|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009
DEPUTY PRESIDENT BARTEL
AG2014/9355
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument
Application by Pinarello Blues
Pty Ltd sd Trustee for Judds Discretionary Trust
(AG2014/9355)
Adelaide
10.10AM, FRIDAY, 20 FEBRUARY 2015
Continued from 19/02/2015
PN996
DEPUTY PRESIDENT BARTEL: Mr Colgrave, how did you go in relation to the production?
MR COLGRAVE: Yes, I’ve produced to Mr Blewett this morning, just five minutes or so ago, a redacted copy of, I think, four agendas for meetings between the financial controller of RD Jones Group and Deloitte with the minuted item of WorkCover self-insurance on those agendas and also following consultation with the AHA, have released to him a copy of the AHA’s, or the solicitors for the AHA, Barbara Rawlins’(?) legal advice in relation to clause 14 of the agreement, so have been produced.
<LENA ATHANASIOU, RECALLED ON FORMER OATH [10.12 AM]
CROSS-EXAMINATION BY MR BLEWETT, CONTINUING [10.12 AM]
PN998
MR BLEWETT: I’m indebted to Mr Colgrave for that. Ms Athanasiou, do you recall one of the topics we discussed yesterday was clause 14 of the agreement?‑‑‑Yes.
PN999
That was the clause which provides that the agreement can only be terminated with the agreement of the parties. Recall that?‑‑‑Yes.
PN1000
You referred to some advice that you’d received?‑‑‑Yes.
PN1001
You understand that’s been provided to me this morning?‑‑‑Yes.
PN1002
That’s advice to the AHA from its solicitors in February 2014, do you recall - sorry, have you seen the written advice recently?‑‑‑Yes, I have.
PN1003
Do you agree it was provided in - it was dated February 2014?‑‑‑The letter was dated February.
PN1004
You presumably were provided with that advice at some later point in February 2014?‑‑‑Yes, correct.
PN1005
Do you recall about when in 2014 that was provided to you?‑‑‑Not particularly. It was provided to us at one of the IR meetings.
*** LENA ATHANASIOU XXN MR BLEWETT
PN1006
Was it provided at a time when you were considering commencing the process towards terminating the collective agreements for the hotels?‑‑‑Probably around the same time, yes.
PN1007
Was it provided to you as a result of your request to the AHA for advice about that topic?‑‑‑No. From memory, I believe it was provided to all the members at the IR meeting.
PN1008
The IR meeting is?‑‑‑The industrial relations meeting with the hoteliers and the AHA.
PN1009
They’re periodic meetings are they the AHA holds with its members?‑‑‑Yes.
PN1010
RD Jones is a member of the AHA?‑‑‑Yes.
PN1011
Presumably, one of the topics that was discussed at these IR meetings was the progress of negotiations between the AHA and United Voice on sort of a template agreement?‑‑‑Yes.
PN1012
You were aware of the progress of those negotiations?‑‑‑Sometimes, yes. I didn’t attend every meeting, so.
PN1013
But you were generally aware of the progress of those negotiations?‑‑‑Yes.
PN1014
That those negotiations were finalised at around the time that you commenced this process of terminating the collective agreements?‑‑‑Yes.
PN1015
Also you recall giving some evidence about meetings that the financial controller was having with Deloittes, I think, in respect of presumably matters affecting the RD Jones Group but it included workers compensation self‑insurance?‑‑‑Yes.
PN1016
I think you’ve produced agendas. If I could approach the witness. And those documents are the agendas for August through to September - - -?‑‑‑September, yes. Sure, yes.
PN1017
- - - of those meetings and there is reference there to workers compensation self-insurance as a heading?‑‑‑Yes.
*** LENA ATHANASIOU XXN MR BLEWETT
PN1018
I think in the first couple of meetings, it just refers to an update?‑‑‑Yes.
PN1019
In the second couple of meetings, I think the notation is “Is this on hold?”?‑‑‑Yes.
PN1020
There’s no other material in those agendas relating to workers compensation self-insurance?‑‑‑No.
PN1021
As I understand it, no minutes of those meetings were taken?‑‑‑No.
PN1022
We don’t know the content of those discussions?‑‑‑No.
PN1023
Thank you. I’ve finished with those. I wasn’t proposing to tender them, Deputy President. I’m happy to mark them for identification if - - -
PN1024
MR COLGRAVE: No, I’m content that they’re not in before you. I don’t mind.
PN1025
DEPUTY PRESIDENT BARTEL: Thank you.
PN1026
MR BLEWETT: Where we left off last night, Ms Athanasiou, was discussing the individual arrangements that you’d reached with about seven employees?‑‑‑Yes.
PN1027
You knew before you had those discussions with the employees either that they had expressed a view against termination of the agreement or they had expressed reservations about termination of the agreement?‑‑‑Some of them, not all of them.
PN1028
The three who had signed their document saying they did not support termination of the agreement, that was pretty clear to you that they did not support the termination of the agreement?‑‑‑Which three are you referring to?
PN1029
Mr - - -?‑‑‑Simon Fox?
PN1030
Mr Fox on 25 September had ticked “I disagree with the termination of the agreement for reasons outlined below”?‑‑‑Yes.
*** LENA ATHANASIOU XXN MR BLEWETT
PN1031
Ms Molten(?) had ticked “I disagree with the termination of the agreement for reasons outlined below”?‑‑‑Kim Molten actually said - she rang me and said “I’m going to disagree for now until I speak to you” and that’s what she put on the bottom of her form.
PN1032
Mr Hunt expressed that - he ticked the box “I disagree with the termination of the agreement for reasons outlined below”?‑‑‑Yes.
PN1033
Three employees had ticked the box that they disagreed?‑‑‑Yes.
PN1034
One of them had a conversation with you where indicated she might be open to changing her mind?‑‑‑Yes.
PN1035
But when you had the discussions with those three employees, following those discussions, they provided fresh forms indicating they supported termination of the agreement?‑‑‑Yes.
PN1036
With the other four, they have all ticked the relevant box saying “I agree with the termination of the agreement” but expressed conditions or reservations?‑‑‑Yes.
PN1037
You understood those forms to indicate that they agreed subject to their concerns or conditions being satisfied?‑‑‑Yes.
PN1038
I think in paragraph 41 of your affidavit, you say that what those four told you was that they would support the termination of the agreement if you confirmed the agreements in writing?‑‑‑If I’d got something to them in writing, yes.
PN1039
Your purpose in reaching these individual arrangements with these seven employees was to secure their support for the termination of the agreement?‑‑‑No. It was to ensure that they weren’t worse off if the collective agreement was terminated. Whether they support it or not was irrelevant.
PN1040
Do you seriously ask the Commission to accept that? That your view was whether or not the employees supported the termination of the agreement was irrelevant?‑‑‑Yes.
PN1041
You met with employees at each hotel and provided an information session?‑‑‑Yes.
PN1042
At those information sessions, you invited anyone who had any concern to come and speak to you privately?‑‑‑Yes.
*** LENA ATHANASIOU XXN MR BLEWETT
PN1043
And that you’d be prepared to reach individual agreements or arrangements with them?‑‑‑Yes.
PN1044
To ensure they didn’t lose income?‑‑‑Yes.
PN1045
Surely that was all about securing as much support as you could from the employees for termination of the agreement?‑‑‑It’s about caring for the employees and ensuring that they weren’t worse off.
PN1046
So no part of your motivation in extending that invitation to the employees was to secure the support of the employees for the termination of the agreement?‑‑‑Well part of it may have been but my main concern, as a HR manager, is ensuring that we keep our good quality staff and that we continue that relationship. So if they’re worse off, I wanted to ensure that they were taken care of.
PN1047
Part of your motivation was to secure the support of as many employees as you could by reaching these individual arrangements?‑‑‑Well it was up to the individual whether they would like to support it. I was just there to provide the advice and to assist them. That is my job as a HR manager.
PN1048
It wasn’t just your job to provide advice and assistance. Your job here was also to secure individual arrangements or agreements with these employees, wasn’t it?‑‑‑Yes.
PN1049
Part of your motivation for doing so was to secure the support of those employees for a termination of the agreement?‑‑‑If they chose to, yes. If the employer supported them, I would assume that they would give their support back. Most of us have a very good relationship.
PN1050
I’m just trying to get a clear answer to this question if I can. Part of your motivation for entering into individual arrangements or agreements with employees was to secure their support for termination of the agreement?‑‑‑That would have been part of it, yes.
PN1051
And part of your motivation for extending to employees generally the offer to come and meet with you and make individual agreements or arrangements was to secure as much support of the employees for termination of the agreement as possible?‑‑‑No. It was to ensure that those employees were not worse off.
*** LENA ATHANASIOU XXN MR BLEWETT
PN1052
Let me get this straight, part of your motivation when you actually met with individual employees to the making of individual arrangements was to secure their support for termination of the agreement. You’d agree with that?‑‑‑Part of it, yes.
PN1053
But it was no part of your motivation extending the offer to employees to come and make those arrangements with you to secure their support for termination of the agreement?‑‑‑No.
PN1054
Yesterday, I think, you agree that with some employees it was clear that they would lose money if the collective agreement were terminated and the HIGA applied?‑‑‑Yes.
PN1055
You accept, depending on the roster pattern for any individual, that some will lose income, some will be the same, some will gain income if the collective agreement was terminated?‑‑‑Yes.
PN1056
Where we left off last night, we were about to approach the material attached to the affidavit of Larissa Harrison, recall that? Deputy President, if I could approach the witness.
PN1057
DEPUTY PRESIDENT BARTEL: Yes, thank you?‑‑‑Thank you.
PN1058
MR BLEWETT: You had an opportunity to look at Ms Harrison’s affidavit before today?‑‑‑Yes.
PN1059
In particular, the part exhibit LH1 to that affidavit?‑‑‑Yes.
PN1060
You understood from the affidavit that Ms Harrison had generated LH1 from the December 2013 to December 2014 rosters that had been provided as part of discovery in this matter?‑‑‑Yes.
PN1061
That she had used that information to create a spreadsheet which purported to identify the difference for each individual in the certified agreement applying as compared with the Heiger applying to them?‑‑‑Yes but it is a hypothetical situation.
PN1062
Sure. But let me just take it step by step. You accept that it is based on the rosters from December 2013 to December 2014?‑‑‑Yes.
*** LENA ATHANASIOU XXN MR BLEWETT
PN1063
You understand that the existing certified agreement provisions had been applied in respect of those rosters?‑‑‑Yes.
PN1064
That the Heiger provisions as at 1 January 2015 have been applied in respect of that roster pattern?‑‑‑Yes.
PN1065
What this reveals is the difference between the certified agreement provisions applying to that roster pattern and the Heiger provisions applying to that roster pattern?‑‑‑Yes.
PN1066
It assumes no change of rosters?‑‑‑That’s right.
PN1067
It doesn’t take into account individual arrangements?‑‑‑Yes.
PN1068
For instance, Mr Lane is showing here as having quite a significant loss of that income?‑‑‑Yes.
PN1069
Whereas you say that the individual arrangement you have reached with him means that he will suffer no loss at all?‑‑‑Yes.
PN1070
Looking at LH1, it appears to, in pretty crude terms, set out some winners and some losers?‑‑‑Yes.
PN1071
Some who stay roughly the same?‑‑‑Yes.
PN1072
Included in that list, I think, are Rebecca Ingham and Robert Lane and you would say that with respect to those two people, the individual arrangements you have reached with them mean they ought not suffer any loss of income?‑‑‑Yes.
PN1073
But the fourth line down is Toni Hutchinson, do you see that?‑‑‑Yes.
PN1074
That identifies that she loses about $20 per week on the Heiger?‑‑‑That’s on these calculations, yes.
PN1075
Nicholas Morris loses about $50 per week?‑‑‑Yes.
PN1076
Gerard Seibert(?) loses about $36 a week?‑‑‑Yes.
*** LENA ATHANASIOU XXN MR BLEWETT
PN1077
Samantha Trinne loses about $72 a week?‑‑‑Yes.
PN1078
Do you understand the basic explanation for those losses is that those staff would work primarily during the Monday to Friday period and would work a limited amount on Sundays and public holidays?‑‑‑I can’t say because I don’t believe these figures to be accurate so it’s very difficult to say this person here that’s losing $72, whether they’re actually losing $72.
PN1079
You’ve obviously got some concerns about these figures?‑‑‑Yes.
PN1080
What are the - you’ve, I think, observed a couple of times that they’re inaccurate, is there some concern you have about the methodology that’s been approached to it?‑‑‑Public holidays weren’t calculated. There was a public holiday missed where they’re getting extra pay and that hasn’t been taken into account. Rosters aren’t always ‑ rostering are for rostering purposes. It means those person or persons may have been sent home earlier or their roster’s changed or they might have changed them. It doesn’t take into account higher duties when anyone’s working higher duties. Is it Larissa Harrison, has also calculated the breaks after 7.00 pm when the $1.95 penalty rate applies, which means that that will make the figures look worse than they are. So she’s calculated everyone having a meal break between 7.00 pm and midnight which may not be the case. No overtime is calculated obviously for, now where is he, these are casuals so there aren’t ‑ there’s no overtime. And no allowances are calculated other than the 7.00 pm to 7.00 am loading. So split shift allowances, broken work allowances, those kind of allowances aren’t in there. So those figures would vary quite significantly.
PN1081
Can I take each of those things in turn. The public holiday that you say is missed, which public holiday is that?‑‑‑I believe that a spreadsheet was also worked out by assistance of the lawyers, so they’ve got a copy of the spreadsheet.
PN1082
Perhaps I might call for production of that.
PN1083
MR COLGRAVE: We’ll produce it in due course. I’ve got a summary of those calculations but we don’t have the spreadsheet?‑‑‑Yes, well - - -
PN1084
DEPUTY PRESIDENT BARTEL: Would that assist?
PN1085
MR BLEWETT: Yes, it would. It would have assisted perhaps a little while ago.
*** LENA ATHANASIOU XXN MR BLEWETT
PN1086
MR COLGRAVE: I’ve got a copy of the summary but it’s got sort of notes.
PN1087
MR BLEWETT: I concede that.
PN1088
MR COLGRAVE: I’ll provide that to the witness.
PN1089
MR BLEWETT: Might I have a look?
PN1090
MR COLGRAVE: Certainly.
PN1091
DEPUTY PRESIDENT BARTEL: Would you like us to get some copies of that?
PN1092
MR BLEWETT: I think that would be helpful, yes.
PN1093
MR COLGRAVE: Can I point out just at this stage that Samantha Trinne, T‑r‑i‑n-n-e for the transcript, has commenced employment since the vote on the termination of the agreement and her timesheets are only between October 2014 and December 2014 for the purposes of that analysis. It speaks for itself on the actual calculations but I think it’s just worth noting.
PN1094
DEPUTY PRESIDENT BARTEL: Thank you.
PN1095
MR BLEWETT: Ms Trinne hasn’t provided a document indicating her support or otherwise for termination of the agreement, has she?‑‑‑I don’t know.
PN1096
You haven’t produced it in these proceedings, have you?‑‑‑I don’t know which ones have been - I haven’t seen - well, I haven’t gone through them since last year so I don’t know.
PN1097
If it is the case that you haven’t produced a sheet from Ms Trinne indicating whether or not she supports the agreement, am I safe to assume that one doesn’t exist?‑‑‑You could assume that, yes.
PN1098
While we wait for that document, perhaps move onto the MOU. You recall we had a brief discussion about that yesterday?‑‑‑Yes.
*** LENA ATHANASIOU XXN MR BLEWETT
PN1099
Unless you have the outline of submissions, you may not have it in front of you?‑‑‑No, I don’t. Thank you.
PN1100
MR COLGRAVE: I could point out that the slightly more faded type is a coloured type on the - - -
PN1101
DEPUTY PRESIDENT BARTEL: To indicate the negative or positive, yes.
PN1102
MR COLGRAVE: I think it indicates a positive as opposed to a negative only it’s green on the copy I have on my computer screen. It indicates differences from Larissa’s calculations, the lighter ones. We can produce coloured copies.
PN1103
DEPUTY PRESIDENT BARTEL: No, now that I know that, I can see it.
PN1104
MR BLEWETT: So - - -?‑‑‑So we’re going back to that?
PN1105
Yes, sorry?‑‑‑Okay.
PN1106
Happened much more quickly than I’d expected. If we look at this summary sheet, as I understand it, that’s a summary of some calculations made by your lawyers, is that right?‑‑‑In consultation with myself, yes.
PN1107
If we go to Toni Hutchinson, do you agree that that shows she suffers a loss of $20 per week? Third to last column, I think, if I understand it right is the relevant column?‑‑‑No. I think that’s what’s on your spreadsheet.
PN1108
MR COLGRAVE: Has she got a copy of this? She’s not looking at it.
PN1109
MR BLEWETT: Don’t think she was.
PN1110
MR COLGRAVE: She wasn’t.
PN1111
MR BLEWETT: Ms Athanasiou, can I cut this short. What I understand that Mr Colgrave has just said is that the lighter coloured entries are where there’s a difference between this and Larissa’s calculation and the hard or bolder coloured are where there’s no difference between this and Larissa’s calculation?‑‑‑Okay.
*** LENA ATHANASIOU XXN MR BLEWETT
PN1112
What I understand is that this sets out what you assert the difference per week to be and you assert that in, I think, the third to last column of that summary sheet that you have. If you have a look, I think what it’s intended to do is re-produce Larissa’s summary at LH1 with what you say to be the correct calculations?‑‑‑No. It only takes into account the public holiday. It doesn’t take into account the other factors so the assumed breaks are to 7 o’clock, higher duties. It doesn’t take any of that into account. You would actually have to reproduce the whole roster when the actual break times - which would take months and months of work. This only shows by adjusting the public holiday what the difference would be between the two. It’s only one factor.
PN1113
What it shows, taking account of that one factor, is that Ms Hutchinson loses $20 a week?‑‑‑Taking into account that one factor, yes.
PN1114
That Mr Morris loses $47, almost $48, a week?‑‑‑Yes.
PN1115
Mr Seibert loses $36 a week?‑‑‑No, he’s in the positive, isn’t he?
PN1116
No?‑‑‑No, okay.
PN1117
What I think that means is there’s no change between that and - - -?‑‑‑No change between - because he didn’t work the public holiday, yes.
PN1118
Ms Trinne loses $72 a week?‑‑‑Yes.
PN1119
You say that if either of those four people worked higher duties on any of those periods, there might be a difference between that which the collective agreement provided them for higher duties and that which the Heiger would provide for higher duties?‑‑‑Yes.
PN1120
You say that - - -?‑‑‑Well those higher duties aren’t even in there so there’s no calculation at all.
PN1121
Yes and you can’t assist the Commission as to whether Ms Hutchinson, Mr Morris, Mr Seibert or Ms Trinne have performed any higher duties shifts?‑‑‑No.
PN1122
Nor can you assist the Commission as to whether they performed any broken shifts?‑‑‑No. And also when they took their breaks.
*** LENA ATHANASIOU XXN MR BLEWETT
PN1123
You can’t assist as to whether at what time on any - sorry, firstly, whether - sorry, I withdraw that. You can’t tell us as to when they took a meal break, assuming they took the meal break?‑‑‑No.
PN1124
Is it fair to say with the information that’s available to you, that’s the most accurate that you can get us?‑‑‑It’s a ‑ it’s as accurate as the information we have now, yes.
PN1125
You’d accept as a general proposition that some will lose under the Heiger, some will gain and some will stay about the same?‑‑‑Yes.
PN1126
If you look at either of those two summaries, they show that across the workforce at the Yankalilla Hotels some are winners, some are losers and some stay about the same?‑‑‑Yes.
PN1127
Which is what you would expect?‑‑‑Yes.
PN1128
It isn’t surprising, is it, that you would find Ms Hutchinson, Mr Morris, Mr Seibert and Ms Trinne losing out under the Heiger?‑‑‑Yes but we wouldn’t let that happen.
PN1129
You haven’t got an individual agreement with either of those?‑‑‑No but upon speaking to Mr Jones, he said that we could compare last year’s group certificates with - if we were to go over and that we would give them a bonus to make sure that they weren’t worse off.
PN1130
Is that what led to this proposition about an MOU?‑‑‑That was something guaranteeing so that the employees would feel comfortable. That was my understanding.
PN1131
If I can come to this MOU, I think. I don’t know if you have your written outline?‑‑‑Yes, yes.
PN1132
It’s, I think, in paragraph 36 of that written outline, that the MOU is proposed. Do you agree with that?‑‑‑36, yes.
*** LENA ATHANASIOU XXN MR BLEWETT
PN1133
That’s really an attempt to preserve for the Yankalilla Hotel employees some provisions of the certified agreement that wouldn’t be picked up by moving to the Heiger?‑‑‑36.2, I mean “All employees attend Arcave(?) training regardless of the memorandum of understanding or not”. Since my whole time there employees have never been charged for breakages so that would be - there are some clauses that are more favourable, yes.
PN1134
The point of the MOU is to attempt to preserve provisions ‑ ‑ ‑?‑‑‑Some of them, yes.
PN1135
- - - contained in the collective agreement that benefit employees - - -?‑‑‑Yes, some.
PN1136
- - - in the event that the collective agreement is terminated and the Heiger applies?‑‑‑Some of them, yes.
PN1137
Has this MOU been reduced to writing as far as you’re aware?‑‑‑Has it been?
PN1138
Is it in writing? Is it a document?‑‑‑No.
PN1139
Who are the parties? Who’s it between?‑‑‑It would be between the employees and the employer.
PN1140
And the union?‑‑‑I’m not sure. I’m not a very legal person so I don’t know how it’s drawn up.
PN1141
You haven’t determined yet who the parties to this MOU would be?‑‑‑No.
PN1142
Are the elements that you’ve put in that written outline in sub-paragraphs 36.1 to 36.13, are they the only elements that the RD Jones Group would agree to as forming part of this MOU?‑‑‑I’m not sure whether there would be anything else.
PN1143
Presumably you wouldn’t be prepared to keep the 50 percent casual rate for all hours? The 50 percent casual loading for all hours worked?‑‑‑I’m not sure. That wouldn’t be my decision.
PN1144
Would you be prepared to maintain the 10 percent loading for part time workers?‑‑‑I would need to check with the ‑ with Mr Richard Jones but I couldn’t see any reason why not.
*** LENA ATHANASIOU XXN MR BLEWETT
PN1145
Would you be prepared to keep the collective agreement’s spread of hours, which is a spread of 10 hours, is it ‑ sorry, the ordinary hours being the maximum of 10 as opposed to 11.5 under the Heiger?‑‑‑Spread of hours?
PN1146
Sorry, I withdraw that. Would you be prepared to keep the maximum ordinary hours in the collective agreement of 10 hours versus the Heiger hours of 11.5 per day?‑‑‑As I said, I haven’t given any thought so it’s - I don’t want to rush into making an assumption what I may or may not do based on a question in the court. It would have to be something I would need to have a look at and discuss with Mr Jones.
PN1147
I take it you’re not closed to the idea of having some other elements in the collective agreement incorporated into this MOU besides the ones that are set out in this document?‑‑‑I haven’t really given it much thought, so.
PN1148
As I think I mentioned yesterday, the collective agreement appears to give a right to an employee to have the Commission arbitrate a dispute between it and the employer, is that something you’d be prepared to entertain as part of the MOU?‑‑‑As I said, I would need to have a look at further facts. I’m not prepared to make any recommendations at this stage, being put in a witness stand. I am the kind of person that would need to look at all avenues, possibilities, consult with people.
PN1149
You’d be prepared to consider, at least, negotiating with the employees or the union about some of those extra matters?‑‑‑If it was something that the employees felt strongly about, absolutely.
PN1150
Can I then take you to paragraph 36.13 which provides “The casual employee employed by the Yankalilla Hotel at the time of the termination of the agreement whose weekly pay is less under the Heiger than the amount payable under the agreement for equivalent hours would be compensated to ensure no loss of pay”, do you see that?‑‑‑Yes.
PN1151
Have you figured out how that will be implemented?‑‑‑Yes. As I said before, we would compare their group certificates from the year before and then we would pay it as a bonus.
PN1152
The group certificate doesn’t set out the hours that an employee works during the year does it?‑‑‑No.
PN1153
Doesn’t set out the pattern of those hours?‑‑‑No.
*** LENA ATHANASIOU XXN MR BLEWETT
PN1154
Doesn’t set out whether those hours were worked on a weekday or a weekend or a public holiday or a night time?‑‑‑No. What we would do was put the hours into the wage system, let it calculate and the difference would be paid by bonus.
PN1155
You’d apply the sort of Heiger, presumably this is on the basis of the Heiger is applying?‑‑‑Yes.
PN1156
And individual arrangements are applying?‑‑‑Yes.
PN1157
That would produce what people are actually paid?‑‑‑Yes.
PN1158
Then you would run a payroll based on the - as if ‑ ‑ ‑?‑‑‑We would just change the award and then run the payroll and then it would give us the figures.
PN1159
You would run a payroll as if the certified agreement was applying?‑‑‑Yes.
PN1160
That would spit out a different figure?‑‑‑Yes.
PN1161
You would pay that at the end of the year as a bonus?‑‑‑Yes.
PN1162
Are you fixed on that being the method or is that also something you’d be prepared to entertain discussions about?‑‑‑No. It was just one of the suggestions that we came up with Mr Jones so we hadn’t really given much more discussion over how we could get around making sure the employees were happy.
PN1163
Again, that’s something you’d be prepared to consider negotiating with any of the union or the employees about?‑‑‑If I could get different advice and there was a different method, well, of course, I would consider it.
PN1164
I take it the method that you’re contemplating at least at the moment, that wouldn’t count the additional wage component for the purposes of notice would it?‑‑‑I’m confused.
PN1165
MR COLGRAVE: I don’t understand the question in the context of notice. I think that question’s got to be premised on the employee being terminated surely.
*** LENA ATHANASIOU XXN MR BLEWETT
PN1166
MR BLEWETT: You recall we had discussion yesterday about the collective agreement giving casual employees an entitlement to notice on the termination of their employment?‑‑‑Yes.
PN1167
That notice is based upon the, can’t now recall whatever it’s the wage, their average wage or the wage that they would expect to earn over the period of notice?‑‑‑Which clause is this termination clause? Because I’m getting confused. In the collective agreement you’re talking about?
PN1168
The collective agreement?‑‑‑Yes. Which clause? You talking about 24.1?
PN1169
It starts with 24.1, yes. You’ll see that in 24.1.1 someone who’s worked less than two weeks gets no notice period provided and then the asterisk indicates that’s provided with their casual covered by a probationary period?‑‑‑Right.
PN1170
There’s no such asterisk for the rest of clause 24.1.1?‑‑‑Yes.
PN1171
You’ll see in clause 24.1.5 “A period of notice in this clause does not apply in the case of” and then paragraphs (b) and (c) “casual employees who have been engaged by the employer for less than 12 months”?‑‑‑Yes.
PN1172
Or “casual employees who are not employed on a regular and systematic basis”?‑‑‑Yes.
PN1173
Do you accept that casual employees who have been engaged for more than 12 months and on a regular and systematic basis are entitled to notice of termination of employment?‑‑‑Yes.
PN1174
I don’t think it specifies how the notice payment would be calculated. Sorry, paid at the ordinary rate of pay, been paid, 24.1.4 sets out “When calculating any payment in lieu of notice the employee is paid the wage the employee would have received in respect of the ordinary hours they would have worked in the notice period”?‑‑‑Yes.
*** LENA ATHANASIOU XXN MR BLEWETT
PN1175
Coming back to this situation where people are paid by reference to the Heiger and then get a bonus at the end of the year where their weekly wage is not that which they would have got under the collective agreement. That’s the scenario. Would the bonus that you’re proposing to pay people be taken into account - sorry, I withdraw that. Would the difference in that which an employee would have got under the collective agreement as compared to the Heiger be taken into account when calculating any payment in lieu of notice of termination of a casual employee?‑‑‑Well if we’re doing the calculation, they would still obviously be employed with us so they wouldn’t be terminated.
PN1176
You do the calculation in let’s say June every year, or July?‑‑‑Yes.
PN1177
You give them a bonus. Let’s say Mr Morris, he’s one of these employees and his roster pattern stays the same as it has been and therefore as at the end of the financial year, he’s entitled to something approximating an extra $48 per week?‑‑‑How long’s this person been working? I don’t understand. I honestly don’t understand the question because sometimes when we terminate people, we actually give them a week even though they’re not entitled to it because it’s the humane thing to do. So we always try to do over and above what’s in the award. And I can produce evidence that we have terminated casuals and paid them the one week when they’re not entitled to it.
PN1178
What I’m trying to work out, Ms Athanasiou, is that under proposed MOU system, whether the difference between that which a casual employee is entitled to under the Heiger, as opposed to the collective agreement, would be paid to that employee in the event that you then had to terminate their employment and they were entitled to notice?‑‑‑I can’t answer that question.
PN1179
In respect of superannuation, do you pay that by reference to the wages an employee has received on a monthly basis or a quarterly basis?‑‑‑Monthly.
PN1180
On a monthly basis?‑‑‑Yes.
PN1181
Would you then top up that employee’s superannuation payment at the end of each year?‑‑‑Absolutely.
PN1182
I’m not sure whether you have too many casual employees who are entitled to long service leave?‑‑‑Yes, we have quite a number of casual employees - - -
PN1183
Again, would you, in paying someone for their long service leave, would you go back to your two payroll systems to calculate what they would get under the collective agreement?‑‑‑Yes. And some employees have opted, if that was the case, that they would like to cash out their long service leave, which some of them have already done.
PN1184
Again, under your MOU you would cash that out by reference to both the Heiger rate and the collective agreement rate and provide them the higher?‑‑‑Yes.
*** LENA ATHANASIOU XXN MR BLEWETT
PN1185
Do you accept that there are any issues or disagreements with if the employees or the union about quite how this would be implemented, you’d be prepared to enter discussions about how those issues could be resolved?‑‑‑Yes.
PN1186
You’d be prepared to, both in respect of how this 36.13 element works in the MOU and these other provisions that we’ve discussed that aren’t in the MOU, you’d be prepared to discuss those with the employees and/or the union?‑‑‑I discuss this kind of stuff with employees all the time.
PN1187
What I don’t understand then is why is you’re prepared to discuss and negotiate in respect of this MOU but you are not prepared to negotiate a replacement statutory agreement for the Yankalilla Hotel?‑‑‑That would be further down the track but at this point, my instructions are to terminate the collective agreement.
PN1188
I think as you said yesterday, once the collective agreement is terminated, then you might be prepared to enter into discussions about a further collective agreement?‑‑‑I’m not sure about what kind of agreement. We’d need to get further advice on that.
PN1189
That’s what I’m trying to get at. You’ve got these clear instructions that until the collective agreement is terminated, you will not entertain negotiations for a replacement collective agreement?‑‑‑That’s how the family operates, yes.
PN1190
But you have, I think you’ve given evidence this morning, that you, at least, would be prepared to negotiate on the terms of this proposed MOU?‑‑‑I’m always prepared to negotiate, that’s my job as a HR manager.
PN1191
What I’m trying to get at is why you would be prepared to negotiate with employees and/or the union about the terms of an MOU which are designed to preserve particular conditions of employment but you are not prepared to negotiate with the employees or the union about a replacement statutory agreement?‑‑‑You will need to speak to Richard Jones about that. I can’t answer for what the business - I’m only going on what I’m instructed to do.
PN1192
One of the features of the MOU is that it is only to apply to the employees at the Yankalilla Hotel as at the time the collective agreement is terminated. Is that your understanding?‑‑‑Yes.
*** LENA ATHANASIOU XXN MR BLEWETT
PN1193
Does that mean that it follows that any new employee coming into the Yankalilla Hotel after the collective agreement is terminated will not be entitled to the benefit of the MOU provisions?‑‑‑I hadn’t given that any thought to be honest.
PN1194
Is that another thing, without putting on the spot in the witness box, that is something you might be prepared to entertain through discussions?‑‑‑I would need to speak to Mr Jones about what his understanding and how he would want to progress. I mean, at the moment, we’ve just thought about terminating and we’ve not thought about it further than that to see what’s going to happen with new employees.
PN1195
Are you able to, I suppose, explain to the Commission why it is you’ve determined that the MOU will only apply to existing employees and would not apply to future employees?‑‑‑I hadn’t really given it much thought because I have to really read it and analyse it and - - -
PN1196
Is there any issues within principle that you can think of as to why you would not extend this to future employees?‑‑‑Probably not, probably not.
Sorry, if you pardon me for a moment. Thank you, Ms Athanasiou, I’ve got nothing further.
RE-EXAMINATION BY MR COLGRAVE [11.00 AM]
PN1198
MR COLGRAVE: Ms Athanasiou, I’ve just got one or two questions in re‑examination just before you get out of the box finally. Mr Blewett has asked you some questions about the fact that the RD Jones Group has chosen to terminate its agreement at the Yankalilla Hotel rather than enter into collective bargaining discussions at the four hotels that are currently covered by the Heiger?‑‑‑Yes.
PN1199
Has the union, United Voice, ever approached you in relation to those four hotels to seek collective bargaining discussions or to enter into a bargaining period?‑‑‑No. No, they haven’t.
PN1200
You’ve given a lot of evidence and you’ve been questioned a lot by Mr Blewett about your understanding of the requirements for WorkCover self-insurance?‑‑‑Yes.
PN1201
The evidence you’ve given, is that based upon the advice, assistance and conversations you’ve had with a combination of Lawsons, the AHA, Deloittes, your lawyers, Sparke Helmore, and Lindsay Beard(?)?‑‑‑Yes.
PN1202
Is it based on your understanding of that advice?‑‑‑Yes, it’s very complicated.
*** LENA ATHANASIOU RXN MR COLGRAVE
PN1203
I think Mr Blewett put to you things from Mr Burns’ affidavit, which you’ve seen, and statements that he made. Have you ever received advice similar to what Mr Burns says in his statement from any of those firms and individuals?‑‑‑No, I haven’t.
PN1204
So the first time you saw anything like that was in Mr Burns’ affidavit when you read it?‑‑‑Yes.
PN1205
Mr Blewett also asked you a few questions about the fact that RD Jones Group had made no attempt to gain the agreement of the union to terminate the agreement and I think one of the answers you gave was that you were working through the AHA at the time?‑‑‑Yes.
PN1206
Did you receive any advice from the AHA about the union’s attitude to termination of the agreement?‑‑‑Yes.
PN1207
What did they tell you?‑‑‑That they were hostile.
PN1208
MR BLEWETT: I object to this. This is just hearsay and I ask that it be struck out.
PN1209
DEPUTY PRESIDENT BARTEL: I think it’s hearsay, so probably be given limited weight, Mr Colgrave.
PN1210
MR COLGRAVE: All right. Perhaps I’ll ask the question this way, Ms Athanasiou, given you were working through the AHA at the time, on your evidence, were you led to believe that any approach by RD Jones to gain the agreement of the union to terminate the agreement would be successful?
PN1211
MR BLEWETT: I object to that. I mean, that’s asking for the result of hearsay without getting the hearsay.
PN1212
MR COLGRAVE: I’ll move on.
PN1213
DEPUTY PRESIDENT BARTEL: Yes, I think I understand the evidence that’s been - - -
*** LENA ATHANASIOU RXN MR COLGRAVE
PN1214
MR COLGRAVE: I have to ask this question, in relation to the individual arrangements you’ve entered into with various staff to see that they’re not worse off, if the agreement was terminated and the Heiger applied, you have an award that applies, would the RD Jones Group be prepared to enter into individual flexibility arrangements with those employees to link them to the award and make them formal agreements pursuant to the legislation?‑‑‑Absolutely, yes.
PN1215
What’s your understanding of the position at the moment in relation to entering into individual flexibility agreements with those employees?‑‑‑That we’re bound by those agreements.
PN1216
No but can you do it at the moment without the award applying?‑‑‑No.
PN1217
You were asked some questions about the part time loading of 10 percent that’s currently in the agreement. Are there any part time employees at the Yankalilla Hotel?‑‑‑No, there are no part timers.
PN1218
Is there any intention to employ anybody on a part time basis?‑‑‑No.
PN1219
Is it likely that that’s ever going to change in the future?‑‑‑No.
PN1220
Finally, there was one question that Mr Blewett asked you in relation to, I think, your state of mind during the meetings that you were conducting with staff at various hotels?‑‑‑Yes.
PN1221
You said you were overwhelmed by staff complaints regarding union behaviour?‑‑‑Yes.
PN1222
Can you perhaps elaborate on what those staff complaints were?
PN1223
MR BLEWETT: I object to that. It doesn’t arise from cross-examination.
PN1224
DEPUTY PRESIDENT BARTEL: Well - - -
PN1225
MR COLGRAVE: You cross-examined her about it and it was certainly the answer.
*** LENA ATHANASIOU RXN MR COLGRAVE
PN1226
DEPUTY PRESIDENT BARTEL: It certainly was the answer given by the applicant to one of the questions that you put, applicant’s witness.
PN1227
MR BLEWETT: You can’t go from a non-responsive answer to a question and then brief your re-examination upon it.
PN1228
DEPUTY PRESIDENT BARTEL: I’m not going too sure where all of this is going but I’ll allow the question if you want to ask any further questions, which you already can.
PN1229
MR COLGRAVE: Sorry, you say you were overwhelmed by staff complaints regarding union behaviour?‑‑‑During - - -
PN1230
Perhaps if limit it to the Yankalilla Hotel, can you tell me what staff complaints you received in relation - which staff at the Yankalilla Hotel complained about union behaviour?
PN1231
MR BLEWETT: I object to that because it necessarily raises hearsay issues. If Ms Athanasiou is going to talk about the impact on her state of mind, that was my original objection which you overruled, but if this evidence is now being led as evidence that there was some basis for complaints on the part of staff at the Yankalilla Hotel, that is only hearsay.
PN1232
DEPUTY PRESIDENT BARTEL: Possibly they’re questions that you may wish to direct to the union officials who will give you the evidence. It’s a matter you can take instructions on perhaps from Ms Athanasiou.
PN1233
MR COLGRAVE: All right, I won’t pursue it. It’s not particularly important in the scheme of this application. Thank you, Ms Athanasiou, I’ve no further questions.
PN1234
DEPUTY PRESIDENT BARTEL: I just have one question?‑‑‑Sure.
PN1235
I take it your position is in respect to other states as well as South Australia, is that correct?‑‑‑No. So I look after only the South Australian hotels and only in South Australia but I do assist with some of the IT in other states. So if they need help with basic issues.
*** LENA ATHANASIOU RXN MR COLGRAVE
PN1236
There are other HR people? I understood that there was hotels owned by RD Jones Group in Queensland?‑‑‑My understanding is that there are four but I have no knowledge or any connection or I don’t even know the names of them so I don’t have anything to do with those hotels.
Nothing arising out it? No. Thank you, Ms Athanasiou, you can step down. You can step down, thank you.
<THE WITNESS WITHDREW [11.13 AM]
PN1238
DEPUTY PRESIDENT BARTEL: The document which was produced by Mr Colgrave, you don’t seek to tender that?
PN1239
MR BLEWETT: I didn’t but it’s probably appropriate. I can’t tender it through anyone else I wouldn’t have thought.
PN1240
MR COLGRAVE: No. I’ll apply to tender it through Ms Athanasiou.
PN1241
DEPUTY PRESIDENT BARTEL: I’ll wait for that to happen.
PN1242
MR BLEWETT: If they’re going to do it now, I don’t object.
PN1243
MR COLGRAVE: That the A4 with it?
PN1244
DEPUTY PRESIDENT BARTEL: Sorry, yes it would be A4.
MR COLGRAVE: Thank you, I call Mr Kingsley Smith.
<KINGSLEY JOHN SMITH, SWORN [11.15 AM]
EXAMINATION-IN-CHIEF BY MR COLGRAVE [11.15 AM]
PN1246
MR COLGRAVE: Mr Smith, if I can give you three copies of a document. You’ll see that the original - sorry, there’s a document at the top which has some amendment to the first page that crosses out the word “affirmed” and inserts the word “swear”, which has been initialled in blue pen, and there’s also signatures that appear on the bottom of each page, and if you turn to the fifth page, I think, you’ll see a signature on that page and the date of 18 February 2015?‑‑‑Yes.
PN1247
Is that your signature?‑‑‑Yes.
*** KINGSLEY JOHN SMITH XN MR COLGRAVE
PN1248
Do you recall swearing that affidavit, I think in my office, a couple of days ago?‑‑‑Yes.
PN1249
You’ve also seen the attachments to that document?‑‑‑Yes.
PN1250
Which are KS1 to KS5?‑‑‑Yes.
PN1251
Do you wish to adopt the contents of that affidavit you’ve now sworn and its attachments as your evidence-in-chief in these proceedings?‑‑‑Yes.
PN1252
Thank you. I tender that now sworn as an original plus two copies for the Commission.
DEPUTY PRESIDENT BARTEL: Thank you. The sworn affidavit of Kingsley Smith with five attachments will be marked exhibit A5.
EXHIBIT #A5 SWORN AFFIDAVIT OF KINGSLEY JOHN SMITH WITH FIVE ATTACHMENTS DATED 18/02/2015
PN1254
MR COLGRAVE: Thank you. If I could ask you to pick up one of those copies of the affidavit, and if I can take you to paragraph 14 - - -
PN1255
MR BLEWETT: Mr Colgrave and I have had a discussion about two paragraphs in - - -
PN1256
MR COLGRAVE: Yes, towards the end.
PN1257
MR BLEWETT: - - - Mr Smith’s affidavit, paragraphs 32 and 33 which I object to and would seek to strike out. I understand - - -
PN1258
MR COLGRAVE: I’m going to seek to ask him questions to try and clarify those paragraphs and then - so perhaps if I tender that, subject to Mr Blewett’s objection at this stage and ask you to rule once Mr Smith has given some oral evidence about that?
PN1259
DEPUTY PRESIDENT BARTEL: Yes.
*** KINGSLEY JOHN SMITH XN MR COLGRAVE
PN1260
MR COLGRAVE: So paragraph 14, you talk about it being common for kitchen staff, particularly chefs, to work at more than one venue in the RD Jones Group. This occurs when a large venue, such as the Holdfast Hotel, has a function that requires more staff or relief staff. How many times have you had kitchen staff from the Yankalilla go and work at the Holdfast, for example?‑‑‑There’s a couple of times.
PN1261
A couple of times?‑‑‑Yes, for sure.
PN1262
Other hotels in the group apart from the Holdfast, how many times?‑‑‑Yes, same thing, a couple of times.
PN1263
At paragraph 16, you talk about you, at the time that this affidavit was drafted, were working at the Roxby Tavern. How many times have you worked at the Roxy Tavern for the RD Jones Group?‑‑‑Half a dozen.
PN1264
Other hotels in the RD Jones Group that you’ve worked at on a relieving basis?‑‑‑Yes, that’s correct.
PN1265
What hotels would they be?‑‑‑There’s the Woodcroft Tavern.
PN1266
Okay. Just going back to the chefs, are any of your chefs, or any of your staff for that matter, working for the Yankalilla Hotel on an overseas citizen’s working visa?‑‑‑Yes, that’s correct.
PN1267
Which of your staff are doing that?‑‑‑We’ve got our second chef, the sous chef, Philip Santos.
PN1268
Where is he from?‑‑‑He’s from Portugal.
PN1269
In relation to the conditions for him being able to work at your hotel, you do the arrangements for that with the relevant government authorities?‑‑‑No.
PN1270
Who would arrange that for you?‑‑‑Lena.
PN1271
Lena Athanasiou?‑‑‑Yes, that’s correct.
PN1272
The HR manager?‑‑‑Yes, the HR.
*** KINGSLEY JOHN SMITH XN MR COLGRAVE
PN1273
At paragraph 23, you say many employees spoke to you about the termination of the agreement. About how many would you say spoke to you about it throughout the process?‑‑‑The vast majority, a good 60 per cent.
PN1274
Right. So that’s, what, in numerical terms there’s about 24 employees, isn’t there?‑‑‑Yes, so say about 12 to 15 staff.
PN1275
12 to 15 staff, you’d say?‑‑‑Yes.
PN1276
Did you tell them one thing one way - or, sorry, make a recommendation one way or another in relation to how they should vote regarding the termination of the agreement?‑‑‑No.
PN1277
What would you have generally told them?‑‑‑Basically said that if they had any concerns with the whole process, they were to get in contact with Lena as she’s got a full understanding of what was in process.
PN1278
Okay. Later on down that same page, you talk about the meeting on 30 September, the consultation session that Ms Athanasiou held. I think whilst she held that meeting, you were manning the bar, weren’t you?‑‑‑Yes, I was manning the whole hotel, but - - -
PN1279
Even the bottle-o?‑‑‑Even the bottle-o.
PN1280
Lucky it wasn’t a busy night. You say at the end of paragraph 27 you observed Ms Athanasiou speaking to various employees?‑‑‑Yes.
PN1281
Was that before or after the consultation sessions?‑‑‑It was after the consultation session.
PN1282
At paragraph 28, you say you received some voting slips from employees following the consultation session. By “following the consultation session”, you mean days after or in the days afterwards, or - - - ?‑‑‑Straight after.
PN1283
On the same day? Same night?‑‑‑It was the same - - -
PN1284
Or the same day?‑‑‑Same day.
*** KINGSLEY JOHN SMITH XN MR COLGRAVE
PN1285
Same day. In relation to the United Voice presence that you talk about at that part of your affidavit, have you personally ever denied United Voice officials access to the Yankalilla Hotel?‑‑‑No.
PN1286
In relation to approaches by United Voice personnel or officers regarding wishing to meet with your staff, where do you generally direct them to meet with your staff?‑‑‑Well, it’s the kids’ playground area out the front. There’s a beer garden out the front there. It’s nice and quiet.
PN1287
Is that the only place, or - - - ?‑‑‑No. No, there was out in the saloon bar and also in the front bar.
PN1288
So during, I guess, the period in the lead-up to this consultation session, once the letters had been sent to employees including yourself about the RD Jones Group’s intention to terminate the agreement and prior to this application, so it was about probably a month from mid‑September through to mid-October, which staff from United Voice attended the hotel asking to meet with people?‑‑‑There was Rebecca Hutt and Kelly.
PN1289
Kelly, you don’t her last name?‑‑‑No, I don’t know her last name.
PN1290
And how many times did Rebecca attend, for example?‑‑‑Three - three times.
PN1291
And how many times - - - ?‑‑‑Maybe four.
PN1292
- - - did Kelly attend?‑‑‑Twice or three times as well.
PN1293
Focusing on Rebecca, on the three, I think you said maybe four times - - - ?‑‑‑Yes.
PN1294
MR BLEWETT: No.
PN1295
MR COLGRAVE: He said it as I was asking him the next question - - -
PN1296
DEPUTY PRESIDENT BARTEL: I heard three times, but perhaps just clarify that.
PN1297
MR COLGRAVE: Yes, perhaps?‑‑‑Three to four, could have been.
*** KINGSLEY JOHN SMITH XN MR COLGRAVE
PN1298
Yes. I was watching the witness as he said it. The transcript might pick it up. Where did you tell her to meet with the staff when she came in on each occasion?‑‑‑Every occasion was slightly different. The first occasion was in the front bar. The second occasion, I think, was on the saloon bar. Third occasion was in the kids’ playground area, and I think the fourth occasion was in the saloon bar, back to that.
PN1299
What was the reason for the different locations?‑‑‑Just depending on - all depending on the customers within those areas and the times that they were at the hotel.
PN1300
So at certain times certain areas of the hotel are busier than other times, is that - - - ?‑‑‑That’s correct, yes.
PN1301
Kelly, on the two occasions, I think you said, that she attended, where did you ask her to meet with the staff?‑‑‑Because she was there early in the morning, was just in the saloon bar was fine.
PN1302
All right. So both times in the saloon?‑‑‑In the afternoon - once in the morning and once in the afternoon, sorry.
PN1303
All right. Both times the saloon bar was quiet?‑‑‑Yes.
PN1304
The kids’ playground area you talked about, why did you direct Rebecca to meet in that area on that one occasion?‑‑‑So we’re a bit busier on that occasion inside and it’s a nice area. It’s not a dingy area. It’s got nice outdoor furniture. It was a nice day, so I thought it was accommodating.
PN1305
Now, can I take you to paragraphs 32 and 33 of your affidavit. Dealing firstly with paragraph 32, you say, “I feel I have an open and honest relationship with the staff.” Can I ask you what you mean by that?‑‑‑It’s just the way I manage people. I’m upfront with them, I’m honest. Obviously that allows me to be approachable, and to work - to work when, and adapt a good team.
PN1306
You then move on to talk about conversations you’ve had with employees at the Yankalilla Hotel. I won’t ask you to tell us about those conversations. You earlier gave some evidence about conversations people would have had asking - you said about 15 people spoke to you about the matter and you generally referred them to Lena?‑‑‑Yes.
*** KINGSLEY JOHN SMITH XN MR COLGRAVE
PN1307
Are they the conversations you’re talking about?‑‑‑Yes, yes, those ones, and I’ve also had other conversations with staff just in general, just asking me what my feelings were on the whole scenario.
PN1308
Your earlier evidence about that was that you didn’t provide them with a recommendation either way in relation to their vote?‑‑‑No. No, I just left that up to their own decision.
PN1309
You talk in paragraph 32 about a belief that you have, that employees are supportive of the termination of the agreement. Firstly, just dealing with that, apart from conversations you’ve had with employees, how do you form that belief?‑‑‑Well, I’ve worked for the hotel group for a long time and they’ve always done the right thing by myself and fellow staff members that I’ve worked along with, so I can tell you that they’re a good, strong hotel group that do the best for their employees.
PN1310
MR BLEWETT: Well, I object to all of that because it doesn’t respond at all to the question, which was how has he formed the belief about the views of the employees apart from through conversations with them. Then telling the Commission about his own thoughts about the RD Jones Group is not responsive to the question, that’s not germane to an issue here.
PN1311
MR COLGRAVE: I don’t press that part of the affidavit, and I won’t - - -
PN1312
DEPUTY PRESIDENT BARTEL: You’re talking about paragraph 32 or that particular sentence?
PN1313
MR COLGRAVE: Well, that particular part of paragraph 32 that states that Mr Smith believes that the employees are supportive of the termination of the agreement and also supportive of the RD Jones Group in general.
PN1314
In relation to paragraph 33 - - -
PN1315
MR BLEWETT: Just before we move on, can I be clear that the paragraph 32, the only part that’s now pressed is, “I feel that I have an open and honest relationship with the staff”?
PN1316
MR COLGRAVE: Yes.
PN1317
DEPUTY PRESIDENT BARTEL: A full stop after “staff”, yes.
*** KINGSLEY JOHN SMITH XN MR COLGRAVE
PN1318
MR COLGRAVE: Yes.
PN1319
In relation to paragraph 33, you say, “I do not believe that any pressure or duress was placed on employees to vote in a specific manner with respect to the agreement.” Are you talking about by you personally?‑‑‑Yes. Well, yes, I never put any pressure on anyone, it was definitely their own decision.
PN1320
So if we were to add, “I do not believe that I placed any pressure or duress on employees to vote in a specific manner with respect to the agreement”, that would be your evidence?‑‑‑That’s correct.
PN1321
Yes. In terms of Lena Athanasiou and her attendance at the information session, from what you saw, did you believe she placed any pressure or duress on the employees to vote one way or the other?
PN1322
MR BLEWETT: I object to that. As I understand it, this witness wasn’t at the information session.
PN1323
MR COLGRAVE: Well, he was on the premises - - -
PN1324
DEPUTY PRESIDENT BARTEL: He was in the bar, wasn’t he, or the bottle shop?
PN1325
MR COLGRAVE: He was on - perhaps I could ask this question. Where was the information session held?‑‑‑The information session was in the restaurant.
PN1326
In the restaurant. Is that the saloon bar or is that separate?‑‑‑The restaurant is adjourned to the saloon bar, which I can see from.
PN1327
All right. So you were working behind the saloon bar, you could see the information session?‑‑‑Yes.
PN1328
So when you were in the saloon - so I’ll ask my question again. So when you were in the saloon bar, working behind the bar and not called to the bottle shop or to the front bar, or is the front bar - you’re able to see the restaurant from the front bar as well?‑‑‑Not clearly, no.
*** KINGSLEY JOHN SMITH XN MR COLGRAVE
PN1329
No. So when you’re in the saloon bar whilst the information session was held, how much of that time - well, what percentage of the information session do you think you were there, able to observe the information session?‑‑‑I’d say about a third.
PN1330
A third of the time?‑‑‑Yes.
PN1331
In that third of the time, did you see Ms Athanasiou place any pressure or duress on employees to vote one way or the other in relation to termination of the agreement?‑‑‑No.
PN1332
So that’s the basis upon which you’re making that statement in the first sentence in paragraph 33?‑‑‑Yes.
PN1333
I don’t think paragraph 33 is objectionable - I don’t think pressing 33 is a problem for you, is it?
PN1334
MR BLEWETT: Well, “because” - - -
PN1335
MR COLGRAVE: Sorry. I don’t rely upon the rest of 33 after “because” so there will be a full stop after “Ms Athanasiou”. I don’t press that.
PN1336
DEPUTY PRESIDENT BARTEL: And in the first line, it should have some additional words so it reads, “I do not believe that”?
PN1337
MR COLGRAVE: “Either I or Ms” - “that I placed any pressure or duress” and in relation to Ms Athanasiou, his evidence is in a third of the consultation session that he observed, he didn’t see her place any pressure or duress as well. That’s the context of that.
PN1338
DEPUTY PRESIDENT BARTEL: So just to be clear, do you have any more questions about those two paragraphs?
PN1339
MR COLGRAVE: No.
PN1340
DEPUTY PRESIDENT BARTEL: So just to be clear, what you’re seeking is that A5 in relation to paragraph 32, there’s a full stop after the word “staff” - - -
*** KINGSLEY JOHN SMITH XN MR COLGRAVE
PN1341
MR COLGRAVE: Yes.
PN1342
DEPUTY PRESIDENT BARTEL: - - - in the first line, and that the rest of paragraph 32 is deleted?
PN1343
MR COLGRAVE: Yes.
PN1344
DEPUTY PRESIDENT BARTEL: And in relation to 33, it reads, “I do not believe that I placed any pressure or duress on employees to vote in a specific manner with respect to the agreement”, and were there some additional words you were proposing there?
PN1345
MR COLGRAVE: Look, I think you’ve just heard the evidence to - - -
PN1346
DEPUTY PRESIDENT BARTEL: In relation to his view about Ms Athanasiou.
PN1347
MR COLGRAVE: - - - Ms Athanasiou. I think that’s just additional evidence.
PN1348
DEPUTY PRESIDENT BARTEL: Right.
PN1349
MR COLGRAVE: And then after “Ms Athanasiou” in the second-last line, there’s a full stop there.
PN1350
DEPUTY PRESIDENT BARTEL: Yes. So “I told employees to discuss any concerns with Ms Athanasiou.” Full stop.
PN1351
MR COLGRAVE: Yes. Yes.
PN1352
DEPUTY PRESIDENT BARTEL: On that basis, Mr Blewett?
PN1353
MR BLEWETT: I don’t object.
PN1354
DEPUTY PRESIDENT BARTEL: All right. Well, if the record that note that exhibit A5 is amended in the terms outlined.
*** KINGSLEY JOHN SMITH XN MR COLGRAVE
PN1355
MR COLGRAVE: Have you ever received any documentation from Rebecca or Kelly or anybody on behalf of United Voice indicating that United Voice wants to commence bargaining for a new enterprise agreement or collective agreement at the Yankalilla Hotel?‑‑‑(No audible reply).
PN1356
Sorry, you have to speak up?‑‑‑Sorry. No.
PN1357
Now, you understand that there are forms that you received from various employees indicating their support for the termination of the agreement?‑‑‑Yes.
PN1358
If I can tell you that there are, in these proceedings, I think seven forms that have been provided by employees of the Yankalilla Hotel indicating they do not support the termination of the agreement - - - ?‑‑‑Yes.
PN1359
- - - and I’ll ask you if you’ve been told by any of those people whether they support the agreement or not, contrary to what their form that they’ve given United Voice says, okay? In relation to Richard Doyle, there is a form signed by him on 22 September 2014 saying he does not support the termination of an agreement. Have you had any discussions - has he told you since 22 September 2014 whether he supports the termination of the agreement?
PN1360
MR BLEWETT: I object. That’s just hearsay.
PN1361
MR COLGRAVE: Well, it’s a direct conversation.
PN1362
DEPUTY PRESIDENT BARTEL: Can you just repeat the question for me, please?
PN1363
MR COLGRAVE: Has Mr Doyle, since - sorry. I mean, the fact of the matter is, there are competing forms - - -
PN1364
DEPUTY PRESIDENT BARTEL: Yes.
*** KINGSLEY JOHN SMITH XN MR COLGRAVE
PN1365
MR COLGRAVE: - - - filed by both parties in this matter, and the union says that it’s equivocal in some way, the support that people like Mr Doyle now have expressed on their forms which postdate the authorities that they provided to the union. Now, a direct conversation which is contemporaneous with the form provided to the hotel and to the RD Jones Group is corroborative of that agreement and in my submission it is probative of the fact that the authorities that the union provides - I might add, it’s open to them to call any of these employees who they say don’t support the agreement and none are flagged as witnesses, to corroborate the evidence in the form of the form that’s been tendered with the hotel’s information. It’s a direct conversation, it is not a conversation that Mr Doyle is saying - Mr Doyle is not giving evidence - sorry. Mr Doyle hasn’t told Mr Smith of some other prior event or prior occurrence and Mr Smith is then giving evidence of that, Mr Smith is giving evidence of a direct conversation between he and Mr Doyle about whether or not Mr Doyle, subsequent to this form, now supports the agreement, and I think it’s admissible in that form.
PN1366
MR BLEWETT: I maintain my objection. It is hearsay, whatever Mr Colgrave might say about it, it is hearsay. It is hearsay about a pretty key issue in this matter, whether or not employees who have both indicated support and objection to the termination of the agreement, do in fact support or object to the termination of the agreement. The only purpose for seeking of this witness his evidence of an out-of-court conversation is to persuade the Commission of the truth of that which has been told to this witness by someone who is out of the court. That is classic hearsay and it ought not be allowed.
PN1367
DEPUTY PRESIDENT BARTEL: Well, I’ll accept it as evidence of what this witness is giving that evidence, I’ll accept it as evidence of what was told, but not to the truth of what was told, unless such time as the union wants to call the particular employee, but it will be given weight on that basis.
PN1368
MR COLGRAVE: Thank you. Mr Doyle signed a form for the union on 22 September 2014 saying he didn’t support the termination of the agreement. Now, the information session was on 30 September 2014, so using those two dates to prompt your memory, has Mr Doyle told you that he supports or doesn’t support the termination of the agreement?‑‑‑He said that he does support the termination.
PN1369
When?‑‑‑It was after the information session.
PN1370
Okay. Ms Carlia Spilsbury has also signed an authority on 22 September 2014 saying she does not support the termination of the agreement. Has she, at any time subsequent to 22 September 2014, told you anything about her attitude to the agreement?‑‑‑Prior to the information session, she was a bit confused as to - on the whole situation so that’s where the information session was vital for all staff to attend to - - -
PN1371
What did Ms Spilsbury tell you? Has she subsequently told you anything about whether she supports or doesn’t support the termination of the agreement?‑‑‑She supports it, yes.
*** KINGSLEY JOHN SMITH XN MR COLGRAVE
PN1372
Supports the termination of the agreement?‑‑‑Yes.
PN1373
When did she tell you that?‑‑‑It was after the information session.
PN1374
What, on the same day?‑‑‑No, it was - I think it was a day later, after the information session.
PN1375
Right, and sorry, just going back to Mr Doyle, you also said it was after the information session. Was it the same day for him or not?‑‑‑It was the same day for him.
PN1376
Right. Mr Nicholas Morris, on 30 September, the day of the information session, signed a form saying he didn’t support the termination of the agreement. Have you had any discussion with Mr Morris about whether he supports the termination of the agreement subsequent to 30 September?‑‑‑No.
PN1377
You haven’t?‑‑‑No.
PN1378
Likewise with Mr Adam Plush?‑‑‑No.
PN1379
No discussion?‑‑‑No.
PN1380
Is it Mr Bryce Amm?‑‑‑Mr Bryce Amm.
PN1381
I’m not sure with Bryce, it could be a name that could go either way. Have you had any discussions with him?‑‑‑No.
PN1382
Ms Toni Hutchinson, any discussions with her either way since?‑‑‑No.
PN1383
Mr Michael Engleson signed a form on 30 September 2014 saying he doesn’t support the termination of the agreement, as I say, on 30 September, the day of the information session. Have you had any discussion with him about whether or not he supports the termination of the agreement subsequent to that?‑‑‑Yes, I have. Yes.
PN1384
What has he told you?‑‑‑He supports it.
*** KINGSLEY JOHN SMITH XN MR COLGRAVE
PN1385
He supports it?‑‑‑Yes.
PN1386
When did you have that discussion with him?‑‑‑That would have been a few days later.
PN1387
A few days after the information session?‑‑‑Yes.
PN1388
Mr Craig Allan, had any discussion with him since?‑‑‑No.
PN1389
And Neville Wegner, W-e-g-n-e-r?‑‑‑No.
PN1390
No discussion?‑‑‑No.
PN1391
Thank you. I have no further questions of Mr Smith.
DEPUTY PRESIDENT BARTEL: Yes.
CROSS-EXAMINATION BY MR BLEWETT [11.45 AM]
PN1393
MR BLEWETT: Mr Smith, you are, I think, the venue manager of the Yankalilla Hotel?‑‑‑Yes, that’s correct.
PN1394
As I understand it, you’re not covered at all by the collective agreement?‑‑‑I beg your pardon?
PN1395
You’re not covered by the collective agreement?‑‑‑No.
PN1396
You think it’s a bit cheeky to sign a document indicating you supported the termination of an agreement that didn’t apply to you but applied to other employees?‑‑‑I didn’t find it cheeky at all.
PN1397
You just did it because it was asked of you?‑‑‑Basically, didn’t - doesn’t affect me, so - - -
PN1398
Can I just ask, are there other - I presume you have duty managers as well at the hotel?‑‑‑Yes, that’s correct.
*** KINGSLEY JOHN SMITH XXN MR BLEWETT
PN1399
Who are the duty managers?‑‑‑I’ve got two salaried duty managers, Adam Hunt and Billy-Joe Hunt. No relation, just the same last name.
PN1400
It’s a common name?‑‑‑Mm.
PN1401
So they’re employed as duty managers?‑‑‑They are, that’s correct, yes.
PN1402
What about in the kitchen? Do you have - presumably you have a chef or senior - - - ?‑‑‑You have a head chef.
PN1403
Head chef?‑‑‑Second chef.
PN1404
Who’s the head chef?‑‑‑Andrew Chet.
PN1405
And does he have a supervisor or managerial role within the kitchen? Is he in charge of the kitchen?‑‑‑He’s the head chef, yes. Kitchen manager.
PN1406
Do you know if those employees are covered by the agreement?‑‑‑Andrew’s not and Philip’s not. The second chef is not.
PN1407
Adam Hunt and Billy-Joe Hunt?‑‑‑No.
PN1408
Now, it seemed to me - one of the things we’ve been provided with is rosters over the course of the last year?‑‑‑Yes.
PN1409
It seems to me from that, that you have a pretty stable group of staff?‑‑‑Yes, that’s correct.
PN1410
You’ve got a good relationship with the staff?‑‑‑Yes.
PN1411
You regard them as generally pretty good staff?‑‑‑Yes, they are.
PN1412
They’re reliable?‑‑‑Yes.
PN1413
Do their job well?‑‑‑Yes.
*** KINGSLEY JOHN SMITH XXN MR BLEWETT
PN1414
Have a decent customer focus?‑‑‑Yes.
PN1415
They’re good employees?‑‑‑They are.
PN1416
They attend work when they’re rostered on to work?‑‑‑Yes.
PN1417
You don’t have difficulties in attracting them at particular times of the week?‑‑‑No.
PN1418
Or year?‑‑‑No.
PN1419
Any particular - I suppose there are some slightly more unsociable hours like Sundays and public holidays and nights?‑‑‑Yes.
PN1420
You don’t have any trouble filling those roles - - - ?‑‑‑No.
PN1421
- - - with good employees?‑‑‑Yes.
PN1422
So from your perspective, the current industrial instruments, if I call it industrial instrument, that applies at the Yankalilla Hotel isn’t causing you a problem in terms of attracting and maintaining staff?‑‑‑No.
PN1423
Now, you gave some evidence just a little earlier about the locations of where United Voice - - - ?‑‑‑Yes.
PN1424
- - - people come into the hotel. First, what I wanted to suggest was that Kelly Edwards has attended the Yankalilla Hotel from time to time?‑‑‑Yes.
PN1425
But that she didn’t attend the Yankalilla Hotel in this period between the time when - 12 September when employees got this letter saying that you’re terminating the agreement and the information session on 30 September, 18 days later. Is that possible that that’s right?‑‑‑I would think so, yes. I can’t be positive. I can’t recall her being there.
*** KINGSLEY JOHN SMITH XXN MR BLEWETT
PN1426
You recall her certainly there at the information session on that day?‑‑‑At the information centre and after the information centre - session, and she was our last visitor that we had at the hotel, from the union about three weeks ago, two or three weeks ago.
PN1427
Yes, that was very recently?‑‑‑Just recently, yes.
PN1428
I think she might have attended towards the end of last year to see whether the collective agreement was posted in some prominent place in the hotel?‑‑‑Yes, that’s correct.
PN1429
But apart from that, so apart from her attendance on 30 September and these more recent attendances, what I want to suggest is that she didn’t come to the hotel particularly in that period between 12 September and 30 September, and immediately afterwards?‑‑‑Yes.
PN1430
So really, Bec Hutt was the person who came to the hotel in that period of time?‑‑‑Yes. She was there from the start, from the earlier to the after the meeting.
PN1431
Certainly in the earlier part of that period and prior to that period, you’d had a pretty, I suppose, relaxed attitude to where the union would be in your hotel for the purposes of discussing things with the employees?‑‑‑Yes.
PN1432
I think it was Ms Hutt who attended on I think about 22 September, a few days - about a week before the information session and she was in either the saloon bar or the front bar on that occasion; does that sound about right?‑‑‑I think - I think so, yes.
PN1433
Came a couple of days later, do you remember, there was only a couple of days between visits?‑‑‑Yes. It was in succession, so, yes. I can’t remember if it was a few days or - - -
PN1434
Again, the saloon or the front bar?‑‑‑Yes.
PN1435
She was there again on the day of the information session?‑‑‑I believe so, yes.
PN1436
Then she was there a couple of days later where I think she had a conversation with Mickey Engleson; do you recall that?‑‑‑Yes.
*** KINGSLEY JOHN SMITH XXN MR BLEWETT
PN1437
That, again, was either in the front bar or the saloon bar?‑‑‑I think it was the saloon bar.
PN1438
Then she came a couple of days after that, do you recall?‑‑‑Yes.
PN1439
That was the day when you said that she should go to the playground?‑‑‑Yes. That’s correct, yes.
PN1440
I think there was a bit of a disagreement about that?‑‑‑She wasn’t too happy about that, no.
PN1441
You said to her, didn’t you, that Ms Athanasiou had sent emails around to the hotels identifying what were the designated areas for union discussions?‑‑‑No, that’s not ‑ ‑ ‑
PN1442
And that the designated area for the Yankalilla Hotel was the playground?‑‑‑No. No.
PN1443
You hadn’t required Ms Hutt to be placed in the playground at any prior time that she’d come to the hotel, had you?‑‑‑No.
PN1444
That was the first time you’d done it?‑‑‑That was the first time, yes.
PN1445
And you did it at the direction of Ms Athanasiou?‑‑‑No.
PN1446
Taking you back to the Mickey Engleson matter, I think that was only a couple of days after the information session, does that sound about right?‑‑‑I think so, either the second day or the day after.
PN1447
I think you saw Ms Hutt when she came to the hotel?‑‑‑Yes.
PN1448
Then she went into either the - and you had a discussion?‑‑‑Yes.
PN1449
She went into the front bar or the saloon bar?‑‑‑She stayed in the saloon bar on that occasion.
PN1450
You subsequently saw her speaking to Mickey Engleson?‑‑‑Yes, that’s correct.
*** KINGSLEY JOHN SMITH XXN MR BLEWETT
PN1451
Sorry, I think that’s - to the extent we’ve got some formal records, that’s Michael Engleson?‑‑‑Michael, yes.
PN1452
You then had a conversation with them, is that right?‑‑‑With Michael and Rebecca at the same time?
PN1453
With Michael and Rebecca?‑‑‑Yes. Yes.
PN1454
Michael had signed a document by the time you came and had that discussion, is that right?‑‑‑That’s correct, yes.
PN1455
You then had a discussion with Michael and Bec about that ‑ ‑ ‑?‑‑‑Yes.
PN1456
About why he’d signed the document?‑‑‑I asked them - I asked actually what the document was, I wasn’t aware of the document, what he was signing, so I was just - - -
PN1457
Yes. Just pardon me a moment, sorry. I wonder if I might approach the - - -
PN1458
DEPUTY PRESIDENT BARTEL: Yes.
PN1459
MR COLGRAVE: I object to my learned friend showing a document to the witness that is not a signed document. The witness has said, and Mr Blewett has asked him questions about a signed document that Mr Smith saw. Unless the signed document is produced and shown to the witness, I object to the witness being cross-examined about any other document.
PN1460
MR BLEWETT: Well, I would have thought I’m entitled to cross-examine the witness about documents and he can comment on whether that’s the document he saw or a document in the form that he saw, or he can’t recall or it’s something completely different. The objection is premature.
PN1461
DEPUTY PRESIDENT BARTEL: Yes, I’ll allow the question, in terms of whether that’s the form of the document, and I guess that’s about as far as you could go.
PN1462
MR BLEWETT: Now, Mr Smith, that’s an affidavit of Rebecca Hutt?‑‑‑Yes.
*** KINGSLEY JOHN SMITH XXN MR BLEWETT
PN1463
Exhibit LH2, which I think is the last document in that affidavit, you see that document?‑‑‑Yes.
PN1464
Now, perhaps just before coming to the document, when you had this discussion with Mr Engleson and Ms Hutt - - - ?‑‑‑Yes.
PN1465
- - - did you have a look at the document that Mr Engleson had signed?‑‑‑Just briefly. Just over his shoulder, style of thing. Just in conversation, never sat down, I just - I just stood there and just - - -
PN1466
Did you pick it up to read it?‑‑‑Not that I can recall.
PN1467
Can you have a look at the document RH2, and is that the form of the document that Mr Engleson had?‑‑‑Not that I can - not that I can recall.
PN1468
Is your evidence that it’s not the document - not in the form of the document you saw Mr Engleson have, or that you can’t recall whether it is or not?‑‑‑I can’t recall whether it is or not. It was just a brief sighting.
PN1469
You then had a discussion with Michael about that document?‑‑‑Yes.
PN1470
You asked him why he’d signed it?‑‑‑Yes, I did.
PN1471
Michael explained that he wanted security?‑‑‑That’s correct.
PN1472
You asked him why he felt that he would be worse off?‑‑‑Yes, that’s correct.
PN1473
Did you say to him that if you really felt he’d be worse off, Richard Jones would be coming to the hotel that weekend and Mickey could speak to him directly?‑‑‑That’s correct, yes.
PN1474
Then I think pretty soon after that, the conversation ended; is that right?‑‑‑Yes, it did. That’s all I can recall.
PN1475
Is that the conversation that you referred to when you were giving evidence to Mr Colgrave, to the effect that Mr Engleson support the termination of the agreement?‑‑‑Not that conversation, no.
*** KINGSLEY JOHN SMITH XXN MR BLEWETT
PN1476
It was a subsequent conversation?‑‑‑Yes.
PN1477
Did Mr Jones come to the hotel on the weekend?‑‑‑He did.
PN1478
Did Mr Engleson speak to him over the weekend?‑‑‑No, because it didn’t - didn’t cross their paths, so - - -
PN1479
Now, you understand that Mr Engleson - sorry, I withdraw that. Prior to the conversation between yourself and Mr Engleson and Ms Hutt, had you had a conversation with Mr Engleson about his particular concern with the effect of terminating the agreement upon him?‑‑‑After the information session, yes.
PN1480
Yes. He explained that his problem was that he worked every Saturday and under the agreement, he’d get a lesser rate for working Saturday - sorry, under the HIGA, he would get a lesser rate for working Saturday than he got under the agreement?‑‑‑Yes, that’s correct.
PN1481
Did you tell him that that could be addressed?‑‑‑I said that all his concerns would be addressed, sure.
PN1482
Yes. I wonder if the witness could be shown exhibit A1, which is Ms Athanasiou’s affidavit. We might have a spare - - -
PN1483
DEPUTY PRESIDENT BARTEL: Thank you.
PN1484
MR BLEWETT: Mr Smith, that’s an affidavit of Ms Athanasiou, but it has attached to it a whole bundle of documents. Can I ask you to go to the document LA23, which you should find almost at the back of it?‑‑‑Yes.
PN1485
You’re familiar with the form of that document, it’s the document people signed to indicate whether they agreed or didn’t agree - - - ?‑‑‑That’s correct, yes.
PN1486
That appears to be signed by Mr Engleson on 1 October?‑‑‑That’s correct, yes.
PN1487
Which is, I think, the day after the information session?‑‑‑Yes.
*** KINGSLEY JOHN SMITH XXN MR BLEWETT
PN1488
Were you present with Mr Engleson when he completed that document?‑‑‑Yes, I was.
PN1489
Just the top of the document, the writing, “Yankalilla Hotel”, is that your writing?‑‑‑Yes.
PN1490
The writing under the heading, “Please outline any concerns”, is that your writing?‑‑‑Yes, it is.
PN1491
That’s relating to what Mr Engleson and you had discussed?‑‑‑Yes.
PN1492
Really, what you discussed was that he couldn’t afford to have his pay reduced?‑‑‑That’s correct.
PN1493
And that he needed to have that made up?‑‑‑That’s correct.
PN1494
So there’d be no wage loss?‑‑‑That’s correct.
PN1495
And the issue that generated that was the fact that he worked every Saturday, on his roster?‑‑‑All that’s correct, yes.
PN1496
He didn’t work, say, a different day which would then make up the loss?‑‑‑No, that’s right. Yes.
PN1497
Did you advise him that you would forward that document to Ms Athanasiou?‑‑‑Yes, I did.
PN1498
And that you were confident that she would address that?‑‑‑Yes, I was.
PN1499
Is that because you had a conversation with Ms Athanasiou that authorised you to have discussions of that nature with the staff?‑‑‑If they had concerns, yes, I was able to talk to them and make it clear what their concerns were so I could write them down on the forms because Michael is not very well educated when it comes to putting words together, so he knew what he wanted to put down, but just didn’t have the educational words to put it on paper.
PN1500
But it wasn’t just to express their concerns, it was also to come up with solutions that addressed their concerns?‑‑‑Yes, that’s correct.
*** KINGSLEY JOHN SMITH XXN MR BLEWETT
PN1501
Because you’ll note the he’s ticked, “I agree with the termination of the agreement”?‑‑‑That’s correct.
PN1502
That’s because he got your assurance that his pay would be made up so that he’d suffer no loss of pay?‑‑‑Not my assurance directly, but I said that those decisions are made from the head office, the point of view, so I can’t say from my experience, yes, you are going to get paid. Those decisions aren’t up to me.
PN1503
Did you discuss with him whether, given that he had this concern that he couldn’t afford to have his pay reduced, that he should be ticking the box, “I agree with termination” or “I disagree with termination?‑‑‑He agreed with the ticking the box for the simple reason was as long as his issues were addressed, he was quite happy to, obviously.
PN1504
So is it fair to say that what he put to you was if my rate is made up, I will support termination of the agreement. If my rate is not made up, I will not support termination of the agreement?‑‑‑That’s correct.
PN1505
Did you tell him that what would occur is that Ms Athanasiou would write to him confirming or otherwise what the position would be for him?‑‑‑I said there’d have to be confirmation, for sure.
PN1506
I take it, is it right, that the conversation you had I think shortly after that with Bec Hutt and Mr Engleson was at a time after the discussion you’d had with him, is that right?‑‑‑The discussion I had with him, just what we just discussed was after the - when he sat down with Rebecca after the information session.
PN1507
So I just want to get the sequence right?‑‑‑So we had the information session. A day later he sat down with Rebecca and I seen him sign the form. I asked him what he was signing, I wasn’t aware that the form was being produced, then after Rebecca left, would have been a day later, I had the discussion with him about what he’d - what the form was about.
PN1508
What I want to put to you is the sequence is a little different, that the information session is 30 September?‑‑‑Yes.
PN1509
You had the conversation with him on 1 October, the next day?‑‑‑Yes, when Rebecca was down.
*** KINGSLEY JOHN SMITH XXN MR BLEWETT
PN1510
And then Rebecca came on 2 October, the next day?‑‑‑I can’t recall if she - those days, but I know she was - - -
PN1511
So that the discussion with Mr Engleson - sorry, I withdraw that. The discussion between yourself and Bec Hutt and Mr Engleson occurred the day after you had had your own discussion with Mr Engleson which led to LA23 being prepared, but before Mr Engleson had heard any confirmation from Ms Athanasiou?‑‑‑That’s correct.
PN1512
You also indicated that Ms Spilsbury was one of the people who had a conversation with you - - - ?‑‑‑Yes.
PN1513
- - - sorry, I withdraw that. Ms Spilsbury was one of the people who had initially indicated lack of support for the agreement, but had subsequently had a conversation with you, whereby you thought she’d supported the agreement?‑‑‑Yes.
PN1514
If you have a look at LA19, my copy is a little faint, I don’t know if yours is, but at the bottom, it looks like it’s signed - or it’s certainly dated 30 September?‑‑‑Yes.
PN1515
A name is written there, “Carlia Spilsbury”?‑‑‑Yes.
PN1516
Is that your handwriting, “Carlia Spilsbury”?‑‑‑No.
PN1517
That’s your handwriting up the top, the Yankalilla Hotel?‑‑‑Yes.
PN1518
Is that your handwriting underneath the heading, “Please outline any concerns”?‑‑‑Yes.
PN1519
Is that because, similar to Mr Engleson, you had a conversation with Carlia - - - ?‑‑‑Yes.
PN1520
- - - expressing - where she’d expressed her concerns about the impact upon her?‑‑‑Yes.
PN1521
You had indicated to her that you thought that could be resolved?‑‑‑Yes.
*** KINGSLEY JOHN SMITH XXN MR BLEWETT
PN1522
And I think her concern was that if her roster pattern were to be changed, she would lose out?‑‑‑That’s correct, yes.
PN1523
If she maintained her current roster pattern, then she would probably be okay?‑‑‑That’s correct.
PN1524
So what she was seeking was an assurance that her roster pattern would not be changed?‑‑‑That’s correct.
PN1525
Again, did you discuss with her whether to tick the box, “I agree with termination of the agreement” or tick the box, “I disagree with termination of the agreement”?‑‑‑Yes, on the proviso that the whole situation could be resolved.
PN1526
Yes?‑‑‑Yes.
PN1527
So on the basis that her concerns would be addressed, she would then support the agreement?‑‑‑That’s correct.
PN1528
Obviously if her concerns were not addressed, then she would not support the agreement?‑‑‑That’s correct.
PN1529
You then forwarded that through to Ms Athanasiou?‑‑‑Yes.
PN1530
Similarly, now, with Mr Doyle I think you said you’ve had some conversation where he indicated support for the agreement?‑‑‑Yes.
PN1531
But you hadn’t had one of these conversations which led to some assurance being given to him?‑‑‑No.
PN1532
There’s a list - if you have a look at LA21, I think that’s Robert Lane?‑‑‑Yes.
PN1533
That’s dated 1 October?‑‑‑Yes.
PN1534
Is this the product of a similar conversation you had with Mr Lane as you’d had with Ms Spilsbury and Mr Engleson?‑‑‑Yes.
PN1535
Is that your writing under the heading, “Please outline any concerns”?‑‑‑Yes.
*** KINGSLEY JOHN SMITH XXN MR BLEWETT
PN1536
Similarly, from your discussion with Mr Lane, you understood he would agree with termination if his concerns could be addressed?‑‑‑That’s correct.
PN1537
He wouldn’t agree if his concerns were not addressed? And his concern was he was a casual employee for fixed hours Monday to Friday and would obviously lose money if the collective agreement were terminated?‑‑‑That’s correct.
PN1538
He wanted to be, I think either - I think he - what you recorded there is for him to be put up to a higher level?‑‑‑Yes.
PN1539
But you understand that in fact what’s happened is that he’s simply been guaranteed his existing rate?‑‑‑Yes.
PN1540
Could I just get you to look at LA17. That’s the similar sort of document from Rebecca Ingham?‑‑‑Yes.
PN1541
Now, is that again a document generated in the circumstance of a discussion between you and Rebecca?‑‑‑Yes.
PN1542
Similar to - - - ?‑‑‑Very, yes.
PN1543
- - - the other discussions we’ve had?‑‑‑Yes.
PN1544
Yes. So is it fair to say that in these discussions with Rebecca and Carlia and Michael and Robert, you were attempting to address their concerns?‑‑‑Yes.
PN1545
Part of your motivation was to keep staff happy?‑‑‑Yes, that’s correct.
PN1546
Part of your motivation was to secure the agreement of these employees to termination of the collective agreement?‑‑‑Yes.
PN1547
The effect of your evidence a little earlier this morning was that you - sorry, I withdraw that. I take it had four conversations, I think, four discussions with Carlia, Michael, Robert, Rebecca?‑‑‑Yes.
*** KINGSLEY JOHN SMITH XXN MR BLEWETT
PN1548
Were there other staff that you had discussions with regarding providing assurances to address concerns that they had in respect to the application of a collective agreement?‑‑‑Conversations I had that if people didn’t understand the process that was happening, which was Carlia was a prime example, she’s just a young girl and she didn’t really understand what was happening, so that’s where I’ve addressed them and had a talk to them and said, you know, if you’ve got concerns, we need to address them and talk to Lena about the situation because I didn’t want to obviously be the third hand. It was easier for me just, like, have these people talk together, rather than me.
PN1549
But you had the four conversations that we’ve gone through which led to production of a document which you then sent through to Lena?‑‑‑Yes, that’s correct.
PN1550
Did you have other similar conversations where you are able to identify a concern for an employee arising from the application of the HIGA to them, and provided some assurance that that could be addressed?‑‑‑No.
PN1551
Sorry, just finally, Mr Smith, in paragraph 10 of your affidavit, do you still have that in front of you?
PN1552
In paragraph 10, you say you understand the agreement expired many years ago and a new Federal Award has now come into existence?‑‑‑That’s correct.
PN1553
Did you convey that understanding to employees in your discussions with them about whether or not to terminate the agreement?‑‑‑I did discuss the two agreements with them, that the collective agreement did expire, that nothing else was actually come into its place, so it actually just superseded and until a new award or something had come up to take its place, we were still under the collective agreement. So that’s that discussion.
PN1554
So do you understand that the new Federal Award had come into existence after the agreement had expired?‑‑‑I knew the Federal Award was in other States. I knew that their other hotel groups were under the Federal Award, like the Gunn Hotel Group of Victor Harbour, they’re under it, the local Aldinga Hotels were under it, so I did know that there was other hotels already on that award.
PN1555
So is it your understanding that the award was newer than the agreement?‑‑‑My understanding is that the award - I didn’t know when that award was put in place, but I knew that the collective agreement had actually finished. I think it was two thousand - I don’t know what year it was, but it was just nothing - conversations I’ve had with union people where there was just nothing to take its place, so that’s what they said, superseded, so it’s just basically left running until there was a new agreement put in place that - - -
*** KINGSLEY JOHN SMITH XXN MR BLEWETT
PN1556
Or until the agreement was terminated?‑‑‑Yes, until it was terminated, yes.
PN1557
Is that understanding something that you conveyed to employees in discussions about this, that is, that the agreement had terminated some time ago and nothing was yet in its place?‑‑‑That’s correct, yes.
PN1558
Thank you. I’ve got nothing further.
PN1559
DEPUTY PRESIDENT BARTEL: Mr Colgrave.
MR COLGRAVE: Thank you, just one or two questions.
RE-EXAMINATION BY MR COLGRAVE [12.19 PM]
PN1561
MR COLGRAVE: Mr Smith, Mr Blewett has talked to you about discussions that you’ve had with Mr Engleson, Ms Spilsbury and Mr Lane and Ms Ingham that led to you filling in information on the forms that were then conveyed by you to Lena Athanasiou. After you sent those forms through to Lena, you don’t - sorry - do you know what conversations or communication that occurred between Lena and those four employees?‑‑‑No.
PN1562
Sorry, you have to answer loudly?‑‑‑No. Sorry. No.
PN1563
Okay. Do you know the final effect of those discussions led to anything - whether the final effect of those discussions led to any communication?‑‑‑Yes, they were - all staff were positive after - - -
PN1564
Yes, but have you seen any correspondence, for example, from Lena to them?‑‑‑No.
PN1565
Okay. You were also asked some questions about your motivation in having these discussions with these four employees and you agreed that part of your motivation was to keep the employees happy?‑‑‑Yes.
PN1566
And you also agreed with Mr Blewett that part of your motivation was to get them to vote for termination of the agreement?‑‑‑Yes.
*** KINGSLEY JOHN SMITH RXN MR COLGRAVE
PN1567
Now, they are two parts of your motivation; which of those two parts was more prevalent in your motivation?
PN1568
MR BLEWETT: I object to that. The witness was quite clear about the reason, and now trying to divide which was a greater influence or a lesser influence, it’s - - -
PN1569
MR COLGRAVE: Well, each apart, there was no clarification in cross-examination of which part was more predominant over the other part or if they were equal, and I think it’s a fair question that arises in re-examination.
PN1570
DEPUTY PRESIDENT BARTEL: I’ll allow it.
PN1571
MR COLGRAVE: So going back to the question, those two parts of your motivation - well, first of all, perhaps if I can ask, were they the only parts of your motivation, in having these discussions?‑‑‑Yes.
PN1572
They were? And out of those two motivations, was one of them more prevalent than the other?‑‑‑For me, it was to keep the staff happy.
PN1573
If I was to ask you for a percentage in relation to that part of the motivation, what percentage would you attribute to keeping the staff happy and what percentage would you attribute to getting them to vote for the termination of the agreement?‑‑‑A higher percentage in keeping the staff happy.
PN1574
Well, what - - - ?‑‑‑80/20.
PN1575
- - - out a hundred?‑‑‑80/20.
PN1576
80/20? So 80 per cent for keeping the staff happy?‑‑‑Yes.
PN1577
Thank you. No further questions, and I’d ask that Mr Smith be released.
DEPUTY PRESIDENT BARTEL: Yes. Thank you, Mr Smith, you can step down.
<THE WITNESS WITHDREW [12.23 PM]
PN1579
DEPUTY PRESIDENT BARTEL: Yes? That’s your case?
PN1580
MR COLGRAVE: Yes, I think I should close the case for the applicant, yes.
PN1581
MR BLEWETT: Deputy President, given the time and given the material that’s been filed, I wasn’t proposing to open right now. I’m happy to do so at a convenient time. I’m aware that Mr Byrne has been kept waiting for some time, so I’d simply call Mr Byrne and perhaps come back to opening at some time soon.
DEPUTY PRESIDENT BARTEL: Yes.
<ROBERT JOHN BYRNE, AFFIRMED [12.24 PM]
EXAMINATION-IN-CHIEF BY MR BLEWETT [12.24 PM]
PN1583
MR BLEWETT: If the witness might be shown a document?
PN1584
Mr Byrne, do you recognise that document?‑‑‑I do, yes.
PN1585
Is that an affidavit that you’d affirmed in these proceedings?‑‑‑Yes, it is.
PN1586
If you have a look at each page, do you see your initials on each page?‑‑‑I do plus my signature on the back page.
PN1587
Yes, and you’re familiar with the contents of that affidavit?‑‑‑I am.
PN1588
Do you seek to adopt it as your evidence in this matter?‑‑‑Yes, that’s fine.
PN1589
I tender that.
PN1590
MR COLGRAVE: No objection.
DEPUTY PRESIDENT BARTEL: Thank you. The affidavit of Robert Byrne will be marked UV1.
EXHIBIT #UV1 AFFIDAVIT OF ROBERT JOHN BYRNE
*** ROBERT JOHN BYRNE XN MR BLEWETT
PN1592
MR BLEWETT: I wonder also if the witness might be shown exhibit A2?
PN1593
Mr Byrne, that’s an email from Lindsay Beard to Lena Athanasiou, Friday, 6 December 2013?‑‑‑Yes.
PN1594
Is Mr Beard an employee of WorkCover?‑‑‑Yes, he is. Yes.
PN1595
Does he report to you?‑‑‑He does.
PN1596
He makes reference there to a thing called “Retro Paid”?‑‑‑Yes.
PN1597
Can you explain to the Commission what Retro Paid is?‑‑‑Retro Paid is essentially a scheme that allows employees to - over a certain size, where they can obtain some additional benefits from being - from their premium. So by being in the scheme, there are certain requirements they have to meet, some of those around the safety systems and setting safety objectives and so on, and the benefits of that is they can obtain a better relief on their premium based on their performance.
PN1598
Is that a scheme that’s available to employers who are self‑insured?‑‑‑Self-insurers can’t enter into Retro Paid while they’re self-insured. They could leave self-insurance and enter into Retro Paid.
PN1599
So it’s a scheme that’s not available for an employer that is self-insured?‑‑‑That’s correct, yes.
PN1600
This was an email of December 2013. What’s the status of the Retro Paid scheme now?‑‑‑My understanding is the Retro Paid scheme, while there are still participants in it, won’t be available in the future.
PN1601
Thank you. I’ve got nothing further.
DEPUTY PRESIDENT BARTEL: Thank you. Mr Colgrave?
CROSS-EXAMINATION BY MR COLGRAVE [12.27 PM]
PN1603
MR COLGRAVE: Mr Byrne, you say in your affidavit at paragraph 9 that “We will meet with an employer or group of employers interested in seeking registration.” By “We”, do you mean you or a member of your staff?‑‑‑That’s right. Myself or a member of my staff.
*** ROBERT JOHN BYRNE XXN MR COLGRAVE
PN1604
Lindsay Beard is a member of your staff, isn’t he?‑‑‑That’s correct, yes.
PN1605
Lindsay Beard is a senior technical advisor of Self Insured, so he directly reports to you, does he?‑‑‑That’s correct.
PN1606
So if evidence had been given in these proceedings that Mr Beard had met with Ms Lena Athanasiou as a representative of the RD Jones Group, and that was a meeting with the RD Jones Group because they were interested in seeking registration as a self-insured employer, that would be consistent with what you’ve said there at paragraph 9?‑‑‑That’s correct.
PN1607
Do you know about the meeting that Lindsay Beard had with the RD Jones Group?‑‑‑Yes, I’m aware that the meeting took place, yes.
PN1608
So you were aware that the RD Jones Group was seeking information about becoming self-insured?‑‑‑Yes.
PN1609
I assume, therefore, Mr Beard was assigned by you to meet with the RD Jones Group and their representatives?‑‑‑Yes.
PN1610
Yes. Can you tell me, was that contact made initially to you or was it made initially to Mr Beard, do you know?‑‑‑The contact from the RD Jones Group?
PN1611
Yes, or on their behalf?‑‑‑Through Mr Beard, Lindsay Beard, yes.
PN1612
Do you know whether that contact was directly from the RD Jones Group, or was it from Lawson Group of Risk Management Advisors?‑‑‑I couldn’t tell you whether or not it was directly from RD Jones or through Lawson’s.
PN1613
Right. Are you aware of Lawson Safety and Claims Management?‑‑‑Yes.
PN1614
Yes. They are, can I suggest, a reputable company that deals in the area of advice and assistance to not only self-insured employers, but insured employers through the WorkCover scheme?‑‑‑Yes.
PN1615
So you know from your discussions with Mr Beard that Lawson was involved in assisting the RD Jones Group in making inquiries about self-insurance for Workers Compensation?‑‑‑Yes.
*** ROBERT JOHN BYRNE XXN MR COLGRAVE
PN1616
Yes. Now, you weren’t present at the meeting or meetings that Mr Beard had with representative of RD Jones and Lawson’s, were you?‑‑‑No.
PN1617
So you’re not aware of what Mr Beard may or may not have said to those individuals at those meetings?‑‑‑No.
PN1618
At paragraph 9, going back to that paragraph, you say, towards the end of that paragraph:
PN1619
In these initial meetings or series of meetings, we’ll identify the areas of strength and weakness in the applicant’s business from the perspective of the registration process.
PN1620
Now, you don’t know what areas of strength or weakness that Mr Beard might have identified to the RD Jones Group, do you?‑‑‑No, I can’t tell you.
PN1621
No. So you don’t know, for example, whether he told them that the employee numbers of individual hotels were too low for self-insurance purposes? You don’t know whether he said that or not?‑‑‑I can’t tell you whether he said that or not, no.
PN1622
You don’t know whether he told them words to the effect of if there was one employer that employed employees at a number of your hotels and that the number of employees then exceeded 200, that you would have a better chance of registration?‑‑‑I can’t say what he said in that meeting.
PN1623
No. You’ve given some evidence in your affidavit about consideration of the administrative resources which the employer or group of employers has for the purpose of administering claims for compensation, that’s at paragraph 15 of your affidavit. You don’t know what Mr Beard would or wouldn’t have said to the RD Jones Group and/or Lawson in relation to that issue?‑‑‑I can’t tell what specifically he would have said, no.
PN1624
No. Whilst at paragraph 20 you say:
PN1625
We are generally not concerned with the employment terms applying to employees or the consistency of employment terms applying as between employees -
PN1626
?‑‑‑Yes.
*** ROBERT JOHN BYRNE XXN MR COLGRAVE
PN1627
You don’t know whether Mr Beard said anything about those terms, do you?‑‑‑No, I don’t.
PN1628
So in fact, if Mr Beard - well, if evidence had been given to the effect that a discussion had taken place with Mr Beard along the lines of the RD Jones Group having a number of different hotels with different corporate employing entities covered by different industrial instruments, and that Mr Beard said words to the effect of it would be better to have them all covered by the one instrument, you don’t know whether or not he said that, do you?‑‑‑I can’t tell you anything that was said at that meeting, no. I can say that in discussions with him subsequent to that, he doesn’t recall saying that.
No. Thank you. I have no further questions of Mr Beard.
RE-EXAMINATION BY MR BLEWETT [12.34 PM]
PN1630
MR BLEWETT: Just one question, Mr Byrne. If Mr Beard had said to the RD Jones Group that it would be better from the perspective of obtaining self-insurance, that they (a) formed one entity, and (b) collapsed the industrial instruments into one instrument, that would not be consistent with your understanding of the requirements that WorkCover places on self-insurance, would it?‑‑‑That’s correct.
PN1631
Thank you. Nothing further.
DEPUTY PRESIDENT BARTEL: Thank you, Mr Byrne. You can step down?‑‑‑Thank you.
<THE WITNESS WITHDREW [12.35 PM]
PN1633
MR BLEWETT: I’m happy to proceed. I think we might have Mr Thompson here. I wouldn’t mind just two minutes with him before he gives evidence, if that’s possible?
PN1634
DEPUTY PRESIDENT BARTEL: Yes. I was just going to say is he expecting - is he one of the main witnesses from your point of view, in terms of cross-examination?
PN1635
MR COLGRAVE: I don’t think I’ll be terribly long with Mr Thompson.
PN1636
DEPUTY PRESIDENT BARTEL: All right. I was just thinking in terms of lunch.
PN1637
MR COLGRAVE: Yes, I understand that. I think if we can get started with him, I can’t guarantee I’ll be finished by 1 pm, but I’ll try.
DEPUTY PRESIDENT BARTEL: All right. We’ll just have a brief adjournment.
SHORT ADJOURNMENT [12.36 PM]
RESUMED [12.42 PM]
<NATHAN LIAM THOMPSON, AFFIRMED [12.42 PM]
MR BLEWETT: If the Commission pleases, if I could hand the witness a document?
EXAMINATION-IN-CHIEF BY MR BLEWETT [12.43 PM]
PN1640
MR BLEWETT: Mr Thompson, is that document familiar to you?‑‑‑Yes.
PN1641
Is that a copy of the affidavit you prepared for these proceedings?‑‑‑That’s correct.
PN1642
Is that your scribble down the bottom of the page, of each of the pages?‑‑‑Yes, it is.
PN1643
And then your signature on page 6 of the document?‑‑‑Correct.
PN1644
You’re familiar with the contents of your affidavit?‑‑‑I am.
PN1645
Do you seek to adopt it as your evidence-in-chief in this matter?‑‑‑I do.
PN1646
I tender that.
PN1647
MR COLGRAVE: No objection.
*** NATHAN LIAM THOMPSON XN MR BLEWETT
DEPUTY PRESIDENT BARTEL: The sworn affidavit of Nathan Thompson with one attachment will be marked exhibit UV2.
EXHIBIT #UV2 SWORN AFFIDAVIT OF NATHAN LIAM THOMPSON WITH ONE ATTACHMENT
PN1649
MR BLEWETT: Thank you, and I have no further questions.
DEPUTY PRESIDENT BARTEL: Mr Colgrave.
CROSS-EXAMINATION BY MR COLGRAVE [12.44 PM]
PN1651
MR COLGRAVE: Mr Thompson, can I take you to paragraph 13 of your affidavit. That is the paragraph that deals with your attendance at meetings at the Yankalilla Hotel relating to the RD Jones Group’s intention to terminate the collective agreement; that’s correct?‑‑‑Not just Yankalilla, all hotels.
PN1652
Yes. So where you say, “I also regularly raised the issue of rostering at these meetings”, you’re talking about all of the meetings at all of the RD Jones hotels?‑‑‑That’s correct.
PN1653
Do you recall raising the issue of rostering at the meeting at Yankalilla?‑‑‑I do.
PN1654
What protection in relation to rostering do you believe the current agreement provides to the employees at the Yankalilla Hotel?‑‑‑It was more about the penalty rates that are being paid.
PN1655
No, my question was, what protection in relation to rostering practices at the RD Jones Group’s hotels generally, or the Yankalilla Hotel, does the agreement, the Top Shelf Agreement, provide to employees?‑‑‑I’m not going to pretend that I’m fully across that part of the agreement at this point in time. The reason I had raised it as a concern is because the loadings that people received on different days meant that rostering practices would be changed, and that’s the evidence I’ve given in my affidavit.
PN1656
Well, again, I come back to the question of if you’re raising a potential change of rostering practices as an issue in relation to the termination of the agreement, what is there in the agreement that provides any protection for employees in relation to any change of rostering practice?‑‑‑There are clauses in the agreement that require notice of change to be given, but again, I come back to the reason we believed rosters would be changed is because of the change to the penalty rate structure.
*** NATHAN LIAM THOMPSON XXN MR COLGRAVE
PN1657
But you are raising rostering, potential rostering changes, as a red flag for these employees; you agree with that, don’t you?‑‑‑I do.
PN1658
I’m
suggesting to you that there is nothing in the current agreement that provides
any ability for employees or the union to oppose
rostering changes; do you
agree with that?
---I would accept that there’s a dispute resolution clause, but generally, yes.
PN1659
So for that reason, to actually suggest that terminating the agreement would be a bad thing for the employees because the agreement provides them with some form of protection in relation to rostering changes is misleading, isn’t it?
PN1660
MR BLEWETT: Well, I object to that. It assumes that that is what the witness said.
PN1661
DEPUTY PRESIDENT BARTEL: Perhaps rephrase the question, Mr Colgrave.
PN1662
MR COLGRAVE: Well, what you say, Mr Thompson, in paragraph 13, starting at the end of the second line, “We believed that these losses” and I accept you’re talking about losses in relation to loadings, “would be greater if RD Jones changed its rostering practices so the casuals worked more regularly from Monday to Friday and Saturday employees worked more regularly over the weekends and public holidays”?‑‑‑And again I come back to the reason we believed rosters would change is based on the penalty rates that would be payable under the award compared to the agreement.
PN1663
Well, you’ve got no reason to believe rosters would change, have you?‑‑‑(No audible reply).
PN1664
Has there been any prior conduct by the RD Jones Group to change rosters to - - - ?‑‑‑I have not previously been involved with the RD Jones Group before this matter.
PN1665
No. So your belief isn’t a belief, it’s a suspicion, isn’t it?‑‑‑If you want to get technical, yes, I suppose that I could accept that it’s a suspicion that the RD Jones would change rostering practices.
*** NATHAN LIAM THOMPSON XXN MR COLGRAVE
PN1666
So focusing on those words, “if the RD Jones Group changed its rostering practices.” There’s no protection from the RD Jones Group changing its rostering practices in the current agreement, is there?‑‑‑No, I accept that.
PN1667
So what I’m saying to you is that by raising this at the meetings as a red flag issue for employees, it’s potentially misleading to those employees because they could have understood that you were suggesting to them that there was some protection in the current agreement from the RD Jones Group changing its rostering practices.
PN1668
MR BLEWETT: I object to that. I mean, this witness can’t speculate about how an employee might understand what was being communicated. It’s a matter of comment.
PN1669
DEPUTY PRESIDENT BARTEL: You’re asking about an impression that may have been created by what - - -
PN1670
MR COLGRAVE: Well, that’s what I was asking him about.
PN1671
DEPUTY PRESIDENT BARTEL: Well, I think you’re asking about the understanding of the employees’ - - -
PN1672
MR COLGRAVE: Don’t you accept, Mr Thompson, that by raising the problem of the RD Jones Group changing its rostering practices, at these meetings, you could have created the impression that there was some protection in the current agreement which would have stopped the RD Jones Groups changing its rostering practices without the union or the employees agreeing?‑‑‑No, I respectfully disagree. The issue was about the cost. Ms Athanasiou at least - well, certainly at one meeting, raised an analogy that if you bought a TV - if there were two identical TVs and one cost 1,500 - or one cost $1,000 and one cost $1,500, which one would you buy? Then she went on to clarify that statement, but that’s exactly the point that we’ve been raising through this. If they can afford to put a cheaper employee on at certain times, we suspected that the rosters would change.
PN1673
Yes, and by talking about suspicion that the rosters would change and saying you shouldn’t vote for termination of the agreement because they might change the rosters, don’t you agree that you’re creating an impression that there’s somehow something you can do to stop them changing the rosters consistent with the current agreement, that there’s some power in the current agreement for the union to stop that?‑‑‑No, I disagree.
PN1674
So it was your suspicion that the employer would change its rostering practices so that people who would cost them more wouldn’t work on weekends only that you were raising?‑‑‑That’s correct.
*** NATHAN LIAM THOMPSON XXN MR COLGRAVE
PN1675
But don’t you see that changing the rostering practices is an integral part of that?‑‑‑I’m sorry, I don’t understand.
PN1676
Well, without changes to the roster, there could be no suspicion that people would be short-changed by not being able to work on the weekends any more. Don’t you see that?‑‑‑No, I’m not sure where you’re going. Could you rephrase that?
PN1677
Well, your evidence, if I understand it, is that your issue was with the loadings and that if the loadings were changed to the HIGA loadings rather than the agreement loadings, that the sneaky employer, you suspected, would change the rosters so that permanent employees would work on weekends rather than casual employees and the casual employees wouldn’t get the higher loading; that’s your evidence, isn’t it?‑‑‑That’s correct.
PN1678
But without the roster change, that doesn’t occur; don’t you agree with that?‑‑‑If the rosters aren’t changed, people would continue on their existing shift.
PN1679
That’s right, and people would have continued to get the higher loading for Saturday or Sunday work, wouldn’t they?‑‑‑Yes, presuming the rosters didn’t change.
PN1680
Yes, so the whole thing is fundamentally reliant upon the rosters changing, isn’t it?‑‑‑Well, not for some employees because employees who - - -
PN1681
No, but - - - ?‑‑‑ - - - were primarily Monday to Friday would have their penalty rates cut.
PN1682
- - - in relation to this concern that you’re raising, the whole thing is contingent upon the rosters having to change, isn’t it?‑‑‑Not for all employees, no.
PN1683
No, but in relation to the concern you’re raising about the penalty rates?‑‑‑No, because the penalty rates change on Monday to Fridays as well as on the weekends, but yes, I accept that if rosters didn’t change, the impact may not be as great.
PN1684
That’s right. So by saying, at paragraph 13:
PN1685
I also regularly raised the issue of rostering at these meetings and the losses for employees would be greater if RD Jones changed its rostering practices.
*** NATHAN LIAM THOMPSON XXN MR COLGRAVE
PN1686
- you’re focusing on the rostering, aren’t you?‑‑‑That’s correct.
PN1687
Yes, and there is nothing in the current agreement that would stop the RD Jones Group from changing its rostering practices anyway?‑‑‑Other than the existing penalty rates.
PN1688
That’s right?‑‑‑Exactly, and that was our point.
PN1689
No, sorry, the existing penalty rates haven’t got a bearing on whether or not somebody can change a roster?‑‑‑No, that’s correct, but the financial impact for RD Jones would be different dependent on which employees have rostered at which times.
PN1690
Yes?‑‑‑The whole point of this comes back to the change in the penalty rate and the casual rate.
PN1691
And the change in the casual rate was mainly - the main change in the casual rate that’s negative for employees is in relation to work on Monday to Friday; you agree with that, don’t you?‑‑‑I do agree with that.
PN1692
And what you’re talking about is changing its rostering practices so casuals work more regularly from Monday to Friday and salaried employees worked more regularly over the weekends and on public holidays when the higher rate was applicable under the HIGA?‑‑‑That’s correct. That was our suspicion.
PN1693
Well, so that, again, turns on rostering practices, doesn’t it?‑‑‑Yes.
PN1694
So in spite of all that, you don’t accept that you could have been creating an impression to the employees that what you were suggesting was that there was some protection in the current agreement from RD Jones changing its rostering practices?
PN1695
MR BLEWETT: I object to this. I mean, it’s been asked and answered in a number of different wants. The witness’s evidence is very clear about what he was raising. The impression that that might have created on employees is a matter for comment and submissions. It’s not a matter of evidence.
PN1696
DEPUTY PRESIDENT BARTEL: Well, I understood the questions went to this witness’s motivation in raising the issue of rostering at the meetings.
*** NATHAN LIAM THOMPSON XXN MR COLGRAVE
PN1697
MR BLEWETT: If my learned friend wants to ask about this witness’s motivation, I’m quite happy for him to do so, but if he’s asking about the impression that might be created in the minds of employees from what he was saying, I object.
PN1698
MR COLGRAVE: The motivation for you raising this at the meetings was for the employees to oppose the termination of the agreement, wasn’t it?‑‑‑It was one of the factors that we believed needed to be highlighted to employees, and yes, we believed the employees should oppose the termination.
PN1699
So raising rostering practices and potential changes in rostering practices was, as I’ve put it, a red flag issue that you’re raising for employees so that they think to vote against terminating the agreement, isn’t it?‑‑‑It was one of a number of factors, yes.
PN1700
And you were raising it as one of those number of factors as something that could give the employees the impression that by not voting - sorry, by voting to support the termination of the agreement, that they would be not affording themselves with the opportunity to oppose changing to rostering practices which was currently available to them?
PN1701
MR BLEWETT: I object to that. I think it’s the same question except I lost the thread halfway through, but if it’s about was being created in the - the impression being created in the minds of the employees, I object for the same reason that I have.
PN1702
DEPUTY PRESIDENT BARTEL: Look, I’m sorry, Mr Colgrave, I can’t comment on the objection because I didn’t really understand the question.
PN1703
MR COLGRAVE: No, I accept the question was a little bit confusing. So raising the fact that losses would be greater if RD Jones changed its rostering practices as one of the reasons why employees should vote to not terminate the agreement, do you accept that you’re indicating to the employees that there is some protection in the current agreement that helps the union and the employees to oppose changes to rostering practices?‑‑‑No.
PN1704
At paragraph 26, you talk about - and this is part of the discussion about some discussions you had with the employees after the presentation by Ms Athanasiou at the Yankalilla, and you say there, you told the employees it’s not simply a choice between keeping the agreement or terminating it, you told them that we could seek to negotiate a new collective agreement?‑‑‑That’s correct.
*** NATHAN LIAM THOMPSON XXN MR COLGRAVE
PN1705
Were any steps taken by you or anybody else on behalf of those employees to seek to negotiate a new collective agreement with the Yankalilla Hotel after that meeting?‑‑‑I’m not - not after that meeting, I don’t believe so. I’m not involved in negotiating with the hospitality agreements.
PN1706
So you’ve never taken any steps to try and negotiate a new collective agreement with the Yankalilla Hotel?‑‑‑I have not.
PN1707
On behalf of United Voice?‑‑‑I have not.
PN1708
Now, the bundle of authorities at MT2 from the employees who you say divided those to you to indicate their opposition to the termination of the agreement. A number of those employees have told Mr Kingsley Smith subsequent to this authority that they actually support termination of the agreement. Have any of them subsequently told you that?‑‑‑No.
PN1709
Have you contacted any of them since the date that they signed these authorities to ascertain whether they in fact abide by or remain of the view that is expressed in those authorities?‑‑‑I believe, to my best recollection, I have had a conversation with one of them which was - - -
PN1710
Perhaps don’t us what the conversation was about, but you’ve had a conversation with one of them; who is that?‑‑‑I believe it was Carlia - - -
PN1711
Spilsbury?‑‑‑That’s - that’s the member, yes.
PN1712
You haven’t spoken to any of the others?‑‑‑Wasn’t my role.
I have no further questions of Mr Thompson.
RE-EXAMINATION BY MR BLEWETT [1.02 PM]
PN1714
MR BLEWETT: Mr Thompson, just briefly. Under the collective agreement of the Yankalilla Hotel, it is correct that casuals are paid a 50 per cent loading for all hours that they work?‑‑‑That’s correct.
PN1715
Is there any economic incentive from the perspective of the cost per hour of a casual when they get rostered in a hotel?
*** NATHAN LIAM THOMPSON RXN MR BLEWETT
PN1716
MR COLGRAVE: Well, what’s the relevance of that question to the issues to be determined by - I mean, if there’s economic incentive, people can do the maths themselves.
PN1717
DEPUTY PRESIDENT BARTEL: I understand the witness’s evidence to be in relation to questions that you were asking about rostering. This is how I’ve interpreted it, and Mr Thompson, tell me if this is not correct. I interpret that to mean that it was Mr Thompson’s view that the change in the penalty rates under the HIGA as opposed to the agreement provided some cost incentive for an employer to change the rostering arrangements, not that - I didn’t take his evidence to be that he was aware that there was any prohibition on changing rosters under the agreement. To the extent that Mr Blewett’s evidence goes to that, if that - is that a correct - - - ?‑‑‑That’s a correct interpretation.
PN1718
MR BLEWETT: Your Honour, given the Commission’s understanding of the evidence of Mr Thompson, I have nothing further.
DEPUTY PRESIDENT BARTEL: Okay. Thanks, Mr Thompson, you can stand down.
<THE WITNESS WITHDREW [1.04 PM]
PN1720
DEPUTY PRESIDENT BARTEL: Is this a convenient time.
PN1721
MR BLEWETT: This is a convenient time.
PN1722
DEPUTY PRESIDENT BARTEL: All right. Perhaps we’ll reconvene at quarter past 2.
SHORT ADJOURNMENT [1.04 PM]
RESUMED [2.17 PM]
PN1723
DEPUTY PRESIDENT BARTEL: Yes.
*** NATHAN LIAM THOMPSON RXN MR BLEWETT
PN1724
MR BLEWETT: If the Commission pleases, I was proposing to open briefly. Deputy President, there has been quite an extensive outline of submissions filed which really sets out the nature of the United Voice case. I think it’s common ground between the parties that the relevant test is that set out in section 226 of the Act, and that that really has two elements to it. First, that termination of the agreement is not contrary to the public interest, and second, that termination of the agreement is appropriate, taking into account all the circumstances, including particularly the views of the parties and the likely effects on the parties.
PN1725
It is our submission that, really, there are two, I suppose, public interest principles that are enlivened by these proceedings. The first is the principle that in order to have an effective system of enterprise bargaining, there needs to be a fundamental underpinning of that, and that is that parties will abide by their commitments. There are various enforcement provisions in the Act which are designed to do that, but it goes without saying if you’re going to have an agreement-based regime, the expected norm of behaviour for the parties is to stick to their commitments.
PN1726
It’s our submission that the evidence is crystal clear that the applicant consciously and deliberately disregarded the commitments it had made expressed in clause 14 of the agreement. We say there’s an obvious public interest that was enlivened by that disregard. The second sort of key public interest considerations, we say, are that which arises from the Act’s emphasis on enterprise level collective bargaining.
PN1727
The first sort of key element is that before making changes to terms and conditions affecting employees, the expected norm of behaviour is that one will attempt to bargain and the applicant made a conscious and deliberate decision, in this case, to make no attempt to bargain prior to seeking to terminate the collective agreement.
PN1728
Secondly, it’s an expected norm of behaviour that one party will not seek to unilaterally impose its instrument of choice on other parties, that again, parties will seek to cooperate and negotiate in respect of that instrument, and clearly here, the applicant has determined that it will attempt to unilaterally impose its desired instrument on the employees, that being the HIGA, and as things progressed, the HIGA plus individual arrangements and the HIGA plus individual arrangements plus some form of memorandum of understanding.
PN1729
Thirdly, it’s an expected norm of behaviour in a bargaining context that a party won’t seek to deal individually with elements of the other party, and in particular, a party won’t seek to induce elements of the other party to agree to their point of view; they will deal with people collectively. Perhaps to make that stronger point, there are various decisions which identify that in a bargaining context, to deal individually with employees while there is collective bargaining, is a breach of the Good Faith Bargaining Principles and we say exactly the same reason that applies where one is not bargaining for an agreement, but one is seeking to terminate an agreement.
PN1730
The last element, we say, raises the sort of public interest in the context of the Act’s emphasis on enterprise bargaining is that the taking action to shift the balance of bargaining power as between an employer and employees raises the public interest, is generally regarded as other than through sort of bargaining and legitimate industrial activity that’s authorised by the Act, but attempting to shift the balance of bargaining power is frowned upon by the Act.
PN1731
Here, we say the clear effect of terminating the collective agreement is to shift the balance of bargaining power in favour of the employer. That’s the explanation for this strange evidence we’ve heard from Ms Athanasiou, that they’re quite happy to negotiate a collective agreement, but only if the Yankalilla Hotel agreement is terminated. There can be no other reason, and that’s to have achieved a shift in the balance of bargaining power so as to assist in any further negotiations, and there are a range of cases that talk about the illegitimacy of that approach.
PN1732
The second limb that the Commission is required to consider is the appropriateness or otherwise of terminating the collective agreement, and that is taking account of really three things, it seems to me, or primarily three things: the views of the parties, the circumstances of the parties, and the likely effects on the parties on termination. There’s a disagreement between the applicant and United Voice about what the evaluation of the views of the parties is for these purposes. As I understand the applicant’s submission, the only view that’s relevant is whether or not a party supports or objects to the termination of the agreement.
PN1733
In my submission, that can’t be right. There must be a qualitative assessment that is made. For instance, it couldn’t be the case that for the purposes of this test an employee who reluctantly acquiesces in the termination of an agreement is expressing the same thing as an employee violently in favour of terminating an agreement. They are qualitatively quite different things.
PN1734
Similarly, I think it’s even conceded, that if an employer were to take a capricious view, then one would be entitled to take account of the capriciousness of that view. In our submission, the rationale leading to the view formed by a party, including the employer, is a perfectly legitimate area of evaluation in assessing the appropriateness of termination.
PN1735
DEPUTY PRESIDENT BARTEL: Just on that matter, and obviously Mr Colgrave may wish to make some further submissions, but it seems to me that section 226B, plus in (1) and (2), the Commission must take those matters into account, but they’re not exhaustive. The introduction is that really the test is whether it’s appropriate, taking into account circumstances including, so they’re not exhaustive, so the argument then becomes, well, is it an appropriate matter to be taken into account or not.
PN1736
MR BLEWETT: I think that’s right, and when - the obvious argument that we can make is it would have been so simple for the Act, the legislation, to have expressed whether someone has expressed his support or otherwise for the agreement, and it’s chosen not to do that. In respect of the views of the employees, we say, as we’ve said in our outline, the evidence is equivocal. Some have expressed both support for termination of the agreement and objection to termination of the agreement, and a number have done that on the very same day.
PN1737
Similarly, some have expressed support for the agreement, but only because they had been induced to do so by these individual representations, and only because those inducements have been reduced to writing. Then it will be my submission that if the sort of 26 or thereabouts employees who have been identified as part of the applicant’s establishment only - I think - about 20 of those are actually covered by the agreement for the purposes of - we know obviously that Ms Dedicote(?) doesn’t actually work for the company. She was the cleaner of the house down the road, and we know Mr Smith isn’t covered by the agreements, he conceded, and I think his evidence was to the effect that the four other people that he identified this morning were not covered by the agreement as well.
PN1738
So the pool is not 24 or 26, the pool is smaller, and once you take into account, I think there’s Ms Trinne who has expressed no view, and the people who have expressed both disagreement and agreement without any identification of any change of mind, there is a substantial proportion of the relevant workforce who have expressed disagreement with termination of the agreement. So it’s equivocal and neither party has chosen to bring on the employees to explain to you what they really think.
PN1739
The views of the union, I think, are very clear and are primarily expressed in the affidavit of Ms Duke, who is yet to give evidence. The views of the employer, I must say, apart from the fact that it wants to terminate the agreement, the evidence is very unsatisfactory, and I’ll make more submissions about that, but time and again, you will recall Ms Athanasiou saying, “Look, I don’t know about that. You’ll need to speak to Mr Jones. I only know what I’ve been instructed to do.”
PN1740
Then turning to the circumstances, I don’t think there’s anything in the circumstances of the Yankalilla Hotel which really bears on the appropriateness or otherwise of termination of the agreement. In respect of the employees, a significant circumstance is that such a large proportion of them are casual employees and we would say are therefore in a more vulnerable position vis-à-vis negotiating with the employer that they had security of employment.
PN1741
Then turning to the likely effect, what I think is pretty clear is that the claimed likely effect for the employer is not borne out by the evidence. That is, it will have no impact on them obtaining self-insurance for WorkCover purposes or otherwise. It will have no impact on administrative efficiency. If anything, the various sort of contortions they have gone through to try and satisfy other elements that they need to satisfy have added administrative burdens.
PN1742
There is no increase in consistency as between the terms and conditions across the group. In fact, it’s gone the other way, given the proportion of hotels on the agreement, proportionally high, and there will be no increase in ease of transfer of employees. I think we were told yesterday that the Holdfast Hotel is a particular place where employees of the Yankalilla Hotel went to, and therefore, it made sense to put them in the same conditions. The evidence from Mr Smith this morning was that that had occurred a couple of times that he could recall and there were a couple of times when people had gone to the Woodcroft Tavern, which is obviously another collective agreement hotel.
PN1743
I think there was an attempt yesterday in the evidence of Ms Athanasiou to say, well actually what we are about is creating two groups within - instead of having 13 groups, we might have initially been after moving to one group, we now might be looking to form two groups. I think, quite frankly, that evidence should simply be dismissed as a bit of a recent invention. So what we say is, in terms of likely effect, you have no evidence of any beneficial likely effect on this employer if the collective agreement is terminated.
PN1744
Turning, then, to the employees, it is clear that they will suffer a loss of income and other conditions by the agreement being terminated. For some employees, there is an attempt to replace those with an individual arrangement, but necessarily for casual employees, such an individual arrangement can be terminated at any stage, and the enforceability of such an arrangement is a completely different question from enforcing a statutory agreement.
PN1745
Similarly, in respect of the MOU, it is proposed - you know almost nothing about it; who the parties are, what its terms are and in fact, what its status is, but it necessarily will not have the force of a collective agreement and so what we say is the effect on employees, the likely effect on employees, of terminating this collective agreement will be a loss of income and other conditions.
PN1746
Finally, we would say that the Commission can consider the likely effect on future employees and as things stand at the moment, there is no protection at all for those employees from their losses that they are likely to suffer. Turning, then, very briefly to - is there anything further you wanted from me on the nature of the case?
PN1747
DEPUTY PRESIDENT BARTEL: No, thank you, Mr Blewett.
PN1748
MR BLEWETT: If I can just quickly, if I can find it, I can’t find the evidence - you obviously had the evidence of Mr Byrne from WorkCover and Mr Thompson. Our next witness is Ms Hutt who will give some evidence about her contact with the Yankalilla Hotel in mid to late September to early October, and then there is the evidence of Ms Harrison who gives evidence about her involvement in negotiations with the AHA during 2014, about a template agreement and also her calculations as to loss at the Yankalilla Hotel if the collective agreement was terminated.
PN1749
Sorry, one final thing, and that we have agreed that a slightly amended version of the affidavit of Ms Edwards suffices to her evidence so that she won’t be required for cross-examination, so it might be the easiest thing to do, to tender that now.
PN1750
DEPUTY PRESIDENT BARTEL: Yes, thank you.
PN1751
MR COLGRAVE: I have no objection.
DEPUTY PRESIDENT BARTEL: The affidavit of Kelly Edwards will be marked exhibit UV3.
EXHIBIT #UV3 AFFIDAVIT OF KELLY EDWARDS
MR BLEWETT: I call Rebecca Hutt.
<REBECCA LEIGH HUTT, SWORN [2.39 PM]
EXAMINATION-IN-CHIEF BY MR BLEWETT [2.39 PM]
PN1754
MR BLEWETT: If I could hand Ms Hutt a document. Ms Hutt, do you recognise that document that’s in front of you?‑‑‑Yes, I do.
PN1755
Is that an affidavit that you prepared for these proceedings?‑‑‑Yes, it is.
PN1756
Hopefully on the copy you’ve got, there’s a little squiggle on the bottom corner of each page of the affidavit?‑‑‑Yes.
PN1757
Is that your initials?‑‑‑Yes, it is.
PN1758
On page 5 of the affidavit, is that your signature?‑‑‑Yes, it is.
PN1759
You’re familiar with the contents of the affidavit?‑‑‑Yes, I am.
PN1760
Do you adopt that as your evidence-in-chief in this matter?‑‑‑I do.
*** REBECCA LEIGH HUTT XN MR BLEWETT
PN1761
I tender that.
PN1762
MR COLGRAVE: No objection.
DEPUTY PRESIDENT BARTEL: The affidavit of Ms Hutt with two attachments will be marked exhibit UV4.
EXHIBIT #UV4 AFFIDAVIT OF MS REBECCA LEIGH HUTT WITH TWO ATTACHMENTS
PN1764
MR BLEWETT: I have nothing further.
PN1765
DEPUTY PRESIDENT BARTEL: Yes.
MR COLGRAVE: Thank you.
CROSS-EXAMINATION BY MR COLGRAVE [2.41 PM]
PN1767
MR COLGRAVE: Ms Hutt, you have talked in your affidavit about attending the Yankalilla Hotel on about three or four occasions - - - ?‑‑‑Yes.
PN1768
- - - during this relevant period?‑‑‑Yes.
PN1769
On each occasion, you have spoken to Kingsley Smith about wanting to speak to union members - - - ?‑‑‑Yes.
PN1770
- - - or employees?‑‑‑Yes. In Kingsley’s absence, I spoke to the duty manager.
PN1771
Right. Is it true to say that on at least three of those occasions, you were told to speak to the employees in either the saloon bar or the front bar?‑‑‑No.
PN1772
Where do you say you were told to speak to those employees on three of those four occasions?‑‑‑I wasn’t told, I wasn’t instructed anywhere where I could speak to the staff. In my attendance at the hotel, there was minimal staff on duty at the time. A couple of the conversations took place in the front bar and a conversation took place in the bottle shop.
*** REBECCA LEIGH HUTT XXN MR COLGRAVE
PN1773
A bottle shop? But you weren’t directed to have that conversation in the bottle shop by Kingsley, were you?‑‑‑Yes, I was. It was one employee that was - he was manning both the bottle shop and the front bar at the same time, and Kingsley said that I was welcome to speak to him.
PN1774
Welcome to speak to him, but he didn’t tell you that you had to speak to him in the bottle shop, did he?‑‑‑He said, “If you want to speak to you, you can speak to him. He’ll be going between the bottle shop and the front bar.”
PN1775
What I’m suggesting to you is that you weren’t directed that you could only speak to him in the bottle shop?‑‑‑No.
PN1776
You could have spoken to him in the front bar?‑‑‑Yes.
PN1777
Did you ever have any discussions with employees of the Yankalilla in the saloon bar?‑‑‑Yes.
PN1778
Were you directed to speak to employees in the saloon bar by Kingsley or by the duty manager or did you just happen to speak to them there?‑‑‑That’s where the conversations happened to take place.
PN1779
Yes, but you were permitted to speak to those employees in the saloon bar?‑‑‑Yes, I was.
PN1780
By Kingsley or the duty manager?‑‑‑Yes, I was.
PN1781
When you spoke to employees in the front bar on another occasion, or maybe one or two other occasions, you were permitted to do that as well?‑‑‑Yes, I was.
PN1782
There was one occasion you’ve given some evidence about where you were directed by Kingsley to have the discussion in the playground, which is at the front of the hotel; is that correct?‑‑‑Which is, sorry?
PN1783
At the front of the hotel? Or at the side of the hotel, sorry?‑‑‑It’s outside the hotel.
PN1784
Outside the hotel?‑‑‑Yes.
*** REBECCA LEIGH HUTT XXN MR COLGRAVE
PN1785
Was that a busier time when you attended the hotel? I mean, was the hotel busier and were more staff on?‑‑‑I don’t recall.
PN1786
What I’m going to suggest to you is that it was; it was a busier time of day, the hotel was busier generally and it was quieter in the playground outside the hotel than it would have been inside the hotel to have discussions with employees. Do you agree with that?‑‑‑No, I don’t.
PN1787
But
you say you managed to speak to only about half a dozen employees before the
information session on 30 September?
---That’s correct.
PN1788
Right. That’s because you were attending at a time when there were hardly any employees on roster?‑‑‑There was minimal staff on at the hotel at all times.
PN1789
Well, you’ve worked at the Yankalilla Hotel before, haven’t you?‑‑‑Yes, I have.
PN1790
You have in fact been a duty manager there?‑‑‑Yes, I have.
PN1791
You would know when the busier times are and when there are more staff rostered on, wouldn’t you, from that experience?‑‑‑I wouldn’t agree with that, no.
PN1792
So you don’t have experience of when it’s busier at the Yankalilla than when it’s not?‑‑‑No.
PN1793
Are you suggesting that there was somehow an attempt by the Yankalilla Hotel to have only minimal staff rostered on when you attended? Is that what you are - - - ?‑‑‑No.
PN1794
No. It’s just that’s the times that you attended and the hotel wasn’t busy enough to have a lot of staff on?‑‑‑That’s right.
PN1795
That’s the fact, isn’t it. Now, you say that before the information session, out of those six employees, only two signed authorities saying they didn’t support the termination of the agreement?‑‑‑That’s right.
PN1796
Yes, and that would have been Richard Doyle and Carlia Spilsbury?‑‑‑That’s right.
*** REBECCA LEIGH HUTT XXN MR COLGRAVE
PN1797
They both signed that authority on the same date, 22 September?‑‑‑That’s right.
PN1798
Have you had any discussion with Richard Doyle or Carlia Spilsbury since 22 September to see if they still do not support the termination of the agreement?‑‑‑(No audible answer).
PN1799
It’s the 22nd? Looks like 22nd to me. Sorry, we’ll just clarify this. Sorry, have you spoken to either of them since 22 September to see if they still do not support the termination - - - ?‑‑‑Not in relation to that matter, no.
PN1800
So you don’t know whether they’ve changed their minds or not, do you?‑‑‑Not to this day, no.
PN1801
No. You then say later in your statement that after the information session, you and Nathan Thompson met with a number of the employees at the Yankalilla Hotel; that’s right?‑‑‑Directly, but only information session, yes.
PN1802
That would have been in the restaurant - - - ?‑‑‑That’s right.
PN1803
- - - where the information session was?‑‑‑Yes.
PN1804
You weren’t told to go outside in the playground to - - - ?‑‑‑Not on this occasion, no.
PN1805
You say a number of further employees signed authorities to say that they opposed the termination of the agreement on that occasion?‑‑‑That’s right.
PN1806
That would have been Nicholas Moore, Adam Plush, Bryce Amm, with a double “m”, Toni Hutchinson, Michael Engleson and Craig Allan?‑‑‑I do believe there were about nine, yes.
PN1807
And Neville Wagner, sorry. Seven, and nine in total counting the two you’d already had signed up?‑‑‑That’s right.
PN1808
Again, since that meeting that you had with those employees where you received those employees’ authorities, have you spoken to any of them to see if they continue to oppose the termination of the agreement?‑‑‑No, I haven’t.
*** REBECCA LEIGH HUTT XXN MR COLGRAVE
PN1809
You are aware, aren’t you, that during the information session that Ms Athanasiou, the HR manager, conducted at the Yankalilla Hotel, she offered to enter into individual arrangements with employees who thought that they were going to be worse off if the agreement was terminated, to try to accommodate their individual circumstances to see that they were not worse off if the award applied, as opposed to the agreement?‑‑‑I do agree that they were offered contracts, yes.
PN1810
But you don’t know anything about the terms of those agreements or arrangements that were made with those individuals?‑‑‑No, I don’t.
PN1811
You weren’t a party to discussions that led to those - - -?‑‑‑No, I wasn’t.
PN1812
No. Did you or Mr Thompson try to discourage individuals from entering into discussions in relation to such arrangements at the meeting on 30 September?‑‑‑No, I did not.
PN1813
You talk at paragraphs 21 to 24 about going back to the Yankalilla Hotel a couple of days after 30 September. Now, can I suggest to you that it might have been the next day, 1 October?‑‑‑(No audible reply).
PN1814
This is for your discussion with Mickey Engleson?‑‑‑For my discussion with Mickey Engleson?
PN1815
Yes. Well, let’s get this clear. You attended with Nathan on 30 September for the information session and then for the meeting afterwards with the employees. Then later in your affidavit, you say you went back to the Yankalilla Hotel to speak with Mickey Engleson. Now, you say that was a couple of days later. I’m suggesting to you it might have been the next day, 1 October. In fact, it was the next day, 1 October?‑‑‑I can’t confirm that date.
PN1816
All right. Well, can I suggest to you that Mickey Engleson, when you discussed the matters with him, hadn’t at that stage met with Kingsley Smith to discuss his own circumstances. Did he tell you that he’d met with Kingsley to talk about what his concerns were with the agreement, or with the termination of the agreement, sorry?‑‑‑I’m not quite sure what you’re saying, sorry.
PN1817
Did Mickey say anything to you about having met with Kingsley Smith and having signed a form indicating that he agreed to the termination of the agreement?‑‑‑I wasn’t made aware of that, no.
*** REBECCA LEIGH HUTT XXN MR COLGRAVE
PN1818
You would have thought that, having signed an authority on 30 September saying he didn’t support the agreement, when you’d met with him subsequently, if he had signed a form that was contrary to that, he might have told you that, wouldn’t you?‑‑‑No, I wouldn’t.
PN1819
Well, he didn’t tell you anything about meeting with Kingsley Smith and signing a form saying he agreed with the termination of the agreement, did he?‑‑‑Not to say that he agreed with the termination, no.
PN1820
Right. So you weren’t aware, when you met with Mickey, of any meeting he’d already had with Kingsley Smith, where he’d signed a form ticking that he agreed with the termination of the agreement?‑‑‑No.
PN1821
Now, you then talk about a petition seeking negotiation of a new collective agreement to circulate amongst staff. You say Mickey signed that, but it’s been lost?‑‑‑I believe so.
PN1822
If it’s been signed and lost, why didn’t you take any further steps to get another one signed and circulated amongst the staff like you were proposing that day, with Mickey?‑‑‑Because during the time between October and December, all throughout last year, actually, as a placement, as a union member organiser, I was also employed casually within the hotel, so between October and December, I was involved very minimally within the union.
PN1823
So you were only acting on instructions or directions to take that petition to the hotel and speak with Mickey about it, agree?‑‑‑Correct
PN1824
But when did you become aware that that petition had been lost?‑‑‑Not until recently.
PN1825
When you became aware that the petition had been lost, were you directed to do anything about getting a new petition started?‑‑‑No, I wasn’t.
PN1826
Who directed you to get the original petition started?‑‑‑Our union lead, Donna Duke.
PN1827
When you became aware that the petition had been lost, did you tell Donna?‑‑‑Donna informed me.
*** REBECCA LEIGH HUTT XXN MR COLGRAVE
I have no further questions of Ms Hutt.
RE-EXAMINATION BY MR BLEWETT [2.56 PM]
PN1829
MR BLEWETT: Just in relation to that last topic that was discussed, you have affirmed this affidavit on 5 February, that’s about two weeks ago?‑‑‑That’s correct.
PN1830
When in relation to that date, about how long - sorry, was it before that date do you think you discovered that the petition had been lost, before the date of affirming your affidavit?‑‑‑Before my affidavit, yes.
PN1831
Was it before you started the process of preparing an affidavit?‑‑‑Yes, it was.
PN1832
Was it about the time of preparing your affidavit?‑‑‑Just prior.
PN1833
Is that after, at a period where you weren’t working much for the union between October and December, was it after that period?‑‑‑Yes.
PN1834
After January?‑‑‑Yes, it was.
PN1835
But before 5 February?‑‑‑Yes.
PN1836
You were asked some questions about whether Mickey told you he had signed a document supporting the termination of the agreement and whether he had told you that he had met with Kingsley Smith. In paragraph 22 of your affidavit, you say, “He”, that’s Mickey, “also told me that he had requested an individual agreement from R D Jones”?‑‑‑That’s correct.
PN1837
Did he tell you whether he’d requested that of Mr Smith or Ms Athanasiou or anyone else?‑‑‑When I spoke with Mickey, he said that he had spoken to Kingsley about requesting an individual agreement which was being sent through to head office.
PN1838
Where you say he said he was unsure whether this request would be honoured, what request is that, that you’re referring to?‑‑‑The individual contract.
PN1839
Thank you. I’ve got nothing further.
*** REBECCA LEIGH HUTT RXN MR BLEWETT
PN1840
MR COLGRAVE: Can I just request a little bit of indulgence? There’s one question that I forgot to ask in cross-examination. My learned friend can obviously re-examine on it if necessary, just observe the rule in Browne v Dunn.
DEPUTY PRESIDENT BARTEL: Yes.
FURTHER CROSS-EXAMINATION BY MR COLGRAVE [2.59 PM]
PN1842
MR COLGRAVE: In paragraph 25, Ms Hutt, you talk about this discussion about being told by Kingsley to go to the playground, or the kids’ playground?‑‑‑Yes.
PN1843
You say that he told you that Lena, meaning Lena Athanasiou, I think - - - ?‑‑‑That’s correct.
PN1844
- - - had sent an email around identifying designated areas and the playground was a designated area. Can I suggest to you that he didn’t say something like that, and that was just his idea?‑‑‑I would disagree with that.
PN1845
All right. Thanks. Nothing further.
PN1846
DEPUTY PRESIDENT BARTEL: Thank you. Nothing further?
PN1847
MR BLEWETT: No, thank you. Thanks.
DEPUTY PRESIDENT BARTEL: Thank you, Ms Hutt. You can step down.
<THE WITNESS WITHDREW [3.00 PM]
MR BLEWETT: I call Larissa Harrison.
<LARISSA KAYE HARRISON, AFFIRMED [3.01 PM]
EXAMINATION-IN-CHIEF BY MR BLEWETT [3.02 PM]
PN1850
MR BLEWETT: If I can show the witness a document, please. Larissa, do you recognise that document before you?‑‑‑Yes, I do.
PN1851
Is that a copy of the affidavit that you prepared in these proceedings?‑‑‑Yes, it is.
*** LARISSA KAYE HARRISON XN MR BLEWETT
PN1852
The initials on the bottom right-hand corner of each of the first three pages, are they your initials?‑‑‑Yes, they are.
PN1853
Is that your signature at page 4?‑‑‑Yes, it is.
PN1854
You’re familiar with the contents of the affidavit?‑‑‑Yes, I am.
PN1855
You seek to adopt it as your evidence in this matter?‑‑‑I do, with one exception, which is my change of employment, which is in paragraph 1.
PN1856
Let me address that. Are you still employed by United Voice?‑‑‑No, I’m not.
PN1857
Are you now a ministerial advisor to the Honourable Gail Gago?‑‑‑Yes, I am.
PN1858
You’ve changed that employment since 5 February?‑‑‑Yes, that’s correct.
PN1859
Thank you. I tender the affidavit.
PN1860
MR COLGRAVE: No objection.
DEPUTY PRESIDENT BARTEL: The affidavit of Ms Harrison with one attachment is marked exhibit UV5.
EXHIBIT #UV5 AFFIDAVIT OF LARISSA KAYE HARRISON WITH ONE ATTACHMENT
PN1862
MR BLEWETT: Just one matter. Attached to your affidavit, LH1, are some calculations you’ve done based on the rosters of casual employees at the Yankalilla Hotel applying the HIGA conditions to their rostered hours and the collective agreement conditions to those rostered hours, and making a comparison what the effect on income would be?‑‑‑That’s correct.
PN1863
You set out in your affidavit the qualifications you made, or the assumptions you’ve made, in the preparation of those materials?‑‑‑That’s correct.
PN1864
I wonder if the witness could be shown exhibit A4, please?
*** LARISSA KAYE HARRISON XN MR BLEWETT
PN1865
DEPUTY PRESIDENT BARTEL: It’s got scribble all over it.
PN1866
MR BLEWETT: My copy is clean, if - - -
PN1867
DEPUTY PRESIDENT BARTEL: It might be preferable.
PN1868
MR BLEWETT: Ignoring the handwriting at the top of that document, the evidence, I think, we have of that document is that it’s a summary of some calculations made by the solicitors for the Yankalilla Hotel, and it comes to the same numbers as the summary of your calculation, save that there’s been an addition of, I think, part-day public holidays which has an effect of changing some of the numbers for obviously the people who worked on those part‑day public holidays. Do you accept that your calculations, LH1, didn’t include the part-day public holidays in 2013?‑‑‑That’s correct.
PN1869
They are the part-day public holidays that apply from 7 pm on Christmas Eve and New Year’s Eve?‑‑‑Yes, that’s correct.
PN1870
Thank you. I have nothing further.
DEPUTY PRESIDENT BARTEL: Mr Colgrave.
CROSS-EXAMINATION BY MR COLGRAVE [3.06 PM]
PN1872
MR COLGRAVE: At the commence of your affidavit, you give some evidence about the negotiation of a template or framework agreement with the AHA as the basis of negotiating replacement agreements for the Top Shelf Agreements in the hospitality industry. Now, the Top Shelf Agreements were used by United Voice, or actually, the LHMU as it was then, in the period 2007 to 2009. Were you with the LHMU prior to the creation of the Top Shelf Agreements?‑‑‑No, I wasn’t.
PN1873
In paragraph 4 you talk about your understanding of two main motivations for negotiating the Top Shelf Agreements. What you’ve put in there, is that based on hearsay, then, for what you’ve been told were the two main motivations for negotiating the Top Shelf Agreements at that time?‑‑‑It’s based on two things. It’s based on the - what I was told by other organisers and officials at United Voice, then the LHMU, and also from my perusal of files which existed in relation to the creation of the 2007 to 2009 agreements.
*** LARISSA KAYE HARRISON XXN MR COLGRAVE
PN1874
You’ve seen a number of those Top Shelf Agreements cover a number of hotels across - or hospitality employers across the state, haven’t you?‑‑‑Yes, that’s correct.
PN1875
Can I suggest to you that once you’ve seen one of the Top Shelf Agreements, you pretty much know what’s in another one? Would that be true?‑‑‑There are large portions of the Top Shelf Agreements in 2007 to 2009 that are the same. There were a number of variations that when I came to the union on 1 December 2008, that I assisted in drafting. Whether it was just wording changes to particular clauses, or in one case, and I can’t remember the exact location, there was a variation negotiated for a particular hotel in relation to a salary arrangement that existed at that site.
PN1876
They were negotiated after the agreements had been entered into, were they?‑‑‑I can’t remember.
PN1877
But the intention of that template, the Top Shelf template, was to have - the intention of the union with respect to that template, was to have the same terms and conditions of employment applying to hotels across the state; is that true?‑‑‑The intention behind the Top Shelf Agreement was to ensure that there were a number of conditions that had been in the state award that were picked up and ensure that they would continue to be provided to employees in hotels.
PN1878
Despite the introduction of modern awards in 2009/2010 and a new safety net created by modern awards such as the HIGA or the HIMA, as it was before that?‑‑‑The original Top Shelf Agreements which you are talking about existed prior to the modern awards, yes.
PN1879
I’ll get to the replace template shortly, but in terms of the Top Shelf Agreements, you’re aware that nine of the hotels that are owned by the R D Jones Group are covered by agreements that follow the Top Shelf template?‑‑‑Yes, I am.
PN1880
All right. Can I suggest to you that other than in name, those nine agreements are all identical in their terms?‑‑‑I haven’t perused every agreement and I can’t - I can’t attest to that.
PN1881
I suggest that you, you’re not in a position to disagree with me?‑‑‑Look, I haven’t, line-by-line, checked any of the agreements.
PN1882
No. But it wouldn’t surprise you that they’re identical, would it?‑‑‑No, it wouldn’t. With the exception of scope clauses.
*** LARISSA KAYE HARRISON XXN MR COLGRAVE
PN1883
What you were told about the two main motivations, or what you’ve read about the two main motivations for negotiating top shelf agreements, being - the Howard government’s Work Choices Legislation being one of them. That fell by the wayside once the Rudd, then later the Gillard government, was elected and there was the introduction of the Fair Work Act in 2009 and 2010, didn’t it?‑‑‑It didn’t exactly, because there of course transitional arrangements until the start of this year.
PN1884
When did you commence with the LHMU, or United Voice?‑‑‑On 1 December 2008.
PN1885
On 1 December 2008; so you would have been aware, then, of submissions that were made by the LHMU in relation to the award modernisation process that was being undertaken pursuant to the Fair Work Act 2009?‑‑‑It would depend. A lot of the award modernisation submissions were made by our national office and when I originally commenced, I was part‑time, so I can’t say for certain that I was involved.
PN1886
So what you say about a negotiation for a replacement template agreement with the AHA, were you involved in those negotiations?‑‑‑Yes, I was.
PN1887
You say that the union wished to have a template agreement in place before 1 January 2015 - - -
PN1888
MR BLEWETT: No, two thousand - - -
PN1889
DEPUTY PRESIDENT BARTEL: Which paragraph are you referring to, Mr Colgrave?
PN1890
MR COLGRAVE: Paragraph 6, the last line?‑‑‑Yes, the most recent, the most recent negotiations, yes.
PN1891
Yes. The negotiations were commenced at that time because both the AHA and the union wished to have a template agreement in place before 1 January 2015?‑‑‑That’s correct.
PN1892
That’s what you say? Then you go on to say the significance of 1 January 2015 was that on that day, the five-year transitional period for the relevant modern award, the HIGA, would end?‑‑‑That’s correct.
*** LARISSA KAYE HARRISON XXN MR COLGRAVE
PN1893
On that date, the HIGA conditions would apply fully in South Australia except where enterprise agreements were in place, and this included significantly for both the union and the AHA, replacement of the existing 50 per cent loading for the casuals for all hours worked with a 25 per cent loading?‑‑‑That’s correct.
PN1894
In other words, the union’s agenda, and you say AHA’s agenda, was to negotiate agreement terms that would work contrary to the phasing in of the new casual rates in the national modern award, the HIGA?‑‑‑There was no phasing in of casual rates in the HIGA for South Australia.
PN1895
Well, there was a five-year period?‑‑‑And there was a schedule B provision which was specific to South Australia, which provided that there was a 50 per cent loading paid until the end of last year.
PN1896
Yes. So in that regard, was there anything stipulated by the national office in its submissions in relation to the award modernisation process for the effect that United Voice, or LHMU as it was at that time, would continue to, after that five-year period, seek to have 50 per cent loading payable to casual employees for all hours after 1 January 2015?‑‑‑Not that I can recall. I’m not 100 per cent sure.
PN1897
In fact, submissions that were made to the AIRC, as it was then, at that time, to your recollection, were to the effect that if there was a five-year period, that at the end of that period, United Voice or LHMU as it was then, would be happy for, or would accept, sorry, I won’t use the word “happy” would accept the reduction of the casual loading from 50 per cent to 25 per cent?
PN1898
MR BLEWETT: I object to that. This witness has already said she doesn’t know whether she had any knowledge of the submissions that were made at the time. There are two questions my learned friend might be asking, and one is, are you now aware of them, or the second is, were you aware of them at the time.
PN1899
MR COLGRAVE: Well, I’m asking, were you aware at the time that the submissions were made to the AIRC about the award modernisation process, whether or not the LHMU indicated to the AIRC that it would, or a successor to it would, and obviously United Voice, continue to maintain that the 50 per cent loading for all casual hours should apply in South Australia after 1 January 2015?‑‑‑I don’t recall submissions in relation to the 50 per cent loading and what they said about the operation or non-operation of those provisions after 1 January 2015.
*** LARISSA KAYE HARRISON XXN MR COLGRAVE
PN1900
If I suggest to you that those submissions don’t say anything about that, in fact, indicate that the LHMU accepted that after 1 January 2015 the reduction in the award would apply, would that surprise you?
PN1901
MR BLEWETT: I object to that. The witness has said she doesn’t recall these submissions. If there are submissions made, my learned friend can tender them or do whatever he likes, but asking this witness’s level of surprise about submissions she doesn’t recall is quite unfair to the witness.
PN1902
MR COLGRAVE: Well, if I can approach the witness? I’ve only got one copy of this, so I’ll have to read over her shoulder as I - - -
PN1903
DEPUTY PRESIDENT BARTEL: Well, unless there is something else you want to explore, we can get a copy for you in the meantime.
PN1904
MR COLGRAVE: Perhaps, yes. I’ll get copies of those three documents made for all of us, including the witness, and I’ll move on to something else.
PN1905
Before you left the union and went to work for Ms Gago, were you privy to the negotiation of a memorandum of understanding between the AHA and United Voice?‑‑‑Yes, I was.
PN1906
In relation to the objective of negotiating new template collective agreements?‑‑‑Yes, I was.
PN1907
Relevantly, that memorandum of understanding indicates that negotiating principles are fundamentally, firstly, that the parties agree that 50 per cent casual loading, noting that modern award coverage for the provision ceases on 31 December 2014, will be maintained in the new template agreement?‑‑‑Yes, that’s correct.
PN1908
And that 10 per cent loading for part-time employees would continue, despite that not being in the modern award?‑‑‑That’s correct.
PN1909
And that penalty rates of 150 per cent on Saturdays and 200 per cent on Sundays for full-time and part-time employees would be continued despite the different rates being applicable under the HIGA?‑‑‑That’s correct.
PN1910
There are similar negotiating principles in the bargaining protocols that are attached to that memorandum of understanding, aren’t there?‑‑‑Yes, there are.
*** LARISSA KAYE HARRISON XXN MR COLGRAVE
PN1911
So it’s on the basis of that memorandum of understanding the new template agreement was created; is that correct?‑‑‑The negotiations for the memorandum of understanding happened at approximately the same time as were the negotiations for the template agreement.
PN1912
The new template agreement maintains those three fundamental terms and conditions?‑‑‑Yes, it does.
PN1913
Is it your understanding that United Voice’s intention in relation to the new template agreement is that the same terms of that template agreement will apply to hotels that it is able to negotiate enterprise agreements or collective agreements with throughout the State of South Australia?‑‑‑It is my understanding that that template will form the basis of negotiations with individual hotels to then arrive at and through negotiations with the employees and the employer an agreement that employees were happy to accept.
PN1914
Well, that’s not really necessarily answering my question. Is United Voice’s intention, on what you’ve been told and what you understand as a former officer of United Voice, that the same terms and conditions as are outlined in that template agreement will apply to all hotels with whom United Voice negotiates such an agreement?‑‑‑No, it’s not.
PN1915
What terms do you say can be varied?‑‑‑It was open to negotiation with each individual hotel and the employees as part of the negotiations, and I can’t foreshadow what may or may not have been negotiated in the future in relation to the proposed agreement.
PN1916
Are you aware that the memorandum of understanding, in one clause, says that United Voice has asked the AHA to promote and support the bargaining protocols and relationship agreement that are contained in the schedule to the memorandum of understanding and that that would be provided to AHA’s members who seek to enter into an enterprise agreement with United Voice, “that maintains and preserves the entitlements and benefits the hotel industry in South Australia has enjoyed as a result of the Top Shelf Agreement and the schedule B provisions in the award”?
PN1917
MR BLEWETT: I object to that. That’s completely unfair. If my learned friend wants to cross-examine the witness on the basis of a document by reciting a paragraph, the simple thing to do is to provide the document to the witness.
*** LARISSA KAYE HARRISON XXN MR COLGRAVE
PN1918
MR COLGRAVE: Well, the witness has said she was privy to the negotiation of the agreement. She knows what’s in it. I can provide her with a copy.
PN1919
DEPUTY PRESIDENT BARTEL: Well, would you like a copy? Would that assist?‑‑‑Yes, it would.
PN1920
MR COLGRAVE: I will just approach. I can indicate to the Commission, it’s a discovered document. There’s no sort of surprise - - -
PN1921
DEPUTY PRESIDENT BARTEL: No, no, I understand the point you’re making, that the witness was involved in the negotiation of the document.
PN1922
MR COLGRAVE: Reading paragraph 7, you were aware of that provision in the memorandum of understanding between AHA and United Voice?‑‑‑Yes, I am.
PN1923
You say you were privy to the negotiation of the memorandum of understanding so you would have been aware that that wording was going in there?‑‑‑Yes.
PN1924
Doesn’t that suggest that United Voice wants AHA to tell its members to agree to the terms of the new template agreement?‑‑‑It suggests that the AHA should positively promote the template agreement.
PN1925
Yes. You say that there’s five hotels in South Australia that voted to make a collective agreement in the form of a new template agreement, at paragraph 10. Did those five collective agreements follow the form of the template agreement?‑‑‑They did.
PN1926
Identically, the same as?‑‑‑I wasn’t actually involved in the negotiations of those five agreements. I know from - I think I was involved in the lodgement of the documents, but I don’t recall the exact content of the agreements.
PN1927
You were involved in the lodgement of them, you know what’s in the new template agreement; can I suggest to you that there is nothing different in those five agreements, in that they are the same as the new template agreement. Would you agree with that?‑‑‑That’s my recollection, yes.
PN1928
Yes. So they’re identical in terms of the template agreement, including in relation to the salary increase?‑‑‑I think so. They wouldn’t be - they would have different scope clauses.
*** LARISSA KAYE HARRISON XXN MR COLGRAVE
PN1929
Going back to the top shelf agreements that you’ve seen, apart from scope with persons bound clauses, they’re all identical in terms of the, for example, salary increases, aren’t they?‑‑‑I’m not 100 per cent sure on that. I think there was at least one hotel that had a variation on that, but I can’t recall exactly.
PN1930
But that’s one out of probably, can I suggest in the time that you’ve been with the union, perhaps 30 or 40 or 50 collective agreements of the top shelf-type that you’ve seen?‑‑‑I don’t recall the contents of each of those individual agreements.
PN1931
No, but you’ve probably seen 40 or 50 different hotels’ collective agreements that were based on the top shelf template during your time with the union, haven’t you?‑‑‑Probably, yes.
PN1932
And you only recall one of those that had something that was different in relation to wages?‑‑‑There were some other variations in relation to particular clauses.
PN1933
Yes, I’m talking in relation to wages outcomes?‑‑‑Wages, yes.
PN1934
Okay. Now, can the witness be shown that document? Perhaps I’ll get more copies done.
PN1935
Now, hopefully you’ll see that that is the LHMU’s submissions to - well, it’s a document headed with the LHMU letterhead on it and it’s headed, “Award Modernisation Pre‑Drafting Consultations, Submissions of the Liquor, Hospitality and Miscellaneous Union” relating to transitional matters?‑‑‑Yes, that’s correct.
PN1936
Have you seen that document before?‑‑‑No, I haven’t.
PN1937
So
you weren’t privy to the preparation of that document?
---No. In fact, I can say that I’ve never had a conversation with Tim
Ferrari in relation to any provision of the awards.
PN1938
You don’t know whether anybody else, such as Mr De Troyer(?) has had discussions with Mr Ferrari prior to lodgement of this submission?‑‑‑Not that I’m aware of.
PN1939
You can see, then, on page 3 of the submission there’s a heading, “Transitional Issues State-based Differences”, and a reference to section 576T of the Workplace Relations Act as it then was? You see that?‑‑‑Yes.
*** LARISSA KAYE HARRISON XXN MR COLGRAVE
PN1940
Then paragraph 2.2, you see the paragraph - I’ll let you read it, I won’t read it out to you, the paragraph that deals with an example of State-based difference? Do you see that?‑‑‑Yes, that’s correct.
PN1941
There’s mention there that the LHMU and AHA want to retain that State-based difference for the maximum period permitted by section 576T(2). There’s no mention there that either LHMU or AHA want it to extend past that time, is there?‑‑‑No, there’s not. But I haven’t read the document exhaustively either, so - - -
PN1942
No, I’ll try and - perhaps, first, do you want some time to read.
PN1943
Perhaps, in fairness to Ms Harrison, I’m mindful of the time, I’ll provide her with the three submissions that I intend to take her to, and give her some time to read them.
PN1944
DEPUTY PRESIDENT BARTEL: Yes. Is it appropriate to adjourn for a few minutes?
PN1945
MR COLGRAVE: Perhaps adjourn for 10 or 15 minutes?
PN1946
DEPUTY PRESIDENT BARTEL: So we don’t all watch Ms Harrison read.
PN1947
MR COLGRAVE: Yes. If we adjourn for 10 or 15 minutes, in fairness to her, to allow her to read through those submissions.
PN1948
DEPUTY PRESIDENT BARTEL: Yes. Perhaps we’ll reconvene at about 20 to four, but Ms Harrison will let Andrew know when you’re ready.
SHORT ADJOURNMENT [3.33 PM]
RESUMED [3.43 PM]
PN1949
MR COLGRAVE: Now, I think perhaps just for clarity, I’d better make sure that you’ve got three different documents that I’ve got. The first is a document headed, “Award Modernisation Pre-drafting Consultation”, with the LHMU logo at the top of it, and it has a date at the bottom of each page, it says, “LHMU submission 29 May 2009”?‑‑‑That’s correct.
*** LARISSA KAYE HARRISON XXN MR COLGRAVE
PN1950
Second is a document headed, “Award Modernisation Transitional Provisions” with the LHMU logo relating to the HIGA Award, but it talks about motel employees in brackets?‑‑‑Yes.
PN1951
And it’s got a date at the bottom of 18 June 2009?‑‑‑That’s correct.
PN1952
The third is a document headed, “Hospitality Industry Modern Award 2010”, there’s no date at the bottom of each page, but it’s dated under the signing clause at the end, 1 August 2008?‑‑‑Yes, that’s correct.
PN1953
You’ve had an opportunity to read all of those. There’s nothing in any of those documents that indicates that the LHMU or any successor union would continue to seek to apply the 50 per cent loading after 1 January 2015, is there?‑‑‑There’s not.
PN1954
No. In fact, if you look at the first document, the 29 May 2009 document, I don’t mean first in terms of chronological order, if you look at the first page, the third paragraph at the “Introduction”, that says that:
PN1955
The LHMU supports the call by the ACTU for the Full Bench to develop equitable principles for transition and translation of employees on to modern award classification structures, wage rates, penalty rates, other hourly rate supplements and non-monetary conditions of employment.
PN1956
You saw that?‑‑‑Yes, I did.
PN1957
So at a national level, the LHMU were supporting the call, which at a national level the ACTU were making, that there should be a transitional translation of all employees nationally to modern national awards. You agree with that, don’t you?
PN1958
MR BLEWETT: I object to that. I mean, this is asking the witness to comment on what’s written in a submission and the submission speaks for itself. If it’s asking for something other than that, then Mr Colgrave should make that clear.
PN1959
MR COLGRAVE: I won’t pursue that question.
PN1960
At paragraph 7.10 on page 12 - - - ?‑‑‑Is that of the - - -
*** LARISSA KAYE HARRISON XXN MR COLGRAVE
PN1961
Of the same document, same document that says May 2009. As part of the discussion, it says that:
PN1962
The LHMU point out that the modern award is intended to be a fair minimum safety net and it is consistent with equity and the intention of Parliament that employees be advanced the new safety net as soon as is reasonably practicable.
PN1963
?‑‑‑That’s what it says.
PN1964
Were you aware that that was being communicated by the national office to the Commission at this time, in May 2009?‑‑‑No, I wasn’t.
PN1965
Now, the submissions on the motel employees, such as the June 2009 document, on the second page at clause 1.3, the LHMU were submitting there a phasing-in, by virtue of the table below, of the new casual loading under the award, the modern award. You see that?‑‑‑Yes, I do.
PN1966
Were you aware of that at the time? This is in South Australia, sorry?‑‑‑No, I wasn’t.
PN1967
You weren’t aware of that at the time?‑‑‑No.
PN1968
Were you aware that a similar phasing-in was proposed by the AHA - or sorry, by the LHMU in relation to hotel employees at that time?‑‑‑No, I wasn’t.
PN1969
And that the AHA in fact asked for a block exemption for the five-year period to continue to have only 50 per cent for that five-year period, and that that was ultimately accepted by the Commission?‑‑‑I wasn’t aware of the conversations at that time. I was aware of discussions which we - which I wasn’t involved in, with the Australian Hotels’ Association in relation to the 50 per cent loading as part of schedule B transitional provisions subsequent to that, but I’m not familiar at all with any of Tim Priory’s submissions.
PN1970
But you’re aware that the outcome was that there was a block exemption pursuant to schedule B for the five-year period that retained the 50 per cent without any phasing in?‑‑‑It was a separate application to vary the awards I believe that was made.
*** LARISSA KAYE HARRISON XXN MR COLGRAVE
PN1971
All right. That’s what you believe, but you weren’t party to that, you weren’t - - - ?‑‑‑I was party to the schedule B transitional provisions.
PN1972
You represented the LHMU in relation to those?‑‑‑In some of the hearings. Our national office did some.
PN1973
All right. So having been involved in the schedule B variation, and the retention of the 50 per cent loading for that five-year period to 1 January 2015 in South Australia, you were aware that the maximum statutory period of retention of that condition was five years, weren’t you?‑‑‑Yes.
PN1974
So you are aware, therefore, that the intention of United Voice to retain that 50 per cent loading for casual employees for all hours work in South Australia following 1 January 2015 is contrary to that statutory limitation?‑‑‑The statutory limitation, I should have clarified this, was with - is in relation to State-based differential. I can’t say I - it’s not the case that there wasn’t consideration given in relation to broader aspects of the award and whether or not it would be a State-based differential.
PN1975
Well, the new template you’ve talked about in your affidavit and the memorandum of understanding between the AHA SA and United Voice SA relates only to the State of South Australia?‑‑‑That’s correct.
PN1976
Yes, and the State-based differentiation that was maintained by the variation to the maximum allowance period pursuant to statute related to South Australia only, didn’t it?‑‑‑That’s correct.
PN1977
So in relation to the memorandum of understanding entered into late last year with United Voice - between United Voice and AHA and the new template agreement, you agree that that seeks to extend the 50 per cent loading for casual employees in South Australia beyond the maximum statutory period - - -
PN1978
MR BLEWETT: I object to that. As I understand what’s being put to this witness, it is that the maximum translation period for State-based differentials in the modern award is five years. Section 576T, nor any other part of the Act, says anything else about maintaining provisions that are contained during a translational period through enterprise bargaining agreements for any - they say nothing about enterprise bargaining whatsoever. So the proposition put by my learned friend, which mixes up some more bits in fact, is (a) wrong, and (b) unfair to put to this witness.
*** LARISSA KAYE HARRISON XXN MR COLGRAVE
PN1979
MR COLGRAVE: Well, I thought I’d laid the foundation in relation to the award, and these being questions in relation to the modern award and having asked the witness questions about the representations made relating to the transition to the modern award, and I’m relying upon Ms Harrison being an experienced industrial advocate to understand the basis of my question, but if my learned friend wants me to be that clear, I’ll try and rephrase the question.
PN1980
DEPUTY PRESIDENT BARTEL: I think the objection might be that within the question it implied that there was something wrong in seeking to incorporate provisions which may have been phased out in the award, in the agreement.
PN1981
MR COLGRAVE: Yes. Well, I do mean to imply that there’s something wrong, but it’s not necessarily that there is anything illegal. I’m not intending to imply that. I’m intending - I’m suggesting - and I’ll perhaps suggest it in this way, that to continue to seek to have agreement in relation to the 50 per cent loading applying to all casual employees in South Australia in the hospitality industry is contrary to the phasing-in provisions of the modern award and it’s contrary to the maximum statutory period for which that was allowed in the modern award.
PN1982
MR BLEWETT: Well, I object to that, because the - - -
PN1983
DEPUTY PRESIDENT BARTEL: The mixed concepts, what’s in an agreement, what’s in an award - - -
PN1984
MR COLGRAVE: I’m only asking about it being contrary to the award. I’m not suggesting you can’t negotiate an enterprise agreement to that effect. If you want me to clarify. I’m not suggesting that - - -
PN1985
DEPUTY PRESIDENT BARTEL: Look, most enterprise agreements contain provisions which are contrary to the award. If that’s the sort of context of your question, that it’s something which is different from that which is in the award and seeks to maintain something that was previously in the award, then I don’t think that’s objectionable. I think it’s in the way that questions are being phrased, in fairness, you find there was something wrong about that approach. Or illegal.
PN1986
MR BLEWETT: Can I clarify? The question contained an assumption about which there’s no evidence, which is the other objectionable part, which was that the union is seeking to extend the 50 per cent casual loading for all employees in South Australia. There’s no evidence - - -
PN1987
MR COLGRAVE: All casual employees.
*** LARISSA KAYE HARRISON XXN MR COLGRAVE
PN1988
MR BLEWETT: All casual employees in South Australia. There’s no evidence of that.
PN1989
DEPUTY PRESIDENT BARTEL: The evidence so far is in relation to the template agreement.
PN1990
MR COLGRAVE: Sure. Perhaps if I step through this, then.
PN1991
You’ve agreed that as part of the memorandum of understanding which led to the template agreement that United Voice has sought to have the 50 per cent casual loading continue for all employees in South Australia?‑‑‑No, that’s not correct.
PN1992
All employees covered by the HIGA in South Australia?‑‑‑That’s also not correct.
PN1993
Casual; I said 50 per cent casual loading in relation to those casual employees in South Australia?‑‑‑Can you rephrase that question?
PN1994
Well, if I’m asking about casual loading, I’m only talking about casual employees. Can you accept that as a principle, as a proposition?‑‑‑Sure.
PN1995
Right. So the memorandum of understanding states that the AHA and United Voice agree that as a principle that will form the basis of the new enterprise agreement, maintaining a range of specific long-term South Australian hotel industry provisions, includes maintaining 50 per cent casual loading, noting the modern award coverage for the provision ceases on 31 December 2014. Do you agree that that is a term of the memorandum of understanding?‑‑‑Yes, I do.
PN1996
That has been negotiated as a term of the new template agreement. I can take you to the actual clause of the template agreement, but that’s locked in the new template agreement, isn’t it?‑‑‑Well, not locked in. It’s in the template agreement, yes.
PN1997
It would be inconsistent with the memorandum of understanding if that wasn’t in the template agreement, wouldn’t it be?‑‑‑Yes.
PN1998
And it would be inconsistent with the AHA being told to encourage its members to follow the template agreement if that wasn’t part of an enterprise agreement, wouldn’t it?
*** LARISSA KAYE HARRISON XXN MR COLGRAVE
PN1999
MR BLEWETT: I object to that. There’s no evidence the AHA has been told to tell its members anything.
PN2000
MR COLGRAVE: It would be inconsistent with what is stated at clause 7 that I showed you before in relation to the relationship commitments about the AHA SA promoting and supporting the bargaining protocols and relationship agreement contained in schedule 1, and that that be provided to its members who seek to enter into an enterprise agreement with United Voice that maintains and preserves the entitlements and benefits the hotel industry in South Australia has enjoyed as a result of the Top Shelf Agreement and the schedule B provisions in the award. That’s what that says, and that’s what you read before, isn’t it?‑‑‑That’s correct.
PN2001
So it’s inconsistent with that clause if the AHA didn’t provide to its members that enterprise agreement and promote and support that to its members, wouldn’t it be? It would be inconsistent with that provision of the memorandum of understanding if the AHA didn’t promote and support the maintenance of the 50 per cent loading for casual employees in an enterprise agreement?‑‑‑Can I see the paragraph 7 of that? That’s correct.
PN2002
So, sorry, you agree with - - - ?‑‑‑Yes, I do.
PN2003
So you agree that the memorandum of understanding specifically notes that the modern award coverage for schedule B of - no, sorry. I withdraw that. You agree that the memorandum of understanding notes modern award coverage for this provision, being maintenance of the 50 per cent casual loading, ceased on 31 December 2014?‑‑‑Yes.
PN2004
So you agree, then, that by seeking to maintain that 50 per cent casual loading for all South Australian casual employees in the hospitality industry, that that is not consistent with the cessation of that on 31 December 2014?
PN2005
MR BLEWETT: I object to that. We come back to the same problem. If what my learned friend is trying to assert is that paragraph 7 is saying that - - -
PN2006
MR COLGRAVE: We’re not looking at paragraph 7 now.
PN2007
MR BLEWETT: Or the MOU is seeking to maintain its 50 per cent casual loading for all South Australians employed under the HIGA. It’s just not what it says.
*** LARISSA KAYE HARRISON XXN MR COLGRAVE
PN2008
MR COLGRAVE: Look at 2.1(a). That’s what I was just putting to her.
PN2009
DEPUTY PRESIDENT BARTEL: Mr Blewett, is your objection to the fact that Mr Colgrave referred to an inconsistency between the MOU in relation to the 50 per cent casual loading and the phasing out of the 50 per cent casual loading in the award?
PN2010
MR BLEWETT: No. It was just his assertion that the MOU is about seeking to extend the 50 per cent casual loading to all employees in South Australia, or all casual employees covered by the HIGA in South Australia, when the MOU just doesn’t say that.
PN2011
DEPUTY PRESIDENT BARTEL: As opposed to the AHA members?
PN2012
MR BLEWETT: As opposed to the AHA members, or what it actually says is those members of the AHA who seek to enter into an enterprise agreement with United Voice that maintains these provisions. That’s what the MOU says.
PN2013
MR COLGRAVE: Well, I’ll read from 2.1 and I’ll get a copy of this to tender. It might be helpful for you because I’m sure you don’t have a copy of the - you’re looking at the moment. I had hoped I would have one. But 2.1, Ms Harrison, says, and this is under the heading “Negotiating Principles”, negotiating principles for the new template agreement, you agree with that?‑‑‑I’ll take your word for it. I don’t have a copy of it in front of me.
PN2014
Perhaps if Mr Blewett gives you - okay.
PN2015
MR BLEWETT: While we pause, my real objection is this is a document, it’s a document between the union and the AHA. It speaks for itself. Asking the witness, whoever it is, to comment on what the document means is inappropriate. I mean, the document explains - it’s set out. We can all read it and understand it and make submissions on what it says. Having one person’s view about what it might mean is not helpful to the Commission.
*** LARISSA KAYE HARRISON XXN MR COLGRAVE
PN2016
MR COLGRAVE: In my submission, I’m entitled to cross-examine Ms Harrison about these broader issues because Ms Harrison, in her affidavit, talks about her responsibility in assisting in negotiation of template or framework agreements. It talks about the top shelf agreement, it talks about the two main motivations for negotiating the top shelf agreements. So she has said this in her evidence-in-chief, at that policy level, she’s given evidence about these sorts of things. It’s my submission, open to me, to cross-examine her and to that extent, also Ms Duke, who gives evidence of a similar type, about these issues.
PN2017
DEPUTY PRESIDENT BARTEL: I think there is a distinction between asking the witness to express her view on the meaning of particular provisions within the agreement, just for the sake of getting that evidence. If it’s part of some broader line of questioning that’s leading somewhere else, then it’s probably appropriate. So if it’s going somewhere else, I’ll allow it, but if it’s just - because the document will speak for itself and the parties can make submissions on that, but if it’s part of some broader issue that you’re leading to, then I’ll allow it. So I take it that it is part of a - - -
PN2018
MR COLGRAVE: Well, it is part of the broader issue in relation to some of the things I’ve opened on, yes.
PN2019
DEPUTY PRESIDENT BARTEL: So in relation to the template agreement?
PN2020
MR COLGRAVE: Yes.
PN2021
DEPUTY PRESIDENT BARTEL: Well, I’ll let you go a bit further and we’ll see where we go.
PN2022
MR COLGRAVE: Yes, and I am aware of the time.
PN2023
If I can take you to 2.1(a) again, the maintenance of the 50 per cent casual loading, noting the modern award coverage for this provision ceases on 31 December 2014, is a fundamental plank of the template agreement, isn’t it?‑‑‑That’s correct.
PN2024
It’s a fundamental part of that new template agreement that 50 per cent casual loading continues, isn’t it?‑‑‑Yes, it is.
PN2025
Those five agreements that you talk about in paragraph 10, that have been agreed since the new template has been adopted all have that provision in them?‑‑‑Yes, they do.
PN2026
As I think you’ve already said, those five hotels all have agreements identical to the form of the template, don’t they?‑‑‑To the best of my recollection, yes.
PN2027
To the best of your recollection.
*** LARISSA KAYE HARRISON XXN MR COLGRAVE
PN2028
As I say, I won’t dwell any further on the memorandum of understanding, but I will, in the adjournment period between now and when we reconvene again, obtain a copy and seek to tender that, and Mr Blewett won’t object to that.
PN2029
Your calculations, Ms Harrison, I think you’ve agreed with Mr Blewett that you didn’t factor in some differential public holiday rates into those calculations?‑‑‑In relation to the part-day public holidays, no, I didn’t.
PN2030
Part-day public holidays?‑‑‑Yes.
PN2031
What about in relation to meal breaks for hours worked after 7 pm? What did you do in relation to your calculations in that regard?‑‑‑It was as per my affidavit. I essentially - if the shift was longer than five and a half hours, I assumed that there was half an hour unpaid meal break, and if the shift fell after - or finished after 7 pm, I assumed that that meal break fell after 7 pm.
PN2032
Right. But were you able to tell from the rosters when the meal break was taken?‑‑‑No, I wasn’t.
PN2033
There’s no overtime calculated in these either?‑‑‑No, there’s not, but my understanding is that there’s no overtime under either the award or the agreement for casuals.
PN2034
None of these calculations factor in any of the individual arrangements that were entered into with certain individuals prior to the application to terminate the agreement?‑‑‑I’m not aware of individual arrangements with any of the staff. So, no, is the answer.
PN2035
You weren’t aware of any individual arrangements so they haven’t been factored in?‑‑‑That’s correct.
PN2036
So if individual arrangements had been made with, for example, Mr Lane, whereby - - - ?‑‑‑He’s maintained his current rate.
PN2037
He’s maintained his current rate of pay under the agreement for the new - sorry, under the agreement, if the agreement was terminated. That would materially affect your calculations for Mr Lane, wouldn’t it?‑‑‑When you talk about “maintain” rate of pay, I presume you’re talking about penalty rates and what not?
*** LARISSA KAYE HARRISON XXN MR COLGRAVE
PN2038
Yes. Maintained his rate of pay that would be applicable to him under the agreement?‑‑‑Well then obviously it would affect the calculations in relation to - the assumptions done on the agreement versus the award provisions.
PN2039
Yes. So in terms of Mr Lane, therefore, if his agreement rates of pay were maintained, there wouldn’t be any differential, would there?‑‑‑That’s correct.
PN2040
In fact, he’d be better off, because he’s probably getting some Sunday work or public holiday work which is more remunerative to him under the award?‑‑‑It would depend on what arrangements had entered into with Mr Lane, which I don’t know.
PN2041
Well, if I told you his hourly rate, his agreement hourly rate, has been maintained, if he got Sunday work at that agreement hourly rate, he’d be better off under the HIGA, wouldn’t he? You’d use the agreement hourly rate and multiply it by the HIGA loading for the Sunday?‑‑‑On the promise that you’re saying that he would be 150 per cent times the Sunday loading, then yes, but I haven’t seen - I don’t know what arrangements have been entered into.
PN2042
No. Well, you don’t know the arrangements. Have you factored in, in examining those rosters for those staff, any periods where they may have been working higher duties?‑‑‑No, I haven’t. No. I couldn’t see from any of the information that’s provided about - - -
PN2043
Well, there wasn’t anything on the roster that would have indicated whether they were working higher duties or not?‑‑‑No. I mean, I used the levels that were provided, I think, as part of the document discovery in terms of what levels people were paid.
PN2044
Yes. What about working on Christmas Day and the loadings applicable to individuals working on Christmas Day under the HIGA? Did you factor that in to the calculations?‑‑‑I’m not aware that there are - - -
PN2045
It’s 300 per cent on Christmas Day under the HIGA?‑‑‑I guess I didn’t, if that’s the case. But - no, that’s right.
PN2046
Mr Siebert had only worked for about a 17-week period during the time that you saw timesheets for, and Ms Trinne, T-r-i-n-n-e, only worked for nine weeks during that period; that’s correct, isn’t it?‑‑‑Yes, that’s correct.
*** LARISSA KAYE HARRISON XXN MR COLGRAVE
PN2047
So can I suggest that the rostering pattern for those two employees particularly may not have been as typical for what they might be expected to work over the course of the year compared to the other employees?
PN2048
MR BLEWETT: This witness can only comment on the material that’s been provided to her. She can’t know what the practices might turn out to be.
PN2049
MR COLGRAVE: I’ll reserve it for submissions, that’s all right.
PN2050
Did you factor in any meal break loading, when there are split shifts, if the employees were allowed to go home for their meal break or stay at work for their meal break?‑‑‑No. In fact, split shifts weren’t factored in at all because I couldn’t tell when breaks occurred during shifts, so there may have been periods of unpaid time as well in the middle of a broken shift.
PN2051
But you just couldn’t tell that from the payroll record?‑‑‑No, I couldn’t.
PN2052
Or the rosters. I have no further questions of Ms Harrison.
PN2053
DEPUTY PRESIDENT BARTEL: Did you want to do anything with the documents?
PN2054
MR COLGRAVE: I don’t think it’s appropriate to tender them because I don’t think they’re actual evidence. I mean, they are public records, that’s how I’ve done - they are submissions that are available through the Commission’s website.
PN2055
DEPUTY PRESIDENT BARTEL: The website.
PN2056
MR COLGRAVE: So I intend to refer to them in submissions and then perhaps use them, as I said, for cross-examination of Ms Duke, but I don’t think it’s appropriate to tender them, or even mark them for identification, unless you wish to.
DEPUTY PRESIDENT BARTEL: No, that’s fine.
RE-EXAMINATION BY MR BLEWETT [4.15 PM]
*** LARISSA KAYE HARRISON RXN MR BLEWETT
PN2058
MR BLEWETT: Just on those documents, the three sort of submissions of the LHMU that you had a chance to read, is there anything in any of those documents about the LHMU’s intended approach in South Australia to enterprise bargaining, either before or after 1 January 2015?‑‑‑No, there’s not.
PN2059
These are submissions in respect to the modern award?‑‑‑That’s correct.
PN2060
The MOU that’s been reached with the AHA, are you aware - sorry - do you recall whether the United Voice approached the AHA to embark upon MOU discussions, or did the AHA approach United Voice?‑‑‑It wasn’t as part of the - specifically about an MOU. I know that the Australian Hotels Association approached United Voice towards the end of last year in relation to negotiations around the template agreement.
PN2061
When you say “last year”, do you mean 2013?‑‑‑Yes. Yes, I do.
PN2062
Just in relation to your calculations, you indicated that you assumed where a shift was longer than I think five and a half hours and that finished after 7 pm, you assumed the meal break occurred after 7 pm for the purposes of your calculation? Do you recall giving that evidence?‑‑‑Yes, I do.
PN2063
Is there any rationale for making that assumption?‑‑‑I made that assumption on the basis that from my experience, normally meal breaks are taken towards the latter end of a shift in order to provide a break, but I appreciate that that may not have been when shifts were taken.
PN2064
Thank you. I’ve got no further questions.
DEPUTY PRESIDENT BARTEL: Thanks, Ms Harrison. You can step down.
<THE WITNESS WITHDREW [4.18 PM]
PN2066
MR BLEWETT: That’s the end for today. That leaves Ms Duke and submissions, and any consideration of further evidence occasioned by this late attack on United Voice’s enterprise bargaining approach.
PN2067
DEPUTY PRESIDENT BARTEL: That’s probably wise. That won’t leave you too long between now and further submissions, then.
*** LARISSA KAYE HARRISON RXN MR BLEWETT
PN2068
MR COLGRAVE: If there’s going to be any such evidence, can that be provided in affidavit form within a certain period before the resumed hearing to enable me to consider it?
PN2069
DEPUTY PRESIDENT BARTEL: Yes.
PN2070
MR BLEWETT: I think that’s appropriate. I think I should have a time where I have to advise people about what’s going on, and then a time to provide that evidence.
PN2071
DEPUTY PRESIDENT BARTEL: Perhaps we can just go off the record. Thank you, yes. We will adjourn until 1.30 pm on Wednesday, 25 February.
ADJOURNED UNTIL WEDNESDAY, 25 MARCH 2015 [4.24 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
LENA ATHANASIOU, RECALLED ON FORMER OATH.......................... PN997
CROSS-EXAMINATION BY MR BLEWETT................................................ PN997
RE-EXAMINATION BY MR COLGRAVE................................................... PN1197
THE WITNESS WITHDREW.......................................................................... PN1237
KINGSLEY JOHN SMITH, SWORN.............................................................. PN1245
EXAMINATION-IN-CHIEF BY MR COLGRAVE...................................... PN1245
EXHIBIT #A5 SWORN AFFIDAVIT OF KINGSLEY JOHN SMITH WITH FIVE ATTACHMENTS DATED 18/02/2015............................................................. PN1253
CROSS-EXAMINATION BY MR BLEWETT.............................................. PN1392
RE-EXAMINATION BY MR COLGRAVE................................................... PN1560
THE WITNESS WITHDREW.......................................................................... PN1578
ROBERT JOHN BYRNE, AFFIRMED........................................................... PN1582
EXAMINATION-IN-CHIEF BY MR BLEWETT......................................... PN1582
EXHIBIT #UV1 AFFIDAVIT OF ROBERT JOHN BYRNE....................... PN1591
CROSS-EXAMINATION BY MR COLGRAVE........................................... PN1602
RE-EXAMINATION BY MR BLEWETT...................................................... PN1629
THE WITNESS WITHDREW.......................................................................... PN1632
NATHAN LIAM THOMPSON, AFFIRMED................................................. PN1638
EXAMINATION-IN-CHIEF BY MR BLEWETT......................................... PN1639
EXHIBIT #UV2 SWORN AFFIDAVIT OF NATHAN LIAM THOMPSON WITH ONE ATTACHMENT.................................................................................................. PN1648
CROSS-EXAMINATION BY MR COLGRAVE........................................... PN1650
RE-EXAMINATION BY MR BLEWETT...................................................... PN1713
THE WITNESS WITHDREW.......................................................................... PN1719
EXHIBIT #UV3 AFFIDAVIT OF KELLY EDWARDS............................... PN1752
REBECCA LEIGH HUTT, SWORN............................................................... PN1753
EXAMINATION-IN-CHIEF BY MR BLEWETT......................................... PN1753
EXHIBIT #UV4 AFFIDAVIT OF MS REBECCA LEIGH HUTT WITH TWO ATTACHMENTS............................................................................................................................... PN1763
CROSS-EXAMINATION BY MR COLGRAVE........................................... PN1766
RE-EXAMINATION BY MR BLEWETT...................................................... PN1828
FURTHER CROSS-EXAMINATION BY MR COLGRAVE...................... PN1841
THE WITNESS WITHDREW.......................................................................... PN1848
LARISSA KAYE HARRISON, AFFIRMED.................................................. PN1849
EXAMINATION-IN-CHIEF BY MR BLEWETT......................................... PN1849
EXHIBIT #UV5 AFFIDAVIT OF LARISSA KAYE HARRISON WITH ONE ATTACHMENT............................................................................................................................... PN1861
CROSS-EXAMINATION BY MR COLGRAVE........................................... PN1871
RE-EXAMINATION BY MR BLEWETT...................................................... PN2057
THE WITNESS WITHDREW.......................................................................... PN2065
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/other/FWCTrans/2015/157.html