C2014/6535, Transcript of Proceedings [2015] FWCTrans 206 (8 April 2015)

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GrainCorp Operations Ltd-AWU (Victorian Operations) Enterprise Agreement 2013

PN1.

THE COMMISSIONER: Yes, good morning. Appearances, please.

PN2.

MR C WINTER: If the Commission pleases, Winter, C, appearing on behalf of the Australian Workers’ Union, and with me is MR R Hayden.

PN3.

MR B MURRAY: If the Commission pleases, Brendan Murray. Commissioner, I seek permission to represent the respondent GrainCorp in this matter.

PN4.

THE COMMISSIONER: Yes, on what basis under section 596?

PN5.

MR MURRAY: Both under 596(2)(a) and also under (c). The situation is in respect of (a) that the matter has a degree of complexity which justifies my being granted permission. The complexity that I refer to is the fact that there are something like 15 pages of submissions, nine of ours, six of theirs. There’s 15 pages of witness statements.

PN6.

THE COMMISSIONER: Do we judge complexity by the number of pages, do we?

PN7.

MR MURRAY: Well, it’s a similar exercising to weighing them, I suppose, but nevertheless ‑ ‑ ‑

PN8.

THE COMMISSIONER: I remember those days.

PN9.

MR MURRAY: ‑ ‑ ‑ there is a degree of detail contained in those submissions which I’ll come back to in a moment. There are witness statements, again 15 pages. There’s four witnesses. There will be the need for cross‑examination. There are 22 pages of exhibits. There’s a question of essentially here interpreting an enterprise agreement, which is a legal question which I can assist the Commission with, and further, I am in the best position to speak to the submissions that have been made on behalf of GrainCorp ‑ ‑ ‑

PN10.

THE COMMISSIONER: You drafted them.

PN11.

MR MURRAY: ‑ ‑ ‑ because I was the author.

PN12.

THE COMMISSIONER: Yes.

PN13.

MR MURRAY: That leads me - well, of course, and in that sense it is more efficient that I as the author speak to the submissions that I wrote. As to (c), fairness between the parties, Mr Winter was the, presumably, author of the applicant’s submissions. Mr Winter will be speaking to those submissions, and in my submission it would be unfair if Mr Winter were able to speak to submissions that he was the author of and I was unable to speak to submissions that I was the author of. So as a matter of fairness under (c), in my view it would be appropriate that I be granted permission to represent GrainCorp, if the Commission pleases.

PN14.

THE COMMISSIONER: Thank you, Mr Murray. Mr Winter, what do you say?

PN15.

MR WINTER: I’d be prepared to go downstairs to the coffee shop and let Mr Hayden run the case, if that - if my colleague on my left did the same, but in relation to representation (1) GrainCorp has a dedicated human resources department; (2) they have in‑house lawyers who can appear before this Commission and not have to seek leave, but every time we do appear before this Commission we have GrainCorp engaging legal representation. I oppose leave in relation to the conference and I see no need for leave to be granted.

PN16.

THE COMMISSIONER: But, Mr Winter, there is some complexity associated to this, isn’t there? You’d have to concede that.

PN17.

MR WINTER: I don’t deny that, no.

PN18.

THE COMMISSIONER: Yes, well, thank you. I grant leave on the basis that the matter is invested with sufficient complexity that I’m satisfied that I’ll be assisted in the efficient conduct of the matter if I allow the respondent to be represented by Mr Murray. Thank you. Before we start, I understand that Mr Pickering needs to be called by telephone. That wasn’t previously, I think, arranged with my associate.

PN19.

MR WINTER: I do apologise. I only found out myself half an hour ago, and we do apologise for that. Mr Pickering is in the bush and he had some problems. As I said, it was planned that Mr Pickering would be here so he could be examined and we do apologise for that and we would ‑ ‑ ‑

PN20.

THE COMMISSIONER: Mr Murray, that must cause you - does that cause you some difficulties in terms of cross‑examination?

PN21.

MR MURRAY: It’s never ideal, but we can overcome those difficulties.

PN22.

THE COMMISSIONER: All right. Then my next question is: is there no capacity to try and resolve this matter, really? I mean, I know I tried last time and failed. There’s no doubt been some discussions between the parties in the interim. Is it worth having another go at this, albeit briefly, or should we just run it? Mr Winter?

PN23.

MR WINTER: Commissioner, we’re quite willing to go into conference again to try and resolve it. As you would probably notice from the material that has been presented in regard to exhibits, et cetera, there has been some correspondence between the parties. We haven’t just left it, for instance. We have tried to think outside the square. We’re quite willing to - we think there’s a simple solution and ‑ ‑ ‑

PN24.

THE COMMISSIONER: Well, maybe don’t tell me about that yet. Let me hear from Mr Murray.

PN25.

MR MURRAY: Commissioner, the company would not wish to appear to be uncooperative, and it’s in that spirit that briefly we would be prepared to sit down and try to work our way through it.

PN26.

THE COMMISSIONER: All right. Now, before I do that, though, I just want to pin you down, Mr Winter, in terms of what this dispute is really about, and particularly having regard to the submissions which have been filed by Mr Murray on behalf of the respondent. It’s right to say, isn’t it, that this is simply a dispute about whether or not Mr Pickering for relevant times should get the higher duties allowance?

PN27.

MR WINTER: Correct.

PN28.

MR MURRAY: I think that we need to be quite express about this. It is not a dispute about the grade descriptors, it’s not a dispute about permanent reclassification, it is a dispute only about the payment of higher duties.

PN29.

THE COMMISSIONER: Yes, well, that’s what I understand it to be, isn’t it, Mr Winter? It’s solely a dispute about if at any particular point in time, having regard to what Mr Pickering is doing, he’s entitled to higher duties.

PN30.

MR WINTER: Correct.

PN31.

THE COMMISSIONER: The problem I have then with that is that there’s nothing in the materials from Mr Pickering that tells me what dates he says he was acting up and what dates he says he was not. How am I then meant to deal with this issue?

PN32.

MR WINTER: Those dates have been provided to the company in relation to that, but ‑ ‑ ‑

PN33.

THE COMMISSIONER: That might be very useful, but how are they - if they haven’t been provided to me ‑ ‑ ‑

PN34.

MR WINTER: The question would be in relation to seeking a decision from you that when he performed tasks of the acting manager’s position, and those dates - if you found that that went to the issue of higher duties then those dates could be worked out. It would be fairly simple. Whenever the manager was away and he was ‑ ‑ -

PN35.

THE COMMISSIONER: So is the question is: having regard to paragraph 8 in Mr Pickering’s witness statement - go to that now.

PN36.

MR WINTER: Paragraph 8 in?

PN37.

THE COMMISSIONER: Mr Pickering’s witness statement.

PN38.

MR WINTER: Yes.

PN39.

THE COMMISSIONER: Is the sole question for me then if Mr Pickering performs those roles is he acting as a site manager?

PN40.

MR WINTER: Correct.

PN41.

THE COMMISSIONER: And if I find that those roles fall within the scope of 4.2 then he gets nothing.

PN42.

MR WINTER: He gets nothing.

PN43.

THE COMMISSIONER: Right. Mr Murray, are we clear about what the dispute’s about? Have I confined it narrowly enough?

PN44.

MR MURRAY: I am clear now.

PN45.

THE COMMISSIONER: All right, then let’s move into conference.

OFF THE RECORD [10.18 AM]

ON THE RECORD [10.58 AM]

<DAVID LESLIE PICKERING, AFFIRMED [11.00 AM]

****DAVID LESLIE PICKERING XN MR WINTER

PN46.

THE COMMISSIONER: Mr Winter?

<EXAMINATION-IN-CHIEF BY MR WINTER [11.01 AM]

PN47.

MR WINTER: Thank you, Commissioner.

PN48.

Mr Pickering, can you please state your full name and address for the commission?---David Leslie Pickering, (address supplied)

PN49.

Mr Pickering, do you have a copy of your witness statement in front of you?

---Yes, I do.

PN50.

Is it 10 paragraphs and two pages?---Yes.

PN51.

Is there anything you wish to change or add in that witness statement?---No.

PN52.

Commissioner, I’d ask that the witness statement be tendered.

PN53.

THE COMMISSIONER: Yes. Just as a housekeeping matter, the outline of submissions from the applicant will be AWU1 and the witness statement of David Pickering will be AWU2.

EXHIBIT #AWU1 APPLICANT'S OUTLINE OF SUBMISSIONS

EXHIBIT #AWU2 WITNESS STATEMENT OF DAVID PICKERING

PN54.

MR WINTER: Mr Pickering, just a few questions?---Yes.

PN55.

What’s your current classification?---4.2.

PN56.

How long have you been engaged on that classification?---It would be approximately 10 years, I’d say.

PN57.

In relation to your current work location do you have a site manager on site at the moment?---No.

PN58.

How long has he been absent from site?---Since about October, November, I’d say.

PN59.

Was your site manager responsible for more than one particular site or just the one site?---No, it would be usually at Warracknabeal and Jeparit.

****DAVID LESLIE PICKERING XN MR WINTER

PN60.

That was in addition to your site. Is that correct?‑‑‑Yes.

PN61.

So three sites - two sites?---Warracknabeal and Jeparit.

PN62.

Whilst your manager is away is there an acting site manager?---I’ve been told I’ve been acting site manager on numerous occasions.

PN63.

Who told you that you were acting site manager?---Mr Bibby, who is our area manager.

PN64.

When did he tell you that?---Numerous occasions. Too many to probably count.

PN65.

Do you know the reason why you were told to be acting site manager?---I was always just expected to take the position when my GSM or site manager is away, (indistinct) was a GSM and I was just expected to take on the extra roles we needed to do to get the job down on our site.

PN66.

Now, Mr Pickering, did you perform any work that was significantly different whilst your site manager was away?---Yes, it was different roles that we perform that I get with normal duties.

PN67.

And what were they?---Yeah, like the work we do on the I drive on the computer, doing stock notes, weekly work reports, hiring staff to harvest and laying staff off, organising transfer trucks, organising contractors that can come on site and do other jobs, and it’s just ongoing. It’s to do with every day activities and weekly to run this site.

PN68.

Now, just a question. When your site manager wasn’t present did you hire and fire casual staff. Is that right?---Yes. I’ve done that over a number of years. I did it ‑ ‑ ‑

PN69.

Were you ever supervised by the area manager in that regard or were you expected just to do it yourself?---No, most of the time I was just expected to do it by myself. If I wasn’t sure of something I’d ask for some advice, because I wanted to do the right thing.

PN70.

But you did not have to report to him about hiring and firing. Is that correct?‑‑‑That’s correct.

****DAVID LESLIE PICKERING XN MR WINTER

PN71.

Now, in relation to payroll, did you ever view or sign off on people’s pay records?---I’ve probably done it for 10 years. I used to do it here and I used to do it in sites in Queensland, sites in Victoria and South Australia where I’ve worked as a site supervisor, acting site manager, in harvest periods.

PN72.

Were the work crews that you work with ever told that you were acting site manager?---On numerous occasions.

PN73.

Do you know if any other - I withdraw that. Do you ever attend grower meetings?---Yes.

PN74.

Do you ever liaise with growers?---Pardon?

PN75.

Do you ever liaise with growers? Do you talk to growers when you’re acting site manager?---Yes.

PN76.

I’ve got no further questions, Commissioner.

PN77.

THE COMMISSIONER: Mr Murray?

CROSS-EXAMINATION BY MR MURRAY [11.06 AM]

PN78.

MR MURRAY: Thank you, Commissioner.

Mr Pickering ‑ ‑ ‑?---Yes.

PN79.

‑ ‑ ‑ at paragraph 10 of your witness statement you say that you believe that you should be classified as a level 5.1. That’s not correct, is it?---Well, all - the main thing the original (indistinct) was I talked to Mr Johnston and he advised me that he thought I should be getting paid higher duties for my extra roles with him and he - that’s where I wanted to go, along those lines, just so that I got paid for higher duties, like, from when my manager or GSM or whoever is in charge was away then I could step up and do extra roles.

PN80.

So to be clear, you’re not seeking classification at level 5.1, you’re seeking payment of higher duties. Is that correct?‑‑‑Yes.

PN81.

Have you had the opportunity to read the witness statement of Gerard Bibby?

---Yes, I did read that.

PN82.

Commissioner, it’s a little difficult, because I’m going to take the witness to sentences in this statement.

PN83.

I presume, Mr Pickering, that you do not have a copy of this with you?

---No, I don’t at the moment, sorry.

PN84.

Mr Pickering, what I will do is I’ll read sentences to you and I’ll ask you whether you agree or disagree with those sentences from Mr Bibby’s statement?---Yes.

****DAVID LESLIE PICKERING XXN MR MURRAY

PN85.

The first one is in paragraph 3. Mr Bibby says:

PN86.

I met with Mr Pickering in relation to Mr Pickering’s request that he be paid for higher duties during periods when his site manager Mr Bob Fleming was absent from duty.

PN87.

Is that correct?---Yes.

PN88.

In paragraph 4 he says:

PN89.

At the meeting with Mr Pickering I know that he supported the business by taking on some of Mr Fleming’s duties when Mr Fleming was absent on leave, although I noted to Mr Pickering that he was not required to perform the full range of Mr Fleming’s duties and that he had no delegation of financial authority, human resources authority or occupational health and safety accountabilities.

PN90.

Is that correct?---No.

PN91.

How is that not correct?---It’s going to be accountable when - with each time a trained OH&S representative - I think that’s everyone’s duty to do that. That’s why I think that is wrong, and the one on financial delegations, any time I employing, laying off, when I arrange contractors to come and do works on site and transfer trucks to work on site, there’s always monetary values talked about in those things, so that’s why I think that’s incorrect.

PN92.

So you say, do you, that the company did provide you with a delegation of financial authority. Is that correct?‑‑‑Yes.

PN93.

Apart from the OH&S responsibilities that every employee has and that, of course, an occ health and safety representative would have, did you have any further accountability in occupational health and safety that was placed upon you by the company?---Yes, I thought I did, because prior to harvest we have induction days where we run through machinery operations and so forth and all our OH&S induction stuff, and I run - I help run those training courses for those days and that’s - a lot of that is OH&S related.

****DAVID LESLIE PICKERING XXN MR MURRAY

PN94.

The next sentence in that paragraph says:

PN95.

I also explained that the company did not expect Mr Pickering to undertake duties of stock forecast availability, pay sheets, time slotting or the discipline of staff.

PN96.

Is that correct?---No.

PN97.

You say that he did not explain that to you?---No, not in that way. I’ve got some things on my start classification review that differ to that.

PN98.

Well, let’s break it up. You say that he did not explain to you ‑ ‑ ‑

PN99.

THE COMMISSIONER: Mr Murray - sorry to interrupt, Mr Murray. I think the difference between you and the witness is you’re asking whether or not Mr Bibby said these things. The witness is hearing it as, “Do you or do you not do these things?”

PN100.

MR MURRAY: Yes. Thank you for that clarification, Commissioner.

PN101.

What I’m seeking from you, Mr Bibby, is either acceptance or denial as to whether Mr Bibby said this to you, Mr Pickering?---Well, I’d say he said that to me, but he - yes.

PN102.

So you concede that he did say this to you?---Yes.

PN103.

Thank you. Perhaps I should also go back to the previous sentence and ask you do you concede that he said to you that you have no delegation of financial authority?---He did say that.

PN104.

Thank you, and did he say to you that you had no delegation of human resources authority?---Yes.

PN105.

And did he say that you have no delegation of occupational health and safety accountabilities?---Yes.

****DAVID LESLIE PICKERING XXN MR MURRAY

PN106.

Thank you. Now, if I could move on to the next sentence:

PN107.

I informed Mr Pickering that I considered that his work in taking on some site supervision activities in Mr Fleming’s absence was within the range of his responsibilities as a grade 4.2 employee.

PN108.

Did he say that to you?---Yes.

PN109.

That was a yes?---Yes.

PN110.

I think you’ll have to get closer to the telephone, Mr Pickering?---Yes.

PN111.

Thank you.

PN112.

Paragraph 5, Mr Bibby says:

PN113.

In attempting to address Mr Pickering’s concerns at our meeting I also explained to him that I was happy to work with him to further develop his competencies and capacities so that he could successfully transition to a grade 5 should he wish to do that in the future.

PN114.

Did he say that to you?---Yes.

PN115.

Thank you, Mr Pickering. That’s all the cross‑examination that I have, Commissioner.

PN116.

THE COMMISSIONER: All right. I have some questions for the witness. Mr Pickering, it’s Commissioner Johns. Can you hear me?---Yes.

PN117.

Yes, I just have some questions as well now, if you don’t mind. How long has it been since Mr Fleming was at the Warracknabeal site?---He was on and off for (indistinct) used to clean up things, but I’d say it would be October, November we last worked here.

PN118.

Right, and how often is Mr Bibby at the Warracknabeal site?---Maybe sometimes once a week, sometimes twice a week, at varying hours. Probably no more than twice a week.

PN119.

And when Mr Bibby’s not there who makes the decisions in relation to what happens Warracknabeal site?---I do.

****DAVID LESLIE PICKERING XXN MR MURRAY

PN120.

And what type of decisions do you make?---I make the decisions on where our staff levels to go, what we’re (indistinct) for the day, what other duties we do for the day.

PN121.

All right. Can I get you to think about when Mr Bibby’s not there what decisions of a financial nature do you make?---Just the main running of the day, inspect with things we have to order for the site, contractors to come in on transfer trucks, people to do work, staffing numbers, when we had to have casuals on at the time or get them off.

PN122.

Well, I’ll come to the human resource matters in a moment. I’m thinking just particularly about financial matters. What do you do in relation to contractors?

---Organise the contractors, organise the ‑ ‑ ‑

PN123.

Sorry to interrupt you, Mr Pickering. Can you just speak a little bit more slowly and explain in detail what you do with the contractors?---You ring the contractors up and ask them if they’re available to work for certain hours of the day to do the duties we need. They come in and then we do paperwork for them to get paid for what they do and so forth and to arrange their hours of what they get paid.

PN124.

Who arranges what rates to pay the contractors?---That was always negotiated between the contractor and the company. Normally I’d ask them what they wanted an hour and I’d run that by my superiors to see if that was okay.

PN125.

So what happens now that Mr Fleming isn’t there? Do you make the decision about whether the rate to be paid to the contractor is the right rate to pay, or what do you do about that now?---Just use - just the standard rate . Unless they ask for a pay rise it just more or less stays the same and we just continue on as we have been.

PN126.

Right, so is there sort of like a standing contractual rate with these contractors?

---Yes, normally.

PN127.

Yes, and not thinking about human resource issues but thinking about exclusively financial issues, what other financial matters do you deal with?---Yes, I find it hard to explain this one and now you’ve asked it what I need to explain ‑ ‑ ‑

PN128.

All right. Well, what things - not thinking about human resources, what matters dealing with the expenditure of money, the company’s money, or the receipt of income for the company do you deal with?---Mainly people that we have to bring items on site that we need, having vehicles registered, vehicles repaired, machinery repaired and serviced and just daily items we need on site through our job.

PN129.

So thinking about the servicing of vehicles, do you make the decision about when they get serviced and the like?---Yes, in conjunction with the other workers on site we deal with that.

****DAVID LESLIE PICKERING XXN MR MURRAY

PN130.

And when Mr Fleming was working there did he make those decisions?---Not all the time. At times we made them as well.

PN131.

What I’m trying to understand, Mr Pickering, is what different tasks you do now that Mr Fleming is not there compared to what tasks you were doing when he was there?---Would you like me to tell you some that I do?

PN132.

Yes, I would. Speak slowly, though. Please do so?---Right. A lot of things that have to be put on the I drive on the computers are not done by a lot of staff we have on site. So we have task reporting, we have role delegation we have to work with, we have to do our stock takes every week on our grade, stock takes on tarps, paperwork for weights, grain (indistinct) weight, we have to open up time‑slotting for our site. All this sort of stuff gets put on the I drive on the computer which we never did before, and I hadn’t done it and most of the staff hadn’t done it.

PN133.

And so you’ve only had to do that since Mr Fleming wasn’t there. Is that right?

---Yes.

PN134.

And you do stock forecasts, availability?---We talk to logistics. At times I used to sit on the hook‑ups and while Mike was - he was my manager. While he was not here I used to do the phone hook‑ups on a Tuesday to let the stocks department know what grain we had available to go out in the following week.

PN135.

Well, Mr Pickering, you tell me that Mr Fleming hasn’t been there since November last year. Have you since November last year been undertaking stock forecast availability duties?---Yes.

PN136.

When did you last do that?---The only one I don’t do now is the hook‑up on a Tuesday afternoon. One of the other site managers is doing that at the moment, or Mr Bibby does that, but everything on from there, we let them know, you know, if our stocks, et cetera - we let them know if something can be available or cannot be available.

PN137.

So you just said “one of the other site managers”. Who’s that?---David Drum is doing it at the moment while Mr Bibby’s away.

PN138.

And where does - sorry, what’s that chap’s name?---David Drum.

****DAVID LESLIE PICKERING XXN MR MURRAY

PN139.

Druff, is it?

PN140.

MR WINTER: Drum.

PN141.

THE COMMISSIONER: Drum?---Drum.

PN142.

Is Mr Drum at Warracknabeal?---No, he’s at Murtoa.

PN143.

Right, and what duties do you perform - since November last year what duties have you been performing in respect of the Jeparit site?---The Jeparit site, I help organise what happens on that site in conjunction with (indistinct) just on the same duties we do here at Warracknabeal.

PN144.

All right. Now, thinking about human resource matters, since November last year what have you been - what tasks have you been doing that were previously done by Mr Fleming?---Just mainly employing and laying off casual staff.

PN145.

What does that mean, employing casual staff?---Well, we have casual staff as - in terms of on a casual basis. Over harvest we have a lot more employees. It can be anything up to 40 or 50 employees.

PN146.

Yes, so what actually do you do?---I ring these people up and ask them if they’re available to work for us at any times and I arrange what staff come into work, what don’t, and to lay them off when they’re no longer required.

PN147.

What happens with their pay slips? Do they clock in and clock off?---You have a pay sheet that you sign and you fill out your hours every day. Previously I used to sign them but now I send them into the office and Mr Bibby signs that.

PN148.

When did you start sending them in to Mr Bibby?---About two months ago.

PN149.

Right, and other than the calling in of casual staff or telling them that they’re not required are there any other human resource duties that you perform?---No, that’s the main one.

PN150.

All right. What is time‑slotting? Can you explain that to me?---Time‑slotting, where is - you set aside trucks - hours that trucks can come onto a site. We have to open up hours so that they can allot so many trucks to come onto a site for those specific hours and get loaded.

PN151.

And do you undertake time‑slotting tasks?---Yes.

PN152.

When did you last do that?---I was doing some on Friday, I think it was, yes.

PN153.

When Mr Fleming was there was that a duty that he usually did?---Yes, in relation to that.

****DAVID LESLIE PICKERING XXN MR MURRAY

PN154.

So it’s only a duty you’ve taken over since Mr Fleming wasn’t there. Is that right?---Yes.

PN155.

Do you discipline any staff?---No.

PN156.

Who does that?---Mr Bibby used to do - Mr Fleming used to do that and now Mr Bibby does that.

PN157.

Have you ever seen a duties statement for the position of site manager?---No. I might have (indistinct) but I’ve never seen - taken any notice of one if I’ve seen it.

PN158.

So what’s your understanding of the difference between a site manager and a site supervisor?---I just think the difference between a manager and a supervisor is all these additional duties that you do, like I mentioned some of (indistinct) you have to go onto the computer on our I drive and be updated every week and every month and so forth, and work the (indistinct) grain handling securities.

PN159.

Because in your mind, is it right, that a site supervisor is still essentially a grain handler?---Yes, that is correct.

PN160.

Whereas a site manager is a staff position. Is that right?---Well, the site manager is just more clerical and computer work and stuff like that compared to a grain handler.

PN161.

All right. Mr Pickering, is there anything else you think I need to know about the differences between the job you do now, now that Mr Fleming is not there, and the position you used to do when Mr Fleming was there?---No, not really on that; no.

PN162.

Anything arising, gentlemen, from that?

PN163.

MR WINTER: No, Commissioner.

PN164.

THE COMMISSIONER: All right. Mr Pickering, can I thank you for your evidence today. I’ve been greatly assisted by it, and you’re now excused . Thank you?---Thank you. Bye.

<THE WITNESS WITHDREW [11.25 AM]

PN165.

THE COMMISSIONER: Yes, Mr Winter?

PN166.

MR WINTER: Thank you, Commissioner. I just wish to call my final witness, Ronald Paul Hayden.

PN167.

THE COMMISSIONER: Yes, thank you. Mr Hayden?

<RONALD PAUL HAYDEN, AFFIRMED [11.26 AM]

****RONALD PAUL HAYDEN XN MR WINTER

PN168.

THE COMMISSIONER: Thank you, Mr Hayden. You may be seated. Mr Winter?

<EXAMINATION-IN-CHIEF BY MR WINTER [11.26 AM]

PN169.

MR WINTER: Thank you, Commissioner.

****RONALD PAUL HAYDEN XN MR WINTER

PN170.

Mr Hayden, do you have your copy of your statement in front of you?---I do, yes.

PN171.

Is your statement 14 paragraphs and three pages?---Yes.

PN172.

If I could have the witness statement tabled, Commissioner.

PN173.

THE COMMISSIONER: Yes, we’ll mark the witness statement of Mr Hayden as AWU 3.

EXHIBIT #AWU3 WITNESS STATEMENT OF RONALD PAUL HAYDEN

PN174.

MR WINTER: Is there anything within your witness statement you wish to change or anything you wish to add, Mr Hayden?---No.

PN175.

I have no questions. I rely on the statement.

PN176.

THE COMMISSIONER: Yes, thank you. Mr Murray?

CROSS-EXAMINATION BY MR MURRAY [11.27 AM]

PN177.

MR MURRAY: Mr Hayden, at paragraph 14 of your statement you’ve said that you consider that Mr Pickering should be classified as a grade 5.1 in accordance with the agreement. You no longer hold that position?---No.

****RONALD PAUL HAYDEN XXN MR MURRAY

PN178.

No, you no longer hold that position?---No, I no longer hold that position.

PN179.

Thank you. That’s all, Commissioner.

PN180.

THE COMMISSIONER: Mr Hayden, can you tell me what is the difference between a site supervisor and a site manager?---Commissioner, I believe that a site supervisor as per the agreement when it was negotiated was an employee who would supervise the employees on the site for a non‑primary site. So there’s differences between sites with GrainCorp. There’s primary sites and, I guess, secondary sites, and a site supervisor was someone that would supervise a secondary site under the supervision of a GSM or a site manager.

PN181.

And what’s Warracknabeal?---A primary site.

PN182.

So what’s the difference in duties or tasks between a site manager and a site supervisor?---I believe the duties are that, as Mr Pickering pointed out, contacting staff, letting them know when they will and won’t be working. It’s also the senior-most go-to person on a site, on a primary site, would be a site manager. A site supervisor is on a smaller site and has the GSM coordinating things with them.

PN183.

Has the company ever provided you with a position description for a site manager?---I think I may have seen one maybe six months back. I think Mr Johnson gave me a copy of one and it might have been a draft format at that stage, was it?

PN184.

Has there been a final version that you’ve ever been provided?---Not that I’ve seen, no.

PN185.

How long has this dispute been dragging on?---Too long. Maybe four, five months - four or five months.

PN186.

And in all that time the company has not provided the AWU with the definition of what a site manager is?---No.

PN187.

Anything arising?

PN188.

MR MURRAY: Nothing from us.

PN189.

THE COMMISSIONER: All right, thank you. You’re excused, Mr Hayden. Thank you for your evidence today?---Thank you, Commissioner.

****RONALD PAUL HAYDEN XXN MR MURRAY

<THE WITNESS WITHDREW [11.30 AM]

PN190.

THE COMMISSIONER: Mr Winter, is that the conclusion of your case?

PN191.

MR WINTER: Yes.

PN192.

THE COMMISSIONER: Yes, thank you. Mr Murray, I will mark your outline of submissions G1.

PN193.

EXHIBIT #G1 RESPONDENT'S OUTLINE OF SUBMISSIONS

PN194.

MR MURRAY: Commissioner, I call Gerard Bibby.

PN195.

THE COMMISSIONER: Yes.

<GERARD BIBBY, AFFIRMED [11.31 AM]

<EXAMINATION BY MR MURRAY [11.31 AM]

PN196.

MR MURRAY: Mr Bibby, have you prepared a witness statement in this matter?---I have.

****GERARD BIBBY XN MR MURRAY

PN197.

Have you got a copy of it with you?---Yes, I have it here.

PN198.

If you could just leave it there?---Yes.

PN199.

You’ve read it recently?---Yes.

PN200.

Is it true and correct?---Yes.

PN201.

I ask that this be marked, Commissioner.

PN202.

THE COMMISSIONER: Yes, the witness statement of Gerard Bibby will be marked as exhibit G2.

EXHIBIT #G2 WITNESS STATEMENT OF GERARD BIBBY

PN203.

MR MURRAY: Mr Bibby, how often do you work at the Warracknabeal site?

---Currently, probably try to get there once if not twice a week.

PN204.

Twice a week, and has that circumstance changed over recent times or has that been the case all along?---Yes, it probably has changed to a certain degree.

PN205.

What were you doing prior?---I’d been managing the Ouyen zone which is the top end of Victoria. So I’ve come back down to manage the Horsham East cluster, which I’m based out of Horsham.

PN206.

And when you’re not at the Warracknabeal site who makes the decisions as to how it operates?---David Pickering.

PN207.

So what is the distinction between what you do and what he does?---David pretty well runs the day‑to‑day chores on the site, which starts right from the word go with the toolbox talk and then discusses the day‑to‑day tasks that’s going to happen for the staff on site.

PN208.

What do you do that Mr Pickering does not do?---Myself, I probably manage the whole cluster, which takes in Murtoa, Warracknabeal and Jeparit. Basically what I basically do is just the managing decisions, dealing with the customers, dealing with the end users, looking after the budgets, pretty well supporting my site managers and site supervisors and my staff. So I do the reviews for the staff, you know, pretty well look after the logistics side of our cluster with the phone calls that we have on each Tuesday which helps prepare for the work plans for the team.

****GERARD BIBBY XN MR MURRAY

PN209.

There’s a reference to financial decisions that might be taken. Is Mr Pickering expected by you to take ‑ ‑ ‑

PN210.

THE COMMISSIONER: You’re leading, Mister ‑ ‑ ‑

PN211.

MR MURRAY: What in terms of financial decisions is Mr Pickering required to do?---No ‑ ‑ ‑

PN212.

If anything?---No, very little. I do the monthly budgets with hook‑up with the senior managers and then pretty well every week I pretty well send the guys a copy of what we call the score card, which is a running tally of our finance, how we’re going for the week, and then I pretty well discuss with David or - David Pickering, in this case, in Warracknabeal, or David Drum, my other site manager at Murtoa.

PN213.

There’s been a reference to time‑slotting. What’s time‑slotting?---Time‑slotting is where we book in the trucks accordingly with the tonnes that we’ve discussed on our logistics hook‑up so our customers can basically see the site’s going to be open from 7.30 till 4 o’clock and that allows the truck companies to go in and the amount of trucks against what grain we’ve got available.

PN214.

Is that a function that you perform?---I do perform that. I’m just in the process now of sharing that with my staff. Some of my staff do know how to do that.

PN215.

And is Mr Pickering one of those?---He’s one that we’ve only just recently, in the last fortnight, put him through how to do the time‑slotting.

PN216.

So has he performed that job before now?---No. No, he hasn’t done that.

PN217.

You are said to have referred to Mr Pickering as acting site manager. Is that correct?‑‑‑I did, yes. Yes.

PN218.

He says that you said it a few times. Would that be correct?---No, I - well, I’m unsure if I’ve verbally said it. I know I did put it in ‑ ‑ ‑

PN219.

THE COMMISSIONER: How else could you have said it?---I put it in what I call a recorded meeting which I’ve documented in there, which since this has come to my attention it has - it’s certainly my mistake.

PN220.

MR MURRAY: So do you regard Mr Pickering as a site manager in your absence?---A site supervisor.

PN221.

So you distinguish between those two?---Yes. Since ‑ ‑ ‑

PN222.

What’s the difference?---Pretty well since this has come aboard just - the difference is obviously manager is on a salary and the site supervisor on EBA agreement.

PN223.

THE COMMISSIONER: So is the only difference between a site manager and a site supervisor how they get paid?---And the activities they take.

****GERARD BIBBY XN MR MURRAY

PN224.

What are they?---The site managers pretty well ‑ ‑ ‑

PN225.

What are they?---They pretty well know a little bit what I know. They do do the site availability, time‑slotting and that scenario. They’ve got more access with their computers, skills with the reporting that they do as well. They get involved with more decision‑making when it comes harvest time, you know, with the site segregations, site appointments, you know, the consumables that they require, what training people require, and stuff like that. They’re in more of that managing role than the site - the site supervisor basically does look after the site on a day‑to‑day activity.

PN226.

MR MURRAY: What financial responsibilities do you expect Mr Pickering to perform in your absence?---Financial? Probably through our discussions just control the staff numbers, making sure that we’re not overburdened with staff, but pretty well there I know David has been involved with supporting people filling in their time sheets, with - David’s an AWU member - rep, sorry, not a member, a rep, and he’s got pretty good knowledge of - well, what we’ll call a bit of a complicated entitlements with their 20‑minute leaves and all that sort of stuff, what they put on the time sheets. So David has supported staff in doing that.

PN227.

Right, and what about human resources authorities? What authorities do you expect him to exercise in terms of human resources when you’re not there?---No, pretty well, as I said to David, you know, if there is discipline sort of stuff that needs to happen, or, you know, developing staff, it’s - you know, that’s where I come into play.

PN228.

And in respect of occupational health and safety?---All employees have pretty well got the responsibility to make sure they look after their staff. Obviously David running the toolbox talk in the mornings is very vital to our day‑to‑day activities, planning to make sure everyone’s well aware that, you know, what they are going to do for the day is going to be safe.

PN229.

Thank you, Mr Bibby. That’s all the examination‑in‑chief that I have.

PN230.

Thank you, Mr Murray. Mr Winter?

<CROSS-EXAMINATION BY MR WINTER [11.40 AM]

PN231.

MR WINTER: Thank you, Commissioner. Just a few questions.

****GERARD BIBBY XXN MR WINTER

PN232.

Does Mr Pickering engage staff?---Obviously toolbox talk in the morning, he ‑ ‑ ‑

PN233.

No, does he employ staff such as casuals? Who engages the casuals at the Warracknabeal site ‑ ‑ ‑?---Site, yes.

PN234.

‑ ‑ ‑ when the manager’s not there?---Well, pretty ‑ ‑ ‑

PN235.

Do you do it?---Pretty well Bob Fleming has done that in the past. Bob ‑ ‑ ‑

PN236.

The site manager?---Bob Fleming does.

PN237.

Yes, now, when Mr Fleming is not there who does it?---Well, there’s probably no requirement to actually do that.

PN238.

THE COMMISSIONER: Sorry, Mr Bibby, just for my benefit, when was Mr Fleming last there?---September, was it, I think? He took September off.

PN239.

And did you have a harvest over the summer?---Yes. Yes, we did have a harvest over summer.

PN240.

And do you need casuals for the harvest?---No, the casuals are already there. Bob had already put the casuals in place.

PN241.

But did you have the same number of casuals needed every day?---No, we had a very bad harvest. We didn’t - I think we only used three casuals through the whole harvest, which normally Warracknabeal does have quite a few ‑ ‑ ‑

PN242.

How many would you have had on your books?---Probably three extra - three or four extra casuals, maybe, which only got day work here, day work there, sort of thing. It was a very poor harvest. Warracknabeal ‑ ‑ ‑

PN243.

Who gets them in for the day’s work here and a day’s work there?---David would get them in.

PN244.

Mr Pickering?---Yes.

PN245.

Yes, and if Mr Fleming had been there would he have done that?---Yes.

PN246.

So Mr Pickering took over that responsibility for Mr Fleming?---Yes, pretty well.

PN247.

MR WINTER: Are you aware - just bearing in mind you are only there one or two days a week, are you aware of what, if any, additional tasks Mr Pickering would perform that would normally be performed by Mr Fleming?---No, I - well, I’d hate to guess what he’d do, but pretty well since I’ve been in the area we - I go across on Monday mornings and we just - we talk about the work plan that we submit for the following week and then we go back over and confirm it at 10 o’clock every Wednesday.

****GERARD BIBBY XXN MR WINTER

PN248.

Do you supervise Mr Pickering? Do you know what additional tasks, if any, he does?---I pretty well know everything that he does on a day‑to‑day basis.

PN249.

How do you know that?---Through the work plan that we submit by 10 o’clock on Wednesdays.

PN250.

In relation to paragraph 1 of your statement you state that you manage Horsham East cluster. Is that correct?‑‑‑That’s right, yes.

PN251.

Are there any grade 5 employees employed within that cluster?---Well, David Drum who is my site manager is classified as a grade 5. There’s no‑one in the EBA agreement.

PN252.

And what are some of the areas of responsibility of Mr Drum?---Similar to what I just said before. Pretty well he does get involved with the time‑slotting, the harvest preparation, bunker equipment, staffing, training that them staff need, preparation for the harvest, pretty well, and then obviously after harvest is out, loading and fumigation planning, you know, customer engagement.

PN253.

THE COMMISSIONER: So is Mr Drum at Murtoa?---He’s at Murtoa, yes.

PN254.

MR WINTER: Before you moved to the Horsham East cluster did you work in another area?---Ouyen zone.

PN255.

Ouyen?---Ouyen zone. Yes, they were called “zone” until we had the restructure and now they’re ‑ ‑ ‑

PN256.

Were there any grade 5 employees engaged in that area?---Grade 5?

PN257.

THE COMMISSIONER: So how many sites did you have in the Ouyen cluster?

---Let me work out this one.

PN258.

Maybe you could tell me what they were - who they were?---Do you want me to tell you who they are?

PN259.

Yes?---Yes, okay. Yelta, Carwarp.

PN260.

Sorry?---Yelta, Carwarp, Meringur, Ouyen, Speed, Underbool, Murrayville, Hopetoun, Beulah, Yaapeet and Rainbow.

****GERARD BIBBY XXN MR WINTER

PN261.

Eleven of them?---They’re open sites.

PN262.

Sorry, Mr Winter.

PN263.

MR WINTER: Thank you.

PN264.

THE COMMISSIONER: How many of those have a site manager?---Ouyen, Beulah, Murrayville and Carwarp.

PN265.

Carwarp, Ouyen?---Ouyen, Carwarp, Murrayville and Beulah.

PN266.

And do the others have site supervisors, do they?---Well, the site supervisors sort of come in when the restructure come in, and that was my mistake with that document I did, because we used to have primary - primary sites had the site managers and the smaller sites - some smaller sites had site supervisors, you know, when the restructure ‑ ‑ ‑

PN267.

But Warracknabeal is a primary site?---A primary site, yes.

PN268.

So it ordinarily has a manager?---Yes.

PN269.

And Mr Fleming hasn’t been there since ‑ ‑ ‑?---Pretty well when I more or less got there. He only worked - I’m not too sure of the dates. Maybe a couple of months, and then he took holidays and then he took an extended holiday and then he didn’t come back.

PN270.

So what was the difference between the work that Mr Fleming was doing when he was there and the work that Mr Pickering was doing when Mr Fleming was there?---Yes, so pretty well all the - knowing David, David wasn’t very strong on the computer side of stuff. Pretty well what - I’d sort of covered a lot of that stuff with the support of a girl, a casual, that worked for us, Amanda. She used to help out in the Warracknabeal depot as well. So she done a lot of the computer stuff with myself, where David just purely ran the guys. So when he knew what he had to do for that in-loading or out-loading of grain, that’s when he organised the staff that was on site, and he was hands‑on.

PN271.

But when Mr Fleming’s not there and you’re not there does Mr Pickering do - is it the I drive? Is that the phrase?---Yes. David - two weeks ago we went through training and he did mention to me that was the first that he’s gone on the I drive, so he was really unaware of what the I drive was until we put him through this training.

PN272.

MR WINTER: Just a couple of questions. In regard to HR issues does Mr Pickering have any say in regard to giving staff directions or disciplining them in any way?---The only one that comes to mind is that David - he wasn’t happy with a particular casual, the performance of a casual, so David spoke to myself about not bringing this casual back on the books, and I said I was quite happy with that decision.

****GERARD BIBBY XXN MR WINTER

PN273.

Did you ever tell David that he needed to improve his skills in disciplining staff?

---I can’t - no, I couldn’t recall that. I’m not saying I didn’t say it, but I can’t really recall.

PN274.

But you could have said it?---Yes.

PN275.

Just in regard to issues of financial authority, do any EBA staff make decisions in relation to financial authority?---Not really, no. Not that I’m aware of.

PN276.

So it is a management decision in relation to that. Is that right?---Pretty well, yes.

PN277.

Are you aware of any job description in regard to grade 5?---Offhand ‑ ‑ ‑

PN278.

Have you seen one?---Only on the salary side of things I’ve seen it.

PN279.

In relation to staff ‑ ‑ ‑?---Not EBA ‑ ‑ -

PN280.

No grade 5 EBA employees?---Yes. No, not EBA - I’ve seen the EBA agreement, yes.

PN281.

Yes, but have you seen a job description at all in regard to an EBA employee?---I can’t say I have.

PN282.

How do you - I’ll withdraw that. Do you decide where people sit within the classification structure of the EBA?---Do I ‑ ‑ ‑

PN283.

Do you decide that?---Yes, through the performance - we’ve got a process in place. We have a performance review each year, and each year ‑ ‑ ‑

PN284.

But how do you know where people sit within the structure if there’s no job descriptions?---Through this performance review that we - with agreement with the AWU and senior managers we’ve - we sit down annually with our employees and we go through their job - well, their grade that they’re classified at and through their behaviours and the indicative tasks we see how they’re going.

PN285.

That’s a review, a yearly review, I presume?---That’s it.

****GERARD BIBBY XXN MR WINTER

PN286.

But how do you know what indicative tasks fit within each of the levels if you don’t have a job description?---Through the EBA agreement there’s ‑ ‑ ‑

PN287.

And that’s all you rely on, the EBA. There’s no job description?---Not that I’m aware of.

PN288.

Are you aware if there’s a job description in regard to a site manager’s position?

---Yes.

PN289.

Are there job descriptions for all senior management positions? For instance, have you got one?---I’ve got one, yes.

PN290.

So why don’t the EBA staff have job descriptions?

PN291.

MR MURRAY: Well, I don’t think ‑ ‑ ‑

PN292.

THE COMMISSIONER: I don’t know that he can answer it. I don’t know that it’s useful.

PN293.

MR WINTER: I withdraw it. I withdraw it. I’ve got no further questions, Commissioner.

PN294.

THE COMMISSIONER: Mr Bibby, you said that there’s a position description for a site manager?---Yes, which is a salary - which is on salary.

PN295.

Yes, and when was that last produced or - it’s just it’s not attached to your agreement - sorry, it’s not attached to your witness statement?---It’s part of the GrainCorp , the job position descriptions.

PN296.

So you’re certain there’s a site manager position description, are you?---Well, there used to be. I’m not too sure currently but there used to be a site manager’s description.

PN297.

When did you last see that?---When did I last see it would be a good question. Probably even could have been back when I was a site manager.

PN298.

And what position - what tasks are listed in that position description which are exclusively the role of the site manager?---Site manager or site supervisor, are you saying?

****GERARD BIBBY XXN MR WINTER

PN299.

Site manager?---Site manager. Pretty well they’re similar to what I was speaking before. They’re sort of - my position is area manager, so the descriptions are pretty similar to that, you know, as in understanding the budgets and finance and that side of things, the OH&S requirement, obviously, job there, the customer requirement of the position.

PN300.

But those distinctions, the OHS issues, the HR issues, the customer issues, they’re not distinctions as between a site manager and a site supervisor included in the EBA, are they?---Not that I’m aware of, no. No, there’s a - not for a grade 4.

PN301.

Well, the EBA has a 5.1, doesn’t it?---5.1, yes.

PN302.

And that 5.1 is a site manager, isn’t it?---I’m not ‑ ‑ ‑

PN303.

They act as a site manager, don’t they?---Yes, I’m unaware if there’s any EBA staff on grade 5.

PN304.

But you accept that a 5.1 is someone who acts as a site manager, aren’t they?

---Yes.

PN305.

Yes. So you can have a site manager on the EBA, can’t you?---You could do.

PN306.

Yes, and what’s the difference between a 5.1 and a 4.1?---There’s a 4.2 which ‑ ‑ ‑

PN307.

Sorry, right, yes?---Yes, which Dave is.

PN308.

So the 4.2, that’s during harvest time, isn’t it?---That’s right, yes.

PN309.

Yes, and otherwise it’s a 4.1?---Yes, that’s right. So the 4.2 basically is engaged with the growers at harvest time.

PN310.

What does that mean, engaged with the growers?---Through harvest period you’ve got the farmers coming in with their grain so there’s a lot more interaction with the growers there compared to any other time through the year. So there’s a bit of difference between the 4.1. The 4.1 basically runs the site after harvest and which talks, you know, with the truck companies to out-load the grain. Come harvest time where there’s a fair bit of pressure, growers coming in, and that’s obviously their livelihood. They want to know what the grain quality is, so the site supervisor or 4.2, that’s the go-to person for the growers on the day‑to‑day basis. So it’s a bit of a ‑ ‑ ‑

PN311.

So noting that Mr Fleming hasn’t been there since the end of last year and thinking about times when you’re not at Warracknabeal, is it Mr Pickering who manages the site operations?---Yes. Through the harvest period, yes.

****GERARD BIBBY XXN MR WINTER

PN312.

Is it Mr Pickering who, when Mr Fleming isn’t there and when you’re not on site at Warracknabeal, is it Mr Pickering who manages the staff?---The staff, yes.

PN313.

And is it Mr Pickering - when you’re not there, is it Mr Pickering who manages the results of the Warracknabeal site?---With, yes, consultation with myself. Yes.

PN314.

Yes, but when you’re not there ‑ ‑ ‑?---Yes.

PN315.

‑ ‑ ‑he makes the day‑to‑day calls?---He makes the day‑to‑day calls, yes.

PN316.

And he does that in a proactive way?---Yes. As he said before, we pretty well put everything into place on a Wednesday morning to what’s going to happen on the following week so there will be ‑ ‑ ‑

PN317.

And when you’re not there on a day‑to‑day basis Mr Pickering will have to make decisions on a day‑to‑day basis?---Yes. Yes, he does make them.

PN318.

Yes, and sometimes you might question those decisions?---If he’s unsure of his decision‑making he’ll give me a call.

PN319.

Yes, but say he’s made a decision there might be times when you question, “Why did you make that decision, Mr Pickering”?---Yes.

PN320.

Is that right?---Yes.

PN321.

Is he able to explain his reasoning for making those decisions?---Yes.

PN322.

Is he able to communicate that clearly to you?---Yes. Verbally, yes.

PN323.

Does Mr Pickering have an eye to continuous improvement at the Warracknabeal site?---Through his last review that we’ve done together, yes, there’s - we’ve clearly identified his strengths and his weaknesses, which I’ve clearly explained to him that I’m happy to work with him to develop him.

PN324.

Yes, all right. Anything arising?

<RE-EXAMINATION BY MR MURRAY [11.56 AM]

MR MURRAY: Mr Bibby, the Commissioner put a series of questions to you then using the word “manages”. Now, given the fact that you have already said that you mistakenly used that word, would it be more accurate to say “supervises” the site?---Yes. Yes, I think I did say ‑ ‑ ‑

****GERARD BIBBY RXN MR MURRAY

PN325.

Or supervises the staff?---Yes.

PN326.

THE COMMISSIONER: Well, put whatever word you like into his mouth, Mr Murray.

PN327.

MR MURRAY: As my submissions will follow, the distinction is an important one.

PN328.

It’s true to say, is it not, that not all primary sites have managers?---Yes, that’s right.

PN329.

That’s all.

PN330.

MR WINTER: No further questions.

PN331.

THE COMMISSIONER: Mr Bibby, can I thank you for your evidence today. I’ve been greatly assisted by it and you are now excused?---Thank you.

<THE WITNESS WITHDREW [11.57 AM]

PN332.

MR MURRAY: Commissioner, I call Peter Johnston.

PN333.

<PETER JAMES JOHNSTON, SWORN [11.58 AM]

PN334.

THE COMMISSIONER: Thank you. You may be seated, Mr Johnston. Mr Murray?

<EXAMINATION-IN-CHIEF BY MR MURRAY [11.58 AM]

PN335.

MR MURRAY: Thank you, Commissioner.

PN336.

Mr Johnston, you have prepared a statement in this matter?---Yes, I have.

PN337.

You’ve got a copy of it with you?---Yes, I do.

PN338.

You’ve read it recently?---Yes, I have.

PN339.

Is it true and correct?

PN340.

Yes, it is.

PN341.

Commissioner, I seek to - a number for that.

PN342.

THE COMMISSIONER: Yes. The witness statement of Peter Johnston will be marked as exhibit G3.

EXHIBIT #G2 WITNESS STATEMENT OF PETER JOHNSTON

PN343.

MR MURRAY: Mr Johnston, what is a financial delegation?---So I’ll put it in the context of GrainCorp, and essentially a financial delegation is where you give people the authority to act to spend money on the company’s behalf to agreed limits. It could be for consumables that are used at harvest, it could be for at a manager level total payroll expenses. They’re expected to perform against budget. So we’re essentially giving them authority to spend to given ranges on behalf of the business.

****PETER JAMES JOHNSTON XN MR MURRAY

PN344.

How is that authority given? Is it a document or ‑ ‑ ‑?---Yes.

PN345.

‑ ‑ ‑ or verbally or what?---Okay, so as part of - well, again, within GrainCorp policies and procedures, we have a delegation authority and it’s managed - well, sorry, so essentially as part of role statements it’s noted what level of delegation that you have and as part of that we then have a table or a dossier that says, “This is what your authorisation,” as in the area of the business, “that you’re authorised to spend money, the quantum of money that you’re allowed to spend and the quantum based on individual decisions.”

PN346.

So did Mr Pickering have a financial delegation?---Mr Pickering does not have a financial delegation. A financial delegation is by salaried staff. We do not provide financial delegation to any EBA staff.

****PETER JAMES JOHNSTON XN MR MURRAY

PN347.

So how does that limit what he can do?---So essentially - and I use consumables, like, if he needs some zip ties or he needs to organise a repair because there’s a flat tyre on a vehicle or something like that, essentially through the site we can provide, you know, preferred suppliers and the like. So the actual arrangement in regard to how that task gets conducted, the financial authority is already provided per se, and we have purchase order authorities and all that type of thing. So if it’s a maintenance related issue we have work orders - you know, fairly standard business type processes. So essentially they’ll have - EBA staff, and more to the point, EBA staff from level 4.1 and 4.2, can coordinate the activity under the guidance of the site manager, area manager, in regard to, you know, what they can and can’t do.

PN348.

And what about a human resources authority or delegation? Is that a similar process?---Yes, once again, a similar process. So we have - as it relates to recruitment only managers have the capacity to recruit, in conjunction with HR. We have a process - I’ll refer to a thing called work flow. It’s a computer based system, so essentially - and bringing people onto the books we need to obviously go through the appropriate interview, review, an assessment of their competency to be able to do the job. They then essentially can be either as a permanent staff or a casual, so that then generates a pool of resources that can be drawn on as required. The actual appointment, as in who is eligible or capable and suitable for the job is determined by a combination of HR and the site manager. From time to time they might consult with the local people on the site and say, “Do you know Bill? He’s just applied for a job,” and get, I suppose, some localised feedback, but the actual appointment of the individuals, the initial appointment to ensure they have the competencies, is done by managers.

PN349.

Does that apply to casual staff as well?---It applies to casual staff as well. On the day‑to‑day requirement of casual staff, once they are under employment, as in not essentially attending but essentially they’re within that pool of casuals, a 4.2 or a 4.2 under the work plan that is provided by either the area manager or the site manager can bring in the required number of staff hours to complete the task that’s been assigned to them. So in David’s situation, being very specific, if we’re doing some out‑loading ,the volume of out‑loading is determined by - we have a regional planner. “The customer’s - this is their demand. We’d like to source that grain from Warracknabeal. We know Warracknabeal can out‑load 800 tonnes in a day.” To out‑load 800 tonnes in a day David - the site may have some people on RDOs, so on that basis he’ll need x many labour units to complete the job. We have, you know, essentially casuals that are accredited, trained, et cetera, within GrainCorp policies and procedures that David can draw on, no differently - you know, as a resource to actually complete the task.

PN350.

And what about in respect of occupational health and safety? An authority in respect of that?---Okay. So GrainCorp’s number one value is safety of our people and there’s an expectation that everyone in the business will show safety leadership. When it comes to the actual authority and accountability of deliverable safety, that rests solely with the salaried managers. Obviously everyone contributes to the safety and wellbeing of the workplace and their fellow peers, but essentially if - and I’ll use the example, if there’s an incident in the workplace the review of that incident is conducted by salaried staff, by managers. It is not conducted by EBA employees because they don’t have the authority to make decisions and final outcomes as it relates to those investigations and the like.

****PETER JAMES JOHNSTON XN MR MURRAY

PN351.

Under the agreement there’s a series of descriptions which apply to grade 5 that don’t apply to grade 4?---Yes.

PN352.

I’m just going to mention these individually to you and ask you whether Mr Pickering has been expected to perform them. You don’t need to look at your witness statement. The first one is to relieve the duties of a GSM, GPS, T and EC, on a temporary basis?---Essentially David has never been instructed by the company to take on those accountabilities .

PN353.

THE COMMISSIONER: What does GSM mean?---That’s an old term, grain services manager, and this is a legacy issue, Commissioner, as it relates to - we went through a restructure that Mr Bibby made mention of called Regeneration in July last year.

PN354.

So GSM is now an area manager. Is that right?---No, GSM is not an area manager. We have a matter before the Commission previously with Hamilton and ‑ ‑ ‑

PN355.

Deputy President Hamilton?---Sorry, thank you. Yes, President Hamilton, in regard to that. Essentially a GSM had multiple workforces at multiple sites, whereas we’ve actually consolidated and actually provided site managers, that essentially their focus is a primary site or a major site plus what we call a flex site. I’ll use Jeparit as the example. Jeparit is a flex site that we open depending on the actual demand. So it is an unmanned site and it it’s sort of like a satellite site to that.

PN356.

So is it ‑ ‑ ‑?---So the ‑ ‑ ‑

PN357.

In comparative terms, is a GSM more like a site manager than an area manager? Where did the GSM normally - usually fit in the pecking order?---Okay, so essentially we have a structure of regional manager that deals to strategy and the like, we have operational managers that deal to operational issues. Under the operational managers we now have area managers, of which Mr Bibby is one, and then we actually have site managers. Through Regeneration ‑ ‑ ‑

PN358.

So where did the GSM formerly fit within that structure?---The GSM fell underneath the area manager, but we’ve gone from a situation where we’ve ‑ ‑ -

PN359.

So they were like a site manager?---They were like a site manager, but we’ve shut, as part of Regeneration, a very large number of sites. We’ve shut over 120 sites.

****PETER JAMES JOHNSTON XN MR MURRAY

PN360.

Sorry, I’m just trying to understand where they fit in the picture?---So they’re no longer managing, in a lot of cases, multiple sites, because those sites are no longer open. So they’re a site manager and they have nothing to - you know, they don’t have major sites and their own primary site around that.

PN361.

I understand . What does GPS mean?---Grain protections. Grain protection, essentially involved in pesticide.

PN362.

T and EC?---I’m not actually familiar with that term, sorry.

PN363.

All right. That’s okay.

PN364.

UNIDENTIFIED SPEAKER: Sharpie.

PN365.

UNIDENTIFIED SPEAKER: Transport and equipment?---Sharpie, okay. Transport and equipment coordinator.

PN366.

THE COMMISSIONER: Maybe we won’t have people at the Bar table yelling out evidence.

PN367.

UNIDENTIFIED SPEAKER: Sorry?---Yes, so essentially the transport coordinator. So one of the - obviously to resource a site, to be in a situation where you need to liaise with the other sites to coordinate the movement of heavy machinery and the like on the site for preparation of harvest.

PN368.

MR MURRAY: The second one is, “Proactively manage site operations, staff and results.” Did you expect - or did GrainCorp expect ‑ ‑ ‑

PN369.

THE COMMISSIONER: Well, before we do that, what does “Proactively manage site operations” mean?---Okay, my interpretation and my understanding of the agreement when we use the word “proactively” is to actually - rather than be in a situation where people are provided a work plan and they fulfil the tasks associated with the work plan , that they’re actively contributing towards what should be in the work plan, not just for the next week or the next day, but actually looking a month out and say, “Look,” you know, “have you considered that we should look at taking grain from this silo rather than that silo to assist in the fumigation process,” and the like. So they’re proactively engaged in the work plan, not just providing instruction around the work plan and just acting on the work plan that’s there.

****PETER JAMES JOHNSTON XN MR MURRAY

PN370.

MR MURRAY: Did you require Mr Pickering to proactively manage site operations?---There was no assignment for David to proactively manage the site. We welcome people’s contribution, but the reality is that - and I can only talk right now, the Warracknabeal site has gone from a site taking 80,000 tonnes last year to less than 30,000 tonnes this harvest just gone. There is simply - you know, the planning’s pretty simple. Have we got grain, yes or no, so there’s very, very limited opportunity to proactively plan - to manage something that’s not there to be managed. It’s just an unfortunate situation.

PN371.

Well, did you require him to do that?---No, there was no requirement to, because we’ve got extremely competent people like Ged Bibby as the area manager that was previously accountable for the successful running of 11 sites now focusing in on two primary sites. So we have exceptional bandwidth as far as management capacity.

PN372.

Did you proactively - or did you require him to proactively manage staff?

---Essentially we’ve got a work plan, so proactively once again would be more involved in regard to recruitment, development and engagement along those sides of things. That’s how I, you know, read the word “proactively”. So they would be working with Ged to essentially develop - look at personal development plans on an EBA employee to actually assist them to reach a higher grade. That’s what I mean by - you know, that’s the interpretation of “proactively”, whereas David has responsibility like an off-on switch, as in, “Do I need more staff based on the work required?” “Yes,” turn it on, bring staff in. Work’s not there, turn it off. Stop.

PN373.

Did you require him to proactively manage results?---Every - well, sorry, at a grade 4.2 there’s an expectation that they understand what the targets and objectives are, and that’s why Ged, as submitted, has - essentially provides information on our efficiency on the actual sites. Once again, proactively is where we are actively pursuing development opportunities to increase the site’s performance around, you know, key company metrics. I didn’t answer that. So, no, we did not actively ‑ ‑ ‑

PN374.

Thank you. Did you require him to proactively seek out relationships?---In regard - as it relates to growers and the like, once again, as before mentioned by Mr Bibby, that there’s a lot of engagement on the site, but essentially that’s where the customers are coming to us and we provide a service to them based on, you know, standards and everything else that are clearly defined. Proactively is when we - well, generate an expectation where they’re proactively working with GrainCorp - we’re on the storage and logistics side. We also have a marketing company, GrainCorp Marketing, or GDM, as it’s referred to. Actively working with GDM is being in a situation where as trucks come in and there’s engagement with the growers to say, “How’s the harvest going? Are you forward selling?” providing information through to GrainCorp Marketing to potentially assist them in the marketing of their grain. So it’s a high level of engagement with the growers rather than just being task based.

****PETER JAMES JOHNSTON XN MR MURRAY

PN375.

Did you require him to proactively resolve issues through continuous improvement?---On that side of things I’ll say it’s an expectation to identify areas that aren’t - at a level 4 - and I’m not going to digress, but it is a senior grain handler’s position. There is an expectation to identify areas that are of below standard. In regard to proactively, that’s once again more looking at, you know, situation analysis, big picture stuff. “How is this site overall working?” You know, “What do we need?” around that. If we break it down to, you know, a 4.2, absolutely I’ve got an expectation that people are going to work safe and identify problems, or if there’s waste or rework required that they identify it. You know, it’s just - you know, 4.1, 4.2 are senior grain handlers. They’re a very important part of our organisational structure.

PN376.

Just to be clear, I’m asking you whether you required Mr Pickering to proactively resolve issues through continuous improvement?---There has been no requirement from the company, implied or otherwise, for Mr Pickering to proactively identify and address issues within the actual workplace.

PN377.

Thank you. Did you require Mr Pickering ‑ ‑ ‑

PN378.

THE COMMISSIONER: Mr Murray, you’re welcome to continue this line of questioning where you suggest the answer to the witness every single time, but, you know, I doubt its probative value.

PN379.

MR MURRAY: Well, Commissioner, I beg ‑ ‑ ‑

PN380.

THE COMMISSIONER: Every single time.

PN381.

MR MURRAY: I beg to differ. I’m asking whether GrainCorp ‑ ‑ ‑

PN382.

THE COMMISSIONER: You’re asking yes or no questions. They are leading questions. They suggest the answer every time.

PN383.

MR MURRAY: Commissioner, it’s an essential question as to whether GrainCorp ‑ ‑ ‑

PN384.

THE COMMISSIONER: It could be asked in a more probative value way, but it’s a matter for you.

PN385.

MR MURRAY: The essential question here, Commissioner, is whether GrainCorp required Mr Pickering to act as a site manager. I can’t put it any other way, and it’s a question that needs to be answered. “Did you require Mr Pickering to act as a site manager?” That’s the crucial question.

****PETER JAMES JOHNSTON XN MR MURRAY

PN386.

THE COMMISSIONER: The crucial question is, “What did you require him to do?” That doesn’t suggest the answer. Your questions, every single time, do.

PN387.

MR MURRAY: Of course, there were many, many ‑ ‑ ‑

PN388.

THE COMMISSIONER: Conduct your examination the way you like.

PN389.

MR MURRAY: Yes. Did you require Mr Pickering ‑ ‑ ‑

PN390.

THE COMMISSIONER: And I’ll give the weight ‑ ‑ ‑

PN391.

MR MURRAY: ‑ ‑ ‑ to act as site manager?

PN392.

THE COMMISSIONER: I’ll give the necessary weight to those types of questions.

PN393.

MR MURRAY: Thank you.

Did you require Mr Pickering to act as a site manager?---No.

PN394.

What is the difference, in your view, between site manager and a site supervisor?

---First of all, quite obviously a site manager has specific financial delegations as it relates to authority to act. They have specific delegations as it relates to employment and engagement of staff. They have specific delegations and accountabilities as it relates to safety in the workplace relative to a site supervisor which is based on task based activities. They obviously - there’s an expectation of delivery against a predetermined standard, but essentially they do not delegate authority, nor are they engaged in a manner which is essentially looking forward - not just for what we need to do today or tomorrow but essentially what the company requires of them of a longer period.

PN395.

Thank you very much. That’s the examination‑in‑chief completed, Commissioner.

PN396.

THE COMMISSIONER: Thank you. Mr Winter?

<CROSS-EXAMINATION BY MR WINTER [12.16 PM]

PN397.

MR WINTER: Thank you. Just a few questions.

PN398.

Mr Johnston, where are you based in Victoria?---I’m actually based in ‑ ‑ ‑

****PETER JAMES JOHNSTON XXN MR WINTER

PN399.

THE COMMISSIONER: (Suburb provided)?--- ‑ ‑ ‑ the Marong - sorry?

PN400.

Sorry, I thought you said you were in (Suburb provided)?---That’s where I live. I actually work out of the Marong office. The Marong office is where both Scott Whitmore and I - Scott Whitmore is the regional manager for south-east Victoria, the stocks department that actually provide all the administrative support ‑ ‑ ‑

PN401.

MR WINTER: The question was where are you based?---Marong.

PN402.

That’s it. How far is that from Warracknabeal?---Two hours, 15 minutes.

PN403.

How often would you deal with Mr Pickering in relation to daily work issues?
---In regards to daily work issues my door is always open. I’ve had ‑ ‑ ‑

PN404.

No, the question is how often do you deal with him? Do you speak to him daily?

---No.

PN405.

Do you speak to him weekly?---No.

PN406.

Do you speak to him monthly?---I have within the month.

PN407.

All right. Do you often speak to him on a regular basis during the month?---No.

PN408.

So who do you rely on to supervise Mr Pickering?---Essentially Ged Bibby as the ‑ ‑ ‑

PN409.

So Ged Bibby ‑ ‑ ‑?---Ged Bibby ‑ ‑ ‑

PN410.

‑ ‑ ‑ deals with Mr Pickering once to twice a week. Correct?---No, the question ‑ ‑ ‑

PN411.

We heard from Mr Bibby. We heard from ‑ ‑ ‑

PN412.

THE COMMISSIONER: Hang on. Mr Winter, I don’t know that that’s a fair characterisation of Mr Bibby’s evidence. His evidence is ‑ ‑ ‑?---He attends site. Sorry.

****PETER JAMES JOHNSTON XXN MR WINTER

PN413.

Is that he attended the site one or two days a week. That doesn’t necessarily mean that he hasn’t had dealings with him or supervision outside of that.

PN414.

MR WINTER: Mr Johnston, how are you aware what tasks Mr Pickering performs on a daily basis?---In regard to the work that’s conducted on the site ‑ ‑ ‑

PN415.

No, the question is how are you aware of the tasks Mr Pickering performs on a daily basis?---We have a classification and the expectation is he would fulfil the tasks within the classification.

PN416.

So you’re making ‑ ‑ ‑?---And he’ll be managed as such.

PN417.

You’ve stated to the Commission, “Well, the tasks are in the EBA,” but you don’t know what he does on a daily work basis. Is that correct?‑‑‑On a daily work basis I have visibility if required to act on it, but essentially ‑ ‑ ‑

PN418.

What does that mean?---I have a work plan. I see the work plans come over my desk every week. I have an understanding of what is occurring within the complete network. I have absolute confidence in my managers to ensure that the standards of the company and the objectives are met. I do not intend to actually be in a situation where I question their authority to act and their capacity to fulfil their duties.

PN419.

So it would be fair to say that besides the work plan you don’t know what Mr Pickering does on a daily basis?---I have an awareness of what Mr Pickering does based on the ‑ ‑ ‑

PN420.

The question is, you stated earlier that you’re relying on a work plan?---And essentially his - the classification of a 4.2.

PN421.

Right?---So my expectation would be that he’d fulfil those duties as employed.

PN422.

Mr Johnston, are you aware of any job descriptions that cover site managers?

---Yes.

PN423.

Have you ever provided one to Mr Pickering?---As a site manager? No.

PN424.

No, you just provided the job description?---Mr Pickering is not a site manager.

PN425.

The question is have you provided that job description to him?---No, we’ve not provided that to Mr Pickering. We have provided it through ‑ ‑ ‑

PN426.

The question is have you provided it to Mr Pickering?---No.

PN427.

Has Mr Pickering ‑ ‑ ‑

PN428.

THE COMMISSIONER: And you’ve not provided it to the Commission either?

---That’s correct.

****PETER JAMES JOHNSTON XXN MR WINTER

PN429.

MR WINTER: Have you ever provided it to the union?---Yes, we have.

PN430.

Well, when?---When we went through the - last time within Fair Work, essentially the question was raised in regard to do we have those site positions and what is the difference between a GSM and a site manager. They were actually tabled and provided to the Commission at that point, as well as the AWU. So the answer is yes, we have.

PN431.

How long has this dispute been in progress for?---This - this ‑ ‑ ‑

PN432.

Yes, this current - this issue in regard to Mr Pickering?---The first I was made aware of it was obviously in October last year.

PN433.

We’re basically arguing about mixed functions and whether Mr Pickering should be paid at the site manager level, would you agree, when the site manager is away?---No, it’s in regard to a ‑ ‑ ‑

PN434.

Or a 5.1. 5.1?---5.1.

PN435.

Would it ‑ ‑ ‑?---That is as - yes.

PN436.

If we’re discussing the role of site manager why wouldn’t you table a copy of the job description for a site manager?---Because this is relative to be paid under 4.2 or 5.1, which is detailed in the actual EBA. That’s what my understanding of this dispute is?

PN437.

THE COMMISSIONER: But a 5.1 is a site manager?---No, a 5.1 acts - has the ability to act as a site manager.

PN438.

So they do the jobs of a site manager?---Some tasks, but they don’t get financial delegation.

PN439.

I understand that, but someone performing the role of - how am I meant to work out what a 5.1 does when they act as a site manager when no evidence is led before me as to this alleged site manager role description?---As previously mentioned, you know, if it would please you I’d be more than happy to provide ‑ ‑ ‑

****PETER JAMES JOHNSTON XXN MR WINTER

PN440.

Well, you’ve had an opportunity to put it in your evidence. For some unknown reason you’ve decided not to provide it. I don’t know?---I ‑ ‑ ‑

PN441.

MR WINTER: Just another question, Mr Johnston. When you were talking about the financial delegation then, does any EBA employee have financial delegation authority?---There is a degree of financial delegation authority as it relates to consumables. I’ll use an example. We have a TEC, a truck driver, Mr Tony Ford, that essentially driving a heavy transport vehicle, every time he fills that truck up he essentially has a fuel card and a credit card essentially so that he can actually spend to agreed limits within company policies and procedures. So that could be perceived as financial delegation.

PN442.

I have no further questions.

PN443.

THE COMMISSIONER: Mr Johnston, you talk about these specific financial delegations. Are they documented, are they?---Yes. We’ve got - for salaried staff essentially we ‑ ‑ ‑

PN444.

No, I just asked are they documented?---Yes.

PN445.

They’re not before me, are they?---No.

PN446.

No, and you talked about specific employment and engagement processes. Are they documented?---Yes .

PN447.

Do they indicate who can hire and fire, do they?---Yes.

PN448.

Yes.

PN449.

And they’re not before me?---Correct.

PN450.

You talk about specific OHS authorities; are they documented?---Yes.

PN451.

Do they deal with what site managers do as opposed to other people?---As far as accountabilities, yes.

PN452.

Yes. They’re not before me, are they?---No.

PN453.

Okay. I have nothing further.

PN454.

MR MURRAY: Nothing arises from that.

PN455.

THE COMMISSIONER: Mr Johnston, thank you for your evidence today. You’re excused?---Thank you.

****PETER JAMES JOHNSTON XXN MR WINTER

<THE WITNESS WITHDREW [12.23 PM]

PN456.

THE COMMISSIONER: Mr Winter?

PN457.

MR WINTER: I was wondering if there’s going to be lengthy submissions from my colleague - or if there was, if we could have a short break.

PN458.

THE COMMISSIONER: Well, gentlemen, do you want to do them on the run or do you want to file written ones? What do you want to - do you want to wait till you get the transcript? What do you want to do? I’m relaxed.

PN459.

MR MURRAY: I think they should be made orally. It’s my submission to do that.

PN460.

MR WINTER: If we could then have a 10‑minute break?

PN461.

THE COMMISSIONER: Yes, all right, and then you will each be given - actually, we’ll have a seven‑minute break. We’ll come back at 12.30 and you’ve each got 15 minutes. That’s it.

PN462.

MR WINTER: Thank you.

PN463.

SHORT ADJOURNMENT [12.23 PM]

RESUMED [12.31 PM]

PN464.

THE COMMISSIONER: Thank you. Mr Winter?

PN465.

MR WINTER: Thank you, Commissioner. I will be brief in regard to my final submissions. What we know about this matter is that basically Mr Pickering has been employed by GrainCorp or its predecessors for close to 30 years. He started in 1986 and for the last six years he’s worked at the Warracknabeal site. At the time he’s been at the Warracknabeal site there’s always been a site manager in place. That’s until around September last year when the site manager went on leave and then quit. Prior to that he’d been often away for periods of time and in all those stages Mr Pickering took on some of the work - we don’t say all of the work - of the site manager, and what we would say is that he acted in accordance with clause 5.1 as a site manager.

PN466.

There’s nothing in the agreement that says he has to perform every task to that of a site manager, but he clearly took on additional tasks. We’ve heard evidence from him, we’ve heard evidence from Mr Bibby, that Mr Bibby only visited that site once a week or at most twice a week. What we’re asking the Commission to do is fairly simple, from our point of view, and from Mr Pickering’s point of view - and bear in mind, Mr Pickering has been in the grain industry for a long period of time. He reads an agreement literally, I suppose, like most of us do. He says to us ‑ ‑ ‑

PN467.

THE COMMISSIONER: Well, that’s my job too.

PN468.

Yes, and he says to us, “Well, clause 16, mixed functions, I’ve been doing different work than what I have normally done for the past six years at Warracknabeal and I’ve been doing the different work because my manager has been away. I’ve been told by various individuals, including Mr Bibby, that I’m acting site manager. Even my fellow workers see me as site manager. I ring the casuals. I ring them at home in the country towns and see if they’re available for work that day.” They have a pool of casuals, no doubt. Every region does, so they’re not just ringing people who are looking for a job at the local CES office. There’s a pool, but he would ring them, he would deal with the contractors, he would deal with many of the things that the site manager normally performed. So if you’re just an ordinary worker there, out in the bush, and you’re being asked to perform higher duties, you would think to yourself, “Well, maybe I should get the extra 80 cents an hour,” because that’s what we’re here for.

PN469.

THE COMMISSIONER: What Mr Pickering subjectively thinks in terms of his entitlement is irrelevant. What matters is is he performing - since Mr Fleming left, is he performing tasks which fall within grade 5 that didn’t previously fall within grade 4? Isn’t that the task before me?

PN470.

MR WINTER: Yes.

PN471.

THE COMMISSIONER: So tell me what tasks do you say exclusively fall within grade 5 that he is performing?

PN472.

MR WINTER: We would say that in relation to 5.1, (1) we would say in regard to tasks he acts in a site manager capacity. That’s one of the tasks in 5.1. He sees himself acting in that capacity. (2) he’s able to conduct and present training programs to employees. He would do that on a daily basis in regard to OH&S, especially with the casuals and the contractors. He would insist ‑ ‑ ‑

PN473.

THE COMMISSIONER: Sorry, which one did you just point to?

PN474.

MR WINTER: 5.1.

PN475.

THE COMMISSIONER: Yes, I’m looking at that.

PN476.

MR WINTER: “Is able to conduct and present training programs to employees.” What management seem to think is that it has t be sort of like sit down in a classroom and provide written ‑ ‑ ‑

PN477.

THE COMMISSIONER: No, but that’ s no different to 4.1. 4.1 and 5.1 say the same thing in relation to that point.

PN478.

MR WINTER: In relation - but I’d say that that’s correct, because many of the tasks are interchangeable.

PN479.

THE COMMISSIONER: So what tasks does he perform which are exclusively within the grade 5?

PN480.

MR WINTER: We would say this, that he acts in relation to a certain degree of autonomy. He deals with growers which he doesn’t do as a 4.2. He has certain financial authority. We’ve heard in his evidence that, for instance, he would negotiate with contractors in regard to costs. Now, they might be fixed costs, because there’s a table of rates, if you like, for truck drivers that are negotiated across the board. So he’s not saying to a truck driver, “Well, we’re going to pay you this, this or this.” There’s set rates. So he decides on that. He is responsible for all site operations in regard to responsibilities. He proactively manages site operations, staff and results.

PN481.

Now, he manages staff because he engages casuals. Is that managing staff? I would say it is. He is responsible for all site operations on a daily basis because who else is there on site? If Mr Bibby’s not on site who’s there? The only person who is there is our member, Mr Pickering.

PN482.

THE COMMISSIONER: So it’s your submission that the meaning I should give to the phrase “site manager” is its ordinary meaning, that is, the person who manages the site.

PN483.

MR WINTER: A person who manages the site on a daily basis.

PN484.

THE COMMISSIONER: And that it has no other specific definitional ‑ ‑ ‑

PN485.

MR WINTER: Well ‑ ‑ ‑

PN486.

THE COMMISSIONER: Because it’s not a defined term in the agreement, is it?

PN487.

MR WINTER: There’s no defined term in the agreement. We’ve never seen a job description. Mr Pickering hasn’t seen a job description. There’s been no job description for a site manager put into evidence before the Commission. I would say that in relation to - and I admit that the actual - the definitions within the agreement are very poor. They are very poor, but we would say in relation to Mr Pickering he is the person when Mr Bibby is not there is responsible for all the site operations at Warracknabeal. He’s the one who has to deal with the employees, and we would say by Mr Pickering - and bearing in mind no‑one has disputed the evidence that normally it is a site manager who on a daily basis contacts the casuals to see if they’re after work, or there’s work available. It might have only been three or four casuals he engaged on a regular basis this time, but that was because the harvest was so poor, but the engagement of those casuals is normally done by the site manager. So we would say that in relation to this matter we believe that Mr Pickering should be paid in accordance with the mixed functions clause at clause 16. If the Commission pleases.

PN488.

THE COMMISSIONER: Thank you, Mr Winter. I’m indebted to you for your brevity. Mr Murray?

PN489.

MR MURRAY: Commissioner, to paraphrase the question that you asked, does Mr Pickering perform tasks of a grade 5 that are not required of a grade 4, that’s the task before us, if you like, and the answer, in my submission, is that he does not and he has not been required to do so. If I can take you, to begin with, to the descriptors that are in the agreement for grade 4 which is on page 50 of the agreement which you will find among the AWU’s material, if you don’t have it readily available.

PN490.

The descriptors for a grade 4, among other things - I’ll highlight just a few. An employee at this grade works as a site supervisor and manages and leads multiple work groups, functions and/or activities, is responsible for all site operations, is required to work alone, lead work teams and/or coordinate, supervise and train new employees, works cooperatively with internal and external stakeholders, acts in a site supervisor capacity, is involved in harvest planning, again listed as a site supervisor.

PN491.

If I can take you back to clause 27 which I mentioned to you earlier, there it expressly says that the minimum classification levels required to run a site will be harvest receivals, 4.2, out‑loading and other, 4.1. Now, that is what a grade 4 can be expected to do. As for what Mr Pickering was expected to do, let’s look at what he says he did in the helpful list that he provided. He said that he does weekly, fortnightly plans. Now, that is part of the duties of a grade 4 in working as a site supervisor managing and leading multiple work groups, functions and/or activities. He says that he’s signed pay sheets. That is not a function of a grade 4 and management at grade 4 does not require him to do ‑ ‑ ‑

PN492.

THE COMMISSIONER: But where is the evidence before me that tells me that that is not what a grade 4 does?

PN493.

MR MURRAY: That’s the evidence that’s been provided to you by Mr Johnston, and it’s not been contested.

PN494.

THE COMMISSIONER: Right.

PN495.

MR MURRAY: Uncontested. There’s no dispute about it. It’s accepted on our part that he has signed some pay sheets, but the important thing is it was not required of him and he does not have a delegation ‑ ‑ ‑

PN496.

THE COMMISSIONER: And GrainCorp accepted the benefit of that by paying those people in respect of whose pay slips he signed.

PN497.

MR MURRAY: GrainCorp - I cannot escape that conclusion. That is correct. GrainCorp mistakenly accepted a benefit, but it was a mistake. There was no financial delegation and there was no requirement of management that he do what he did. Now, there will be employees who assume and take on tasks irrespective of the fact that they’re not directed to do so and the company will take a benefit from that, but that is done in some ways unavoidably. As soon as it had come to GrainCorp’s attention that this is happening or has happened it is to be prevented.

He talks about staff lists for harvest, ringing and informing people whether they’re successful or not. That comes within a grade 4.2 duties in harvest planning.

PN498.

THE COMMISSIONER: But it could also equally fall within a 5.

PN499.

MR MURRAY: Yes, but that’s not the question. The question is what does he do as a 5, if he was an acting 5, that he’s not required to do as a 4.2? That’s the question. All these duties ‑ ‑ ‑

PN500.

THE COMMISSIONER: Yes. So all I have to do, isn’t it, is determine whether or not at any point he proactively manages site operations staff and results, because that is the principal distinction, as I can see it, between a 5 and a 4.

PN501.

MR MURRAY: Wherever you feel that there’s been evidence presented that takes him into the realm of a 5 that would be correct. You have evidence, however, that that has not been required by GrainCorp.

PN502.

THE COMMISSIONER: Well, I’m struggling to understand why this requirement issue is relevant.

PN503.

MR MURRAY: A person who assumes unto themselves to take on certain duties which they’re not required to do can’t then say, “Well, I’ve done it. You pay it.” Surely it’s the determination of the employer ‑ ‑ ‑

PN504.

THE COMMISSIONER: Yes, but in circumstances where the employer receives the benefit of it and says - knowing that the employee is assuming these responsibilities, doesn’t say to the employee, “Stop doing that,” when the employee voluntarily assumes that the employer knows about it, the employer accepts the benefit of it, how can it be that they’re not required to do it or they shouldn’t be obligated on a quantum meruit or something principle like that to pay for it?

PN505.

MR MURRAY: As I have explained, there is an error here, and the error is to be corrected, or has been corrected. An employee who takes it upon themselves to do certain things in a large organisation, where the organisation does not immediately correct them, the organisation will get some benefit from that, no doubt.

PN506.

THE COMMISSIONER: But, Mr Murray ‑ ‑ ‑

PN507.

MR MURRAY: But that does not allow ‑ ‑ ‑

PN508.

THE COMMISSIONER: Mr Murray, thinking about there’s a pool of casuals that have been pre‑approved, if you like, by GrainCorp, and come harvest time, Mr Fleming is no longer there, Mr Bibby’s not there, and that day, having regard to what trucks are coming in or going out, someone needs to make the decision about how many casuals to have on that day, to call in that day.

PN509.

MR MURRAY: Yes.

PN510.

THE COMMISSIONER: On all the evidence before me, as I understand it, Mr Pickering makes that decision.

PN511.

MR MURRAY: That’s right. That’s the task of a 4.2.

PN512.

THE COMMISSIONER: He is proactively managing staff, is he not?

PN513.

MR MURRAY: No, he’s determining the number and identity of casual staff required as part of day‑to‑day grain handling and harvest planning.

PN514.

THE COMMISSIONER: Where do you say that falls within 4?

PN515.

MR MURRAY: That falls within grade 4.2, involved in harvest planning, and it then refers to plans, equipment coordination, staff appointments, consumables, referring to page 51 of the agreement.

PN516.

THE COMMISSIONER: But how am I meant to work out the difference between involved in harvest planning, i.e. e.g. staff appointments - what’s the difference between that and proactively managing staff? It’s the same thing, isn’t it?

PN517.

MR MURRAY: If it’s the same thing, and I don’t concede that it is, it would say the same. It hasn’t said the same. It has said what I said to you, and we say that that is something that he’s been given within his scope of duties as a grade 4.

PN518.

THE COMMISSIONER: But it’s more than being involved in staff appointments. It’s actually making a decision that it will be two people who help with the trucks today, or three people who - it’s more than just being involved in the appointments. It’s making proactively the decision to appoint a staff person, to bring that casual in, to not have that casual come in.

PN519.

MR MURRAY: With respect, I consider, and I submit, that you’re misreading the clause. The clause says, “Involved in harvest planning.” It then provides some examples as to what “involved” means. It doesn’t mean involved in staff appointments. Staff appointments is the example of being involved in harvest planning. So hiring and laying off staff, casual staff, that is, in my submission, clearly within grade 4. Arranging staff to work at R site as well as other areas, according to Mr Pickering is a function he performs. That comes within grade 4. Talking to farmers and committees about new grades for harvest, that comes within grade 4 role definition as well, being the ability to receive and provide information to internal and external customers. Then beyond that, organising outside contractors for work needed to be done on site, that too is a grade 4 duty in supervising site operations. All of them come within grade 4.

PN520.

There is, in my submission, an overlap, obviously, in this agreement, with grade 5, and, Commissioner, you’ve put your finger on some aspects of that overlap. Both grade 5s and grade 4s work as site supervisors who manage and lead teams, that’s true. Both of them act in supervisory capacities. Both of them are responsible for site operations. Both of them lead work teams. Both of them receive and provide information to internal and external customers and work cooperatively with stakeholders, et cetera, et cetera.

PN521.

THE COMMISSIONER: Mr Murray, in circumstances where a “site manager” is not a defined term in the agreement, there’s no document before me that tells me how that is defined, surely having regard to the authority in Golden Cockerel I must just accord to the phrase “site manager” its ordinary meaning, a person who manages the site.

PN522.

MR MURRAY: No, Commissioner, that’s not the case.

PN523.

THE COMMISSIONER: Well, it’s not a defined term.

PN524.

MR MURRAY: This matter was considered by Deputy President Hamilton. Deputy President Hamilton’s conclusions, which are referred to in my outline of submissions, very clearly found that the two are distinct, and indeed any reading of the agreement, in my submission, has to conclude that they are distinct.

PN525.

THE COMMISSIONER: I accept that a site manager is different to a site supervisor, but surely I accord to the phrase “site manager” its ordinary meaning?

PN526.

MR MURRAY: Well, not if it leads to a conclusion that a person who is working as a site supervisor is a site manager.

PN527.

THE COMMISSIONER: The person who manages the site, ordinary English meaning of the word “site manager”.

PN528.

MR MURRAY: Yes, and that is not Mr Pickering. Mr Pickering is, on those occasions, a site supervisor, not a site manager, and the functions that he performs are those functions within grade 4.2, as I mentioned before. It’s not remarkable that there is this overlap between grade 5 and grade 4. Under clause 27B of the agreement it talks about, “Increase in training of staff personnel within each geographical area, expected to assume increased responsibility for activities and performance under their control.” This is a skiller.

PN529.

The union has identified what it considers to be inadequacies in the differentiation of the two. Nevertheless, the union entered into this agreement. If there are these inadequacies and deficiencies - and I don’t concede there are, but if there are, this is not the vehicle to correct them. The vehicle to correct them is through the negotiation of another agreement which will deal with, hopefully, a further demarcation, if that is deemed to be necessary, but the descriptors of a grade 4 are clear enough. They’re unambiguous. Mr Pickering has been doing those jobs and he is not entitled to a payment for higher duties accordingly.

PN530.

I will say one other thing regarding documents that are not before you. You’ve observed, for example, that the delegation documents are not before you. There is no need in the circumstances, may I say, for those documents to be before you. It is uncontested that there was a delegation made. There was no delegation made, no financial delegation made.

PN531.

THE COMMISSIONER: Yes, but even if they were before me how do they assist me, in the sense that the respondent has some documents which define the site manager as doing X, Y and Z. How does that assist in the definition - in my determining what “site manager” means in the agreement? Under what authority can I have regard to those extraneous documents even if they had been before me?

PN532.

MR MURRAY: Well, indeed, in my submission this is a dispute about the interpretation of an agreement. You interpret the agreement according to its words, which are clear and unambiguous.

PN533.

THE COMMISSIONER: Yes, so all of the evidence of Mr Johnston about what in his view a manager does and doesn’t do is irrelevant.

PN534.

MR MURRAY: And so too in that respect would be ‑ ‑ ‑

PN535.

THE COMMISSIONER: But you’d accept that, won’t you? You accept the proposition ‑ ‑ ‑

PN536.

MR MURRAY: No, I don’t. No, I don’t accept that.

PN537.

THE COMMISSIONER: How can the evidence of Mr Johnston about what a manager does and not do assist me or be relevant to my determination of what the word “site manager” means in the agreement?

PN538.

MR MURRAY: Mr Johnston looks ‑ ‑ ‑

PN539.

THE COMMISSIONER: Under what authority?

PN540.

MR MURRAY: Mr Johnston looks at a particular phrase in the agreement. He looks at the duty that’s being performed and he says, “That duty fits within that phrase. Mr Johnston is in a position to make that conclusion given his experience as a manager.

PN541.

THE COMMISSIONER: Yes.

PN542.

MR MURRAY: Admittedly, you may conclude - your reading of the agreement differently to Mr Johnston, but Mr Johnston’s evidence is valid in that respect.

PN543.

THE COMMISSIONER: I’m not saying it’s valid, I’m saying how it’s relevant or how it assists me that a person who wasn’t responsible for the negotiation of the agreement comes along and gives evidence about what his understanding of the word “site manager” means having regard to extraneous documents which aren’t before me and probably wouldn’t be useful if they were.

PN544.

MR MURRAY: He is responsible for the implementation of the agreement. The negotiation of the agreement is, in my submission - the subjective positions of the parties going into the negotiation is irrelevant.

PN545.

THE COMMISSIONER: I know, so anything - any view of Mr Johnston post that can’t assist me either. All I have to go on is what must have been the objective intention of the parties at the time they entered into the agreement, and the evidence of Mr Johnston as to what he thinks after that event, having regard to some documents which aren’t before me, can’t possibly assist me in that regard?

PN546.

MR MURRAY: Well, I regret if that doesn’t assist you. It was intended to assist you. You’ve concluded that it doesn’t.

PN547.

THE COMMISSIONER: No, I’m saying, how does it? Based on the principle in Golden Cockerel how can I have regard to it?

PN548.

MR MURRAY: Yes. Well, I thought that I had explained that this man, Mr Johnston, is responsible for implementing the agreement. In implementing the agreement he looks at what is required and then what was done.

PN549.

THE COMMISSIONER: Mr Murray, the question - I’m not being clear in my question. Having regard to the principles enunciated by the Full Bench in Golden Cockerel, which of those principles allows me to have regard to the evidence of Mr Johnston to assist me in working out what that phrase in the agreement means? Which principle?

PN550.

MR MURRAY: Okay, let us settle on the point then, that the agreement is clear and it has plain meaning, in which case you don’t need to go beyond the clear and plain meaning of the words, and that’s consistent with the interpretive observations in Golden Cockerel.

PN551.

THE COMMISSIONER: Your submission to me is it has plain meaning, doesn’t it?

PN552.

MR MURRAY: My submission is that the agreement has a plain meaning.

PN553.

THE COMMISSIONER: So on that basis it’s not necessary for me to go to the evidence of Mr Johnston, is it?

PN554.

MR MURRAY: If you were in any doubt as to its meaning then that might be of some assistance.

PN555.

THE COMMISSIONER: If I accept your primary submission that it has a plain and ordinary meaning I do not need to go to the evidence of Mr Johnston.

PN556.

MR MURRAY: That’s correct.

PN557.

THE COMMISSIONER: Isn’t that right?

PN558.

MR MURRAY: That’s correct.

PN559.

THE COMMISSIONER: Likewise, I don’t need to go to the evidence of any of the other witnesses.

PN560.

MR MURRAY: If you conclude that it has a plain, ordinary meaning, stands on the words, you simply apply the words.

PN561.

THE COMMISSIONER: Thank you.

PN562.

MR MURRAY: And in my submission the words in 4.1 apply to what the parties say this man has done in we say working as a site supervisor, they say working as an acting site manager. Those two terms are different, as I said before, and I did refer to Deputy President Hamilton in the decision of Deputy President Hamilton which is attached to the AWU’s material in AWU4. He said, “The duty statement of the site manager is not that of a supervisor or senior supervisor or senior grain handler but that of a manager.” Grade 5s can take on higher duties and become managers, site managers. Grade 4s do not. Grade 4s become site supervisors, but at no time do they become site managers.

PN563.

So I think that in conclusion, in my submission, there is no proper conclusion available to you that Mr Pickering has done anything more than work as a site supervisor, consistent with the requirements of his grade description in the agreement and consistent with the other elements of the agreement, reading it in totality, that provide that persons at his level are responsible, or may be responsible, for running a site. Thank you, Commissioner.

PN564.

THE COMMISSIONER: Thank you, Mr Murray. Mr Winter, anything in reply?

PN565.

MR WINTER: No. I notice he took more than 15 minutes though.

PN566.

THE COMMISSIONER: All right. We are adjourned. I’ll reserve my decision. Thank you.

ADJOURNED INDEFINITELY [12.59 PM]

Fair Work Commission Transcripts

C2014/6535, Transcript of Proceedings [2015] FWCTrans 206 (8 April 2015)