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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1051554-1
SENIOR
DEPUTY PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT O'CALLAGHAN
COMMISSIONER CRIBB
AM2014/91
s.156 - Four
yearly review of modern awards
Four yearly review of modern awards
(AM2014/91)
Textile, Clothing, Footwear and Associated Industries Award 2010
(ODN AM2008/12)
[MA000017 Print PR985127]]
Melbourne
10.03 AM, THURSDAY, 19 MARCH 2015
Continued from 13/03/2015
PN960
THE SENIOR DEPUTY PRESIDENT: Yes, as is apparent I'm sitting alone today, delegated by the Full Bench to hear the remaining evidence. Obviously my colleagues will have regard to the transcript of that evidence. We'll resume with Ms Nguyen.
PN961
MS WILES: Your Honour, thank you. Yes before we get to Ms Nguyen, the TCFUA seeks to tender a bundle of documents produced by the TCFUA which have been translated. This follows on from an issue raised by Mr Mead in cross‑examination of Miss O'Neill last Friday.
PN962
THE SENIOR DEPUTY PRESIDENT: Yes.
PN963
MS WILES: I understand that Mr Mead seeks to cross‑examine Ms Nguyen about some of that material, and we don't object to that on the basis that AIG won't object to its tendering. I'm not aware of the view of ABI at this stage.
PN964
THE SENIOR DEPUTY PRESIDENT: Sorry, could you repeat that? Could you speak up a little?
PN965
MS WILES: I understand that the Ai Group - we've just had a discussion prior to commencing - that they seek to cross‑examine Ms Nguyen on some of that material.
PN966
THE SENIOR DEPUTY PRESIDENT: I see.
PN967
MS WILES: We won't object to that.
PN968
THE SENIOR DEPUTY PRESIDENT: Right, okay.
PN969
MS WILES: On the understanding that AIG won't be objecting to its tendering.
PN970
THE SENIOR DEPUTY PRESIDENT: Very well. There's no objection?
PN971
MR MEAD: That is the position. I only expect to probably have half a dozen questions in relation to material to Ms Nguyen.
PN972
THE SENIOR DEPUTY PRESIDENT: Yes.
PN973
MR MEAD: But no objection to its tender on that basis.
PN974
THE
SENIOR DEPUTY PRESIDENT: Well, I'll receive that bundle of translated
material. It will be exhibit
CMFEU ‑ ‑ ‑
PN975
MS WILES: Your Honour I did have ‑ ‑ ‑
THE SENIOR DEPUTY PRESIDENT: Just one second. Sorry, I'm still in my timber mode. TCFUA 5.
EXHIBIT #TCFUA5 BUNDLE OF TRANSLATED DOCUMENTS
PN977
MS WILES: Your Honour I produced six bundles, but given that Mr Mead is going to cross‑examine Ms Nguyen on it I've provided a bundle to Ms Nguyen. But once her evidence is completed we can provide that bundle so that the Bench has three bundles.
PN978
THE SENIOR DEPUTY PRESIDENT: Yes, well I think we can accept it as a bundle and we can go to relevant pieces of it.
PN979
MS WILES: If the Commission pleases.
PN980
THE SENIOR DEPUTY PRESIDENT: Yes. We're ready for Ms Nguyen?
PN981
MS WILES: I am. I think Mr Scott wanted to put some issues to you.
PN982
THE SENIOR DEPUTY PRESIDENT: I see.
PN983
MR SCOTT: Thank you. Your Honour it might be an appropriate time to seek to tender a document. You might recall on Friday there were some amended witness statements, and the identity of one of those employers was disclosed.
PN984
THE SENIOR DEPUTY PRESIDENT: Yes.
PN985
MR SCOTT: That being Clickcorp.
PN986
THE SENIOR DEPUTY PRESIDENT: Yes.
PN987
MR SCOTT: Following Friday we reached out to Clickcorp, and I've got a document here which is email correspondence between myself and Mr Traines of Clickcorp. So I seek to tender that document. I'm not sure whether there's any opposition to that.
PN988
THE SENIOR DEPUTY PRESIDENT: I presume Ms Wiles has seen it?
PN989
MR SCOTT: Yes, I provided her with a copy this morning.
PN990
THE SENIOR DEPUTY PRESIDENT: Yes. Yes, Ms Wiles?
PN991
MS WILES: Your Honour, given the circumstances of Ms Nguyen's amended statement we won't object.
PN992
THE SENIOR DEPUTY PRESIDENT: Yes.
PN993
MS WILES: But we would obviously reserve our rights to ask questions as part of re‑examination.
THE SENIOR DEPUTY PRESIDENT: Very well. I'll mark the correspondence between Mr Scott and the Clickcorp representative exhibit ABI 1.
EXHIBIT #AB1 CORRESPONDENCE BETWEEN MR SCOTT AND THE CLICKCORP REPRESENTATIVE
PN995
THE SENIOR DEPUTY PRESIDENT: And obviously you'll be putting those matters to Ms Nguyen in the course of her evidence?
PN996
MR SCOTT: Of course.
PN997
THE SENIOR DEPUTY PRESIDENT: Yes.
PN998
MR SCOTT: Thank you.
PN999
THE SENIOR DEPUTY PRESIDENT: Anything further?
PN1000
MS WILES: Your Honour, while I'm on my feet it's probably good to get the procedural matters out of the way. There is the issue of Mr Butler's evidence. As far as I'm aware I don't think your Honour, ruled on its admissibility at the last hearing. We objected to the admissibility of that statement because it was six days late after directions.
PN1001
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1002
MS WILES: And we believe that caused prejudice to the union. If we'd known - if we'd had an additional week we may well have filed additional statements as well.
PN1003
THE SENIOR DEPUTY PRESIDENT: Yes, well I propose for the Bench to accept the statement and evidence of Mr Butler. I think there has been time, given the breaks we've had, for the union to prepare for that and deal with it.
PN1004
MS WILES: If the Commission pleases.
PN1005
THE SENIOR DEPUTY PRESIDENT: Yes, very well.
Ms Nguyen, we'll get you back into the witness box.
<THI CHUK LY NGUYEN, RECALLED ON FORMER OATH [10.09 AM]
PN1007
THE SENIOR DEPUTY PRESIDENT: Ms Nguyen, you remain under the oath which you took on the last occasion. Do you understand that?‑‑‑(No audible reply).
Very well, please take a seat.
EXAMINATION-IN-CHIEF BY MS WILES [10.09 AM]
PN1009
MS WILES: Ms Nguyen, do you have a copy of your amended statement in front of you today?‑‑‑Yes I do.
PN1010
Yes, and you've had an opportunity to re-read it prior to today's proceedings?‑‑‑It should be amended.
PN1011
So you'd like to make a change to that amended statement?---Yes.
*** THI CHUK LY NGUYEN XN MS WILES
PN1012
Which paragraph is that?‑‑‑The paragraph 15.
PN1013
THE SENIOR DEPUTY PRESIDENT: 15?‑‑‑Yes. The - yes, it's just amended date.
PN1014
MS WILES: Can you explain where that is?
PN1015
THE SENIOR DEPUTY PRESIDENT: Is that the 9 January date?---Yes, so number - so the date on 9 January 2013.
PN1016
MS WILES: Rather than 15?‑‑‑15, yes.
PN1017
Yes, thank you.
PN1018
THE SENIOR DEPUTY PRESIDENT: January two thousand and?‑‑‑13.
PN1019
13?‑‑‑Yes.
PN1020
Yes?
PN1021
MS WILES: Thank you.
PN1022
THE SENIOR DEPUTY PRESIDENT: Whilst we're talking about dates, can I take you to paragraph 17 of the statement. Approximately when did those events occur, the ones referred to in paragraph 17 of your statement, the clothing manufacturer who sent work? If you perhaps go to paragraph 17 of your statement?‑‑‑Yes, your Honour.
PN1023
Approximately when did that occur?‑‑‑That - yes, I can't remember. December, around December - I don't know, December '13.
PN1024
Very well. Thank you. That's the only - the 9 January 2013 is the only change you wish to make to your amended statement?‑‑‑Yes, your Honour.
PN1025
Very well, and the information in that statement is true and correct?‑‑‑Yes, your Honour,.
*** THI CHUK LY NGUYEN XN MS WILES
PN1026
You adopt that as your evidence in these proceedings?‑‑‑Yes.
Very well, I'll mark it exhibit TCFUA 6.
EXHIBIT #TCFUA6 AMENDED WITNESS STATEMENT OF THI CHUK LY NGUYEN
PN1028
MS WILES: Ms Nguyen, in paragraph 3 of your statement you outline your experience with the TCFUA. Can you please tell the Commission your experience prior to working for the TCFUA?‑‑‑Yes, before I work for TCFUA I was a primary teacher back home in Vietnam, and when I came here I studied Master of Education, Diploma in TESOL, the Teach English as a Second Language and also the Certificate IV in Training and Assessment.
PN1029
Thank you. Now you state at paragraph 4 that you are fluent in Vietnamese and English. In your work as an organiser with the TCFUA how often would you be required to use both your English and Vietnamese skills?‑‑‑Yes, every day.
PN1030
In paragraph 5 of your statement you say that:
PN1031
In all of the workplaces I visit more than half the workers are from a non‑English speaking background.
PN1032
Apart from Vietnamese, what are the other main language groups of the workers you visit in workplaces on your round?‑‑‑Yes, other languages I come across is Chinese, Greek, Italian, Cambodian. Yes.
PN1033
And they'd be the main languages?‑‑‑Main - yes, there's not a lot of them speak the languages but, yes.
PN1034
Yes, okay, and so when you visit outworkers at home what percentage of those workers would be from a non‑English speaking background?‑‑‑Yes, virtually the hundred per cent.
PN1035
Okay, and the main language or languages that outworkers speak in terms of the ones that you visited?‑‑‑Yes, the main language are Vietnamese, yes. Vietnamese, yes.
*** THI CHUK LY NGUYEN XN MS WILES
PN1036
And when you visit workers in sweat shops generally speaking what percentage of those workers would be from a non‑English speaking background?‑‑‑Around 100 per cent.
PN1037
Okay, and again what would be the main language of those workers in sweat shops?‑‑‑Vietnamese.
PN1038
THE SENIOR DEPUTY PRESIDENT: What do you mean by sweat shop? How would you define a sweat shop?‑‑‑Sweat shop are the factory that have very small numbers of workers.
PN1039
Yes?‑‑‑And they - yes, they are under TCF Award.
PN1040
Yes.
PN1041
MS WILES: And Ms Nguyen, just following on from His Honour's question what generally from your experience are the conditions like in sweat shops?‑‑‑Because they don't have the delegates structure and normally there is a lot of woman, they non‑English speaking workers and like very small workplaces, around less than 10. Some workplaces like sweat shop like three, four, five, less than 10 workers.
PN1042
And the conditions in those sweat shops, are people getting paid the correct wages usually?‑‑‑No. No.
PN1043
And what about other conditions such as leave?‑‑‑Yes, so they - annual leave?
PN1044
Any sort of leave, sick leave, annual leave?‑‑‑Yes, some workers they have - different from factory to factories, but normally they can't - they have annual leave but they can't take it, you know, when they request or - yes, condition is not very good.
PN1045
And in your experience are workers in sweat shops usually unionised?‑‑‑No.
PN1046
Okay, and why do you think that is?‑‑‑Yes, because they're very fearful to join the union. They scare of being sack if they join a union, and with the boss, because very small numbers of workers. So if the boss know that they are union members they will sack them.
PN1047
And in your experience, Ms Nguyen, is it - sorry.
*** THI CHUK LY NGUYEN XN MS WILES
PN1048
THE SENIOR DEPUTY PRESIDENT: Yes?
PN1049
MR MEAD: It's difficult to see how this arises from Ms Nguyen's statement. It seems like Ms Wiles is now just free-wheeling with new evidence about sweat shops. We'd object to this line of questioning continuing, your Honour.
PN1050
THE SENIOR DEPUTY PRESIDENT: Yes, well I raised the question to try and get some understanding of what we're talking about and Ms Wiles is following up on that. But I don't think we can take it a great deal further, Ms Wiles.
PN1051
MS WILES: Thank you, your Honour.
PN1052
Now Ms Nguyen in paragraph 7 of your statement you say there:
PN1053
For the Vietnamese workers there is also a cultural pressure to not make trouble in the community.
PN1054
What do you mean by that?‑‑‑Because that the culture that is very that the Vietnamese employees against the boss, because very - we very tight knit in the community. We know mostly people - because that - not many - there's very small community. So normally the people they don't want to against other people because they worried that in the community the word will be spread and it's hard for them in the future to face with that person in the community, or to find a work in different other places.
PN1055
Now in paragraph 8 you say that most of the workplaces you organise at are small. Apart from the sweat shops which you've already given evidence about, what sort of numbers do you mean? What's the sort of average size of a workplace other than a sweat shop?‑‑‑Yes, so normally it's less than 50 workers in the factory. They - like it can be small, like three or four workers to up to 20, 30 or 40 workers.
PN1056
Thank you. In paragraph 9 of your statement you say that in your experience when you've assisted Vietnamese workers with interpreting and translation. Would it be the case that there are times when you've assisted workers who have some level of spoken English?‑‑‑Yes.
PN1057
But do those workers still need assistance in terms of translated documents?
*** THI CHUK LY NGUYEN XN MS WILES
PN1058
THE SENIOR DEPUTY PRESIDENT: Well, I think that's an entirely leading question. We've got the answer, we can't expect Ms Nguyen to provide the question.
PN1059
MS WILES: I'll withdraw the question, your Honour.
PN1060
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1061
MS WILES: Ms Nguyen is it common in the TCF industry for employers to provide two workers from a non‑English speaking background any translated material?
PN1062
MR MEAD: Perhaps Ms Wiles could rephrase the question? I don't believe Ms Nguyen's statement is authority for what generally occurs in the TCF industry. In fact her statement is limited to her experience in small workplaces.
PN1063
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1064
MR MEAD: So I don't think Ms Nguyen can provide any evidence at large about what happens in the industry.
PN1065
THE SENIOR DEPUTY PRESIDENT: Yes, I think if you can frame the question in terms of Ms Nguyen's particular knowledge.
PN1066
MS WILES: So at paragraph 12 of your statement you say there:
PN1067
I'm aware that in the majority of workplaces in the industry the employer only provides information to workers in English.
PN1068
In terms of your organising round is it common for employers to provide translated material to employees?‑‑‑Yes, most of them. Yes.
PN1069
So do you understand the question? That in terms of employees from a non‑English speaking in your round, is it common for employers to provide information in writing which is translated?‑‑‑No, no. Not translated. Yes, they just provide in English.
*** THI CHUK LY NGUYEN XN MS WILES
PN1070
English, okay. Ms Nguyen, I want to ask you some questions in relation to a number of the witness statements that have been produced by Australian Business Industrial?‑‑‑Okay.
PN1071
Now the witness statement of Mr Tony Butler, at paragraph 9 of his statement he says:
PN1072
When communicating with staff members who have poor English skills I try to speak in clear and simple English in terms and words that they can understand. In my experience this is usually effective.
PN1073
In your experience dealing with the workplaces and the workers on your round, would you agree that that approach is usually effective?‑‑‑No, it's not at all because the difference between the bilingual person and a very good - like speaking language. Because it's - they translate, maybe it cause misunderstanding and sometimes if they fluent just only one of the language.
PN1074
THE SENIOR DEPUTY PRESIDENT: I take it you've not dealt with J Robins Manufacturing personally? You haven't dealt directly with Mr Butler's firm, J Robins Manufacturing?‑‑‑No.
PN1075
No, nor I presume Akubra, Mr Wilkinson's company?‑‑‑Can you please speak louder please?
PN1076
You haven't dealt with Akubra yourself personally?‑‑‑No.
PN1077
Yes, very well. So it's a more general knowledge?‑‑‑Yes.
PN1078
Yes.
PN1079
MS WILES: And just following on from your last answer, the word consultation, in your experience dealing with Vietnamese members do they understand what that concept means?‑‑‑No, it's very hard to explain the words consultation because even for myself when I translate or explain to the workers, I have to express different ways to explain the words consultation in my - in our language.
PN1080
Now Mr Butler at paragraph 12 of his statement says, and I quote:
*** THI CHUK LY NGUYEN XN MS WILES
PN1081
When situations arise where employees have difficulty understanding instructions it is customary for other employees to come to their aid by clarifying or interpreting for them.
PN1082
In your experience is that an effective way of communicating information to a person from a non‑English speaking background?‑‑‑No. No, even the workers if they speak quite good English but it's with the termination - the terminology in the award it's quite difficult to explain or translate to another person. Therefore for my experience, for myself, because I'm deal with the award on day to day basis so I understand clearly what it mean. But for the workers, even though they speak very good English, but they just rarely see the terms so I don't think they can translate very well or translate to other people.
PN1083
THE SENIOR DEPUTY PRESIDENT: Does the TCFUA provide access to translated versions of the award to its members so that they can understand the terms and conditions in their own language?‑‑‑Yes. Yes. Sorry, can you repeat the question? Can you repeat the question please?
PN1084
Does the TCFUA have translated copies of the Textiles Award, the Clothing Textiles Award, which members can access so that they can understand the ‑ ‑ ‑?‑‑‑Yes, we have the entitlements translated in Vietnamese and Chinese, that be the summary of the award.
PN1085
A summary of the award?‑‑‑Yes.
PN1086
Yes?‑‑‑Yes.
PN1087
MS WILES: In your experience what are the consequences when information is incorrectly translated to, for example, Vietnamese workers on your round?
PN1088
MR MEAD: Is this witness going to give evidence at large about the consequences? I believe Ms Wiles should probably be a bit more specific about the type of circumstances she's asking this witness to give evidence about. We'd object to that question due to its generality.
PN1089
THE SENIOR DEPUTY PRESIDENT: Yes, I don't have a difficulty with the question. Continue on Ms Wiles.
PN1090
MS WILES: You can answer.
*** THI CHUK LY NGUYEN XN MS WILES
PN1091
THE SENIOR DEPUTY PRESIDENT: Yes, you can answer the question?‑‑‑Okay, yes. Yes, see if they translate - mistranslation is cause misunderstanding. So in my experience I came - I actually came across one of - one example that the employee had the meeting with employer and it's been translated by another employee. So at the end it's cause very - like misunderstanding from the employee that she translated the one - just only one word that wrong translation is cause big trouble. The word issue. So see - the member saying that, "I want to sue her" and the person that is - the translator is, "I want to shoot her". So at the end that member got the warning from the company by saying, "I want to shoot her in the factory". So that member very stressful about that.
PN1092
MS WILES: And Ms Nguyen, in your experience with workers on your round if a non‑English speaking background worker doesn't understand what's being said to them or doesn’t clearly understand what's being said to them, in your experience are they likely to say that at the time?
PN1093
MR SCOTT: Your Honour, Ms Wiles seems to be leading the witness in most of the questions that are being asked.
PN1094
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1095
MR SCOTT: So I'm objecting on that basis.
PN1096
THE SENIOR DEPUTY PRESIDENT: Yes, and I think there are matters that haven't arisen from other statements. They could have been dealt with in the original statement, and you are suggesting answers rather than putting questions I think, Ms Wiles.
PN1097
MS WILES: Your Honour, we say that they do arise because a number of the witness statements tendered by or seeking to be tendered by ABI have gone to the issue that the employer had ‑ ‑ ‑
PN1098
THE SENIOR DEPUTY PRESIDENT: Well even accepting that, you're tending to put answers rather than questions to the witness.
PN1099
MS WILES: Yes, okay.
*** THI CHUK LY NGUYEN XN MS WILES
PN1100
So Ms Nguyen when a member doesn’t fully understand what's being communicated to them by their employer, in your experience how do they get clarity about that?‑‑‑So can you repeat that question again please?
PN1101
So in your experience when a member doesn’t understand something that has been said to them by their employer or someone interpreting at the workplace how do they normally get clarity about what has been said to them, in your experience? What normally happens?‑‑‑If they don't understand say that - because that - in that meeting if they don't understand they get no - so they require something in writing. But if they just speak oral, have a discussion in that, so they normally call me. They call me and ask what it was, but I actually was not in that meeting so it's hard for me to deal with the problem.
PN1102
In your experience, Ms Nguyen, is it usual for a worker from a non‑English speaking background to request that information be translated from the employer?
PN1103
MR SCOTT: Your Honour? It's a leading question, your Honour.
PN1104
THE SENIOR DEPUTY PRESIDENT: Yes. Yes, you're basically putting conclusions to the witness and seeking her confirmation of them, Ms Wiles.
PN1105
MS WILES: Now Ms Nguyen I want to take you to paragraph 15 of your amended statement and that refers to an annexure LN 1. Have you got that in front of you?‑‑‑Yes.
PN1106
Yes, so on page 2 of LN 1?‑‑‑Yes.
PN1107
Which is the email correspondence between yourself and Clickcorp if we go to the top of page 2?‑‑‑Yes.
PN1108
I think it's the fourth sentence there, which I'll read out. It says - and this is from Clickcorp to you:
PN1109
A meeting with all production employees was also held on that date and one of our Vietnamese employees was able to interpret throughout the Vietnamese workers for whom English is not their prime language.
PN1110
Do you see that there?‑‑‑Yes.
PN1111
So the person you refer to in paragraph 15 of your statement?‑‑‑Yes.
PN1112
Is Ngoc?‑‑‑Ngoc, yes.
*** THI CHUK LY NGUYEN XN MS WILES
PN1113
Yes, so do you understand that the reference here in the Clickcorp correspondence is to that person?‑‑‑Yes, I believe so.
PN1114
All right, just one moment. Your Honour, I have no further questions of Ms Nguyen. Thank you.
PN1115
THE SENIOR DEPUTY PRESIDENT: Very well.
PN1116
MS WILES: If you just stay in the witness box, Ms Nguyen, Mr Scott and Mr Mead will ask you some questions.
THE SENIOR DEPUTY PRESIDENT: Thank you. Who's leading off? Mr Scott?
CROSS-EXAMINATION BY MR SCOTT [10.33 AM]
PN1118
MR SCOTT: That will be me, your Honour.
PN1119
Ms Nguyen, you have a copy of your statement, your amended statement with you?‑‑‑Yes, I do.
PN1120
And you also have a copy - I think annexed to your statement is the correspondence between yourself and Clickcorp?‑‑‑Yes.
PN1121
Can I also provide you with another document which I'm not sure whether you have? It's marked ABI 1 and it's correspondence between myself and Michael Traines from Clickcorp. I'll just give that to you in case you don't have that?‑‑‑Thank you.
PN1122
I'll ask you a few questions about that in a moment. If you want to have a read of that I'm happy for you to do that now?‑‑‑Okay.
PN1123
So the first page of the document?‑‑‑Yes.
PN1124
The top half is an email that Michael Traines sent to me on Monday?‑‑‑Yes.
*** THI CHUK LY NGUYEN XXN MR SCOTT
PN1125
And then below that he has extracted the correspondence that he had with the union at the time?‑‑‑Okay.
PN1126
And based on my looking at that it appears to be the same correspondence that's annexed to your statement at LN 1?‑‑‑Yes.
PN1127
And then if we go to the fourth page you can see that there's an email that I sent to Michael Traines on the Monday 16 March. So it's an email chain so that my email there was sent to Michael on Monday and then he replied to me that afternoon. Can you see that?‑‑‑Yes.
PN1128
And then after that there are some further email chains which appear to be between myself and the other parties and Ms Wiles in the proceedings, and I don't think they're relevant for the purposes today. But I might just start, before I go to that document, so I understand you're employed as an organiser?‑‑‑Yes.
PN1129
And an education outreach officer, and you've worked with the union since March 2009?‑‑‑Yes, I do.
PN1130
Are you based in Melbourne?‑‑‑Yes.
PN1131
And at paragraph 3 of your statement you say that you represent the TCFUA and its members and its outworker members in a number of factories?‑‑‑Yes.
PN1132
How many factories do you organise at?‑‑‑Sorry, I can't - I don't ‑ ‑ ‑
PN1133
Are there many factories that you visit?‑‑‑Yes.
PN1134
How many do you think? Are you able to give us a rough guide?‑‑‑We don't have that number.
PN1135
You don't have the number?‑‑‑I don't, yes.
PN1136
Is it a lot though?‑‑‑Yes.
PN1137
So it's quite a few. Are those workplaces mainly based in Melbourne?‑‑‑Yes.
*** THI CHUK LY NGUYEN XXN MR SCOTT
PN1138
So your experience working with the union is largely based in Melbourne?‑‑‑Yes.
PN1139
Ms Wiles was just asking you a few questions and you said that commonly when documents are being translated, and in your experience when things are translated into Vietnamese, and for example the word consultation it's quite difficult to translate?‑‑‑Is have to use more than one word to express - to translate that word.
PN1140
So you need to rephrase words in order to properly translate it?‑‑‑Yes. To for - not for translated but for people to clearly understand that word.
PN1141
Would you accept that it might be difficult to translate legal documents into Vietnamese?‑‑‑Legal document is for the person that is not come across - is not - yes, with the award. Yes.
PN1142
But in translating that material, if you're working as a translator and you translate the material from English to Vietnamese is that sometimes difficult to translate?‑‑‑No. No ‑ ‑ ‑
PN1143
So - sorry, I'll let you go?‑‑‑For - yes, that - not interpret but translation. You mean the translation material?
PN1144
Yes?‑‑‑Yes, sometime it's got - it's not very hard.
PN1145
Yes?‑‑‑But it's okay, yes.
PN1146
But when there are legal words and difficult complex words, in those circumstances could it be difficult to translate it into Vietnamese?‑‑‑No. No, I ‑ ‑ ‑
PN1147
So you're saying that difficult ‑ ‑ ‑?‑‑‑Because that in the context it's different from like if you use word or something like that. Yes and ‑ ‑ ‑
PN1148
But you have to rephrase things in order to translate it sometimes and use your words?‑‑‑It's not always.
PN1149
Yes?‑‑‑Yes.
PN1150
You also told Ms Wiles that the union provides a summary of the award in Vietnamese?‑‑‑Yes.
*** THI CHUK LY NGUYEN XXN MR SCOTT
PN1151
So the union doesn't translate the entire document?‑‑‑Mix of both, yes.
PN1152
And do you know why the union doesn’t translate the entire award into Vietnamese?‑‑‑Because we can't give to the workers so because I come to visit the workers and give them the flyer.
PN1153
Yes?‑‑‑With the summary. We can't give to - it's at the worker, the whole award. Yes.
PN1154
You also used an example where something was translated in the workplace where it was meant to say that the employee said that they would sue someone?‑‑‑Yes.
PN1155
But the translation said they would suit them?‑‑‑Yes.
PN1156
SPEAKER: I think it was shoot.
PN1157
MR SCOTT: Shoot them?‑‑‑Shoot.
PN1158
That's far worse, and you also gave evidence that - or you explained to Ms Wiles that you sometimes get phone calls from members explaining things that were said to them in the workplace, and you said that sometimes it's difficult for you to deal with the problem?‑‑‑Yes, because sometimes it's already happen.
PN1159
Yes. When that happens do you contact the employer and try and find out what's going on?‑‑‑Yes.
PN1160
So you say in your statement that many members that you visit are Vietnamese or of Vietnamese background. When you visit those members in their workplaces would you normally speak to them in Vietnamese or English?‑‑‑Both.
PN1161
Okay, and if I can take you to paragraph 5 of your statement. At the end of the first sentence there at paragraph 5 you say that:
PN1162
Many people in the industry are from non‑English speaking backgrounds and they have limited English language and literacy.
*** THI CHUK LY NGUYEN XXN MR SCOTT
PN1163
?‑‑‑Yes.
PN1164
Is it common for you to see members in the workplace writing?‑‑‑No.
PN1165
So you don't really see your members write very often?‑‑‑No.
PN1166
At paragraph 6 of your statement you say that the majority of the workplaces that you organise and visit rely on the NES and the TCF Award?‑‑‑Yes.
PN1167
Can you explain what you mean by that?‑‑‑So the workplaces that I organise they - as I said before, the sweat shops, so they under NES and TCF Award only so they don't have the agreement.
PN1168
So they don't have an enterprise agreement?‑‑‑Enterprise, yes.
PN1169
Do you normally know how much each employee is getting paid?‑‑‑Yes. That depends on the workplaces.
PN1170
Okay, so at some workplaces you have an idea of what people are being paid but at others you might not?‑‑‑Yes.
PN1171
At paragraph 7 of your statement you say that you have not managed the workplaces and that many of the workplaces are small, and that the members are silent members and they're fearful of reprisal?‑‑‑Sorry, what paragraph again?
PN1172
That's paragraph 7?‑‑‑Okay. Yes.
PN1173
When you were preparing your statement did you speak to members and ask them whether they were prepared to provide a statement to the union?‑‑‑But at that time I wasn't working because I was on maternity leave.
PN1174
Okay, so do you know if the union tried to contact members to ask them to provide written statements in the proceedings?‑‑‑But I don't think they do because it's very rare that the employees provide witness statement because they very feared that the boss will know.
PN1175
THE SENIOR DEPUTY PRESIDENT: No, the question was are you aware ‑ ‑ ‑?‑‑‑Yes.
*** THI CHUK LY NGUYEN XXN MR SCOTT
PN1176
‑ ‑ ‑ of whether the union made any attempts to have members give evidence?‑‑‑Sorry, I don't know. Yes.
PN1177
MR SCOTT: So I understand you might have been on maternity leave at the time but are you aware if the union asked some members if they were prepared to provide a statement like you have?‑‑‑I don't know.
PN1178
You don't know, okay. And in your statement at the last three paragraphs 15, 16 and 17, you talk about workplaces and things that have happened there?‑‑‑Yes.
PN1179
And workers that might have complained to you or told you about what had happened?‑‑‑Yes.
PN1180
And you haven't identified those workers. Do you know if either you or the union contacted those workers and asked them if they were happy for their name to be disclosed?‑‑‑They will answer no.
PN1181
Do you know if they were asked?‑‑‑They, sorry?
PN1182
Do you know if the union asked them?‑‑‑I don't know.
PN1183
If I could take you to paragraph 15 of your statement and that's the paragraph dealing with Clickcorp, and you say in your statement at paragraph 15 that Clickcorp regularly relies on a Vietnamese-speaking team leader who also speaks English and you say that the name of the team leader is Ngoc?‑‑‑So that - yes, so I think that the person is on your - is here. That ‑ ‑ ‑
PN1184
Yes, ABI 1?‑‑‑Yes, that form. But because the member told me the name that a little bit different. So the one word different with that person.
PN1185
So do you think - having had a look at ABI 1, this document?‑‑‑Yes.
PN1186
And Michael Traines has said to me in an email that Cathy Phuong ‑ ‑ ‑?‑‑‑Yes.
*** THI CHUK LY NGUYEN XXN MR SCOTT
PN1187
‑ ‑ ‑ assisted Clickcorp with translation throughout the redundancy consultations. Do you think you might be mistaken as to what the person's name is?‑‑‑No. Sorry, but I'm - I think Michael used the name in English but the worker told me the name in Vietnamese. So you can double check her name in Vietnamese and maybe that Ngoc Phuong.
PN1188
Okay, so if I suggested to you that the name of the team leader who you say is Ngoc is also Cathy Phuong?‑‑‑Yes.
PN1189
And you say that Ngoc or Cathy Phuong is not fluent in English?‑‑‑Either one of the language.
PN1190
So she's not fluent in both Vietnamese and she's also not fluent in English?‑‑‑No, either one of the - so she may fluent in English but not in Vietnamese because that - the worker told me that she translated, is not clear, very not clear. Yes.
PN1191
So you think she's not fluent in one of the languages?‑‑‑Yes.
PN1192
But you're not sure which one?‑‑‑Yes.
PN1193
You can see in the email from Michael Traines ‑ ‑ ‑?‑‑‑Yes.
PN1194
‑ ‑ ‑ that he says:
PN1195
I can confirm that Cathy has lived in Australia since she was a child and in all my conversations with Cathy I can confirm that she speaks fluent English.
PN1196
Do you accept that perhaps she can speak fluent English?‑‑‑If she can - if she - so obviously if she's been here, live here very long time and was a child, so it's the case that she not fluent in Vietnamese.
PN1197
Okay so ‑ ‑ ‑?‑‑‑Because it's very common that the people grow up here and live here, you know, when they came here when they was a child and they don't speak Vietnamese very well.
PN1198
THE SENIOR DEPUTY PRESIDENT: Have you ever met Cathy Phuong?‑‑‑Yes, I did met her once at the location. Yes.
PN1199
And in what language did you speak to her?‑‑‑I didn't speak to her much, your Honour. I just - like I heard her spoke to other people, yes in Vietnamese, because they have a lot of Vietnamese workers there. Yes.
*** THI CHUK LY NGUYEN XXN MR SCOTT
PN1200
Did she speak to you?‑‑‑No.
PN1201
So you've met her but you haven't had a conversation?‑‑‑No.
PN1202
Yes, very well.
PN1203
MR SCOTT: And if you go to the last page of your statement and the annexure to that statement, so this is LN 1 which is annexed to your statement and it's the last page there and it's a letter from Clickcorp to employees dated 9 January 2013?‑‑‑Yes.
PN1204
Can you see that? And sorry, can I also take you on the same document to the second page of LN 1?‑‑‑Yes.
PN1205
And this is where Ms Wiles took you earlier and it's about the ninth line down in that second kind of paragraph and it says there that, "A meeting with all production employees was also held on that date"?‑‑‑Yes.
PN1206
So the meeting that took place on 9 January, you weren't at that meeting, were you?‑‑‑No.
PN1207
Okay, and I think your answer to Senior Deputy President Watson's question was that you don't know - sorry, I withdraw that. That you believe that Ngoc was the one who was used to translate or interpret during that meeting?‑‑‑Yes, that's right. Yes.
PN1208
But you're not sure because you weren't there?‑‑‑Yes, but the member were there so they told me.
PN1209
So a member told you that Ngoc was the one who translated?---Yes.
PN1210
But I'm assuming that you're not prepared to tell me who that member was?‑‑‑No.
PN1211
If I can take you back to your statement at paragraph 5 - sorry, paragraph 15.
*** THI CHUK LY NGUYEN XXN MR SCOTT
PN1212
THE SENIOR DEPUTY PRESIDENT: Yes, I was a bit worried that we were slipping back.
PN1213
MR SCOTT: No, we're not going back, your Honour. Ploughing through.
PN1214
In paragraph 15 it says there that:
PN1215
This workplace also had workers from many other non‑English speaking backgrounds.
PN1216
?‑‑‑Yes.
PN1217
So you're talking about Clickcorp. Can you tell the Commission what other non‑English speaking backgrounds other than Vietnamese the employees come from in that workplace?‑‑‑Yes, the employee from other non‑English speaking backgrounds are Indian, Russian and Sri Lankan at that time when I came across when I visited.
PN1218
Okay, and is it about right that at that time Clickcorp had about 28 employees, can you remember?‑‑‑Yes. Probably, yes. Yes.
PN1219
Were you aware that Michael Traines from Clickcorp speaks fluent Russian?‑‑‑I don't speak with him in Russian, so.
PN1220
And there are two directors of Clickcorp. Their names are Alex and Igor. Did you know that they also spoke fluent Russian?‑‑‑I don't know.
PN1221
And in relation to the employee from Indian background, did you know that she spoke fluent English?‑‑‑She speak a few English, yes.
PN1222
Yes. If I can go back to that last page, the letter from Clickcorp. The last page of LN 1, the 9 January 2013 letter, and I'll wait till you get that?‑‑‑The letter? Yes.
PN1223
Yes, so the letter on the Clickcorp letterhead of 9 January 2013?‑‑‑Yes.
PN1224
Have you got that in front of you?‑‑‑Yes.
*** THI CHUK LY NGUYEN XXN MR SCOTT
PN1225
If you go to the last paragraph in that letter can you see there that it says:
PN1226
In the meantime if you would like to discuss these changes with us individually -
PN1227
?‑‑‑Yes.
PN1228
- including the impact of the restructure on you along with anything we may be able to do to lessen the impact that the restructure will have on your employment please don't hesitate to contact us or Michael Traines to arrange a meeting.
PN1229
?‑‑‑Yes.
PN1230
You can see that. If I can then stay on LN 1 which is the email correspondence and take you to third page.
PN1231
MS WILES: Sorry, your Honour, there was no question put to Ms Nguyen in relation to that part of the letter so it's not clear why Mr Kyle(sic) directed her to it.
PN1232
THE SENIOR DEPUTY PRESIDENT: Well, Mr Scott's entitled to cross‑examine in relation to the material that you've put into evidence.
PN1233
MR SCOTT: I can probably clarify. The question was could she see that paragraph on that letter.
PN1234
THE WITNESS: Yes.
PN1235
THE SENIOR DEPUTY PRESIDENT: Sorry, I misunderstood your point, Ms Wiles.
PN1236
MR SCOTT: That's okay. It's not a difficult question but I thought it was helpful.
PN1237
THE SENIOR DEPUTY PRESIDENT: You didn't trust me to be able to read that even if you drew it to my attention.
*** THI CHUK LY NGUYEN XXN MR SCOTT
PN1238
MR SCOTT: So if I can take you to the third page of the LN 1 document, about halfway down there's an email from yourself to - it's Michael Traines but in the email it says, "Misha Traines". I'm assuming that it might be some Russian adoption of his first name, and it's dated 22 January 2013. Can you see that email?‑‑‑Yes.
PN1239
The second-last paragraph on that page says:
PN1240
Workers and their representatives have also not had an opportunity to discuss with you possibilities for avoiding redundancy.
PN1241
Do you accept that the first letter was provided to the employees on 9 January, which is the document I just took you to before?‑‑‑Yes.
PN1242
And there was a meeting held on 9 January?‑‑‑The meeting with the workers?
PN1243
Yes?‑‑‑Yes.
PN1244
So do you accept that between 9 January and 22 January the workers had around about 13 days to raise any issues that they wanted to raise?‑‑‑Yes.
PN1245
If I can then go to the first page of LN 1 and on to the second page to summarise so that we don't need to go through the documents. Michael Traines said that he was having a meeting with the workers on 23 January and he invited you to go along if you wanted to, and then on the front page, the first page here, in the first paragraph you say, "Thank you for your email of today's date at 4.22 pm" and "I will attend tomorrow morning" and then you go on, "I would then like to meet with the company to discuss these proposals". So on 23 January did you attend Clickcorp's workplace?‑‑‑Yes, I attended the individual meeting with the workers.
PN1246
Yes?‑‑‑But the company refused to discuss with the company - to have a meeting with the company.
PN1247
Sure. So you attended some of the individual meetings with your members?‑‑‑Yes. Yes.
PN1248
And were you able to interpret for those members during the meeting?‑‑‑Yes.
*** THI CHUK LY NGUYEN XXN MR SCOTT
PN1249
Do you know if the company provided someone else to translate for other employees who perhaps weren't members of the union?‑‑‑No.
PN1250
Can I suggest to you that the company arranged for Cathy Phuong to sit in on some of those other meetings in case interpretation was needed?
PN1251
MS WILES: Your Honour, the witness has already said she didn't have knowledge about whether the company provided interpreters for the other employees.
PN1252
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1253
MS WILES: So she's not in a position to provide any further information about that.
PN1254
THE SENIOR DEPUTY PRESIDENT: I presume you have no knowledge of that?‑‑‑No. No.
PN1255
Yes.
PN1256
MR SCOTT: Your Honour, about halfway down paragraph 15 there's a sentence there which says, "The employer provided no interpreters for those workers".
PN1257
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1258
MR SCOTT: I'm just wanting to test that proposition because the contrary appears to be the case.
PN1259
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1260
MR SCOTT: Now I think I've adequately tested that.
PN1261
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1262
MR SCOTT: If I can then take you to paragraph 16 of your statement. We're getting towards the end. Sorry, just bear with me. About the third sentence there in paragraph 16 it says:
*** THI CHUK LY NGUYEN XXN MR SCOTT
PN1263
The employer, through a manager who did not speak Vietnamese, simply informed the workers of the change to their hours.
PN1264
Were you there at the workplace when that happened?‑‑‑No.
PN1265
So you can't tell the Commission what was said during that conversation?‑‑‑No.
PN1266
THE SENIOR DEPUTY PRESIDENT: Ms Nguyen, at the bottom of paragraph 16 you say:
PN1267
The workers were not made aware by the employer that they could have input into the decision.
PN1268
?‑‑‑Yes, your Honour.
PN1269
Just going back to the translated material provided by the union to its members, you mentioned a summary of the award had been provided. To your knowledge has the union ever provided a translation to its members of clause 9.2 of the award, the consultation in relation to hours?‑‑‑No. No, we don't have that translation.
PN1270
So it hasn't provided that information to its members. That would mean they wouldn't be aware from the union at least in their own language of their right to be consulted, represented?‑‑‑Yes, we don't translate that part.
PN1271
Yes?‑‑‑Yes, we didn't translate it.
PN1272
MR SCOTT: Ms Nguyen, if I can take you then to paragraph 17. You refer to a clothing manufacturer and you say that the employer sent workers home early due to power failures and the employer informed workers in English that they were required to make up the time on the following Friday. When the employer informed the workers that, were you there in the workplace at that time?‑‑‑No.
PN1273
So you know about this because a member perhaps has told you about it?‑‑‑Yes, they call me after it has - yes, after the meeting.
PN1274
And you're not prepared to tell me the name of that member?‑‑‑No.
*** THI CHUK LY NGUYEN XXN MR SCOTT
PN1275
No further questions, your Honour.
PN1276
THE SENIOR DEPUTY PRESIDENT: Thank you.
Mr Mead, I should indicate for the benefit of transcript that there is only one of you. Mr Mead rather than Meads.
CROSS-EXAMINATION BY MR MEAD [11.03 AM]
PN1278
MR MEAD: Thank you, your Honour.
PN1279
Ms Nguyen, do you have that bundle of documents that Ms Wiles tendered in the proceedings this morning?‑‑‑Yes.
PN1280
You have that handy. I'm just going to take you to a number of those documents in a moment. But just to commence, Ms Wiles asked you a question in her examination‑in‑chief about your experience prior to coming to the TCFUA?‑‑‑Yes.
PN1281
And you remember you said that you were a teacher previously and you've done a Certificate IV in training and assessment. Can I take it from your explanation that prior to working at the TCFUA you haven't worked at another union, have you?‑‑‑No.
PN1282
No, so in terms of the experiences that you identified you can't tell me that those experiences are any different to the experiences that an organiser might have in a different industry in the manufacturing sector, for example?‑‑‑Yes.
PN1283
Okay, thank you. Now Ms Nguyen I'll try and do this in the manner in which the documents are ordered in that bundle. The first document I'd like to take you to is the first document in the bundle. It's titled "Membership" - I'll read it directly:
PN1284
Textile, Clothing and Footwear Union of Australia (Vic and Queensland Branch)
PN1285
To become a member of the TCFUA fill in this form and return to the address below.
*** THI CHUK LY NGUYEN XXN MR MEAD
PN1286
Do you have that document there?‑‑‑Yes.
PN1287
Yes, and you'll see that it has been stapled together, essentially three pages double sided. The first page is in English, the second page, that's in Vietnamese is it?‑‑‑Yes.
PN1288
And then the third page is in Chinese, is it?‑‑‑(No audible reply).
PN1289
Thank you. Now you'll see in relation to the Vietnamese document, you notice there that there are a number of sections that haven't been translated. Do you see those there, Ms Nguyen?‑‑‑Yes.
PN1290
So a section that - and we'll perhaps deal with that, the text box on the right‑hand side of the document, "Direct debit request service agreement", do you see that there?‑‑‑Mm‑hm.
PN1291
Now I think in relation to one of Mr Scott's questions he was asking whether in your experience it's difficult to translate legal concepts into Vietnamese. Do you remember him asking you those questions?‑‑‑Yes. Yes.
PN1292
And your answer was no it's not difficult in your experience. Do you remember that ‑ ‑ ‑?‑‑‑Yes.
PN1293
‑ ‑ ‑ being your response?‑‑‑If it depends on the context, but sometime it's not.
PN1294
Yes?‑‑‑Yes.
PN1295
Yes, so you agree with me that in relation to this section, "Direct debit request service agreement" that hasn't been translated, has it? That remains in English?‑‑‑(No audible reply).
PN1296
Now I take it from your earlier answer that it's not difficult to translate legal concepts into Vietnamese but the reason this hasn't been translated is because the union deemed it wasn't necessary to translate those legal concepts into Vietnamese?‑‑‑Sorry, I can't answer that question because that - this is before my time. So I didn't do this one.
PN1297
So you don't know why the union hasn't translated those legal concepts?‑‑‑No, I didn't - I don't know.
*** THI CHUK LY NGUYEN XXN MR MEAD
PN1298
Well perhaps I can ask you this. You'll see the "Direct debit request service agreement", are you familiar with I guess those obligations? Do you understand generally what that provides for? So it identifies such things as the circumstances when the TCFUA might with a certain period of notice change the frequency of direct debits. That's one of the issues that are covered. Do you know that that's what the service agreement refers to?‑‑‑Yes.
PN1299
Yes, and also perhaps if you look at paragraph 6 or bullet point 6 it talks about the fact that essentially it's the union member's responsibility to make sure that they have enough money in their bank to allow the union fees to be deducted. Do you see that there?‑‑‑Yes.
PN1300
And then at paragraph 9 it talks about how a union member might cancel the direct debit function in relation to their union membership. You see that there, don't you?‑‑‑(No audible reply).
PN1301
Yes. Can I ask you when union members or prospective union members are signing up to become members of the union are questions like that ever asked of you? So do union members ever ask, "What do I need to do to stop being a union member?" or "What do I need to do if I don't want the money taken directly out of my bank account but have my union fees paid a different way?" Are those questions ever asked of you?‑‑‑Yes, they do.
PN1302
Yes, and is it correct then that when you're communicating to them what happens you communicate to them orally, you tell them what will happen and what the practice is at the union?‑‑‑Yes.
PN1303
You answer that question orally?‑‑‑Yes, I answer them orally but they have the membership in writing.
PN1304
Yes. Yes, I understand that. But what they have in writing here is in English so you need to explain to them - do you explain it to them in English or do you explain it to them in Vietnamese or a mixture of both?‑‑‑A mixture of both.
PN1305
Okay, and you're comfortable that as a result of that explanation that you provided orally they understand what you're talking about? So no union member has ever come back to you at a later stage and said, "You told me that I could cease to be a union member by doing X, Y and Z and now that's not true". So they understand what you've told them?‑‑‑They never ask me that so, sorry, I can't answer that.
*** THI CHUK LY NGUYEN XXN MR MEAD
PN1306
Okay, that's fine, and similarly if you look down under - once again we'll still stick with this document. Under "Payment option B. Credit card" you see that there?‑‑‑Yes.
PN1307
So
just at the bottom of that little text box once again on the Vietnamese version
there's a section there in English?
---Yes.
PN1308
Yes and basically as I read it, it identifies that the union member needs to fill it in and they identify which credit card they want to use and it's essentially an authority for the union to then deduct money from that credit card. You agree with me that's what it says?‑‑‑Yes, I do.
PN1309
Yes. So once again in relation to that issue if a prospective union member says to you, "I want to use my credit card. How do I go about filling out this form to do that", you explain what's there in English in either oral English or you do it in Vietnamese. Is that correct?‑‑‑Again they never asked me so I never explain to them in language. Yes.
PN1310
I see. But when you're signing up members you're comfortable that they understand the obligations that the union imposes on them in relation to paying their financial contributions?‑‑‑So they have the membership to take home to - yes, also advice from their family members or they, you know - and other people. So they should understand about the membership before they sign.
PN1311
To your knowledge have any of those people - I withdraw that. I withdraw that question. Ms Nguyen, now you mentioned in relation to some questions from his Honour about the translation of award material that the union provides ‑ ‑ ‑?‑‑‑Yes.
PN1312
‑ ‑ ‑ translation summaries. If I could just ask you to have a look in the bundle. I think it's perhaps the fourth item in the document.
PN1313
THE SENIOR DEPUTY PRESIDENT: It's this one, is it?
PN1314
MR MEAD: Yes, that document, your Honour.
PN1315
THE SENIOR DEPUTY PRESIDENT: Yes.
*** THI CHUK LY NGUYEN XXN MR MEAD
PN1316
MR MEAD: So it looks like an A3 document that opens up into three panels?‑‑‑Yes.
PN1317
The front page says, "Join the union today. Respect the dignity in the workplace"?‑‑‑Mm‑hm.
PN1318
Is that the document you were talking about when you said the union translates a summary of the award?‑‑‑Yes.
PN1319
Yes, okay, and in relation to the summary just take a moment to look at it, but you agree with me that there's nothing in that summary about hours of work, nothing about overtime, nothing about rosters in that summary?‑‑‑Yes.
PN1320
Yes, so when the union is providing a summary to its members in their native language the union does not address those issues, does it?‑‑‑It's not in the translation.
PN1321
No. No. I put it to you that the reason doesn't do that is because those are difficult concepts to translate into languages other than English?‑‑‑No.
PN1322
So are you saying that ‑ ‑ ‑?‑‑‑Some ‑ ‑ ‑
PN1323
I'm saying that ‑ ‑ ‑?‑‑‑Sorry ‑ ‑ ‑
PN1324
‑ ‑ ‑the concept of ordinary hours of work, for example, overtime penalties, and rostering arrangements in the award can be difficult concepts, and the reason the union doesn't translate them into Vietnamese is because they are difficult concepts to translate?‑‑‑No it's - we didn't address - like this one just for general. It's for all the entitlements that the workers should get. It's not any change about the roster or hours, because it's not happen. It's like ‑ ‑ ‑
PN1325
Are you saying that the hours of work ‑ ‑ ‑?‑‑‑No, it's happen ‑ ‑ ‑
PN1326
‑ ‑ ‑ arrangements and the overtime arrangements aren't relevant to their entitlements?‑‑‑No, it's one of them but the whole award that relevant to the workers who work in that industry, but we can't translate every single clause in the award into - for us to give to the workers.
PN1327
So the union has made a decision about what it believes is important ‑ ‑ ‑?‑‑‑Yes.
*** THI CHUK LY NGUYEN XXN MR MEAD
PN1328
‑ ‑ ‑ for the workers to know about and what's not as important?‑‑‑Sorry, I can't answer that question.
PN1329
I see. Well, I'd just like to ask you a little bit about this document as well. In looking at the document, is this the document that is currently distributed by the union as information in summary of the award terms, to your knowledge?‑‑‑It's not - yes, we use that but it's been translated I think last year or so. That the superannuation a different rate with the - I think last year.
PN1330
So you're saying the superannuation is incorrect. Yes, I was going to ask you about that. So based on my reading of the document this document doesn't contain information that's current, does it, so - and I'll assist you with that. You'll see on the first page under "Pay rates" it says there, "Each work Fair Work Australia" so it refers to the wrong statutory body in relation to this document, doesn't it? On the first page of the document, Ms Nguyen?---Yes.
PN1331
You see under "Pay rates" the first paragraph?‑‑‑Pay rate.
PN1332
I'm sorry, you see on the first ‑ ‑ ‑?‑‑‑Yes.
PN1333
Yes? So it refers to Fair Work Australia not the Fair Work Commission, so it's not a current document is it? It hasn't been updated, that's what I'm saying?‑‑‑Yes.
PN1334
No, and then if you look down in relation to casuals it refer to casual loadings of between 24 per cent and 29 per cent. Once again that doesn't accurately reflect the casual loading in the award currently, does it?‑‑‑Yes, as I said it's not current one.
PN1335
Yes?‑‑‑So with last year, so.
PN1336
And similarly in relation to superannuation and the obligation for a phased increase at 12 per cent up until the period of 2019. That's not current either?‑‑‑No.
PN1337
So I put it to you that the union hasn't been able to simply and easily update the information it provides to members ‑ ‑ ‑?‑‑‑It's because I was on maternity leave for the last couple of months. So that I think the reason that we aren't able to do this.
*** THI CHUK LY NGUYEN XXN MR MEAD
PN1338
I see. I see, and because you've been on leave for the last few months the union hasn't been able to provide an updated ‑ ‑ ‑?‑‑‑Because I the main person to ‑ ‑ ‑
PN1339
‑ ‑ ‑ translation to its members?‑‑‑I the main person, yes.
PN1340
I see. Okay, and Ms Nguyen now I just want to take you to another document in the bundle. It's the documents that refer to the help for workers who have recently lost their job in the textile, clothing and footwear industry. There are a bundle of documents there, about five or six. On the top it says, "Job Services Australia. People, skills, jobs", do you see that there?‑‑‑Yes.
PN1341
Do you have that bundle there, Ms Nguyen?‑‑‑Yes.
PN1342
And these are the only documents that the union has tendered in these proceedings that translate material in languages other than Vietnamese and Chinese. So you've included a translation in Haka, Filipino, Korean, Italian and Greek based on the summary. You'd agree with me though that the union hasn't produced these documents, have they? The union hasn't been responsible for translating these documents, have they?‑‑‑Sorry, can you repeat that question?
PN1343
So these documents in the top left‑hand corner they're the insignia of the Australian Government. You see that there?‑‑‑Yes.
PN1344
And Job Services Australia, I put it to you that that is a department within the Department of Employment?‑‑‑Yes.
PN1345
So a government department?‑‑‑Yes.
PN1346
So these translations that you've tendered haven't been produced by the TCFUA, they've been produced by the government haven't they?‑‑‑I don't know.
PN1347
You don't know. Well, you'll see at the bottom of the first page that it refers to Job Services Australia in a footnote and then it says:
PN1348
The way in which you can contact Job Services Australia is by emailing industryadjustment@dewa.gov.au.
PN1349
Do you see that down the bottom?‑‑‑Yes.
*** THI CHUK LY NGUYEN XXN MR MEAD
PN1350
You'd agree with me that that's not a TCFUA email address?---No, it's not.
PN1351
No. Thank you. Ms Nguyen I just have two other documents I'll need to draw your attention to. Moving through the bundle there's a document called "Memorandum of Understanding (deduction of union fees)". Do you have that there?‑‑‑Yes. No the ‑ ‑ ‑
PN1352
Just take your time. Ms Nguyen, if it assists I can provide you with my copy. Would that help?‑‑‑Yes.
PN1353
You have it there?‑‑‑Yes.
PN1354
Okay, thank you. I just want to confirm - are you familiar with this document first of all, Ms Nguyen? You've seen it before?‑‑‑Yes.
PN1355
Yes. It's correct that this is a document that is provided to a company to thereby authorise deduction of union membership fees from employees' pay?‑‑‑Yes.
PN1356
So where it has a space there for it to be signed, it isn't signed by an employee is it? It's signed by the employer?---Yes.
PN1357
Okay, thank you. The last set of questions I have for you Ms Nguyen are in relation to the English education documents that have been provided in the bundle. So they're towards the end. I think they're the last - if you go to the last four documents?‑‑‑Yes.
PN1358
THE SENIOR DEPUTY PRESIDENT: I think the last one is the "Moon Lantern Festival".
PN1359
MR SCOTT: Sorry, what was that, your Honour?
PN1360
THE SENIOR DEPUTY PRESIDENT: I think the last is the "Moon Lantern Festival", isn't it?
PN1361
MR SCOTT: Yes.
*** THI CHUK LY NGUYEN XXN MR MEAD
PN1362
Yes, so the document with the exception of the "Moon Lantern Festival". The three documents that precede that.
PN1363
THE SENIOR DEPUTY PRESIDENT: That document is truly multicultural in Vietnamese and Chinese concerning an event to be held in the Polish Community Centre.
PN1364
THE WITNESS: Yes.
PN1365
MR SCOTT: Ms Nguyen, in reviewing those three documents you've only provided to the Commission copies of those documents translated in Vietnamese.
PN1366
MS WILES: Your Honour I should clarify that the documents have been tendered by the TCFUA. They haven't been tendered through Ms Nguyen.
PN1367
THE SENIOR DEPUTY PRESIDENT: Sorry?
PN1368
MS WILES: I wish to clarify that the documents haven't been tendered through Ms Nguyen. They were tendered as a bundle by the TCFUA generally.
PN1369
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1370
MS WILES: Yes, so.
PN1371
THE SENIOR DEPUTY PRESIDENT: Okay.
PN1372
MR SCOTT: So Ms Nguyen the TCFUA have tendered this bundle of documents and the TCFUA have only included translations of the relevant material in Vietnamese. Would you agree with me that the nature of these English classes is focused on people of Vietnamese background acquiring English language skills, so it's predominantly attended by Vietnamese people?‑‑‑Yes, but we open for all - for the - for every - all the workers who want to - who wish to attend the class. It's not only for the Vietnamese, but majority yes, because the majority Vietnamese in the industry. Yes.
*** THI CHUK LY NGUYEN XXN MR MEAD
PN1373
Yes, but you only seek to clarify that the classes actually exist by translating them into one language and that's Vietnamese?‑‑‑The only - because the majority Vietnamese workers. As I said before, like 90 or 100 per cent of the work - outworkers are Vietnamese.
PN1374
I see. But I thought in earlier evidence you said that you engage with people from Chinese, Greek, Italian ‑ ‑ ‑?‑‑‑Yes.
PN1375
‑ ‑ ‑ Cambodian?‑‑‑Yes.
PN1376
There are a range of ethnic backgrounds that you said are common in the industry, you remember?‑‑‑Yes, but - yes majority are Vietnamese and I dealing with, you know, most of - yes the workers, the outworkers. That's - these classes especially for outworkers, and the outworkers for the - like, most of them are Vietnamese so that's why we just have one translation.
PN1377
But you'd agree with me that in relation to outworkers, schedule F requires the principal to provide a translated copy of schedule F to outworkers?‑‑‑Yes.
PN1378
You understand that? Yes, so I guess my last question is that given that the union has - or can you provide your opinion on this, that given the fact that there is no Chinese, Greek, Italian, Cambodian translations that have been provided for these English classes, that the union doesn't deem that it's necessary to communicate with people of those ethnic backgrounds in their native language?‑‑‑We used to have a Chinese translation for the class but then because we have the class in like for more than 10 years or so, so we know that the majority of the students are Vietnamese. So then we just provide the language for the Vietnamese, for the translation for Vietnamese.
PN1379
Thank you. I have nothing further.
PN1380
THE SENIOR DEPUTY PRESIDENT: Very well.
Yes, Ms Wiles?
RE-EXAMINATION BY MS WILES [11.24 AM]
PN1382
MS WILES: Ms Nguyen, Mr Scott asked you a question about the number of workplaces that you organise in?‑‑‑Yes.
PN1383
And you said that you weren't sure of the exact number?‑‑‑Yes.
*** THI CHUK LY NGUYEN RXN MS WILES
PN1384
Can you give an approximate number of organisers on your - sorry, workplaces on your round ‑ ‑ ‑
PN1385
THE SENIOR DEPUTY PRESIDENT: I think Mr Scott tried very hard to get that and all he got was "a lot".
PN1386
MS WILES: Well, I'm following up, your Honour.
PN1387
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1388
MS WILES: Is it more than 20, more than 30?‑‑‑Yes, about more than 50 workplaces.
PN1389
More than 50, okay, and in terms of visits to outworkers, just approximately how many visits do you think you would make to outworkers each year?‑‑‑A lot.
PN1390
What do you mean by a lot?‑‑‑Because I contacted them and visited them, that's part of my job, so that day to day, so.
PN1391
So regularly?‑‑‑Yes, regularly. Yes.
PN1392
Yes, okay. Now Mr Scott asked you a question about whether you thought or accepted that it was difficult to translate certain information in Vietnamese?‑‑‑Yes, there's some difficult. Yes.
PN1393
Yes, and you said it wasn't very hard?‑‑‑It depends on the context, yes.
PN1394
Yes, okay?‑‑‑Some words or some context that it's very difficult and - but generally it's - I can. Yes, it's easy. Yes.
PN1395
So just to be clear, it's not difficult for you as a translator?‑‑‑Yes.
PN1396
Right, but it may be difficult for someone who's not as ‑ ‑ ‑?‑‑‑Yes.
PN1397
‑ ‑ ‑ as bilingual as you?‑‑‑Yes.
*** THI CHUK LY NGUYEN RXN MS WILES
PN1398
Yes, okay.
PN1399
THE SENIOR DEPUTY PRESIDENT: It would be extremely difficult for me, I can assure you.
PN1400
MS WILES: Now in relation to your evidence around Clickcorp and the redundancy consultation issue, can you just confirm when the union was notified or first became aware that there was a dispute, or that there was an issue to do with the proposed redundancies?‑‑‑Yes, about a week. Because the member call us first, and then we contacted the company and the company - then we have the email chains with the company.
PN1401
And this Clickcorp, is that a workplace that you would regularly organise at?‑‑‑Yes.
PN1402
Yes, so the company would be used to seeing you come to visit the workers?
PN1403
MR SCOTT: Your Honour, the answers are just about self‑explanatory the way the questions are being phrased.
PN1404
THE SENIOR DEPUTY PRESIDENT: Yes. Yes, I think you're going to have to ask the questions in an open manner, Ms Wiles, rather than suggesting an answer.
PN1405
MS WILES: In your belief would Clickcorp have known that there were union members in its workplace?‑‑‑Of course.
PN1406
Yes, okay?‑‑‑Yes, they know. Yes.
PN1407
And despite that the union was only notified a week later?---Yes.
PN1408
MR SCOTT: Your Honour, I'm not sure whether this ‑ ‑ ‑
PN1409
THE SENIOR DEPUTY PRESIDENT: I think we're getting ‑ ‑ ‑
PN1410
MR SCOTT: ‑ ‑ ‑ adds too much to the proceedings in circumstances where her evidence is very clear as to when the union was notified.
*** THI CHUK LY NGUYEN RXN MS WILES
PN1411
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1412
MR SCOTT: It's explicit in her - in paragraph 15.
PN1413
THE SENIOR DEPUTY PRESIDENT: It's the factual matters I'm interested in, not submissions in relation to those factual matters. I'm not sure how Ms Nguyen could have any idea of what was in someone from Clickcorp's mind unless it was stated to her or otherwise expressed to her. But we're really getting into submission rather than questions of evidence at this stage, I think.
PN1414
MS WILES: Let me ask you another question then. In terms of once the union became notified did Clickcorp agree to meet with the union about the redundancies?‑‑‑No.
PN1415
No, okay. Now in paragraph 15, if you can just go back to that, in the middle of that paragraph you say there, "The employer provided no interpreters for those workers". Do you see that?‑‑‑Yes.
PN1416
Mr Scott asked you a question about that, didn't he?‑‑‑Yes.
PN1417
So I want you to confirm what do you mean by provided no interpreters?‑‑‑The no interpreter for - no professional interpreter for the Vietnamese workers and also for the other non‑English speaking workers.
PN1418
Yes. Thank you. Mr Mead from the AIG took you to a number of the documents in the bundle?‑‑‑Yes.
PN1419
That were tendered this morning, and in particular he took you to the membership form?‑‑‑Yes.
PN1420
Now when you provide the membership forms to workers in the workplace, so for example during the visits or when they come to the union, is it normally the case that they would fill out the form there and then?‑‑‑No.
PN1421
Okay and if someone is going to join, when would you normally expect to receive the form back, in your experience?‑‑‑Because they normally say to me they're going to go home and talk to their children or talk to their husband and then they come back to me later.
*** THI CHUK LY NGUYEN RXN MS WILES
PN1422
When you take this into the workplace do you explain the contents of the membership form including around direct debit?‑‑‑No, because we didn't have that - a lot of time. They normally call me after they talk to their kids, or something, their husband, and then if they have question around the (indistinct) or something they ask me. But I - very rarely that the workers ask me about these things.
PN1423
Right, and so they ‑ ‑ ‑?‑‑‑Yes.
PN1424
So just to be clear, they take it and they don't necessarily talk to you about it?‑‑‑Yes, they don't.
PN1425
Yes?‑‑‑No, they don't.
PN1426
Now Mr Mead also took you to, I think, the summary of the award that the union provides?‑‑‑Yes.
PN1427
That's the A5 sized document?‑‑‑Yes.
PN1428
Yes, okay. Now when you visit workplaces would this be the only document you would take out?‑‑‑No.
PN1429
And you gave evidence that this document I think is only up‑to‑date till 2013?‑‑‑Yes, I think last year so, or before that, yes.
PN1430
All right. Now in terms of updated wage rates, would you take out material, translated material, in relation to that?‑‑‑Yes, we have the pay rate flyer that we update the new pay rate.
PN1431
All right, and can you see that document in the bundle of documents that were tendered?‑‑‑Yes, I have. The Dry cleaning TCF Award and Laundry Award, laundry rate, it's been translated.
PN1432
Okay, so the three documents there?‑‑‑Yes.
PN1433
Yes, and Ms Nguyen can you identify each of those documents just for the record, the three documents with the pay rates?‑‑‑Yes, we have the TCF pay rate, dry cleaning rates and the laundry rates.
*** THI CHUK LY NGUYEN RXN MS WILES
PN1434
And does the union update these rates every year?‑‑‑Yes.
PN1435
And are they translated each year?‑‑‑Yes.
PN1436
Thank you. Mr Mead took you to the documents relating to Job Services Australia?‑‑‑Yes.
PN1437
Can you see those there?‑‑‑Yes.
PN1438
Yes. Now in the past has the union had specific people devoted to the issue of assisting workers around redundancies?
PN1439
MR MEAD: Your Honour, I don't know how this arises from a question I put to her regarding these documents.
PN1440
THE SENIOR DEPUTY PRESIDENT: Yes, I think the questioning in relation to the documents was pretty straightforward and limited. It was, "These are documents produced by the Commonwealth of Australia rather than the TCFUA?" I think that was the only point of the question and the only issues raised by the question.
PN1441
MS WILES: Yes maybe it's a matter for submissions, your Honour.
PN1442
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1443
MS WILES: I'll withdraw that. Your Honour, I have no further questions of this witness. Thank you.
PN1444
THE SENIOR DEPUTY PRESIDENT: Yes, very well.
PN1445
Thank you for your evidence, Ms Nguyen. You're excused?‑‑‑Yes. Thanks, your Honour.
You may leave the proceedings if you wish.
<THE WITNESS WITHDREW [11.39 AM]
PN1447
THE SENIOR DEPUTY PRESIDENT: Very well, I might at this point adjourn for 10 minutes and we'll see whether Mr Butler can be available slightly earlier and we'll arrange the telephone hook-up at the same time. I'll adjourn till 10 to 12.
SHORT ADJOURNMENT [11.40 AM]
RESUMED [11.55 AM]
PN1448
THE SENIOR DEPUTY PRESIDENT: Mr Scott? Sorry.
PN1449
MR MEAD: Your Honour just before you came to the Bench, Ms Wiles and myself were just discussing a procedural matter and just as a matter of convenience whether, for the purposes of when the written submissions are finalised, whether it might be more convenient to mark the individual documents that Ms Nguyen was taken to as individual exhibits in the proceedings? And perhaps it just makes it easier to reference that material for the benefit of transcript and also submissions.
PN1450
THE SENIOR DEPUTY PRESIDENT: Yes. Well the front page - this is the union translated material?
PN1451
MR MEAD: Yes.
PN1452
THE SENIOR DEPUTY PRESIDENT: The front page sets out all the material, that's correct? Or perhaps we'll just mark the elements of TCFUA 5 separately as A, B, C, D and down the page.
PN1453
MR MEAD: Yes.
PN1454
THE SENIOR DEPUTY PRESIDENT: Which I think takes us to TCFUA 5U.
PN1455
MS WILES: I had V.
PN1456
THE SENIOR DEPUTY PRESIDENT: There's one that goes over two lines.
PN1457
MR SCOTT: K goes over two lines.
PN1458
MS WILES: I see. Yes, sorry. Yes.
PN1459
MR MEAD: Is that A to U then, your Honour?
PN1460
THE SENIOR DEPUTY PRESIDENT: Yes, A to U.
PN1461
MR MEAD: Thank you. That's convenient.
THE SENIOR DEPUTY PRESIDENT: By my reckoning anyway.
EXHIBIT #TCFUA5 (AMENDED) BUNDLE OF TRANSLATED DOCUMENTS NOW NAMED TCFUA 5A THROUGH TO 5U
PN1463
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Scott?
PN1464
MR SCOTT: Your Honour, I call Mr Tony Butler.
PN1465
THE SENIOR DEPUTY PRESIDENT: Certainly.
PN1466
THE ASSOCIATE: Mr Butler, you're there?
PN1467
MR BUTLER: Yes, I am.
PN1468
THE ASSOCIATE: I'm going to ask you to give the affirmation. So if you could please repeat after me.
MR BUTLER: Yes.
<TONY WAYNE BUTLER, AFFIRMED [11.57 AM]
PN1470
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Butler, can I ask you whether there is anyone else with you in the room at the current time?‑‑‑No, there isn't. I'm in my office with the door locked. Yes.
PN1471
Okay, and do you have your statement of 4 February with you, a statement of 23 pages?
PN1472
COUNSEL: Paragraphs I think.
PN1473
THE WITNESS: 23 paragraphs.
PN1474
THE SENIOR DEPUTY PRESIDENT: 23 paragraphs, I'm sorry?‑‑‑Yes. Yes, three pages, 23 paragraphs. Correct.
PN1475
Yes. Thank you. Do you have any other documents with you?‑‑‑No.
PN1476
No, very well.
Yes Mr Scott?
EXAMINATION-IN-CHIEF BY MR SCOTT [11.58 AM]
PN1478
MR SCOTT: Mr Butler, can you hear me clearly?‑‑‑Yes, I can.
PN1479
It's Kyle Scott here. I'm just going to ask you a few questions?‑‑‑Yes.
PN1480
Can you just state your name and address for the record please?‑‑‑Okay, Tony Wayne Butler. Do you want business address or residential?
PN1481
Business address is fine thanks?‑‑‑18 - 22 Chisholm Road, Sefton, New South Wales.
PN1482
So you have a copy of your statement with you, Mr Butler?---I do.
PN1483
If I can take you to paragraphs 1 to 3 of that statement?---Yes.
PN1484
You say you're the director of J Robins Manufacturing Pty Ltd?‑‑‑Yes.
PN1485
And J Robins has been manufacturing footwear since 1873?‑‑‑J Robins in some form or another. It's changed hands and ownership qualities along the way, correct.
*** TONY WAYNE BUTLER XN MR SCOTT
PN1486
Can you provide some information to the Commission about your individual background and experience?‑‑‑Yes, not a problem. I started off as an apprentice with J Robins Chippendale in one of their Sydney factories in '76, worked for about eight, nine years. Left the company and joined a company called Mr Christian, worked for them as designer, general manager for three years. Left there then was headhunted to come back to J Robins, but instead was lured over to Fiji to start up a shoe factory over in Fiji. At that time we had SPARTECA under Forum Trade Islands with free trade between Forum State Islands and Australia. The government put up some money to open up a tannery over there, so we started a shoe factory up there and utilised the leather that was there to export back to Australia. I was there for five years, built it up from an initial seven people to 114 people. I was - we went for a two year tenure and stayed five years, and then was asked to come back to J Robins / WM Ritchie and moved down to the Melbourne plant to take over the Melbourne plant from the then general manager, Phillip Buck, or the new incumbent. Alan Noble was general manager. I landed in the end of April '92. Phillip took over as general manager in, I think it was the 1st of July. Alan retired. I was 2IC to Phillip for four years, and then he moved to Sydney with the company to start his training to become MD from the then present MD, Trevor Smith, and I took over the running of the plant down in Melbourne, which was the flagship. We made Jane Debster and then towards the end made Sandler and Easy Steps at the same time. Closed that plant because of circumstances in 1999, about November and then was brought up to Sydney to run the Belmore plant when Phil took over as MD. Up until that time ran the Belmore plant until the owners decided they would sell out and all products for Sandler, Debster and Easy Steps was made offshore and everybody was made redundant. I was approached by Julia Ritchie who is one of the original - is the daughter of the original family who started WM Ritchie's, and Trevor Smith retired in 2000 when Phil took over for - as MD. She was the last of the remaining Robins' family. So we've always had a Robins / Ritchie family member within the company. Julia approached me and she put up the money to keep manufacturing in some form in Australia. Her passion is to keep manufacturing in Australia, and has supported us ever since. So she supports us with finance and I bring the skills required to still manufacture shoes in Australia. We're still Australia's second-largest next to - behind RMs, RM Williams and both our companies do a lot of work with each other and for each other. We've changed - we've opened the doors and changed the manufacturing plant which we've just moved from in Belmore, which we were in the Belmore factory for 34 years, to the current Sefton property because the Ritchie family have sold the Belmore plant. Julia bought a place for us to call home, set it up in very similar to everything that we learnt in the Melbourne factory, because this is the only one that's ever been on one floor other than the original Melbourne factory. Just in Time, small teams. At the moment we manufacture probably eight different brands within the building for people that still wish to manufacture in Australia. Short runs, Just in Time and fashion boots. That sums it up in about - in a nutshell.
PN1487
That's great. Thanks Mr Butler. So just to confirm, you've been involved in manufacturing either in Australia or Fiji since around 1978?‑‑‑No, '75.
PN1488
'75?‑‑‑'75, '76. 16.
*** TONY WAYNE BUTLER XN MR SCOTT
PN1489
Mr Butler, can I take you to paragraph 21 of your statement?‑‑‑Yes.
PN1490
And the second-last sentence. This part of your statement deals with translating documents into different languages?---Yes.
PN1491
And at the second-last sentence of paragraph 21 it reads, "Such a requirement would impose an unreasonable cost imposition on J Robins"?‑‑‑Correct.
PN1492
Are you able to provide any information to the Commission about the current financial performance of J Robins?‑‑‑As I said the company, in its new structure because it used to be J Robins & Sons, we dropped the and sons in 2011 when we started the new business. We have had a red balance sheet since that date where money has needed to be put in. Julia put some money in to keep us floating to give us time and we've also received government grants for the current SE people, the SEP scheme that finished in June last year, to look at broader markets and under the ‑ ‑ ‑
PN1493
MS WILES: Your Honour ‑ ‑ ‑
PN1494
THE WITNESS: ‑ ‑ ‑banner of mass customisation.
PN1495
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Just one moment.
PN1496
MS WILES: Sorry, Mr Butler, it's Ms Wiles here from the TCFUA?‑‑‑Yes.
PN1497
The statement made by Mr Butler, your Honour, in 21 is "Such a requirement would impose an unreasonable cost imposition on J Robins". There's no evidence in this statement in relation to the company's financial position and in our submission Mr Scott is now seeking to lead that primary evidence from Mr Butler as part of this process. So we would object to this line of questioning because we say that it hasn't been dealt with in the statement proper.
PN1498
THE SENIOR DEPUTY PRESIDENT: Yes, well we've got some additional evidence in relation to that already. You're not going to go much further on that point, are you?
PN1499
MR SCOTT: No, your Honour. No.
*** TONY WAYNE BUTLER XN MR SCOTT
PN1500
THE SENIOR DEPUTY PRESIDENT: No.
PN1501
MR SCOTT: That was my only question.
PN1502
THE SENIOR DEPUTY PRESIDENT: Whilst we've interrupted you, Mr Butler, is the content of your statement true and correct?‑‑‑Yes, it is.
PN1503
And you adopt that as your evidence in these proceedings?---Yes, I do.
Very well, I'll mark your statement exhibit ABI 2.
EXHIBIT #ABI2 WITNESS STATEMENT OF TONY WAYNE BUTLER
PN1505
MR SCOTT: Thank you, your Honour. No further questions.
PN1506
THE SENIOR DEPUTY PRESIDENT: Yes, very well.
PN1507
Mr Mead?
PN1508
MR MEAD: No questions from us, your Honour.
PN1509
THE SENIOR DEPUTY PRESIDENT: Very well.
Ms Wiles?
CROSS-EXAMINATION BY MS WILES [12.07 PM]
PN1511
MS WILES: Mr Butler, it's Ms Wiles here from the TCFUA. Can you hear me reasonably well?‑‑‑Yes, I can. Yes.
PN1512
Thank you?‑‑‑Yes.
PN1513
Now Mr Butler do you speak any other languages other than English?‑‑‑Bad Italian, bad Fijian and bad Hindi.
*** TONY WAYNE BUTLER XXN MS WILES
PN1514
Okay, thank you?‑‑‑And that's only through my time - that's only my time in Fiji.
PN1515
Now in paragraph 6 of your statement?‑‑‑Yes.
PN1516
You indicate there the ethnic backgrounds of a number of your employees?‑‑‑Correct.
PN1517
So what's the largest ethnic grouping in your workforce of 55 employees?‑‑‑It would be a mixture of Vietnamese and Indonesian / Timorese.
PN1518
Thank you, and are all of those 55 employees production employees and covered by the Textile, Clothing and Footwear Award?‑‑‑Yes they are. Whether they choose to be members of that union is up to them but, yes. Yes, they are.
PN1519
Yes, but it's your understanding that they're covered by the award?‑‑‑Yes they are.
PN1520
Yes, okay, and approximately how many of your 55 employees are women?‑‑‑Probably 43.
PN1521
43?‑‑‑Yes.
PN1522
Okay, thank you?‑‑‑The footwear trade is traditionally a female orientated business.
PN1523
Yes?‑‑‑And has been for a number of years and the nationalities change depending on what the government is doing with immigration at any particular point in time or year.
PN1524
Yes, and so are you aware whether or do you have employees, are you aware whether you have employees that have primary responsibility for children?‑‑‑Yes.
PN1525
Would you know how many approximately?‑‑‑No, I wouldn't know exactly. A lot of my bees have been with me for a long time. So they were primary carers, as their kids have grown up, like all families, they look after themselves. So we have very few people here that would have children under the age of five, to my knowledge.
*** TONY WAYNE BUTLER XXN MS WILES
PN1526
All right, and can you tell us what's the ordinary hours of work for your production employees?‑‑‑6.30 am till 3.36 pm.
PN1527
Is that Monday to Friday?‑‑‑Monday to Friday. We work an extra hour every day as per our old EBA agreement that we had with J Robins & Sons and the TCF many years ago. No different to the one I had in Melbourne.
PN1528
And so the extra hour per day is that part of an RDO sort of arrangement?‑‑‑RDO arrangement, yes.
PN1529
Yes, okay. Thank you?‑‑‑So it can be taken as a nine day fortnight, a four day week or five days off in one lump sum depending on the work that we have.
PN1530
All right.
PN1531
THE SENIOR DEPUTY PRESIDENT: Sorry, can I interrupt? It's Senior Deputy President Watson, Mr Butler. In paragraph 9 you refer to a calendar poster. Could you explain to me what a calendar poster is?‑‑‑If we - if I'm notified with any period of two or three weeks ahead of what the work requirements are from any of our outside customers, well then I will post up "No RDOs". If I see that we are going to be running out of work and we have a certain number of people and a certain number of hours in a day, we sit down and work out well, is it better to have three RDOs off in this three week period, so we can bring some forward. Or if people don't have RDOs accrued we pay them out and they go into the negative and pay them back when we've got more than enough work that we can cope with. I call people - depend - it could be together in a individual team, depending on which client it's - they're servicing. Or it could be as a team then a factory. We discuss when would - what days would best suit, a Monday or a Friday for individual teams, because it's - we're all team based. Once that's decided then we'll put a note up on the wall stating the date at which the RDOs will be taken.
PN1532
So it's just a notice posted on the wall?‑‑‑A notice, yes. Yes, a notice. Sometimes we can do it in a calendar. We will put up a calendar and say, "These are the proposed dates for the next six months" but we only get - well, we only clarify them probably four weeks out, depending on what work's coming through. So people can plan their lives around that.
PN1533
Very well. Thank you for that.
PN1534
Ms Wiles?
*** TONY WAYNE BUTLER XXN MS WILES
PN1535
MS WILES: Thank you.
PN1536
Now in paragraph 8 of your statement, Mr Butler, you say there, and I quote:
PN1537
Many of our employees have moderate to poor English skills while others can speak English fluently.
PN1538
Can you see that?‑‑‑Varying English skills, yes.
PN1539
Yes?‑‑‑Yes.
PN1540
So on what basis do you make that assessment, Mr Butler?‑‑‑By talking to them.
PN1541
In English?‑‑‑In English.
PN1542
Yes, and so ‑ ‑ ‑?‑‑‑In - I'll qualify that. In simple English. Many of my people will tell me if I've come from one group of people that have a better grasp of language, but people in my factory have no problem asking me to slow down. So then I then automatically slow down, repeat what I've said, and then ask them to repeat back to me what their understanding of what I said was.
PN1543
Mr Butler, in relation to the group of the Vietnamese employees, which I think you said was the majority of those production employees?‑‑‑Yes. Yes.
PN1544
What is the level of their English language skills according to your assessment?‑‑‑Very good.
PN1545
So all of them?‑‑‑All of them, yes.
PN1546
All right?‑‑‑There's not one person on my floor that cannot and does not understand myself or staff when a direction or a question is asked. And if by the - looking in somebody's eyes that they are a little bit blank, which is a telltale sign that I've used for years, and your colleague will know exactly where I'm coming from, from this, we'll sit down and I'll call in people that have very good English and ask them to ask them in Vietnamese what they understand I said or whatever other language, and they will repeat it back. Just to make sure the understanding is correct.
*** TONY WAYNE BUTLER XXN MS WILES
PN1547
And in terms of the Chinese workers what is their proficiency in English language skills according to you?‑‑‑Chinese, very good. Very good. Some of those Chinese have been here for - obviously Chinese have been here for a long time. Two, in particular, understands extremely well. They've been with the company for a long time. They would have gone through the ESL training that the original company put up several years ago, 10 years ago.
PN1548
Now how does that evidence sit with your statement in paragraph 8 which says, "Employees ‑ ‑ ‑?‑‑‑Yes.
PN1549
Employees in our workplace have varying English skills. Many of our employees have moderate to poor English skills while others can speak English fluently.
PN1550
That's inconsistent ‑ ‑ ‑?‑‑‑Well some ‑ ‑ ‑
PN1551
‑ ‑ ‑ isn't it?‑‑‑No, I don't think so. Many ‑ ‑ ‑
PN1552
Well you just said ‑ ‑ ‑?‑‑‑There are many forms of communication. One is spoken English. One is written English, and some people will speak English better than they can read it or write it, and some people will read it or write it better than they can understand it.
PN1553
Yes, but Mr Butler you've just given evidence ‑ ‑ ‑?‑‑‑So you don't ‑ ‑ ‑
PN1554
‑ ‑ ‑ this morning that all of your Vietnamese speakers speak English - I think you said it was very good?‑‑‑Yes. That's correct.
PN1555
And yet in paragraph 8 you say, "Many of our employees have moderate to poor English skills" so how many employees do you have with poor English skills?‑‑‑What's your definition of poor?
PN1556
Well, it's your evidence, Mr Butler, so it's ‑ ‑ ‑?‑‑‑Yes, I ‑ ‑ ‑
PN1557
It's your evidence ‑ ‑ ‑?‑‑‑And in my - correct, and in my belief that they have good to moderate and some with poor English skills by what I would determine. You may determine that they have appalling English skills and somebody else may say they've got excellent English skills. For our working environment, for our day to day needs we have across the board, some are worse - some are poorer than others.
*** TONY WAYNE BUTLER XXN MS WILES
PN1558
So I'll ask you again, Mr Butler ‑ ‑ ‑?‑‑‑I don't pretend to - yes.
PN1559
How many of your employees do you believe have poor English skills?‑‑‑Probably two are poorer than I would like.
PN1560
Sorry, I didn't hear ‑ ‑ ‑And I qualify that by saying ‑ ‑ ‑
PN1561
Sorry, Mr Butler, I didn't hear your answer. What was that?‑‑‑Okay, two people would have English not to the degree that I would like them to have.
PN1562
And what language does ‑ ‑ ‑?‑‑‑But that doesn't - Vietnamese, but that doesn’t mean to say they don't understand what I say, and that they can't communicate to me back in English. All I'm saying there is they are - and this one lady has worked on her English for the last 18 months. When she first started she had extremely poor English but a reasonably good understanding of English. Now she speaks English better, a lot better than she did 18 months ago.
PN1563
Well, what I put it to you Mr Butler is that you really don't have any clear picture of who of your workers has poor English skills or moderate English skills, do you?‑‑‑I put it to you I do. I've been talking to people of many different languages for the last, as I said, 30 plus years. I don't pretend to be a good English orator myself or a good writer of English. My daughter is a fourth year honours student at New South Wales Uni doing English. I don't even bother trying to argue with her. She would say I have - would have poor English.
PN1564
THE SENIOR DEPUTY PRESIDENT: There's no point arguing with a daughter of that age, whatever the English skills?‑‑‑Exactly. Exactly.
PN1565
MS WILES: Do you accept the proposition, Mr Butler, that some of your 50 employees have poor English skills? Would you accept that proposition?‑‑‑I would accept that, yes.
PN1566
Yes, and do you also accept the proposition that some have poor spoken English skills and written English skills?‑‑‑No, I would say very rarely do you find both unless they're a new migrant. You'll have - we have some that have better reading English skills than they have spoken or vice versa. Normally it goes reading then listening then spoken.
*** TONY WAYNE BUTLER XXN MS WILES
PN1567
But your evidence is that the primary method of communication with employees is verbal, isn't it?‑‑‑Yes, that is the primary. Yes.
PN1568
Yes, so are you in a position to assess generally the English language skills of your non‑English speaking background workers?‑‑‑I believe I ‑ ‑ ‑
PN1569
Given that most communication is oral?‑‑‑I believe that I am, yes.
PN1570
Well on what basis, Mr Butler?‑‑‑Do I have a piece of paper to say it? No, of course not. But I do have - I think over the years I've had probably in excess of 2000 people working for me at some stage or another with various different languages. My understanding of their language, I put it to you, is probably better than yours. But that's not the question here.
PN1571
Well just so I'm clear and that you're clear about what the question is. The question is are you in a position to assess the English language skills of your non‑English speaking background workers?‑‑‑Yes I am.
PN1572
Based on what?‑‑‑Based on my experience.
PN1573
THE SENIOR DEPUTY PRESIDENT: Is that true in respect of both spoken and written?‑‑‑Definitely spoken. Written, if I ask somebody to write something out and I can read it then I would think so.
PN1574
Yes, but do you actually have knowledge of their written skills? Is there an exchange of written materials between you and the employees?‑‑‑Occasionally we will have informal - blind votes or we'll put in - well get cards, pieces of paper, asking for ideas. Some people will write them down, some people will put their name to them and I know other people have written it down for them if it's an idea that they can't articulate. But the communication still gets through.
PN1575
Thank you.
PN1576
MS WILES: Mr Butler, I just wanted to follow up from a question from his Honour. This was in relation to the calendar poster?‑‑‑Yes.
PN1577
Yes, so I think you said - and correct me if I'm wrong - that this is essentially a roster that, what, at every - how often is that produced?‑‑‑We produce that - we try and do one every six months but it's changed probably monthly. It could even be - at the moment it's changing weekly.
*** TONY WAYNE BUTLER XXN MS WILES
PN1578
And is that because ‑ ‑ ‑?‑‑‑It's the bad time of year.
PN1579
Is that because of the RDO movement? Is that primarily why?‑‑‑No, it's primarily because of the lack of work at the moment that we have with the season that we're in. So then we have to try and slow the factory down. So some of it will be RDOs, some of it will be annual leave, which is coming up in Easter.
PN1580
So it's mainly those two things, is it, RDOs and annual leave?‑‑‑Yes, correct.
PN1581
All right. Thank you, and do you personally produce that calendar or is it somebody else in your company?‑‑‑I will handwrite one - what's required down and then give it to Stephen, our secretary or office manager, and he will type it up and print it out. Who by the way is Vietnamese and speaks beautiful English and written English.
PN1582
Now in paragraph 10?‑‑‑Yes.
PN1583
You say there, "When communicating with staff members who have poor English skills ‑ ‑ ‑?‑‑‑Yes.
PN1584
"I try to speak in clear and simple English ‑ ‑ ‑?‑‑‑Yes.
PN1585
"In terms and words that they can understand"?‑‑‑Yes.
PN1586
Yes, okay, and then you go on to say that this is usually effective?‑‑‑Yes.
PN1587
Now how do you ascertain whether in your view it's effective communication or not, Mr Butler?‑‑‑Because people like - will return - repeat what I say, so I consider they've understood it. I'll ask for questions afterwards. Normally there's somebody that asks a question, whether it's on their behalf or somebody else's behalf, for clarification. Or I will approach the subject in two or three different manners or ways.
PN1588
But you've got a relatively large group of workers, haven't you? 50? I think 50 who don’t have ‑ ‑ ‑?‑‑‑55.
PN1589
55, yes and I think you said, was it 50 of those ‑ ‑ ‑?‑‑‑Yes, are non‑English as a first language.
*** TONY WAYNE BUTLER XXN MS WILES
PN1590
That's right?‑‑‑Yes.
PN1591
Yes, so when you are checking whether someone is understanding you?‑‑‑Yes.
PN1592
Do you go to each of those 50 employees and assess whether each one of them has understood you?‑‑‑Depending on what the topic is and whether I'm speaking to them as individuals or as a team.
PN1593
So you're saying that there are times when you ‑ ‑ ‑?‑‑‑I don't hold church meetings like the union does. We run teams so most of what we do is team based or individual based. So it is very easy to get the feedback about understanding. These people are learning new skills most days. This morning I spent three hours with the people in one team, moving their team around and reorganising their workforce - their work places very successfully. I didn't have anybody that went to the wrong end of the building.
PN1594
Yes, but I mean in terms of you assessing if each individual worker from a non‑English speaking background has understood what you've said?‑‑‑Yes.
PN1595
You don't do that, do you?‑‑‑I could write it in Vietnamese and I could not still at that point in time guarantee that they understood it because some people - we've got Vietnamese here that don't actually write Vietnamese, or they write it in different dialects depending on whether they're north or south.
PN1596
Yes. Well maybe if I put it his way ‑ ‑ ‑?‑‑‑So ‑ ‑ ‑
PN1597
Maybe if I put it this way, Mr Butler. You say that that's effective?‑‑‑Yes.
PN1598
You say that's effective communication ‑ ‑ ‑?‑‑‑In this environment it is, yes. Yes.
PN1599
‑ ‑ ‑ if you just try and speak in clear and simple English. That's your evidence, isn't it?‑‑‑No, my evidence is that I have a workforce that are very flexible. We are still manufacturing in Australia which is an environment which is ‑ ‑ ‑
PN1600
Mr Butler if you could just answer the question?‑‑‑‑ ‑ ‑ extremely hard to do.
PN1601
Mr Butler, if you could just answer the question?‑‑‑I did. Yes.
*** TONY WAYNE BUTLER XXN MS WILES
PN1602
MR SCOTT: Your Honour the question was what is his evidence, and he's giving evidence.
PN1603
THE SENIOR DEPUTY PRESIDENT: Yes. I think that's right. I'm not sure the answer is adding anything and he has already dealt with those matters. So perhaps you could ask another question, Ms Wiles, or you can ask the same question.
PN1604
MS WILES: Yes.
PN1605
THE SENIOR DEPUTY PRESIDENT: But perhaps if you could address specifically the question being put to you, Mr Butler.
PN1606
Go ahead, Ms Wiles, what's the question?
PN1607
MS WILES: Mr Butler, maybe if I put a scenario to you?‑‑‑Yes.
PN1608
So you've indicated that you don’t speak Vietnamese. That's correct, isn't it?‑‑‑Correct.
PN1609
So if a Vietnamese speaker communicated with you in simple Vietnamese do you still think you're likely to understand what they're saying?‑‑‑Are you suggesting that I was on holidays or in the building here?
PN1610
Sorry, I didn't hear your answer, Mr Butler. Could you repeat that?‑‑‑Okay, if I was speaking nothing but Vietnamese, simple or not, of course I would not. I have had no Vietnamese training.
PN1611
Yes, so it wouldn't make any difference whether the Vietnamese speaker was speaking to you simply, would it, because you still couldn't understand the language?‑‑‑No, it ‑ ‑ ‑
PN1612
That's right?‑‑‑No, it would not. But if I was in Vietnam and in a role reversal I would have learnt some Vietnamese before I went over there. No different to my bad ‑ ‑ ‑
PN1613
Well that's not the question, Mr Butler?‑‑‑‑ ‑ ‑Italian or bad Fijian.
*** TONY WAYNE BUTLER XXN MS WILES
PN1614
Mr Butler, that's not the question?‑‑‑Yes, okay. If they spoke to me in French I wouldn't know either.
PN1615
THE SENIOR DEPUTY PRESIDENT: Well I think if all you're getting to, Ms Wiles, is that a person who had no English language skills would not understand an instruction in English, however simply put, then I can indicate I think probably on behalf of the Full Bench as a whole would accept that proposition.
PN1616
MS WILES: Yes.
PN1617
THE SENIOR DEPUTY PRESIDENT: I'm not sure we need to take it much further with Mr Butler.
PN1618
MS WILES: Mr Butler, do you accept the proposition that there may be some of your employees with poor English skills who may be embarrassed to indicate to you that they don't understand; do you think that's possible?‑‑‑My answer will be no, and I will qualify it for you, because all of my employees have been here for the - with me for the last three years of my lease tenure. The answer would have been yes in the first days or weeks or months of employment, but I go to great lengths to turn that around and so do the people on the floor. The people that speak Vietnamese to their - to any newcomers will encourage them to - I go around every morning and say good morning to everybody in the building, so I don’t have a barrier between myself and any of my employees, so there should be no embarrassment there.
PN1619
Well, Mr Butler, you might think there’s no barrier but it’s possible, isn’t it, that an employee might think that there’s a barrier?‑‑‑Yes, correct. And there’s a barrier between employees too, male and female, that’s the same thing. That female Vietnamese are embarrassed to talk to male Vietnamese if they’re not in a relationship but that doesn’t mean to say they don’t effectively communicate.
PN1620
My question was whether you accepted the proposition that some of your employees may have been embarrassed - anyway you’ve given your evidence ‑ ‑ ‑?‑‑‑No.
PN1621
‑ ‑ ‑ about that. No, okay?‑‑‑Yes.
PN1622
In paragraph 11 you give some evidence there about Jay Robins, in the past, has employed ESL teachers?‑‑‑Yes, correct.
*** TONY WAYNE BUTLER XXN MS WILES
PN1623
And provided English classes?‑‑‑Yes, correct.
PN1624
So when did that happen, Mr Butler?‑‑‑It happened in Melbourne in the mid-90s, up until when we closed. The people that are concerned here it happened in - it would have been 2006 - 2004 through to 2008 would have been the last one, last class. We still have - we still have people here that went through that process.
PN1625
Yes, but it hasn’t occurred since the change of business owner, has it?‑‑‑No, it hasn’t, because most of those people came over with us, all except two that are new employees. As I stated before, they’ve been with me for two and a half years or so. So everybody else has been - been - combined tenure probably over seven or eight years.
PN1626
So since there’s been a change of business owner, there’s been none of those programs run, that’s right yes?‑‑‑Correct. I haven’t seen a need to at this point in time. If we grow the business and start employing a lot more people well then certainly that will be one of the first things I will look at.
PN1627
Do you have any knowledge about when those programs were run and who actually paid for it, Mr Butler?‑‑‑It was paid for by - under government grants. Our HR Department would have run that way back then. I have no - I wasn’t in charge of the HR Department then.
PN1628
All right. Now, I want to take you to paragraph 12 of your statement where you say there:
PN1629
When situations arise when employees have difficulty understanding instructions it’s customary for other employees to come to their aid by clarifying or interpreting for them.
PN1630
?‑‑‑Correct.
PN1631
Now, that expression “coming to their aid” is a very general description, isn’t it? What do you mean by that?‑‑‑Okay. This morning, for instance, as I said, we did a relay out of one of the teams. One of the lasses that, as I said, has under normal English that I would like to make sure she understood what the new process was, the other lady that works with her, or in her team, explained it in Vietnamese and then she explained it back to me in her English, just to make sure that the process was being followed.
*** TONY WAYNE BUTLER XXN MS WILES
PN1632
So which of the language groups do the other employees assist?‑‑‑Mainly Vietnamese because that’s the dominant at this point in time. That could change back to Italian in 12 months’ time.
PN1633
Excuse me for a moment, Mr Butler?‑‑‑Okay.
PN1634
Apart from Vietnamese what about for the other language groups?‑‑‑The other language groups have no problem communicating or understanding English workplace. As I said, they’ve been with us for a long time. I’ve got two employees that didn’t go through the ESL classes, but they are learning English in their own time, in their own - after hours, we help where we can. I speak to them every day and, as I said - and my humble understanding, their English - spoken English and understanding of English is improving, but I go to pains to make sure that they do understand change of process because if they - if the process isn’t followed well then it’s very costly.
PN1635
Do you direct those other employees who come to the aid, do you direct them to interpret for the other employees?‑‑‑No. No.
PN1636
As far as you’re aware, those employees who come to the aid of others, are they - do they have any qualifications in interpreting or translating, that you’re aware of?‑‑‑I think you know the answer to that one, no, other than they speak both languages. I’ll go back a bit, I don’t direct people, I don’t say, “You must translate for me.” I may ask, “Can you check that she has understood what I’ve said?” Or, “Do you understand what I’ve said? Can you make sure that she repeats back to me?” Or ask them, “If you can repeat back to me what your understanding of what I’ve just said is?”.
PN1637
Do you have any way of making an assessment of whether those employees who come to the aid of another employee are competently bilingual?‑‑‑My understanding ‑ ‑ ‑
PN1638
Or can you not make - sorry. Sorry for interrupting?‑‑‑Yes. Do they have any or do I have any qualifications? No, of course not.
*** TONY WAYNE BUTLER XXN MS WILES
PN1639
This is a different question in a way. Yes, you’ve already indicated that no, they’re not qualified, they don’t have any formal qualifications. This question is about the way you or whether you have any knowledge of whether they’re competent in being bilingual. So what is the level of their proficiency in both English and, in this case, Vietnamese?‑‑‑As I said before, I’ve got two below par English speaking employees. I think I’m old enough and ugly enough to ask one of the more mature, better English speaking personnel that I have working for me, rather than the second new one that started.
PN1640
Yes, okay?‑‑‑Of course I’m going to choose somebody that has good spoken and handwritten English, by my determination, to ask them to translate or check that the instructions have gone through correctly.
PN1641
But you could only make an assessment on their English skills, couldn’t you? You couldn’t make an assessment on their Vietnamese proficiency?‑‑‑No, correct. All I can assume is that they speak Vietnamese reasonably well.
PN1642
All right, Mr Butler ‑ ‑ ‑?‑‑‑Sorry, by that I’ll also clarify if it’s somebody from North Vietnam I won’t get them to - I won’t ask them to converse in Vietnamese to the South Vietnamese because they generally don’t understand each other.
PN1643
Yes, thank you for that. Now, I’m just wanting to ask you some questions about the union claim. I think you deal with this in paragraphs 13 to 23 of your statement?‑‑‑Yes.
PN1644
Now, do you agree with the proposition that consultation with employees about changes which affect them is important?‑‑‑Yes, I agree with that.
PN1645
Why do you think it’s important, Mr Butler?‑‑‑Why do I think it’s important? For everybody’s welfare. For employment betterment, understanding.
PN1646
Can you explain to the Commission what your understanding is of the current consultation obligations, under clause 9.2 of the award?‑‑‑I don’t have the award in front of me, it’s been a while since I’ve read it, probably about six months. I didn’t read up on it for this instance.
PN1647
So you can’t tell us what you think your company’s current obligations are, around consultation around changes to ordinary hours of work or rosters?‑‑‑No, but give me 20 minutes and I’ll go re-read it and I’ll make sure what I understand it to be.
PN1648
So I take it from that, Mr Butler, that you don’t understand what you’re obligations are, currently?‑‑‑No, you can’t take that.
*** TONY WAYNE BUTLER XXN MS WILES
PN1649
Well ‑ ‑ ‑?‑‑‑Just because I haven’t read I - just because I haven’t read it in the last six months doesn’t mean to say I haven’t read it or I don’t understand what the obligations are.
PN1650
Well, it’s a fairly straightforward question, Mr Butler, either you can tell us what you think the obligations are, or you can’t. Is your answer no to that?‑‑‑At this point in time, yes.
PN1651
Okay. Well, 9.2 - I’ll assist you here, Mr Butler. 9.2 basically relates to consultation in relation to a proposed change to an employee’s regular roster or ordinary hours of work?‑‑‑Yes.
PN1652
So, given that, would you agree that that obligation wouldn’t apply to overtime hours?‑‑‑Yes, correct.
PN1653
It wouldn’t apply to leave arrangements?‑‑‑No. I could go back on overtime as well. If you were wanting to communicate something and change hours I would have thought this would have been aimed at overtime, changing of hours, rather than just normal start and finish and what have you, because that’s where most of the complication is going to come in, in other work environments, would be my thought.
PN1654
Yes, but your evidence, in paragraph 15, you say there, and I quote:
PN1655
Sometimes when workloads are high employees may be required to work additional hours or return early from the Christmas closedown period.
PN1656
Do you see that?‑‑‑Yes, correct.
PN1657
So do you agree - well, I’m asking you, when you talk about additional hours, are you meaning overtime hours?‑‑‑No. No.
PN1658
Well, what do you mean there?‑‑‑Additional hours if tomorrow was set for an RDO, which it is - which it is, we decided that last week, if an order came in yesterday I would go down and speak to the team and - or a group of teams and say, “We have work for Friday, is there anybody that can work Friday?” So that would be additional work for them and they would accrue it as RDOs and take it off the following Friday or Monday or a Monday, Tuesday, whatever was required.
*** TONY WAYNE BUTLER XXN MS WILES
PN1659
So that’s what the calendar that you talked about earlier deals with?‑‑‑Yes. The calendar deals with any formal things that we know in advanced, but obviously a calendar can’t deal with something that happens yesterday that we need to act on. Obviously, if that communication didn’t occur correctly and 10 people are going to say they’re turning up to work tomorrow and only three did, well then I’d have to say that was pretty poor communication. I’ve never had that.
PN1660
Can I just ask you about leave? How long are your normal company shutdowns over Christmas?‑‑‑At the - at the moment they’re normally three weeks or four weeks, depending on what sort of forecast we have, but normally three weeks.
PN1661
When you ask workers to return early from the Christmas shutdown, do you do that before the holidays start?‑‑‑Yes.
PN1662
Okay. Do you normally get enough workers agreeing to come back early?‑‑‑Yes. We normally have too many wanting to come back early. Mainly because they’d like to take the extended period of time during the northern summer so they can go back to Vietnam or China or wherever else.
PN1663
All right. So that scenario that you’re talking about, where you go to workers and you ask for volunteers to come back early, that’s not really a proposal to change their ordinary hours of work, is it? It’s just about leave arrangements?‑‑‑No. Well, where does it start and where does it stop, yes.
PN1664
So how do you generally communicate with employees who are not at the workplace, Mr Butler? So employees who are already on leave?‑‑‑Yes. Can you repeat that again?
PN1665
How would you normally communicate with employees who are not at the workplace? So people who are already on leave, about issues such as what you’ve talked about?‑‑‑I would ring them up, a phone call.
PN1666
All right. Including the Vietnamese workers?‑‑‑Including the Vietnamese workers. We have all their contact numbers.
PN1667
Yes, and you’d speak to them in English?‑‑‑I’d speak to them in English.
PN1668
Yes. Now, in paragraph 18 you say there that you’re opposed to a requirement in writing as it would make this sort of flexibility very difficult or impossible?‑‑‑Yes, correct.
*** TONY WAYNE BUTLER XXN MS WILES
PN1669
Do you see that?‑‑‑Yes.
PN1670
But you’re already putting up rosters in writing, aren’t you? In advance?‑‑‑A date.
PN1671
A date?‑‑‑A date on a calendar. A date on a calendar. So we print off a calendar off the computer and we colour it in and it says RDO or annual leave, or whatever else. One - one numeral or one set of numerals covers whatever language I have downstairs and it’s quickly - if it needed to be changed Steven will come up and print a new one off and put it downstairs or hand it out if it’s a late change. I don’t have to try and get a certified translator and spend hundreds of dollars and spend days getting it down.
PN1672
Yes. Well, in paragraph 18 you state there that - well, you’re opposed to a requirement in writing as it would make this sort of flexibility very difficult or impossible. But that’s not correct, is it, Mr Butler?‑‑‑Yes, it is.
PN1673
Well, I put to you that it’s not because asking workers to change their RDO arrangements doesn’t relate to a change to ordinary hours of work, does it?‑‑‑I put back to you if the ordinary work expected this week is Monday to Friday and we run out of work and I go to people on Wednesday and say, “Guy’s we’ve run out of work, we’ve got an excess - we’ve got RDOs in the bank, what’s your thoughts on taking Friday off as an RDO?” Wouldn’t that be changing their normal hours of work?
PN1674
Well, you’re asking them to do that on a voluntary basis, aren’t you?‑‑‑Yes, correct.
PN1675
Yes. What about when you ask people to come back early from the Christmas shutdown?‑‑‑Yes.
PN1676
That’s about leave arrangements?‑‑‑Voluntary.
PN1677
Yes?‑‑‑Yes, at the moment, yes.
PN1678
So there’s nothing in the union’s proposal to vary the award that would stop you doing that, would it? Or put it this ‑ ‑ ‑?‑‑‑I’m going to be - I’m going to be guarded on that question, yes, and that’s only through previous experience.
*** TONY WAYNE BUTLER XXN MS WILES
PN1679
MR MEAD: Your Honour, I appreciate this is Mr Scott’s witness, but surely this is a right of argument for submissions?
PN1680
THE SENIOR DEPUTY PRESIDENT: Yes. I think you’re going an awful long way down the submissions now. Whether you’ve established Mr Butler’s understanding of the clause and what falls or doesn’t fall within it I think is really a matter of submission as to what you make of that and whether or not Mr Butler has a particular view is not going to be determinative.
PN1681
MS WILES: Your Honour, it’s just that his evidence is that it - sorry, that it would reduce his flexibility or to make it impossible or difficult.
PN1682
THE SENIOR DEPUTY PRESIDENT: Yes, and you’ve dealt with that and you’ve received responses and you can make submissions about it, there’s no point trying to get Mr Butler to accept your submission prior to you making it.
PN1683
MS WILES: Yes, if the Commissioner pleases.
PN1684
THE SENIOR DEPUTY PRESIDENT: I can tell you the claim will not be successful on the basis that Mr Butler expressed a view in his evidence that that proposition was correct.
PN1685
MS WILES: Yes, point taken. Now, in paragraph 19, Mr Butler, can I take you there?‑‑‑Yes.
PN1686
You say there:
PN1687
A requirement to put such a process in writing would likely create more confusion than provide clarity to employees.
PN1688
Do you see that?‑‑‑Yes.
*** TONY WAYNE BUTLER XXN MS WILES
PN1689
Well, that’s just your opinion, isn’t it, it’s not based on any factual basis at all?‑‑‑Well, no, I correct you there, it is a factual basis because when we had our first EBA in Melbourne, and Michelle O’Neil ran that, we had transcripts done in six different languages and that was when I first found out that a lot of the people didn’t read their own language and these were done by professional transcript, whatever, translators. Because of the employees we have, and their backgrounds, some of their written mother language they don’t necessarily read very well and there’s a lot of ambiguity on how it’s written, depending on north, south, what cast they’re from, all sorts of things. So that’s why I stand by what I just said there, I’ve had experience in that, lots of experience in that.
PN1690
Would you agree ‑ ‑ ‑?‑‑‑Indeed, there were nine different casts of Indians.
PN1691
Right. So would you agree, though, that an EBA is a much larger document than a document that you would provide, for example, to an employee or employees about a proposed change to their hours of work? It’s a much more detailed, larger document, you would agree with that?‑‑‑I’d - I would agree with that, yes.
PN1692
I put it to you ‑ ‑ ‑?‑‑‑But a one page can still be misleading or misunderstanding, any one page of that document, yes.
PN1693
Well, I put it to you, Mr Butler that having no information in a person’s own language is likely to lead to more misunderstanding, would you agree with that?‑‑‑No, I wouldn’t. If their understanding of English is sufficient to ‑ ‑ ‑
PN1694
What if they don’t, Mr Butler? What if they have very poor English skills, which you say some of your employees do?‑‑‑Okay. And their Vietnamese might be - spoken, may be good, so I could hand a Vietnamese translation over to the person and they would be none the wiser.
PN1695
I don’t think you can assess that, can you, because you don’t speak Vietnamese?‑‑‑No, I don’t. No, I don’t, but I have experience in that, as you would say.
PN1696
Mr Butler, you couldn’t possibly know what your employees, with poor English skills, would think about receiving information in writing, could you? That’s just an assumption on your behalf?‑‑‑Correct. Same as it is on your behalf.
PN1697
Well, I’m putting the questions, Mr Butler. There’s no evidence from any of your employees about their views on that particular issue, is there?‑‑‑I could go downstairs and probably ask 10 people and get the same answer.
PN1698
But there’s no evidence, before this Commission, from any of those employees?‑‑‑No, there’s no ‑ ‑ ‑
PN1699
That’s right?‑‑‑No, there’s no - no. But do you have evidence from employees saying that they need writing?
*** TONY WAYNE BUTLER XXN MS WILES
PN1700
THE SENIOR DEPUTY PRESIDENT: Mr Butler, I want to avoid a debate?‑‑‑Okay.
PN1701
Ms Wiles is asking questions which invite a debate. I’m happy for them to be asked on the basis that they lead somewhere, but in themselves they’re not achieving any great deal. If it’s a question as a base for then a further question, that’s fine and I’m permitting them on that basis.
PN1702
MS WILES: Mr Butler, have you investigated the cost of translating documents into other languages?‑‑‑Yes, I have.
PN1703
When did you do that?‑‑‑When this first came about. Probably a week, two weeks ago.
PN1704
All right. What information did you glean?‑‑‑Anywhere between $95 and $250, depending on how fast you wanted it. The quickest service we could get was two and a half day, providing - two and a half days, providing they get the submission by 10 o’clock to work on it and have it back.
PN1705
So did you get any written quotes about that?‑‑‑No, didn’t need to. I just did it for my information.
PN1706
Right. So what would you consider to be reasonable, in terms of having a short document translated, in terms of cost?‑‑‑Okay. In terms of cost probably $50, and that’s per item. But the biggest cost there isn’t the translation of the document, the biggest cost is the amount of time that could go past when it needs to be done straight away. Two days, I’m dead. I have people standing around doing nothing, which is costly. We are the last remaining women’s ‑ ‑ ‑
PN1707
Yes, Mr Butler ‑ ‑ ‑?‑‑‑‑ ‑ ‑ fashion shoe factory in Australia. Everybody else has gone offshore because of the inability to be flexible. We’ve survived because we have good communication skills.
PN1708
So, Mr Butler, when you say you’ve got people standing around doing nothing, are you saying that employees are stood down at various points?‑‑‑No, I do everything - the reason we’re so flexible is to make sure that they’re not stood down. If we don’t have work they go off on paid RDOs.
*** TONY WAYNE BUTLER XXN MS WILES
PN1709
Right. Okay?‑‑‑If they don’t have accrued RDOs, they’re paid the RDOs and then when we’re busy those are paid back. So nobody goes without any pay. I once stood a whole factory down in Melbourne and that was - we won’t enter into why that was at this point in time, but yes.
PN1710
Now, I think you gave evidence that you said that when you wanted to change the RDO arrangement that you sought volunteer?‑‑‑Correct.
PN1711
Yes. How long would you normally give people to come back to you about that? One or two days?‑‑‑By the end of the day, by the end of the working day. If we had - if we have to move quickly, we move quickly. So I’ll have a meeting with teams in the morning and another one in the afternoon and it’s decided upon. People have plenty of time to make phone calls to make sure - or change arrangements. If they can’t change arrangements well they’re not forced to, we fill in from other teams. Generally that is done by the people themselves downstairs. We’ve spent an awful lot of money over the years on empowerment, multi-skilling and team building.
PN1712
In paragraph 22?‑‑‑Yes.
PN1713
Just one moment. Yes, you indicate there that you’re not necessarily aware of each employee’s proficiency, in terms of written English or in their own native written language?‑‑‑Yes. I thought we’d touched on this. Yes.
PN1714
So have you ever asked any of your employees who do not have good English, or written English, whether they would find translated material helpful?‑‑‑No, I have not asked that question. The need has not arisen.
PN1715
If one of your employees did make that request, what would your response be?‑‑‑My response would be I would have it done by one of the people in the factory. A supervisor or depending on who I thought was capable of doing it for that language.
PN1716
But you’ve given evidence that you don’t have - you can’t assess the language proficiency of those people that assist?‑‑‑That’s not what you asked. You asked ‑ ‑ ‑
PN1717
I know, but I said that you ‑ ‑ ‑?‑‑‑ ‑ ‑ - would I have something provided in writing, yes I would do, I would have it by somebody who speaks Vietnamese and English and can write Vietnamese.
*** TONY WAYNE BUTLER XXN MS WILES
PN1718
But you wouldn’t consider a professional translation?‑‑‑No, I wouldn’t. No, I wouldn’t, because of the time involved. If it was for an EBA probably, but EBAs don’t happen straightaway.
PN1719
Just so I’m clear, you’re prepared to have an EBA translated into another language, but you’re not prepared to have a short document, less than a page, around consultation, translated, is that right?‑‑‑Correct. EBAs don’t happen overnight, they happen - there’s consultation over months. As you said yourself, they are big documents. There are a lot of things in an EBA that people may not understand. So, as proven in Melbourne, more than happy to do that, if we went down that path again.
PN1720
So you’re not concerned about the costs imposition of having an EBA translated?‑‑‑Course I am. Course I am. That’s why I don’t have an EBA currently.
PN1721
Now, in paragraph 23 you say there:
PN1722
I also suspect that employees would be opposed to such requirements as it would likely reduce flexibility for them.
PN1723
Now, you can’t give any evidence at all about what employees might think, can you?‑‑‑No, but I can make assumptions.
PN1724
That’s right, you can make an assumption.
PN1725
THE WITNESS: Employees came to me and asked if they could have Chinese New Year off, two days before Chinese New Year.
PN1726
THE SENIOR DEPUTY PRESIDENT: Just wait for a question, Mr Butler. Are there any more questions, Ms Wiles?
PN1727
MS WILES: I have no further questions, your Honour.
THE SENIOR DEPUTY PRESIDENT: Mr Scott, anything arising?
RE-EXAMINATION BY MR SCOTT [1.03 PM]
*** TONY WAYNE BUTLER RXN MR SCOTT
PN1729
MR SCOTT: Just one your Honour. Mr Butler, it’s Kyle Scott here, I just have one question for you?‑‑‑Yes.
PN1730
At paragraph 22 your statement says:
PN1731
I’m not necessarily aware of each employees proficiency in terms of understanding written English or their own native written language.
PN1732
?‑‑‑Correct.
PN1733
Ms Wiles asked you about that. If you were required to determine and make an assessment of each of your employees’ understanding of written English proficiency, how would you go about doing that?‑‑‑I would talk to them, ask them several questions and then ask them to write down, in English, what I had said and then ask them to read it back to me and then look at the differences. So do you want an example, or not? I’d look at feedback and my determination, unskilled as it is, would be if somebody’s written down what I have said and told me what I said, from one language to another, through their own translation then back onto a piece of paper, it’s not going to be too bad.
PN1734
So just to confirm, you said you would make an assessment, or you’d make an unskilled determination based on your assessment?‑‑‑Correct.
PN1735
If you had to do that for each of your 50 - well, 55 employees, how long do you think that might take you?‑‑‑Depending what it was, a day, two days. Maybe longer ‑ ‑ ‑
PN1736
Thanks, Mr Butler. Sorry, I’ll let you finish?‑‑‑Depending on ‑ ‑ ‑
PN1737
Thank you, Mr Butler. No, further questions, your Honour.
PN1738
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Butler, for your evidence, you’re excused from the proceedings?‑‑‑Thank you very much. Have a good day.
Thank you.
<THE WITNESS WITHDREW [1.05 PM]
PN1740
THE SENIOR DEPUTY PRESIDENT: I’ll adjourn till 2 pm when we’ll hear from Mr Wilkinson.
SHORT ADJOURNMENT [1.05 PM]
RESUMED [2.07 PM]
PN1741
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Scott?
PN1742
MR SCOTT: Thank you, your Honour. I call Mr Roy Wilkinson.
PN1743
THE SENIOR DEPUTY PRESIDENT: Yes, very well. Are you there, Mr Wilkinson?
PN1744
MR WILKINSON: Yes, I am.
THE SENIOR DEPUTY PRESIDENT: Yes. We'll just administer the oath.
<ROY WILKINSON, AFFIRMED [2.08 PM]
PN1746
THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Wilkinson. Mr Wilkinson, are you alone in the room at the moment?‑‑‑Yes, I am.
PN1747
Do you have your statement of 13 paragraphs in front of you?‑‑‑I do, yes.
PN1748
Do you have any other documents with you?‑‑‑No, I don’t.
Very well. Yes, Mr Scott?
EXAMINATION-IN-CHIEF BY MR SCOTT [2.09 PM]
PN1750
MR SCOTT: Mr Wilkinson, Kyle Scott here from the New South Wales Business Chamber. I'm just going to ask you a few questions?‑‑‑Certainly.
PN1751
Can you just state your name and address for the record, please?‑‑‑Well, my name is Roy Anthony Wilkinson. My personal address, I presume?
*** ROY WILKINSON XN MR SCOTT
PN1752
Business address is fine?‑‑‑Business address? Care of Akubra Hats, which is in South Street, Kempsey, New South Wales.
PN1753
Mr Wilkinson, do you recall giving a statement to our office in relation to these proceedings?‑‑‑Yes, I do.
PN1754
And you have that in front of you?‑‑‑I do.
PN1755
You've signed that dated 28 January 2015?‑‑‑That is correct.
PN1756
Is the content of that statement true and correct to the best of your knowledge?‑‑‑To the best of my knowledge, yes.
PN1757
I seek to tender that statement, your Honour.
THE SENIOR DEPUTY PRESIDENT: Yes, very well. I'll mark the 28 January 2015 statement, 13 paragraphs, of Mr Roy Wilkinson exhibit ABI3.
EXHIBIT #ABI3 STATEMENT CONTAINING 13 PARAGRAPHS OF MR ROY WILKINSON DATED 28/01/2015
PN1759
THE SENIOR DEPUTY PRESIDENT: Yes, anything further, Mr Scott?
PN1760
MR SCOTT: Just a few questions for Mr Wilkinson, your Honour.
PN1761
If I can take you to paragraph 7 of your statement, Mr Wilkinson?‑‑‑Yes.
PN1762
It says there:
PN1763
The Textile, clothing, Footwear and Associated Industries Award 2010 covers Akubra as well as the Akubra Hats Enterprise Agreement 2013 and applies to many of its employees at the Kempsey plant.
PN1764
?‑‑‑Yes.
PN1765
So you have a 2013 enterprise agreement in place?‑‑‑That is correct.
*** ROY WILKINSON XN MR SCOTT
PN1766
So when your statement there says “the award applies to many of its employees” do you agree that the enterprise agreement will trump the award and so the award, strictly speaking, doesn't apply to your workforce at the moment?‑‑‑Yes, that is correct. That's my understanding, yes. Our enterprise agreement is the main vehicle.
PN1767
If I can then just take you to paragraphs 12 and 13 of your statement?‑‑‑Yes.
PN1768
12 starts there saying:
PN1769
I do not consider it necessary to impose a requirement on Akubra.
PN1770
And then 13 starts with:
PN1771
Such a requirement would increase the administrative burden of Akubra.
PN1772
Do you accept that if the award was to be changed as a result of these proceedings, it would not impact Akubra at the moment due to the fact that your enterprise agreement applies?‑‑‑Yes, that would be correct. It would directly impact at the present time. Correct.
PN1773
No further questions, your Honour.
PN1774
THE SENIOR DEPUTY PRESIDENT: Yes, very well. And you're content, Mr Mead?
PN1775
MR MEAD: Very content, your Honour.
THE SENIOR DEPUTY PRESIDENT: Very well. Ms Wiles?
CROSS-EXAMINATION BY MS WILES [2.12 PM]
PN1777
MS WILES: Mr Wilkinson, you state in paragraph 1 that you're the company secretary and director of Akubra Pty Ltd?‑‑‑That's correct.
PN1778
I put it to you that’s not correct, that you're not a director and company secretary of that company?‑‑‑I'm not? No, I'm a little bit confused. If it’s – looking at the statement we haven't included the word “Hat Pty Ltd” then that’s an oversight, but otherwise I am the company secretary here and I am a company director.
*** ROY WILKINSON XXN MS WILES
PN1779
Of which entity?‑‑‑Sorry?
PN1780
Of which entity, which company?‑‑‑Akubra Hats Pty Ltd. Okay. I look at the statement and it just says “Akubra Pty Ltd”. I suppose it’s just an omission. It should say “Akubra Hats Pty Ltd”.
PN1781
THE SENIOR DEPUTY PRESIDENT: So the statement is entirely in relation to Akubra Hats Pty Ltd?‑‑‑Yes, sorry. I mean, it’s the same company. I’ve just missed putting the word “hat” in there.
PN1782
I see, yes.
PN1783
MS WILES: Mr Wilkinson, aren’t they separate companies?‑‑‑No, they’re not.
PN1784
I put it to you they're separate companies. There’s Akubra Pty Ltd and then there is Akubra Hats Pty Ltd and they have separate ACN numbers?‑‑‑Not to my knowledge. That would be the first I’ve ever heard of that. I know of no such company just called Akubra Pty Ltd and, bear in mind, that the Akubra trademark is registered not only in this country but in many countries around the world. So Akubra Pty Ltd, look, I am not aware of a company registered as such and we have trademark attorneys that do consistent searches on our trademark to make sure that it’s not being used unlawfully.
PN1785
But that ‑ ‑ ‑?‑‑‑Can I just say – can I just say, in the statement in brackets it’s got the word “Akubra” and for all intents and purposes, you know, we’re referring to Akubra Hats.
PN1786
It was simply a point of clarification, Mr Wilkinson. I have before me ‑ ‑ ‑?‑‑‑Yes.
PN1787
‑ ‑ ‑ an ASIC company search which does indicate ‑ ‑ ‑
PN1788
THE SENIOR DEPUTY PRESIDENT: Just one moment, Ms Wiles.
PN1789
Your position, Mr Wilkinson, is a statement you give is given in relation to the operations of Akubra Hats Pty Ltd?‑‑‑That's absolutely correct.
PN1790
Yes, very well. Does it matter if there’s another company?
*** ROY WILKINSON XXN MS WILES
PN1791
MS WILES: It was only a point of clarification about who he was giving evidence on behalf of, your Honour.
PN1792
THE SENIOR DEPUTY PRESIDENT: Yes?‑‑‑Yes.
PN1793
MS WILES: We’re satisfied with that.
PN1794
THE SENIOR DEPUTY PRESIDENT: Mr Wilkinson will make inquiries to make sure someone is not breaching that copyright?‑‑‑I absolutely will. I'm actually a little bit bewildered by that.
PN1795
Perhaps you can provide the number later to Mr Scott and he can ‑ ‑ ‑?‑‑‑I would be very appreciative of that.
PN1796
‑ ‑ ‑ pass it on to Mr Wilkinson.
PN1797
MS WILES: Mr Scott asked you some questions about the Akubra Hats Enterprise Agreement 2013?‑‑‑Yes.
PN1798
And he asked you whether, in effect, the agreement excludes the Textile, clothing and Footwear Award?‑‑‑Yes, he did ask me questions.
PN1799
Yes?‑‑‑Yes.
PN1800
So currently would you agree that, well, clearly following on from that, that the clause 9.2 of the TCF Award, which is about consultation around changes to rosters and ordinary hours of work doesn't apply to you?‑‑‑That is my understanding.
PN1801
It follows, therefore, doesn't it, that the changes proposed by the TCFUA to the TCF Award in these proceedings will have absolutely no impact on Akubra Hats?‑‑‑It won’t have any impact at the present time, but of course when our enterprise agreement concludes or becomes near to its termination and we have to renew it, I guess there potentially could be implications at that point in time.
PN1802
But at this point, just so I'm clear ‑ ‑ ‑?‑‑‑Yes.
*** ROY WILKINSON XXN MS WILES
PN1803
‑ ‑ ‑ there’s no current obligation under your EBA?‑‑‑No. That's right. You're correct.
PN1804
So therefore your evidence about impact or potential impact of the union’s variation in paragraphs 11 and 12 – 12 and 13 – yes, 12 and 13, they're simply theoretical concerns, aren’t they?‑‑‑At the present time you're correct. They have no impact on the operations of Akubra Hats. Yes, potentially in - they're potential impacts in the future.
PN1805
In terms of any potential impact, in your statement you say that currently all of your employees are of a Caucasian and English speaking background. That's in paragraph 8 of your statement?‑‑‑That's my understanding. That's correct.
PN1806
So in terms of the third element of the union’s proposed variation, this is the element that goes to ensuring that people from non-English speaking backgrounds understand the information that’s given to them, would you agree then unless you employed people from a non‑English speaking background in the future then that would have no impact on Akubra ‑ ‑ ‑?‑‑‑That would be correct.
PN1807
‑ ‑ ‑ in the future?‑‑‑On the basis of your statement, that would be correct.
PN1808
So in terms of the union’s second proposal that the variation around to provide information in writing - you've indicated that you've already confirmed changes in writing with employees. Is that right?‑‑‑We confirmed changes in writing at the – generally at the completion of the process, as I think my statement points out, not necessarily during the process.
PN1809
THE SENIOR DEPUTY PRESIDENT: The process you mean some consultation process?‑‑‑Consultation, yes.
PN1810
Yes?‑‑‑So we have a consultative committee, an employer/employee elective consultative committee. Our normal procedure would be to meet with our consultative committee to talk to them about proposed changes, and bear in mind we don’t have a great deal of proposed changes, ask them to talk to the workforce to see if there are any concerns, meet with them again to discuss any concerns that might be brought forward, clarify our response to those concerns and generally get, I guess you would say, verbal agreement that a proposal will be accepted. We would then perhaps confirm that in writing by placing that on a notice board in writing; at a subsequent time, depending on how complex the proposal was, ask for a vote.
*** ROY WILKINSON XXN MS WILES
PN1811
MS WILES: So, Mr Wilkinson, given that that’s the current consultation process within the company and within the workforce ‑ ‑ ‑?‑‑‑Yes.
PN1812
‑ ‑ ‑ it really wouldn't be particularly onerous, would it, that in fact any proposal would be put in writing at the beginning of a process?‑‑‑It could be because I could be looking at putting something in writing which goes on a noticeboard or is directed to an individual employee, if then subsequently a number of issues are raised and then I have to reissue that in writing and we could be going backwards and forwards two to three times before something is finalised. So I would see that as a burden, to be honest, and I personally the consultation process we use at the moment is far more efficient in communicating with our employees.
PN1813
But in terms of a time frame, you're already using the consultation or the consultative committee. That's right, isn't it?‑‑‑Yes. Yes, we are.
PN1814
So there’s already a period of time before you're implementing a change?‑‑‑There is always a period of time and there has to be a period of time. It’s the extra work in having things written, typed, photocopied, printed out, distributed. They're a – it’s the paper trail. You know, I’ve got enough of a paper trail with everything else I do.
PN1815
But, Mr Wilkinson, you indicated that it doesn't happen very often. Was that what you said earlier?‑‑‑In our company it doesn't, no.
PN1816
Yes, yes?‑‑‑But it does happen on occasions.
PN1817
So when was the last time it occurred?‑‑‑We had a consultation more recently, just prior to Christmas, actually, just looking to change the working hours of one of our associated companies, which is covered by our enterprise agreement, I might add.
PN1818
So in that case if you put into written form the basics of that change, what the nature of the change is, when it was proposed to happen ‑ ‑ ‑?‑‑‑Yes.
*** ROY WILKINSON XXN MS WILES
PN1819
‑ ‑ ‑ would you agree with me that that wouldn't be a very long document?‑‑‑It may not have been a very long document the first draft, but potentially by the time I’ve had two or three drafts of it, the process is longer and in this situation which occurred just prior to Christmas, the procedures or the consultation process we adopted was exactly as I just outlined, which included meetings and discussions. We then – when I felt that there was broad agreement on the acceptance of the, you know, proposed change to the rostered hours, that was placed on a noticeboard and employees were given a one or two-week period to consider those changes and then they were allowed to – and then they voted on it.
PN1820
But in ‑ ‑ ‑?‑‑‑And I might add, it was 100 per cent unanimous.
PN1821
But in terms of the time delay, that’s primarily the result of your consultative committee process, isn't it? It’s not got to do with the time it takes to put to writing two or three paragraphs that would be in, I assume, identical form that could be a template given to employees?‑‑‑Yes, but I find that if you put something in writing and place it on a noticeboard it generally raises more questions than answers and then the subsequent process of dealing with all those matters can take a considerable amount more time than if you meet with the consultative committee face to face, have a verbal communication, answer likely questions that are going to occur and those answers are then distributed to the general workforce, in a verbal form I might add, you know, I find that to be more efficient.
PN1822
But in terms of the way you potentially could provide a written document to employees, you wouldn't necessarily have to put it on the noticeboard, would you? You could distribute it in a range of ways. You could distribute it, for example, at a group meeting of employees and then follow up with an oral explanation of what’s been proposed?‑‑‑I guess we could, yes.
PN1823
Would you agree that would be conductive to effective communication?‑‑‑I would agree that that could be one method of effective communication.
PN1824
Would you agree with the proposition that it’s important that employees understand proposals that are being put to them that affect their capacity to accommodate their family responsibilities, for example?‑‑‑I don't think anyone would disagree with that.
PN1825
So when you say there in paragraph 3:
PN1826
The administrative burden on Akubra ‑
PN1827
sorry, 13?‑‑‑13, yes. Yes?
PN1828
I withdraw that question, sorry, Mr Wilkinson?‑‑‑That's okay.
PN1829
I have no more questions, Mr Wilkinson. Thank you?‑‑‑Thank you for your time.
*** ROY WILKINSON XXN MS WILES
PN1830
THE SENIOR DEPUTY PRESIDENT: Anything arising, Mr Scott?
PN1831
MR SCOTT: No, thank you, your Honour.
PN1832
THE SENIOR DEPUTY PRESIDENT: Very well.
PN1833
Thank you for your time, Mr Wilkinson. You're excused as a witness?‑‑‑Thank you very much.
We will now terminate the phone call. Thank you?‑‑‑Many thanks.
<THE WITNESS WITHDREW [2.25 PM]
PN1835
THE SENIOR DEPUTY PRESIDENT: Is Mr Jones or Mr Hicks readily available?
PN1836
MR SCOTT: Mr Jones is available. He’s in the Sydney Commission building. I understand he’s in the registry and that some arrangements can be made available for him to come up on the TV screen.
PN1837
THE SENIOR DEPUTY PRESIDENT: Yes. How long will that take?
PN1838
THE ASSOCIATE: Just a couple of minutes.
PN1839
THE SENIOR DEPUTY PRESIDENT: Very good.
PN1840
THE ASSOCIATE: I'm hoping.
PN1841
MR SCOTT: We might be able to deal with Mr Hicks now.
PN1842
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1843
MR SCOTT: I wasn't proposing to call him as a witness to give any evidence. The statement that was filed by Mr Hicks was in response to the directions issued by the Commission.
PN1844
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1845
MR SCOTT: And the directions were to file a brief explanation. We did that in the form of a signed statement. It wasn't our purpose to bring Mr Hicks forward as a witness in the proceedings.
PN1846
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1847
MR SCOTT: So we weren't planning on calling him, but it Ms Wiles might have some questions about the status of that statement and how it might be used by the Commission.
PN1848
THE SENIOR DEPUTY PRESIDENT: Yes. You're not intending to rely on it other than as it occurred, being responsive to a request for an explanation on how Mr Hicks went about his task.
PN1849
MR SCOTT: That's right. But I would be operating on the basis that the Commission would have regard to that material in interpreting annexure B to the Jones statement.
PN1850
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1851
MR SCOTT: If that’s the case, I'm entirely comfortable with that, your Honour.
PN1852
THE SENIOR DEPUTY PRESIDENT: Yes. So these are figures derived by this method.
PN1853
MR SCOTT: Exactly.
PN1854
THE SENIOR DEPUTY PRESIDENT: Whether I was right or wrong is ‑ ‑ ‑
PN1855
MR SCOTT: I would have thought that if the union had any issue with the table, which is in evidence ‑ ‑ ‑
PN1856
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1857
MR SCOTT: ‑ ‑ ‑ having regard to the statement of Mr Hicks, which explains the methodologies behind it, then they could perhaps target the credibility of that table in submissions.
PN1858
THE SENIOR DEPUTY PRESIDENT: Yes. It depends what Ms Wiles wants to do.
PN1859
MR SCOTT: Yes.
PN1860
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1861
MR SCOTT: So I'm in your Honour’s hands.
PN1862
THE SENIOR DEPUTY PRESIDENT: What’s your position in relation to that, Ms Wiles?
PN1863
MS WILES: Your Honour, to go back a step, obviously the statement of Mr Hicks was filed in response to directions made by yourself. So we were wanting to, I guess, clarify the status of that statement, whether it was going to be received by the Commission as a statement or whether it was essentially going to be received as a form of submissions in response to your directions.
PN1864
THE SENIOR DEPUTY PRESIDENT: It will be received as a document explaining the methodology utilised by Mr Hicks to derive table B to Mr Butler’s – is it table B to Mr Butler’s statement - not Mr Butler, sorry, Mr Jones’ statement? I mean, the only reason for the request was, in fairness to the TCFUA, I believed it desirable that you had some understanding about how Mr Hicks derived his table and if you had any questions you could go back to him so that you could make submissions if you wished about the table.
PN1865
MS WILES: In that context then we probably would seek to ask a number of questions of Mr Hicks, if that’s possible.
PN1866
THE SENIOR DEPUTY PRESIDENT: Yes. You haven't done that.
PN1867
MS WILES: To date.
PN1868
THE SENIOR DEPUTY PRESIDENT: You haven't done that to date.
PN1869
MS WILES: No, no. I wasn't aware. Sorry, that was our misunderstanding, your Honour. I wasn't aware that we were required to do that prior to the hearing and that’s partly because I was slightly confused about the status on which the statement was being made.
PN1870
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1871
MS WILES: Alternatively, we can address it in submissions, but I'm in your hands in that respect.
PN1872
THE SENIOR DEPUTY PRESIDENT: What position? You’d prefer the opportunity to ask Mr Hicks some questions?
PN1873
MS WILES: We would, your Honour, I think in terms of the way ‑ ‑ ‑
PN1874
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1875
MS WILES: Sorry.
PN1876
THE SENIOR DEPUTY PRESIDENT: Can that occur by telephone? Is Mr Hicks readily available by telephone?
PN1877
MR SCOTT: He is. I spoke to him in the luncheon adjournment. He’s at work. He’s available on his landline.
PN1878
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1879
MR SCOTT: So perhaps if a phone call is made to make sure that he’s around and he’s not running off to a meeting or something.
PN1880
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1881
MR SCOTT: I wouldn't anticipate it would require too much time from him.
PN1882
THE SENIOR DEPUTY PRESIDENT: No, I wouldn't anticipate so. It’s just a matter of clarifying any points as to his methodology. I believe if there’s any challenge to his methodology, that will be raised in submissions.
PN1883
MR SCOTT: I'm happy to make Mr Hicks available. I’ve already provided your associate with his landline number.
PN1884
THE SENIOR DEPUTY PRESIDENT: Very well. We will take that course then. Yes. Will we start with Mr Hicks or Mr Jones? He’s ‑ ‑ ‑
PN1885
THE ASSOCIATE: Mr Jones hasn't turned up yet.
PN1886
MR SCOTT: I'm happy to start with Mr Hicks.
PN1887
THE ASSOCIATE: And I'll follow up with Mr Jones.
PN1888
THE SENIOR DEPUTY PRESIDENT: Yes, okay. We'll try and get Mr Hicks on the line.
PN1889
THE ASSOCIATE: Mr Hicks, are you there? Hello, Mr Hicks? Can you see if you can speak on there?
PN1890
MR SCOTT: Mr Hicks, can you hear me?
PN1891
THE ASSOCIATE: Hello? Mr Hicks, are you there? Hello. He is there.
PN1892
THE SENIOR DEPUTY PRESIDENT: Sorry?
PN1893
THE ASSOCIATE: Someone is there but they can’t hear us obviously. I'll just try again.
PN1894
MR SCOTT: Your Honour, would it assist if we get Mr Hicks on the line and if I just tender his statement and then it is in evidence?
PN1895
THE SENIOR DEPUTY PRESIDENT: Yes. Sorry, he’s with us now?
PN1896
THE ASSOCIATE: No.
PN1897
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1898
THE ASSOCIATE: Not yet. Mr Hicks?
PN1899
(Discussion re locating Mr Hicks)
PN1900
MR JONES: Can you anyone hear me?
PN1901
(Discussion re video)
PN1902
THE SENIOR DEPUTY PRESIDENT: No problems. You're welcome.
PN1903
(Discussion re Mr Hicks’ mobile number)
PN1904
THE SENIOR DEPUTY PRESIDENT: Tell him we'll be back with him in how long?
PN1905
MR SCOTT: Tell him to stay at his desk.
PN1906
THE ASSOCIATE: Can we just request that he be contactable in the next half hour or so, please?
PN1907
LARISSA: Okay, sure.
PN1908
THE SENIOR DEPUTY PRESIDENT: Mr Scott?
PN1909
MR SCOTT: Can I call Adam Leslie Jones?
PN1910
THE SENIOR DEPUTY PRESIDENT: You certainly may.
PN1911
THE ASSOCIATE: Brenda, are you up there? Are you there by yourself, Mr ‑ ‑ ‑
PN1912
MR JONES: I'm here by myself. I was told there would be someone here waiting for me when I got here, but there’s no one here at the moment.
THE ASSOCIATE: Yes, okay. I'll do this. I just have to administer the affirmation, so you will have to repeat after me.
<ADAM LESLIE JONES, AFFIRMED [2.40 PM]
PN1914
THE ASSOCIATE: Thank you?‑‑‑Thank you.
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Scott?
EXAMINATION-IN-CHIEF BY MR JONES [2.40 PM]
PN1916
MR SCOTT: Mr Jones, Kyle Scott here. Did you provide a statement for the New South Wales Business Chamber in these proceedings?‑‑‑I did.
PN1917
Do you have a copy in front of you?‑‑‑I do have a copy here with me.
PN1918
The statement is three pages?‑‑‑That's correct.
PN1919
11 paragraphs?‑‑‑That's correct.
PN1920
And some fairly detailed annexures to that statement?‑‑‑Yes, that's correct.
PN1921
Do you agree that the statement is true and correct to the best of your knowledge?‑‑‑Yes.
PN1922
I seek to tender that statement, your Honour.
THE SENIOR DEPUTY PRESIDENT: Very well. I'll mark the statement of Adam Leslie Jones dated 30 January 2015, some 11 paragraphs, exhibit ABI4.
EXHIBIT #ABI4 STATEMENT OF ADAM JONES CONTAINING 11 PARAGRAPHS DATED 30/01/2015
PN1924
MR SCOTT: Thank you, your Honour. I have no questions, your Honour.
THE SENIOR DEPUTY PRESIDENT: Ms Wiles?
CROSS-EXAMINATION BY MS WILES [2.41 PM]
PN1926
MS WILES: Mr Jones, you ‑ ‑ ‑ ?‑‑‑Wait a second, your Honour. There’s someone - no, sorry. I think it was the person who was going to swear me in. Sorry about that.
*** ADAM LESLIE JONES XXN MS WILES
PN1927
THE SENIOR DEPUTY PRESIDENT: Thank you?‑‑‑Apologies.
PN1928
It’s not your fault, Mr Jones.
PN1929
MS WILES: Mr Jones, you state in paragraph 7 that the table – this table that’s annexure B sets out the levels of English language ability of employees in the TCF industries compared to the Australian workforce as a whole. Do you see that?‑‑‑I'm just turning to the table now. Sorry. Yes.
PN1930
Sorry, Mr Jones. It looks like we've got two paragraph 7s in your statement. It’s the paragraph under the heading Cost of Translation. Sorry. No, it’s the first one?‑‑‑The first one?
PN1931
Seven, yes. Sorry?‑‑‑The one, yes, about the table?
PN1932
Yes, the one about the table. Yes. Do you agree that the table prepared by Mr Hicks only purports to contain data regarding oral English language skills of those employees who responded to the census survey?‑‑‑I'm sorry, can you repeat the question, please?
PN1933
Do you agree that the table prepared by Mr Hicks only contains data regarding oral English language skills of those employees who responded to the census survey?‑‑‑Yes, “Speaks English only or very well, well, not well or not at all.”
PN1934
Yes. So it doesn't contain any information about written language or comprehension skills?‑‑‑Not listed in the table.
PN1935
I have no further questions, your Honour.
PN1936
THE SENIOR DEPUTY PRESIDENT: Anything arising from that?
PN1937
MR SCOTT: No, your Honour.
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Jones, for your time. You're excused from the proceedings. You may leave. Thank you very much?‑‑‑Thank you.
<THE WITNESS WITHDREW [2.44 PM]
PN1939
THE SENIOR DEPUTY PRESIDENT: We'll try Mr ‑ ‑ ‑
PN1940
MR SCOTT: Yes. Perhaps we can call Tim Hicks.
PN1941
THE SENIOR DEPUTY PRESIDENT: ‑ ‑ ‑ Hicks again.
PN1942
THE ASSOCIATE: Hello, Mr ‑ ‑ ‑
PN1943
MR HICKS: Hello, speaking.
THE ASSOCIATE: Yes. Mr Hicks, my name is Maria from the Fair Work Commission. You've just been connected into a hearing to give evidence. So I will just have to affirm you.
<TIMOTHY HICKS, AFFIRMED [2.45 PM]
EXAMINATION-IN-CHIEF BY MR SCOTT [2.46 PM]
PN1945
MR SCOTT: Mr Hicks, it’s ‑ ‑ ‑
PN1946
THE SENIOR DEPUTY PRESIDENT: I think we may as well just take Mr Hicks’ statement in the normal way and have it adopted as evidence.
PN1947
MR SCOTT: Mr Hicks, have you got a copy of your statement in front of you?‑‑‑Give me a second. Okay.
PN1948
I'll just tell you who you're speaking to. It’s Kyle Scott from the New South Wales Business Chamber. So your statement is three pages long and 17 paragraphs. Is that correct?‑‑‑That's right.
PN1949
And then there’s a single document marked A annexed to your statement?‑‑‑I don't have the annex in front of me, but presumably that’s correct.
PN1950
Is the contents of that statement true and correct to the best of your knowledge?‑‑‑Yes.
PN1951
I seek to tender that statement, your Honour.
*** TIMOTHY HICKS XN MR SCOTT
THE SENIOR DEPUTY PRESIDENT: Yes. I will mark the statement of Mr Hicks of 10 March 2015, 17 paragraphs, exhibit ABI5.
EXHIBIT #ABI5 STATEMENT OF MR HICKS CONTAINING 17 PARAGRAPHS DATED 10/03/2015
PN1953
MR SCOTT: I have no questions for Mr Hicks.
THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Wiles?
CROSS-EXAMINATION BY MS WILES [2.47 PM]
PN1955
MS WILES: Mr Hicks, it’s Ms Wiles here from the Textile, clothing and Footwear Union. Can you hear me?‑‑‑I can, yes.
PN1956
Thank you. Mr Hicks, in terms of your construction of the table and when you were accessing the ABS data, were you aware of how the census actually identifies industry?‑‑‑In broad terms.
PN1957
Can you explain how they do that?‑‑‑They ask people to describe the activity that they're involved in and they ask a more specific question about what the company work for produces. It’s something along those lines.
PN1958
Would you also agree that the census also uses ANSYS codes?‑‑‑Yes.
PN1959
Then within that they, for example ‑ ‑ ‑?‑‑‑Or ANZSIC codes, but ‑ ‑ ‑
PN1960
ANZSIC codes, yes. Then within that, for example, there might be a code around manufacturing?‑‑‑Sure.
PN1961
Then there’s subdivisions within the manufacturing codes, such as textile, clothing and footwear. Yes?‑‑‑Yes.
*** TIMOTHY HICKS XXN MS WILES
PN1962
THE SENIOR DEPUTY PRESIDENT: I'm not sure the census starter has come from the household form. If that’s right, there’s a question 42, which at a broad ANZSIC level, lists the industries, manufacturing, wholesale and retail, and then there’s a question 43 asking, “What are the main goods produced or services by the business?” and the description is provided. I'm presuming that’s where the more detailed figures come from. Do you have any knowledge of that, Mr Hicks?‑‑‑So I don't know the specific process that the ABS goes through to classify industries. I mean, I know that in general terms just asking people which industry they're in isn't a very effective approach because people often don’t understand the different industry classifications. So essentially the ABS interprets people’s answers and places them in an industry based on a sort of an established process.
PN1963
Yes, question 42 of the census doesn't go to the next level of classification which would identify the textile, clothing, footwear industry?‑‑‑Right. That's right. They don’t ask about the – they don’t go down to that level of detail.
PN1964
So the ABS relies on other information to break that broad manufacturing group up further ‑ ‑ ‑?‑‑‑Yes.
PN1965
‑ ‑ ‑ other information within the census. Yes?‑‑‑I think they rely - I'm sorry, I don't have the census form in front of me, but I think that they rely on the additional question about what’s actually being produced to break it down further.
PN1966
Thank you.
PN1967
MS WILES: Mr Hicks, were you also aware that the census categories employment also into occupational groups?‑‑‑Yes.
PN1968
So in your table you haven't included those occupational groups. Was there a reason for that?‑‑‑I didn't see there being any particular reason to. There’s quite a lot of different occupational groups and it would be difficult to interpret the table if it had all that information in it and I suspect that once you were breaking it down by occupation, some of the cells would get very small and it would be difficult to break those up into English language proficiency in an accurate way.
PN1969
But that was a decision that you made, wasn't it?‑‑‑Sure. I mean, it wasn't that I consciously thought, “Will I break it down into occupational groups?” It never occurred to me that there would be a reason to do that.
*** TIMOTHY HICKS XXN MS WILES
PN1970
So even though these proceedings are about award dependent employees within the TCF industry, your table really only has a sort of snapshot view, doesn't it, of the industry across all occupational groups? Would that be a fair summary of it?‑‑‑Well, the occupational groups don’t break things down by award reliance either. So there wasn't the option of breaking the results down by award reliant and non-award reliant employees. As to whether or not that would affect the results, I suspect that – I don’t – I have no idea what proportion of people within the TCF subdivision are award reliant, but that wasn't something the data would have enabled us to test, anyway.
PN1971
Just so I'm clear, it’s your understanding from that tool on the ABS that you were unable to provide additional information in the table that would have identified particular occupational groups such as machinery operators or labourers, for example?‑‑‑No; saying it was impossible to identify those that were award reliant and those that weren't. You could identify people by occupation. I suspect that those machinery operators, or whatever the primary form of employment in the industry would be, if it is, would constitute the majority of industry related employment, anyway. So I don't think it would make any difference to the results, but, you know, there’s always a possibility that I could be wrong and it would be possible to do that analysis.
PN1972
I don’t want to put words in your mouth, so are you saying that the table as it is doesn't identify – on its face doesn't identify which employees would be award covered, firstly; and secondly, you don't know if a table was constructed that included the occupational groups, you couldn't give any evidence about what that might look like?‑‑‑No. What I was saying is I suspect and this is just my suspicion, but I suspect that if the primary occupation in the industry is something like machinery operators then I suspect that the data for the entire industry would be similar to the data for machinery operators, but I don't know that for certain. It would be something that could be tested and I'm not sure whether - you know, I guess there was the opportunity there for that analysis to be done if you thought that that was likely.
PN1973
All right. You'd agree that the table that you have produced only captures, in a broad sense, oral English language skills?‑‑‑Yes, that's right. That's what the question is about.
PN1974
In constructing the table, were you aware of how the census records the spoken English language proficiency of respondents?‑‑‑No, I'm not. I mean I get the assumption that I make is that the approach the census takes is fairly defensible and the ABS takes a reasonable approach.
PN1975
Just on that question, Mr Hicks, the information that we managed to access on the site, in relation to that issue around English language proficiency, the ABS says this about it. It says:
*** TIMOTHY HICKS XXN MS WILES
PN1976
For each person who speaks a language other than English at home, this variable classifies their self-assessed proficiency in spoken English. Responses to the question on proficiency in English are subjective. For example, one respondent may consider that a response of “well” is appropriate, if they can communicate well enough to do the shopping. While another respondent may consider such a response appropriate only for people who can hold a social conversation. Proficiency in spoken English should be regarded as an indicator of a person’s ability to speak English rather than a definitive measure of his or her ability and should be interpreted with care.
PN1977
So just ‑ ‑ ‑?‑‑‑Yes. I think that’s fair. However, I also think that it seems to be the best evidence that I'm – it’s also the best evidence that I'm aware of.
PN1978
But would you accept the proposition, though, that it is a limitation of the census generally in that it’s a self‑assessment and its objective?‑‑‑Yes.
PN1979
Yes, thanks?‑‑‑Yes.
PN1980
Just one moment, Mr Hicks. Thank you, Mr Hicks. I don't have any further questions. Thank you for your time?‑‑‑Okay. Thank you.
PN1981
THE SENIOR DEPUTY PRESIDENT: Mr Scott?
PN1982
MR SCOTT: No questions, your Honour.
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Hicks, for your time. You're excused from these proceedings. Thank you again?‑‑‑Okay. Thank you.
<THE WITNESS WITHDREW [2.58 PM]
PN1984
THE SENIOR DEPUTY PRESIDENT: Very well. Is that all the evidence?
PN1985
MR SCOTT: It is, your Honour.
PN1986
THE SENIOR DEPUTY PRESIDENT: Yes. Nothing more? I must say the English language issue is a troublesome one in terms of evidence. There’s very generalised evidence from TCFUA officials reflecting their assessment as against the information of self-assessment from a census in relation to the entire population, each of which only go to – sorry, the latter of which only goes to English speaking skills and there is some issue as to English speaking versus written English skills.
PN1987
For example, Mr Butler has given evidence that in some cases of some persons, their spoken English skills would exceed written English skills, whereas for others it would be the reverse. The TCFUA claim is framed in terms of written. That can be problematic. I'm aware, for example, that the majority support determination ballots having been undertaken in languages of spoken and spoken language of various persons and persons who spoke, for example Urdu, being given a form in Urdu and wandering away and coming back very embarrassed a few minutes later and say, “I can’t read Urdu. Can I have the English please?”
PN1988
So it’s a very complex issue. Presumably, there’s a raft of linguistic research around these sorts of issues, but none of it has found its way here. I just raise that to indicate that it is a difficult issue about which we don’t have a huge amount of evidence. I think I'll, there being no further evidence, move to the process for written submissions.
PN1989
I should indicate that written submissions should not repeat those submissions already filed. The written submissions will be provided, in essence, to draw on the evidence and to provide responsive submissions to other parties to the extent that the written submissions to date haven't done so and a brief drawing together of the parties’ position. So we expect written submissions would be reasonably confined.
PN1990
The transcript of the first day of hearing is already on the web site. I'll order an urgent transcript for today’s proceedings and that will be on the web site, hopefully, by Monday. On that basis what the Full Bench is proposing is that the TCFUA and any supporters – this will be placed on the Web so that persons such as the – organisations such as the AWU are aware of it – will file written submissions, further written submissions by 1 April; those opposing by 8 April and the TCFUA in reply by 15 April and that the Full Bench will determine the matter on the basis of all the evidence and all of the submissions before it. Anything arising out of any of that?
PN1991
MS WILES: Your Honour, I'm wondering whether I can indulge the Bench on this timetable and I wouldn't ordinarily put this, but in terms of the TCFUA’s involvement, we are involved in a, I think, three-day trial proceeding beginning on 1 April in Sydney that will involve myself.
PN1992
THE SENIOR DEPUTY PRESIDENT: On the which, sorry? On which date?
PN1993
MS WILES: I think it starts on 31 March and then goes to the 1 and 2 April. It’s the transitional accident pay Full Bench case.
PN1994
THE SENIOR DEPUTY PRESIDENT: 31 March?
PN1995
MS WILES: I think that’s right, your Honour. It’s either the 31st or 1st. Anyway, it’s three days of that week beginning on the Tuesday.
PN1996
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1997
MS WILES: The employer’s material is getting filed, I believe, next Wednesday so the unions, including the TCFUA, will only have a relatively short amount of time.
PN1998
THE SENIOR DEPUTY PRESIDENT: We can’t drag this out just in terms of the availability of the Bench to determine the matter and can’t reconstitute the Bench at this point. I'm not sure that we can accommodate. You have transcript already – the first day, Ms O’Neil’s evidence – and there’s not much point extending it out to 3 April, for example. My inclination is to leave things as they are, frankly. I mean, you're not anticipating significant submissions arising out of the evidence, are you?
PN1999
MS WILES: Look, no, your Honour. Although there has been quite a large amount of evidence ‑ ‑ ‑
PN2000
THE SENIOR DEPUTY PRESIDENT: A lot of it, frankly, of limited value to the Bench, I would say.
PN2001
MS WILES: I'm in your hands, your Honour, and I will take the ‑ ‑ ‑
PN2002
THE SENIOR DEPUTY PRESIDENT: Yes, very well. I think we will proceed on the basis I’ve indicated. I think it is necessary to bring this matter to a conclusion. The major initial issue for you, I think, Ms Wiles is in terms of drawing on the evidence to the extent necessary and I think that should be able to be achieved by 1 April, notwithstanding the other matter. Very well. We'll adjourn on that basis and we'll determine the matter once we've received those submissions.
ADJOURNED INDEFINITELY [3.06 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #TCFUA5 BUNDLE OF TRANSLATED DOCUMENTS........... PN976
EXHIBIT #AB1 CORRESPONDENCE BETWEEN MR SCOTT AND THE CLICKCORP REPRESENTATIVE............................................................................................ PN994
THI CHUK LY NGUYEN, RECALLED ON FORMER OATH................. PN1006
EXAMINATION-IN-CHIEF BY MS WILES................................................. PN1008
EXHIBIT #TCFUA6 AMENDED WITNESS STATEMENT OF THI CHUK LY NGUYEN............................................................................................................................... PN1027
CROSS-EXAMINATION BY MR SCOTT..................................................... PN1117
CROSS-EXAMINATION BY MR MEAD...................................................... PN1277
RE-EXAMINATION BY MS WILES.............................................................. PN1381
THE WITNESS WITHDREW.......................................................................... PN1446
EXHIBIT #TCFUA5 (AMENDED) BUNDLE OF TRANSLATED DOCUMENTS NOW NAMED TCFUA 5A THROUGH TO 5U........................................................................ PN1462
TONY WAYNE BUTLER, AFFIRMED......................................................... PN1469
EXAMINATION-IN-CHIEF BY MR SCOTT................................................ PN1477
EXHIBIT #ABI2 WITNESS STATEMENT OF TONY WAYNE BUTLER PN1504
CROSS-EXAMINATION BY MS WILES...................................................... PN1510
RE-EXAMINATION BY MR SCOTT............................................................. PN1728
THE WITNESS WITHDREW.......................................................................... PN1739
ROY WILKINSON, AFFIRMED..................................................................... PN1745
EXAMINATION-IN-CHIEF BY MR SCOTT................................................ PN1749
EXHIBIT #ABI3 STATEMENT CONTAINING 13 PARAGRAPHS OF MR ROY WILKINSON DATED 28/01/2015.............................................................................................. PN1758
CROSS-EXAMINATION BY MS WILES...................................................... PN1776
THE WITNESS WITHDREW.......................................................................... PN1834
ADAM LESLIE JONES, AFFIRMED............................................................. PN1913
EXAMINATION-IN-CHIEF BY MR JONES................................................. PN1915
EXHIBIT #ABI4 STATEMENT OF ADAM JONES CONTAINING 11 PARAGRAPHS DATED 30/01/2015............................................................................................................. PN1923
CROSS-EXAMINATION BY MS WILES...................................................... PN1925
THE WITNESS WITHDREW.......................................................................... PN1938
TIMOTHY HICKS, AFFIRMED...................................................................... PN1944
EXAMINATION-IN-CHIEF BY MR SCOTT................................................ PN1944
EXHIBIT #ABI5 STATEMENT OF MR HICKS CONTAINING 17 PARAGRAPHS DATED 10/03/2015............................................................................................................. PN1952
CROSS-EXAMINATION BY MS WILES...................................................... PN1954
THE WITNESS WITHDREW.......................................................................... PN1983
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