‑Yes, correct.
PN491
That's the right model?‑‑‑Yes.
PN492
And you can see that there's – and it is very hard to see but there are some measurements there. This is the second one down, the 26XX, Commissioner, just for reference purposes.
PN493
THE COMMISSIONER: Yes.
*** MATTHEW PAUL SHERIDAN XXN MR WARNES
PN494
MR WARNES: So if I take you to the bottom of the side-on photo or model of the truck there's A, B, C and D. Can you see that?‑‑‑Yes.
PN495
And would you agree that the trailer connects approximately at the end of B?‑‑‑I think that's subjective on whether – where the owner of the vehicle chooses to place the turntable.
PN496
Okay, sure, but where would you say the turntable would regularly be placed?‑‑‑Around that area.
PN497
So around the end of B?‑‑‑Yes.
PN498
Would it sometimes be further back into the C region?‑‑‑I don't know. I'd say in order to maintain an overall trailer length, a combination length of less than 19 metres then they'd place the turntable wherever it ‑ ‑ ‑
PN499
Wherever it sits?‑‑‑Wherever they needed to for that to happen.
PN500
Sure, sure?‑‑‑So I couldn't say whether it was between – at the end of B or into C.
PN501
But if we take A and B, and you'll see down in the bottom right corner there's a number of – well, there's a table of numbers and the one corresponding to that is the second one down, 26XX, and this number is in millimetres. You would accept that?‑‑‑Accept it as what, that that's the measurement of that vehicle?
PN502
No, that the 1440 is millimetres. It's obviously not centimetres or metres?‑‑‑Yes, it's in millimetres.
PN503
Yes?‑‑‑Correct.
PN504
So you'd accept that the distance between the front of the truck and the end of B would be 1440, which is the corresponding one to A on that truck, and 3300?‑‑‑Yes.
PN505
So 1440 plus 3300 is 4740?‑‑‑Yes.
*** MATTHEW PAUL SHERIDAN XXN MR WARNES
PN506
So that's four metres, 4.7 metres approximately. So if the trailer connects at that point and then the trailer is, as you've given evidence, 14.63 metres?‑‑‑Overall length.
PN507
Of the trailer?‑‑‑Yes.
PN508
Yes, so if you do the maths on that you're getting to over a number of 18.3 metres. Do you agree with that?‑‑‑Are you measuring the trailer from the kingpin to the back of the trailer?
PN509
I'm measuring the trailer as you've given it here?‑‑‑Yes, so I'm not sure that you can – so remembering where the – where the measurement that you're talking about, 1440 plus 3300.
PN510
Yes?‑‑‑That's not counting the length of trailer that's in front of the kingpin.
PN511
Yes?‑‑‑So the overhang in front of the turntable.
PN512
So how far is that normally, do you know?‑‑‑I'm not sure. It would depend on the trailer, I'd imagine.
PN513
Could you give an estimate?‑‑‑I don't know. I haven't measured that.
PN514
So in terms of the total length of the truck and trailer combination would you agree with me that the 48 – if say an Actros was towing a 48 or a 49 foot trailer, that combination from front to back would be over 18.3 metres?‑‑‑Using your measurements here it could be, but without actually measuring one I don't know. I can't say for certain that it would be.
PN515
So have you gone out and measured the vehicle? Do you know whether they exceed 18.3?‑‑‑I've measured several vehicles in the yard recently.
PN516
Yes, but they're different vehicles aren't they?‑‑‑Different prime movers, correct.
PN517
Yes. So what was the results of that measurement exercise that you undertook?‑‑‑Three of the four vehicles that I measured, four vehicle and trailer combinations, three of the four vehicles were under 18.3.
*** MATTHEW PAUL SHERIDAN XXN MR WARNES
PN518
Yes?‑‑‑And one was over 18.3.
PN519
What were the trailer lengths?‑‑‑They were all 48 foot trailers, 24 pallet trailers.
PN520
And they were Volvos?‑‑‑Volvo prime movers.
PN521
Okay, and the Volvo prime movers are shorter than the Actros, aren't they?‑‑‑I haven't measured them or compared them so I don't know.
PN522
So which one was over the 18.3 metre mark?‑‑‑It was an older Volvo prime mover that we have with a 48 foot fridge trailer.
PN523
Okay, so there was one that was over 18.3?‑‑‑Correct.
PN524
And a similar combination would have been towed back in 2009?‑‑‑Yes, that's correct.
PN525
Yes, so do you concede that there were some combinations back in 2009 to 2011 that would have been over 18.3 metres?‑‑‑I can't say for certain because I didn't measure any of combinations, but you could make the assumption that some may have been. Yes.
PN526
Yes, like I can't ask you something that you don't know but on the basis of the exercise that you've just performed, you would pretty confidently say that there were some over 18.3 back then?‑‑‑It depends on the manufacturer. I mean when Linfox buy vehicles they're always mindful that there's restrictions on the vehicles and the equipment – the trailers that they can tow. So, yes.
PN527
But you ‑ ‑ ‑?‑‑‑There may have been but I can't say for certain that there were.
PN528
But Linfox didn't purchase any of these, did they? Didn't they get them from Westgate back when the contract changed?‑‑‑Some of.
PN529
Yes, so Linfox wouldn't have been conscious of those facts that you've just recited in relation to some of the vehicles back in 2009?‑‑‑If the vehicles weren't fit for purpose they wouldn't have been in the yard. So I can definitely say that Linfox wouldn't have had them in the yard if they weren't fit for purpose.
*** MATTHEW PAUL SHERIDAN XXN MR WARNES
PN530
But it doesn’t make them fit for purpose if they're over 18.3, does it? It doesn't make them not fit for purpose?‑‑‑It makes them fit for purpose if they come under the RMS, or RTA back then, guideline of less than 19 metres.
PN531
Yes. Yes, so they're fit for purpose so long as they're under 19?‑‑‑That's what I would say, yes.
PN532
Now you've also said that different trailers are towed every day by the drivers at Warnervale?‑‑‑Correct.
PN533
Does the trailer towed depend on the store that the load's being delivered to?‑‑‑Some.
PN534
The type of load that's being delivered?‑‑‑No.
PN535
So why do they change trailers every day? Is there a reason for that?‑‑‑Yes, because Woolworths load trailers for – they basically live load trailers so the drivers come into the yard, drop a trailer, hook their next load up and go. So we don't want to spend money on having the drivers sit there for an hour and a half or two hours waiting for their next trailer to be loaded. So it's a – it comes down to efficiency and cost, why they don't – tray - tow the same trailer all day.
PN536
Now at paragraph 16 you've said that drivers are required to carry the notices when they were towing 38 and 49 foot trailers?‑‑‑Yes.
PN537
Why were they required to have those notices?‑‑‑Because the 48 and 49 foot trailers were fitted with a over‑dimensional compliance plate. Basically meaning that from the measurement from the kingpin to the rear of the trailer was longer than a standard trailer. So they had to tow the notice for that reason.
PN538
Can I just show you that? Can you see that from there? Yes, we'll bring it up for you. Is that the plate you're talking about, Mr Sheridan?‑‑‑Yes, one of. Yes. Yes.
PN539
Commissioner, for your reference that's the colour photograph, annexure A of Mr ‑ ‑ ‑
PN540
THE COMMISSIONER: I've already replaced it in the exhibit.
PN541
MR WARNES: Yes. Sorry, Commissioner, bear with me.
*** MATTHEW PAUL SHERIDAN XXN MR WARNES
PN542
So when you said they're required to carry the notices when they're longer than a standard trailer, can you tell the Commission what a standard trailer is?‑‑‑A standard trailer is by definition a vehicle that doesn't exceed 19 metres but has this particular plate fitted to it, so it can carry more capacity I guess than an older trailer. So a 24 pallet trailer now is a standard, industry standard, and has been since the mid-90s. Prior to that a 22 pallet trailer was classed as a standard trailer for the industry.
PN543
Yes?‑‑‑This plate's been fitted to 24 pallet trailers, whether they're 48 or 49 foot, 24 pallet in capacity, because they've increased the length of the rear overhang of the vehicle.
PN544
Yes?‑‑‑So the kingpin measurement to the rear of the vehicle.
PN545
Yes, and that's why they say they're over‑dimensional compliance plates?‑‑‑Not for overall length but for kingpin to rear of trailer measurement.
PN546
Yes, so the standard trailers you're talking about would be shorter than these trailers?‑‑‑Yes, that's right.
Thank you, Commissioner. That's my cross‑examination.
RE-EXAMINATION BY MR LEON [12.04 PM]
PN548
MR LEON: Mr Sheridan, can I just deal with an issue relating to this Actros model guide. I think it was TWU 3?
PN549
THE COMMISSIONER: It is.
PN550
MR LEON: Apologies Commissioner.
PN551
THE COMMISSIONER: It is.
PN552
MR LEON: The TWU asked you a question about the length of A and B. Are you aware – let me preface this. That would be where the kingpin attaches, so where the trailer attaches to the truck. Is that correct?‑‑‑Yes, correct.
*** MATTHEW PAUL SHERIDAN RXN MR LEON
PN553
Are you aware of where Linfox as a standard keeps their kingpin?‑‑‑It's normally set in a forward position. I think usually about nine inches forward of where they may – where like a standard turntable position might be.
PN554
And that can move?‑‑‑Correct.
PN555
And why would it move?‑‑‑If the vehicles were going heavy over a steer axle consistently they might move the turntable back to take weight off the steer axle.
PN556
So it's more to do with mass?‑‑‑Yes.
PN557
Thank you Mr Sheridan.
PN558
Nothing further, Commissioner.
THE COMMISSIONER: Thank you for your evidence, Mr Sheridan. You're free to step down now. You're also free to remain in the proceedings now if you wish.
<THE WITNESS WITHDREW [12.05 PM]
PN560
THE COMMISSIONER: That completes your witness evidence?
PN561
MR LEON: Thank you, Commissioner, that completes our evidence.
PN562
THE COMMISSIONER: Yes. Well, I've marked the outlines. We're on to final submissions. Do the parties want to do that now?
PN563
MR WARNES: Commissioner, I'm ready. I have very brief submissions. I don't think ‑ ‑ ‑
PN564
THE COMMISSIONER: Okay, I love those words. Very seldom – it's more aspirational I think than true, but we shall see what happens.
PN565
MR WARNES: Often it depends on you, Commissioner. Now I think one thing that arose particularly out of the evidence of Mr Sheridan is that this dispute really doesn't centre around the length of the trailers. I think without a doubt there were some trailers or some combinations, sorry, prime mover and trailer that exceeded the 18.29 metres as contained in the old TI State Award. I don't think - I mean, there may be some dispute about how often they were towed or when they were towed but I don't think there can be any dispute that there were longer combinations towed.
PN566
The real dispute I think centres around - and this is contained in Mr Sheridan's statement in the exchange at paragraph 8. The real dispute is around Linfox stating that it's not a special load. They say that groceries aren't in the nature of special and therefore clause 2.7, I think it is, of the TI State Award, the allowance, the over‑dimensional allowance we've been calling it, doesn’t apply.
PN567
THE COMMISSIONER: I'm getting a bit lost between the various awards and agreements. In evidence is the 2007 State Award.
PN568
MR WARNES: That’s right.
PN569
THE COMMISSIONER: Then there was a transitional instrument, was there?
PN570
MR WARNES: It's transitional in that ‑ ‑ ‑
PN571
THE COMMISSIONER: Yes.
PN572
MR WARNES: ‑ ‑ ‑ it's transitional between the parties.
PN573
THE COMMISSIONER: Right.
PN574
MR WARNES: It's not transitional on the basis of the change from the Fair Work Act to the Workplace Relations Act.
PN575
THE COMMISSIONER: Its next state of being was the 2011 agreement?
PN576
MR WARNES: Yes, but that's where the claim ends, Commissioner. The 2011 agreement ‑ ‑ ‑
PN577
THE COMMISSIONER: Right, and that was subsequently – but you're applying pursuant to the 2014 agreement, aren't you?
PN578
MR WARNES: That’s right, yes.
PN579
THE COMMISSIONER: Yes. I do not have before me either the 2011 or the 2014. Don't worry, my associate does that sort of thing for me. I'll find those, and as documents they would speak for themselves. There's no need for them to be in evidence for the moment. Does the 2011 agreement say anything about what the 2007 State Award said?
PN580
MR WARNES: No, the 2011 agreement doesn't. The 2011 agreement was a change of the state of affairs between the parties, Commissioner.
PN581
THE COMMISSIONER: Yes.
PN582
MR WARNES: So the 2007 State Award was just the New South Wales employees at particular sites.
PN583
THE COMMISSIONER: And does the '11 agreement say anything about supersession?
PN584
MR WARNES: In terms of replacing them?
PN585
THE COMMISSIONER: Of the 2007.
PN586
MR WARNES: Yes. Yes, of course it does. It rescinds and replaces all those awards. No, that's absolutely right.
PN587
THE COMMISSIONER: Because what we must not forget is there's a primary jurisdictional point here as well.
PN588
MR WARNES: Yes, I understand that.
PN589
THE COMMISSIONER: Raised in some detail by Mr Leon. Okay, I'm up to speed now about what the history is.
PN590
MR WARNES: Yes, and the claim ends, just by way of further background, Commissioner ‑ ‑ ‑
PN591
THE COMMISSIONER: So you're seeking in effect, aren't you – I'll put words in your mouth – the enforcement pursuant to the current 2014 agreement of an obligation that you say arose under the 2007 State Award until it was replaced by the 2011 agreement? Is that a fair ‑ ‑ ‑
PN592
MR WARNES: Yes, in effect, Commissioner, although the agreements that the entitlement arises under isn't the 2007 agreement.
PN593
THE COMMISSIONER: Yes.
PN594
MR WARNES: It's the 2009 Linfox TWU Transitional Agreement and before that a 2006 Westgate Agreement I think it was.
PN595
THE COMMISSIONER: So you have some sort of private agreement in 2009?
PN596
MR WARNES: I don't believe so. I think it was registered.
PN597
THE COMMISSIONER: Did it come here?
PN598
MR WARNES: I think so.
PN599
MR LEON: Yes, Commissioner.
PN600
THE COMMISSIONER: I thought you said it was between the parties and not ‑ ‑ ‑
PN601
MR LEON: Perhaps can I assist with ‑ ‑ ‑
PN602
THE COMMISSIONER: Someone really should have given me all this stuff.
PN603
MR LEON: Commissioner, I do have copies of it.
PN604
THE COMMISSIONER: Yes, give it to me. It's always dangerous to leave me at large.
PN605
MR LEON: So, Commissioner, if I may.
PN606
THE COMMISSIONER: I've got the '07 State Agreement, the state award.
PN607
MR LEON: Okay, so the ‑ ‑ ‑
PN608
THE COMMISSIONER: I can find the '14 one no problem at all.
PN609
MR LEON: I have everything here.
PN610
THE COMMISSIONER: I'd like the transitional and the '11.
PN611
MR LEON: Commissioner, the Westgate 2007 Agreement.
PN612
THE COMMISSIONER: I've got that – Westgate?
PN613
MR LEON: Yes, it's the Westgate 2007 Agreement.
PN614
THE COMMISSIONER: Yes.
PN615
MR LEON: Which incorporated the award. So that's the 2007 that you're referring to?
PN616
THE COMMISSIONER: No, I'm referring to the Linfox New South Wales Transport and Warehousing Agreement 2007. Sorry, what's that?
PN617
MR LEON: No. So there's a ‑ ‑ ‑
PN618
THE COMMISSIONER: Attached to the Williams ‑ ‑ ‑
PN619
MR WARNES: Commissioner, scrap that agreement. That's the one that Mr Williams said that he erroneously thought applied to the parties.
PN620
THE COMMISSIONER: So he did, and I've been assiduously reading it. That's out.
PN621
MR LEON: That's ‑ ‑ ‑
PN622
MR WARNES: Yes. Sorry, Commissioner.
PN623
THE COMMISSIONER: Somebody will give me a set of all the agreements.
PN624
MR LEON: Yes. Commissioner, the evidence ‑ ‑ ‑
PN625
THE COMMISSIONER: I think I almost came to grief then.
PN626
MR LEON: The 2007 Westgate Agreement was the agreement that was in operation at the commencement of the claim.
PN627
THE COMMISSIONER: Okay.
PN628
MR LEON: Because Linfox purchased Westgate during that period.
PN629
THE COMMISSIONER: Right.
PN630
MR LEON: That agreement has a schedule which includes the award that's being referred to.
PN631
THE COMMISSIONER: Okay.
PN632
MR LEON: I have a copy of that agreement for you. Yes, schedule 1.
PN633
THE COMMISSIONER: I won't mark it but ‑ ‑ ‑
PN634
MR LEON: Yes, and then when that agreement expired, Commissioner, Linfox made an agreement with all of the Westgate sites which was lodged with the Commission, and that was titled the Transitional Agreement. So when Mr Warnes said it was transitional, it was transitional between the parties but it was still lodged with the Commission.
PN635
THE COMMISSIONER: Okay.
PN636
MR LEON: It's still an agreement of the Commission, and that looks very similar to the 2007 agreement that the Commissioner has been spending his time reading.
PN637
THE COMMISSIONER: So what are you referring to - I'm sorry, I've cut Mr Warnes off completely. What are you referring to, Mr Leon, in paragraph 25 of your outline?
PN638
MR LEON: Paragraph 25, Commissioner?
PN639
THE COMMISSIONER: And 26. There you refer to the New South Wales State Award.
PN640
MR LEON: I refer to the New South Wales State Award as incorporated into both the 2007 Westgate Agreement and the 2009 agreement.
PN641
THE COMMISSIONER: Right.
PN642
MR LEON: So for the purposes of that, it was incorporated once as a schedule and once as an incorporation.
PN643
THE COMMISSIONER: Yes, that's most helpful. Have you got the '11 there?
PN644
MR LEON: I do, Commissioner.
PN645
THE COMMISSIONER: Yes. It's always helpful if the Commissioner actually knows what's going on, Mr Warnes.
PN646
MR LEON: And Commissioner, did you say you do need a copy of the '14?
PN647
THE COMMISSIONER: No, I can get the '14 myself. All right, that's the '11. I'm up to speed. Mr Warnes again.
PN648
MR WARNES: I apologise for that, Commissioner.
PN649
THE COMMISSIONER: No, no, it's probably ‑ ‑ ‑
PN650
MR WARNES: I'm glad my friend was more ‑ ‑ ‑
PN651
THE COMMISSIONER: It's probably my foggy thinking rather than your submissions.
PN652
MR WARNES: So I suppose it's simpler to just point out – and I think Mr Leon said this but I'll do it for the sake of completeness. In the Westgate Logistics Pty Ltd New South Wales Operations Enterprise Agreement 2007.
PN653
THE COMMISSIONER: Yes.
PN654
MR WARNES: Which was the agreement that applied to this specific site, the Warnervale site, the TI State Award, the old New South Wales Transport Award, applied as - and I think it's an incorporation but it's actually scheduled to that agreement and it says at clause 5.2:
PN655
Schedule 1, which is the TI State Award is included and forms part of this agreement.
PN656
So the TI State Award is part of the governing instrument at that site at that time. Then in this Transitional Agreement 2009 at 1.5.1, which is on page 2 under "Relationship to parent awards" it says:
PN657
The agreement shall incorporate the terms of the following awards.
PN658
And listed at 1.5.1(a) is the Transport Industry State Award 2000. So that's the same award, Commissioner.
PN659
THE COMMISSIONER: Yes.
PN660
MR WARNES: So I mean, for the sake of simplicity it's easier to just refer to the TI State Award because that was the same over the duration of those two agreements.
PN661
THE COMMISSIONER: Right.
PN662
MR WARNES: And I actually didn't realise that the TI State Award was scheduled to the Westgate Agreement, but I believe it's on – it doesn't have a page unfortunately but it's under clause 2 of the TI State Award in that Westgate Agreement and it's 2.7.
PN663
THE COMMISSIONER: 2.7 of the State Award?
PN664
MR WARNES: Of the State Award, yes. But that's the same as what you would have been looking at in relation to the Linfox 2007 agreement we erroneously gave you.
PN665
THE COMMISSIONER: Yes.
PN666
MR WARNES: It's the same wording. It's the same award, Commissioner.
PN667
THE COMMISSIONER: Okay.
PN668
MR WARNES: Now in terms of as I was saying before, the dispute really comes down to whether this allowance applied during the relevant period, and I think we heard from Mr Sheridan that the substance of the dispute really is ‑ ‑ ‑
PN669
(Mobile phone rings)
PN670
THE COMMISSIONER: Can you just keep it on silent, sir, and the rest of you can check yours as well so they don't start ringing on me. Though I did say that once to the parties and mine immediately rang, so I'll have a check of mine as well.
PN671
MR WARNES: I think I might have been there, Commissioner.
PN672
THE COMMISSIONER: It was rather embarrassing.
PN673
MR WARNES: The substance of the dispute really is what is meant by 2.7.1 which is:
PN674
An employee who is engaged driving a loaded vehicle which together with its special load exceeds...
PN675
As I said, I don't think there's too much dispute that there were some that exceeded the 18.29 metres in length as contained in 2.7.1.2. I really don't think there's a dispute that that happened. I don't think there's a dispute that no vehicles were below – above that. I think that's set out. Now as you brought up before, there is a jurisdictional objection that has been taken. We say that Linfox is asking the Commission to take an extremely narrow interpretation of the disputes clause in the 2014 agreement, is what we're talking about now, Commissioner. I'm sorry to be spanning several agreements here.
PN676
THE COMMISSIONER: Yes.
PN677
MR WARNES: And it's worth rehashing what the disputes clause actually says. So the disputes clause in the 2014 agreement is clause 33 on page 18 of that agreement and it says at 33.1 that:
PN678
Any dispute -
PN679
And that's important:
PN680
Any dispute or grievance that arises at the workplace between an employee and Linfox or Linfox and the TWU about the agreement or the employment relationship shall be dealt with in the following manner.
PN681
Now that's important, Commissioner, because the parties have expressly agreed not to limit the operation of the disputes procedure to the 2014 agreement. They have not done that. They have said any dispute or a grievance that arises out of the employment relationship. Now the Act enables the Commission to deal with a dispute between two industrial parties subject to the operation of dispute resolution clause by operation of sections 595 and 739.
PN682
We say that there's nothing in the Act that limits the ability of the Commission to deal with disputes such as the current one. The only limitation that could possibly be placed on the Commission dealing with a dispute such as this one is for the parties to decide during their negotiations processes, which is when they negotiate the procedure in which they'll both be bound by to deal with disputes that arise between them. Now the parties in this situation haven't limited themselves to the operation of the agreement or the operation of the NES as required by the Act.
PN683
They have agreed on a broad dispute resolution procedure which allows them to resolve any dispute that arises between them in accordance with the terms of clause 33. The purpose obviously of this dispute resolution clause, on our submission, is to attempt to deal with any dispute that arises between the parties in a cheap, quick, effective way to avoid the hassles of other avenues that would otherwise have to be pursued. Such an approach we would say is in the interests of business efficacy and to maintain industrial harmony between the parties.
PN684
THE COMMISSIONER: And it makes me a cheap date, doesn't it?
PN685
MR WARNES: That's not what I meant, Commissioner. What Linfox is seemingly suggesting in their jurisdictional objection is that the payment of allowances between 2009 and 2011 is not a dispute about the employment relationship. We say that the payment of any kind of work performed in employment with an employer is part of the employment relationship between the parties, and a dispute about any type of payment in that respect is a dispute about the employment relationship, or involving the employment relationship.
PN686
THE COMMISSIONER: Well, dissuade me from the possible view if you can that this is an underpayment claim.
PN687
MR WARNES: And that's what I was saying. That's how I opened, Commissioner, is that it may ‑ ‑ ‑
PN688
THE COMMISSIONER: I'm not so far dissuaded.
PN689
MR WARNES: It may result in an underpayment claim but the real dispute between the parties is the operation of clause 2.7 of the TI State Award. The dispute is we say that an allowance is payable, Linfox say the allowance isn't payable. Linfox says the allowance isn't payable because groceries aren't a special load.
PN690
THE COMMISSIONER: Yes.
PN691
MR WARNES: That's the substance of the dispute. So this is really interpreting a clause of an award or a term of an enterprise agreement.
PN692
THE COMMISSIONER: Yes.
PN693
MR WARNES: Which is what the Commission does on a daily basis.
PN694
THE COMMISSIONER: Yes.
PN695
MR WARNES: I think the substance of the dispute or the jurisdictional objection that Linfox brings is they're saying that you can't determine a dispute that doesn't apply just to the 2014 agreement.
PN696
THE COMMISSIONER: In simpliciter I think that's correct, yes.
PN697
MR WARNES: Yes, and we say that no, that's not right. The disputes resolution clause empowers or gives you jurisdiction to determine any dispute or grievance about the employment relationship. Now this type of issue has been dealt with by the Commission before and it's a decision – I'll hand it up. It's a decision of Commissioner Bissett in Melbourne and this deals with a strikingly similar jurisdictional objection to what Linfox makes now, and that's a party that has brought a dispute - and I think coincidentally the dispute was about allowances as well.
PN698
But they were allowances payable under a past agreement, and the party was Mr Ponzac in that matter, brought the dispute under a disputes procedure in the enterprise agreement that applied at the time even though the dispute arose under a previous agreement. Now in that particular agreement, which was the Serco Immigration Services Agreement 2011, the parties chose to make the disputes procedure deliberately wide to encompass any dispute that arises between the parties.
PN699
Commissioner Bissett considered the jurisdictional objection raised by Serco in that matter and she came to the conclusion that the Commission was empowered to deal with disputes arising in the employment relationship as it was or under past agreements. She has referenced a Full Bench decision in paragraph 50, which is page 7, and that's a Full Bench decision called Boral Resources v Transport Workers Union of Australia, in which a Full Bench of this Commission decided that disputes procedures could encompass more than just the agreement, the current agreement, before the parties and I won't go into that in any depth. It speaks for itself, Commissioner. But then at 52 Commissioner Bissett concluded that:
PN700
There is no impediment in the Act –
PN701
She said:
PN702
- including section 58 to the disputes settling procedure providing for the Commission to arbitrate on disputes that go beyond matters arising under the 2011 and the NES.
PN703
Now we say that that's very similar to what the Commission is currently faced with. The Commission is – well, the TWU has made an application for the Commission to deal with the dispute.
PN704
THE COMMISSIONER: What do you think about what she says at 53?
PN705
MR WARNES: That's the Commissioner saying that if the dispute was brought under the disputes procedure in the previous agreement then there would be no jurisdiction because that clause doesn't have the effect of an award or a certified agreement of the Commission any more. So what she's saying there is that – well, analogous to this case, is that if we brought a dispute before this Commission under the dispute settlement procedure in the 2007 Westgate Agreement or in the 2009 Transitional Agreement then a jurisdictional objection would hold weight. The jurisdictional objection in this is that we can't bring a disputes resolution – a dispute under the 2014 agreement because our ‑ ‑ ‑
PN706
THE COMMISSIONER: Relating to obligations under a previous agreement.
PN707
MR WARNES: Under a previous agreement, that's right. So that's - essentially it's exactly the same as what's happening now. So if we had brought it under the old agreements then the Commission wouldn't have jurisdiction. But because we've brought it under an existing disputes clause we say the Commission does have jurisdiction.
PN708
THE COMMISSIONER: That's a good summary. Thank you.
PN709
MR WARNES: That's all I really want to say about the disputes resolution procedure, Commissioner, and the jurisdictional objection. We say it's abundantly clear that the parties have allowed the Commission to deal with disputes such as this. Now in relation to the interpretation of clause 2.7 of the State Award, as I've said previously Linfox places emphasis on the idea of a special load being a requirement in order to qualify for payment of the allowance.
PN710
On closer inspection of the award there's no real assistance that can be gained as to what the term special load means. In fact in the award the words special load only appears once and that's in clause 2.7. We would say that a special load is simply a load that's being carried by an oversized vehicle as defined in that subclause, which is 2.7.1.2, I think it is, Commissioner. We say that by its very definition makes the load special. The load becomes special when it's being carried by an oversized vehicle.
PN711
Now this is a conceptual thing but we would say that if the authors of the award – and we have no evidence to this effect, but if the authors of the award had intended for a special load to mean something in particular, like as Mr Sheridan indicated in his evidence, carrying a house or a pool or a bridge pylon, then one would have thought they would have been more specific about what a special load is and included a definition in clause 48, which is the definitions part of the state award rather than leaving everybody to judge for themselves whether something is special or not.
PN712
THE COMMISSIONER: I thought Mr Sheridan's evidence went to the point that specialness was based on the size of the trailer, the length of the trailer, not what was in it if contained therein.
PN713
MR WARNES: Yes, I think ‑ ‑ ‑
PN714
THE COMMISSIONER: Or if it was carrying something else.
PN715
MR WARNES: That exceeded the limits of the trailer.
PN716
THE COMMISSIONER: Which hung over the sides or the rear.
PN717
MR WARNES: Yes, I think it was suggested at one ‑ ‑ ‑
PN718
THE COMMISSIONER: I think you went through that with him at some length.
PN719
MR WARNES: I did. I did. But it was suggested at one point that it was the nature of the goods. I think he did back away from that suggestion though. Linfox's submission that groceries are not special we would say is somewhat of a subjective observation that really can't be given too much weight. The award as it was when it applied covered the entire transport industry, everyone from taxis to road train drivers.
PN720
THE COMMISSIONER: But Mr Warnes, a Woolworths branded truck and trailer carrying groceries, the groceries could never be special could they?
PN721
MR WARNES: Well as I said, it's a very subjective ‑ ‑ ‑
PN722
THE COMMISSIONER: In ordinary parlance.
PN723
MR WARNES: It's a very subjective judgment really, isn't it, Commissioner? Because, I mean, one grocery may be special. Maybe it's a load that the Woolworths store is stocking for a once-off occasions which makes it I suppose by strict dictionary definition special.
PN724
THE COMMISSIONER: Strict. Very stretched.
PN725
MR WARNES: Yes, but that's what we're saying. It's a very subjective observation you have to make. I mean how does one say - I mean how can an allowance operate in an agreement when you have to make a judgment as to whether something is special or not? Who makes that judgment? Is it the employee that says, "Oh, I think this load's pretty special"?
PN726
THE COMMISSIONER: Well I suppose if Woolworths took to selling nuclear reactors for example it might be special.
PN727
MR WARNES: That would be pretty special.
PN728
THE COMMISSIONER: But that's about it.
PN729
MR WARNES: Yes. But I think the point I'm making is that who judges whether it's special or not? There's no definition in the award about what special is. We would say that a special load is just a load that's being carried by something that's over the limits which are contained in that clause.
PN730
THE COMMISSIONER: I would have a lot of sympathy for that view, yes.
PN731
MR WARNES: And in that respect we would say that the award has to be read in context and that the term special load can't be interpreted in a simplistic way as to whether something is special or not. Now I do want to take you to one further point, and I'm not saying that this is determinative. If you give me two seconds. I apologise, Commissioner, I should have had this ready. Sorry, Commissioner, I'll show my friend. He doesn't have a copy. I'm just going to show him. Commissioner, I'll just hand you a copy of the modern award, which is the award that replaces the TI State Award, and I've handed you the right page. It's 16.2(b)(i).
PN732
THE COMMISSIONER: Yes.
PN733
MR WARNES: Now that's the relevant provision in the modern award, on our submission, that replaced 2.7 and obviously we don't seek to take it any further than that. We would just say that that clause which deals with over‑dimensional loads, so to speak, states that, if the vehicle is longer, then a certain allowance is payable. Now they've changed it to a percentage on top rather than a set amount, as it was under 2.7. But we'd say that that makes it clear that if the vehicle exceeds the amount then that extra percentage is payable. One further thing we'd like to draw your attention to, Commissioner, is 2.7.3 of the State Award, sorry, and that reads:
PN734
None of the allowances in clause 2.7 –
PN735
Which is the long and wide loads:
PN736
- shall by the drivers of B-double combination vehicles or road trains...
PN737
Now that's clearly specifying that if there's more than one trailer then the allowance doesn't apply. Because obviously a B-double or road trains can be longer than the 18.29 metres, so we say that gives weight to the fact that this is confined to single trailer loads. This is confined to the single trailer loads and the length of the vehicle rather than any special load that's carried in it. There are just two cases I want to draw your attention to, Commissioner, and they're on the interpretation of industrial instruments.
PN738
There's a history of industrial tribunals, or in industrial tribunals, and this is in relation to the interpretation of award benefits which favours a beneficial reading of a clause in an award towards the employees of whom the benefits are conferred on when ambiguity exists as to the reading of the clause. Now the first case I've handed you is the Re State Rail Authority Firefighters Award 2001 (2002) NSWIRComm 159.
PN739
So this is a Full Bench decision by the Industrial Relations Commission and I'll take you to paragraph 22. Once again no page numbers. Helpful. Paragraph 22, and the Commission sets out there somewhat of a history of the way that industrial tribunals have interpreted clauses when there's ambiguity and there's not a terrible amount to assist the Commission in what the proper interpretation of that clause is. And the Commission in that instance quoted I think it's Macken J in San Remo (Southland) Pty v Farrell where they say:
PN740
The industrial tribunals have always tended to lean towards construction of awards and employment circumstances which would preserve the operation of instruments of regulations such as awards rather than against their operation.
PN741
Which we would say that the Commission has made very clear that what they're saying is that awards are instruments that confer benefits on employees, and therefore where an ambiguity exists and there's a dispute about whether something applies or doesn't apply, and there's no substantial evidence which pushes the Commission either way as to what it means, industrial tribunals always tend to lean towards the operation of the instrument rather than away from it.
PN742
THE COMMISSIONER: I've done a lot of painful work on ambiguity and uncertainty, so.
PN743
MR WARNES: Yes, Commissioner. The other case I handed you is a well cited one of The City of Wanneroo v Australian Municipal Administrative Clerical and Services Union.
PN744
THE COMMISSIONER: Yes.
PN745
MR WARNES: Which is a judgment of French J, as he then was, and specifically I take you to paragraph 57 on page 19.
PN746
THE COMMISSIONER: Yes.
PN747
MR WARNES: I just draw your attention to that paragraph, but in the third sentence he says:
PN748
Once again there is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned.
PN749
And then he says:
PN750
It may be that this means no more than the courts and tribunals will not make too much of inflexous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies.
PN751
And then he talks about a more generous and liberal approach of construction again. What we say is that – and as I said prior, the purpose of the TI State Award was to confer benefits on to employees for expelling their labour for an employer. Now we would say the Commission shouldn't read clause 2.7 down so as to exclude such a benefit to these employees where there really is no clear means in which to do so.
PN752
In this matter there really hasn't been any evidence led by Linfox to demonstrate what a special load is, whether that's because it's not possible, I can't say. We would say as the TWU's contention, which is that a special load is a load carried by an oversized vehicle, is just as probable. The Commission ought to determine the meaning of the clause to apply to all vehicles that exceed the limits put down by clause 2.7.1.2. Commissioner, if there's no further questions, they're my submissions.
PN753
THE COMMISSIONER: But that relates only to a period in the past?
PN754
MR WARNES: It does, Commissioner, yes.
PN755
THE COMMISSIONER: Why was it dropped out? It disappeared from, what, the '11 agreement did it?
PN756
MR WARNES: Yes. Yes.
PN757
THE COMMISSIONER: When did this provision stop having application?
PN758
MR WARNES: When the 2011 agreement was approved by the Commission. The 2011 agreement still incorporates sections of the TI State Award but not this provision. The parties moved to the ‑ ‑ ‑
PN759
THE COMMISSIONER: It's more selective in what it incorporates?
PN760
MR WARNES: Yes, exactly. It doesn't incorporate the whole thing.
PN761
THE COMMISSIONER: Yes.
PN762
MR WARNES: And I've handed you the modern award, Commissioner. The parties moved to the definition in the modern award for over‑dimensional. So the modern award is incorporated into the 2011 and 2014 agreement. So now the parties are saying it has to be over 19 metres and they get a percentage of whatever they're paid, rather than the old TI State. So essentially the entitlement under the TI State Award was extinguished when the 2011 agreement came into play.
PN763
THE COMMISSIONER: Good. Thank you Mr Warnes.
PN764
Mr Leon, how long do you think you will be? Not aspirationally; how long do you actually think you'll be?
PN765
MR LEON: Commissioner, I would have thought I would be half an hour.
PN766
THE COMMISSIONER: Yes, well I don't want the parties to have to hang around any longer than they need to. Why don't we have a half hour lunch break now? Is that acceptable on both sides? Come back, say, at ten past and we'll launch into your final submissions, okay?
PN767
MR LEON: Thank you, Commissioner.
PN768
THE COMMISSIONER: It gives you a bit of prep time as well. I'm adjourned until 1.10.
SHORT ADJOURNMENT [12.43 PM]
RESUMED [1.18 PM]
PN769
THE COMMISSIONER: Mr Leon?
PN770
MR LEON: Commissioner, I’ve just got three authorities to hand up if I may. The first one is the decision of the Full Court of the Federal Court, Construction Forestry Mining and Energy Union and Wagstaff Pilling, or Piling perhaps.
PN771
THE COMMISSIONER: Piling, I think.
PN772
MR LEON: Proprietary Limited [2012]. The second one is the decision of the High Court in CFMEU and the Australian Industrial Commission from 2001, that’s Gordonstone Mining, and the third one, Commissioner, is just a copy of the case that the TWU referred to, Boral Resources New South Wales Proprietary Limited and the Transport Workers’ Union which was a Full Bench decision of this Commission.
PN773
THE COMMISSIONER: Okay, which one first?
PN774
MR LEON: Commissioner, I’ll be dealing with Wagstaff first, that refers to Gordonstone. But that will come just as I briefly try and deal with the jurisdictional argument. I just wanted to make a few points before. Commissioner, what we have here, and I think the Commissioner set it out very succinctly, is we have a dispute arising out of the 2014 agreement, which pertains to an allowance that existed in both the 2007 Westgate agreements and the 2009 Linfox Transitional Agreement, but was extinguished by the making of the 2011 Linfox agreement. That allowance came from the incorporation of the Transport Industry State Award into both of those instruments; the 2009 transitional.
PN775
THE COMMISSIONER: That’s as I understand it. Yes.
PN776
MR LEON: Commissioner, and how the Commission or the Commissioner described was seeking enforcement pursuant to the 2014 agreement, of a clause that existed in 2009 and 2007 that was now extinguished.
PN777
THE COMMISSIONER: I think I would have put it better if I’d said the application seeks to have section 739 enlivened by, I think it is, clause 33, from memory, of the current '14 agreement, in relation to seeking a determination from me as to the obligation to the parties pursuant to clause 2.7 of the old State agreement, State award, as incorporated into the Westgate and then the 2009 transitional instrument.
PN778
MR LEON: Thank you, Commissioner.
PN779
THE COMMISSIONER: You can almost imagine the High Court getting involved in this one. Yes. I might remind you, when I was asking for the agreements and things be handed up, that a High Court Judge got extremely stroppy the other day in the Kaneene case when he wasn’t supplied with the documents.
PN780
MR LEON: He did, Commissioner. I’m hopeful that the help that we provided prevented the Commission from making such remarks.
PN781
THE COMMISSIONER: I don’t do stroppies, so there’s no problems.
PN782
MR LEON: Essentially, Commissioner, what Linfox says is that this isn’t a dispute for the purposes of the 2014 agreement because of the nature of the disputes procedure and the power that the Commission is exercising. But also, even if it were a dispute, there is no evidence to support to TWU’s contentions about how long the vehicles were, the loads, or any of those things that would be required in the factual matrix to make up the case.
PN783
Linfox submits that the furthest we got, that it was possible that there were trucks over 18.3 metres, or it was probable, the fact is we don’t know the length of the trucks and we certainly don’t know what about the loads made them special for the purposes of special load in clause 2.7.
PN784
The TWU submitted that the parties can make agreements about whatever they want, in relation to clause 33, or dispute settling procedure, and they’re not limited by the Act. Linfox says that’s not correct. We say that you are bound by the Act, and if the Commission was so minded to look at section 172(1), making enterprise agreement:
PN785
An agreement that is about one or more of the following matters (the permitted matters) may be –
PN786
dealt with in the Act. Then 172(1)(a):
PN787
matters pertaining to the relationship between the employer that will be covered by the agreement, and that employer’s employees.
PN788
So the nature of the employment relationship that clause 33 uses is limited by what could be considered a permitted matter, for the purposes of the Act. To that point the TWU submitted TWU and Boral. Now, that was a bargaining dispute, and in that, the Full Bench found that they could make – the disputes procedure could include employment relationship. It was permitted by the Act, and we don’t quibble with that. The enterprise agreement can have a disputes procedure that is more than the agreement or the NES, but we just say that employment relationship and the meaning of those words is also limiting, and it’s limited by the cases, such as Electrolux, and, Commissioner, I won’t pause there too long, but “permitted matters” and “employment relationship” are crucial to the arbitration power in section 739.
PN789
The other way the power is limited is by the way the power is being exercised. Flick J, at paragraph 67 of Wagstaff, put it in these terms, Commissioner, when he adopted Gordonstone Coal:
PN790
That which is constitutionally impermissible is an attempt to confer judicial power on the Commission (Fair Work Australia) -
PN791
Obviously Fair Work Australia is now the Commission.
PN792
or anyone else.
PN793
So the parties are limited, both by the Act, and the meaning of employment relationship, having regard to what permitted matters are, and also by the nature of the power, and we say that an underpayment claim, so determining past rights between the parties is a judicial function.
PN794
THE COMMISSIONER: Yes. This is long-worked over ground. It’s true, as I’ve informed Mr Warnes on one other occasion, that no orders can be sought directing payment. No findings as such can be made pursuant to section 739. All that can be done is I, or somebody very much like me, can reach a determination as to the correct application of a provision. So I don’t think that’s in dispute. Anything else would be the exercise of judicial power, which I don’t have.
PN795
MR LEON: Thank you, Commissioner. I’ll put the point in perhaps an additional scope when I – I also put that it’s also a judicial function to determine past rights and liabilities between the parties, which is what’s occurring here.
PN796
THE COMMISSIONER: That’s possible. Yes. That’s possible.
PN797
MR LEON: Because the rights, on the TWU’s own evidence, don’t exist any more when they were extinguished in 2011. So I draw the link between that exercise of past rights and the nature of employment relationship, where I say there must be a temporal relationship to the current agreement. That just isn’t present in this case.
PN798
THE COMMISSIONER: That is the absolute core of your argument, isn’t it? That this is not a matter arising from the 2014 agreement, the one currently in force, and therefore can’t underpin an activation of section 739, in relation to the matter complained of?
PN799
MR LEON: It is, Commissioner.
PN800
THE COMMISSIONER: This is more so I make sure I understand rather than anything else.
PN801
MR LEON: That is my argument, from my submissions distilled very succinctly. I just put a matter that arises out of today’s case; there is another jurisdictional point that I wish to raise, and this arises from the TWU’s assertion that what the case is really about, and the fact that they are just seeking an interpretation of the award, now the point I make here is the Commission is entitled to determine facts and law in the process of resolving a dispute, as a step in resolving the dispute, but, in these circumstances, where there is no evidence before the Commission about what actually happened at the time, the interpretation is not as a step in resolving the dispute, it’s just the interpretation.
PN802
If this were under the New South Wales Act, the New South Wales IR Act, that might allow for such, just an interpretation in a vacuum without evidence, but in this case, we say that an interpretation in that fashion, without evidence of what was actually done at the time, would not be taken as a step in resolving the dispute, because all that information would have to come afterwards. I can take the Commission to the authority in Wagstaff if that’s required for that proposition.
PN803
THE COMMISSIONER: Yes, do so. Do so.
PN804
MR LEON: So that ‑ ‑ ‑
PN805
THE COMMISSIONER: You took me to 67, didn’t you; of Wagstaff?
PN806
MR LEON: I took you to 67. I did, Commissioner. I’ll just see if I can find the proposition just to save you a bit of time. Sixty-five, Commissioner. Flick J has just expressed some views about Gordonstone and Aberdare Collieries and then he continues that Gray J in Miller and University of New South Wales that:
PN807
Any finding the Commission makes ongoing is a step to the determination of future rights.
PN808
Then he references some other cases there. We say there are no future rights in this case, so it’s not taken in a step in determining future rights, it’s only an interpretation in the past for a closed period, so that interpretation ought not to occur.
PN809
Commissioner, just moving to the substance of the argument, I’ll just make a few brief submissions, if I may, about clause 2.7 of the New South Wales award. Linfox’s assertion is that the entire clause should be given effect when interpreting it, and all of those matters that the clause refers to ought to be considered. The first point is 2.7 itself, Long and Wide Loads. Those words should be given meaning, and the words “long and wide” and reference there could be had to what makes a long and wide vehicle, under the regulations. The simple fact that a vehicle of indeterminate length, but we know for certain that they’re less than 19 metres, is not long for the purposes of New South Wales regulations.
PN810
Then 2.7(1), “An employee who is engaged driving a loaded vehicle” - we say that that is critical; that the vehicle has to be loaded which, together with its special load, it’s my submission that a vehicle with an empty trailer, regardless of its length, wouldn’t trigger the provision. It has to be loaded, and that gives rise to the view that it’s not so much that the vehicle itself which tells us, but the load that’s important, and then together with its special load, exceeds those definitions.
PN811
We say all of those matters have to be given consideration. It wouldn’t be correct for the Commission to start at 2.7.1.2, that is the length, and then work backwards, which is what I submit the TWU is asking you to do. My submission is there has to be a loaded vehicle, together with its special load, which exceeds those things, and it should be read in that way, and interpreted in that manner.
PN812
Linfox’s submissions, and we’ve heard a lot about the specialness, or otherwise of groceries, I won’t dwell on that point, but we don’t think that a truck carrying a Woolworths trailer, there’s nothing special about that.
PN813
THE COMMISSIONER: So do you say, in 2.7.2 of the old State award, that I should read the word “special” into that as well?
PN814
MR LEON: Are you saying 2.7.1.2, Commissioner? Apologies.
PN815
THE COMMISSIONER: Yes, 2.7.2. The one beginning:
PN816
Where any load is being carried.
PN817
MR LEON: Apologies.
PN818
THE COMMISSIONER: You got that?
PN819
MR LEON: Commissioner, I do.
PN820
THE COMMISSIONER: Sorry, I thought you were just quoting from it.
PN821
MR LEON: No, Commissioner, I was quoting 2.7.1.2.
PN822
THE COMMISSIONER: Yes. On mine it’s marked as 2.7.2, but it begins where any load is being carried by an articulated vehicle.
PN823
MR LEON: No, that is 2.7.2. I’m not referring to that, Commissioner.
PN824
THE COMMISSIONER: Okay. Good.
PN825
MR LEON: That’s directed at another allowance. I’m referring to ‑ ‑ ‑
PN826
THE COMMISSIONER: That was my conclusion so I’m glad I was right. That’s okay. Just keep going.
PN827
MR LEON: Thank you, Commissioner. I’m referring to 2.7.1.2, which is the reference to the length, 18.29 metres.
PN828
THE COMMISSIONER: I see. Yes. Yes.
PN829
MR LEON: The position I’m putting to you there, Commissioner, is the TWU would have you start at 18.29, and if it was more than that, then work backwards to get a – we say that’s now how the clause reads. The clause should be read in its entirety to give effect to all of the provisions of it.
PN830
THE COMMISSIONER: It must be read down. Yes.
PN831
MR LEON: Commissioner, if we were to read the entirety of the clause Linfox submits that there would need to be evidence of all of those factors. There would need to be evidence of – and this would be the kind of evidence of the nature that you would have to prove in an underpayment claim, which is what Linfox says this arguably is, in the nature of when the vehicles were driven; the actual length of the vehicles; what they were loaded with; when vehicles were unloaded; and what the special load was.
PN832
In the absence of that information, all Linfox can put is that there is nothing special about these loads, and the TWU’s contention that Linfox hasn’t produced any evidence about the meaning of “special load”, in my view, it’s not Linfox’s case to put. The TWU should put their evidence about what’s special about the load, and how many loads they were, to allow the Commission to have all the facts before it before making, what’s been referred to as, a determination, because that’s what this would be. In the absence of that all we have is the interpretation in a vacuum, and the Commission ought not be minded to take that step.
PN833
Lastly, Commissioner, Linfox submits that there’s two limbs to clause 2.7 and both need to be satisfied. So not only did the actual length of the vehicle have to be above that, 18.29, and there’s the evidence of that fact, but in addition, the character of the load has to be determined to determine what makes it special, and Linfox submits that neither limb, let alone one, has been satisfied.
PN834
Commissioner, the final point I wanted to make was just about the abuse of process, and that I have made written submissions about. I just wanted to take the Commission to clause 33, the disputes procedure of the enterprise agreement. Clause 33.5 it is.
PN835
THE COMMISSIONER: You’ll have to read it to me.
PN836
MR LEON: I apologise, Commissioner, I have a copy of the 2014 agreement.
PN837
THE COMMISSIONER: Sorry, I declined it before, didn’t I, but I’ll need it now.
PN838
MR LEON: You did. Commissioner, it’s on page 19. This is the settlement of disputes procedure in question. I’m referring to clause 33.5.
PN839
THE COMMISSIONER: Let me find it. So it’s 33 what?
PN840
MR LEON: 33.5 on page 19.
PN841
THE COMMISSIONER: I have it. Yes.
PN842
MR LEON: What that clause is ‑ ‑ ‑
PN843
THE COMMISSIONER: It’s a nice motherhood statement, isn’t it? Yes.
PN844
MR LEON: But it does say that the parties – and it was in the parties’ mind that we do need to act expeditiously in the resolving of disputes, and that coupled with the fact that this dispute was raised five years after the matter was first raised, and there have been opportunities for the TWU to resolve it. The Commission should be so minded about the nature and the function that’s really going on here. We heard from Mr Williams in regards to whether or not this was, in my words and not his words, and he didn’t specifically adopt the words, payback for another matter. But the Commission could be so minded that this dispute hasn’t been raised because of the genuine belief about an entitlement, but it’s been raised to put pressure onto Linfox in regards to other matters.
PN845
THE COMMISSIONER: How could I possibly come to that view objectively? Not on your say so. It’s been denied by Mr Williams. How would I ground such a view?
PN846
MR LEON: Commissioner, I think you would ground such a view in the specific words adopted by Mr Williams. He didn’t take it as far as I took him, but he does say, in his statement, in 2014 Linfox reneged on a local matter in relation to a crib break, and since that time this issue has raised its head, so I’m not asking the Commission to do anything other than adopt the words of the witness in that regard. Now, he may not have put it as forcefully as I did.
PN847
THE COMMISSIONER: Take it from me, I’m not enthused about such a proposition.
PN848
MR LEON: Thank you, Commissioner.
PN849
THE COMMISSIONER: I’ll decide this on the law, sir.
PN850
MR LEON: Thank you, Commissioner. So finally, Commissioner, briefly, Linfox submits that there’s no jurisdiction to deal with the dispute, but if the Commission finds that there is jurisdiction, then there’s no evidence to support any interpretation of the provision, and those are my submissions.
PN851
THE COMMISSIONER: Thank you, Mr Leon. Do you have anything to say in reply, Mr Warnes?
PN852
MR WARNES: Just something brief, Commissioner. That’s in relation to the so-called temporal link between the agreement that’s contained, or the current agreement, which contains a disputes procedure, and the dispute. I think that’s dealt with fairly clearly in the TWU and Boral case, which Mr Leon handed up.
PN853
The Commission, in that instance, the Full Bench said that it can be about matters outside of the agreement, so I really don’t think that takes Linfox terribly far. In terms of it being for a closed period in the past, I would say that they’re – I mean, I can’t think of a specific instance, but the Commission could envisage some entitlement that existed under this agreement, say for a site that’s now been closed that doesn’t exist at another site that’s covered by this agreement. So because that’s a closed period in the past, surely that doesn’t exclude employees from bringing a dispute under the disputes resolution clause. I think that’s an artificial construction.
PN854
THE COMMISSIONER: I have dealt with analogous matters. The one that just comes to my mind, which lay outside the terms of the agreement, was a mining company which removed smoking areas on a lease, a mining lease, and that became a dispute about the employment relationship, and I did find, on that occasion, that it was pertaining to the rights of employees, and whether it extends as far as trawling back to ancient pre-instruments is the question I have to decide, and if it does, it does, with an arrangement or not.
PN855
MR WARNES: Obviously we would say that that would involve the Commission in asking itself whether that old entitlement is part of the employment relationship between the parties.
PN856
THE COMMISSIONER: Exactly.
PN857
MR WARNES: We would say it does.
PN858
THE COMMISSIONER: That’s where it all suddenly conflates, doesn’t it?
PN859
MR WARNES: It does. It comes into a very, very sharp point, Commissioner.
PN860
THE COMMISSIONER: To that point.
PN861
MR WARNES: Look, as I said, I didn’t have much to say, but that’s all we have in reply.
PN862
THE COMMISSIONER: All right. Thank you everyone. I reserve my decision. The parties will be advised in writing in due course. Though, if they wish to settle it between themselves before I get around to writing it, you’d be very welcome. It’s a lot of fun, this decision, but it does raise some very interesting points. I’ll adjourn.
ADJOURNED INDEFINITELY [1.46 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #TWU1 WRITTEN OUTLINE OF SUBMISSIONS OF THE TWU PN3
EXHIBIT #LINFOX1 WRITTEN OUTLINE OF SUBMISSIONS OF LINFOX PN10
STEPHEN FREDERICK WILLIAMS, SWORN............................................... PN12
EXAMINATION-IN-CHIEF BY MR WARNES................................................ PN12
EXHIBIT #TWU2 AMENDED WITNESS STATEMENT OF STEPHEN FREDERICK WILLIAMS WITH ANNEXURES....................................................................... PN62
CROSS-EXAMINATION BY MR LEON........................................................... PN64
RE-EXAMINATION BY MR WARNES........................................................... PN341
THE WITNESS WITHDREW............................................................................ PN350
STEPHEN FREDERICK WILLIAMS, RECALLED ON FORMER OATH PN365
FURTHER CROSS-EXAMINATION BY MR LEON.................................... PN367
RE-EXAMINATION BY MR WARNES........................................................... PN388
THE WITNESS WITHDREW............................................................................ PN397
MATTHEW PAUL SHERIDAN, SWORN....................................................... PN398
EXAMINATION-IN-CHIEF BY MR LEON.................................................... PN398
EXHIBIT #LINFOX2 WITNESS STATEMENT OF MATTHEW PAUL SHERIDAN WITH ANNEXURES........................................................................................................ PN405
CROSS-EXAMINATION BY MR WARNES................................................... PN407
EXHIBIT #TWU3 BROCHURE ISSUED BY MERCEDES BENZ RELATING TO THE ACTROS TRUCK................................................................................................ PN489
RE-EXAMINATION BY MR LEON................................................................. PN547
THE WITNESS WITHDREW............................................................................ PN559
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/other/FWCTrans/2015/141.html