C2015/2608, Transcript of Proceedings [2015] FWCTrans 265 (8 May 2015)

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PN1

THE SENIOR DEPUTY PRESIDENT: Could I have the appearances, please?

PN2

MR T McDONALD: If it please the Tribunal, McDONALD, initial T, solicitor. I seek leave to appear for Yusen Logistics (Australia) Proprietary Limited.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes. Why should I grant you permission?

PN4

MR McDONALD: Your Honour, the matter raises some complexity in relation to the provisions of the Act in relation to unprotected industrial action issues about the voting process as well, and how the Act deals with that, and potentially jurisdictional issues or issues of the kind in relation to entitlement of the NUW to enrol certain persons as members under their rules. So, given the nature of the matter, it’s of sufficient complexity, and it would be dealt with more efficiently by legal representation being provided in this case. If it pleases.

PN5

THE SENIOR DEPUTY PRESIDENT: Any appearances in Melbourne?

PN6

MS A GROGAN: GROGAN, initial A, on behalf of the National Union of Workers.

PN7

THE SENIOR DEPUTY PRESIDENT: What do you say about Mr McDonald’s application for permission to appear?

PN8

MS GROGAN: The NUW wishes to oppose the application by the applicant to seek leave to have a lawyer appear. We think this matter does not have the complexity that is required and that the Commission only would grant permission for a lawyer to appear in circumstances where it would assist with the effectiveness of dealing with this dispute. We think this is an industrial matter which the Commission would be able to decide more fairly if the Commission were to be able to resolve the dispute between the parties without the assistance of legal representation.

PN9

THE SENIOR DEPUTY PRESIDENT: All right. Permission is granted pursuant to section 596(2)(a) having regard to the subject matter that is before me.

PN10

MR McDONALD: As it pleases.

PN11

THE SENIOR DEPUTY PRESIDENT: Mr McDonald?

PN12

MR McDONALD: This is an application under section 418 of the Act in relation to what we submit is unprotected industrial action. It relates to the employees and the Tullamarine operations of Yusen Logistics (Australia) Proprietary Limited. Those employees consist essentially of three drivers, which we understand are the persons that NUW is seeking to involve in the industrial. It is the case there has been a ballot for the industrial action that has occurred with the company, but that relates to people in another facility that are currently under an enterprise agreement with the NUW. There are going to be industrial, further industrial action proposed in relation to seeking a renewal of the agreement.

PN13

What the NUW now seeks is to include the drivers at Tullamarine. We say, in our submission, that’s not something that has really figured at all in the discussions in relation to the agreement. We want to lead some evidence in relation to that. We also say that because it was never in the parties’ sights they weren’t part of the ballot in relation to protected action that has occurred in relation to the Dandenong facility but, in any event, we would say that the NUW isn’t able to involve those employees anyway, as members. They’re not entitled to be the bargaining representative. But, we’d seek to bring evidence from the human resources manager, Ms Lisa Lawson, and we’ve forwarded a statement to the Commission made by her. I could call the witness in person.

PN14

THE SENIOR DEPUTY PRESIDENT: Now, let’s see what Ms Grogan has got to say about the matter first.

PN15

MS GROGAN: Thank you, Deputy President. The NUW submits that industrial action is occurring in accordance with the definition under the Act. We oppose the application that an order be granted to seek unprotected action because it’s a simple as the fact that it’s not currently occurring. All the common requirements have been met as per section 413 under the Act. The history of Yusen Logistics is that there has never been an enterprise agreement covering this site.

PN16

THE SENIOR DEPUTY PRESIDENT: Yes.

PN17

MS GROGAN: The NUW – it has been disagreed between the parties over the last 18 months as to whether or not the existing enterprise agreement applies to three employees that work at Tullamarine.

PN18

THE SENIOR DEPUTY PRESIDENT: Hang on. Didn’t you just say there’s never been an enterprise agreement covering this site?

PN19

MS GROGAN: We’re currently in disagreement is to whether or not the agreement does cover the site.

PN20

THE SENIOR DEPUTY PRESIDENT: All right. Yes.

PN21

MS GROGAN: So we would also seek to lead evidence in relation to the type of work done at Tullamarine. It’s whether it’s on the basis that the employees there are under the classification of storemen/drivers, and that any application that the applicant would seek to show that they’re not covered by the rules, we would seek to change that.

PN22

When we applied for the protected action ballot order it was granted and it was granted with coverage that applies to employees of Yusen Logistics. Those employees of Yusen Logistics, who are members of the National Union of Workers and who would be subject to the proposed enterprise agreement. We consider that if the employer wishes to exclude the Yusen employees that work at Global Drive, then they could do that by applying for a scope order, because these are two separate issues as to whether or not the protected action is occurring in accordance with the requirements under the Act.

PN23

Our application sets out very clearly that the group of employees to be balloted were those employees of Yusen Logistics who are members of the National Union of Workers, and who would be subject to the proposed enterprise agreement. Then an order was subsequently made on 12 February that specified the group of employees to be balloted is those who will be covered by the proposed enterprise agreement and who are represented by the bargaining representative who is the applicant for the protected action ballot order. This ‑ ‑ ‑

PN24

THE SENIOR DEPUTY PRESIDENT: So are these three employees included on the ‑ ‑ ‑

PN25

MS GROGAN: They were included on the list that the NUW supplied to the Australian Electoral Commission.

PN26

THE SENIOR DEPUTY PRESIDENT: Were they included on the ballot roll?

PN27

MS GROGAN: I’m not aware as to whether or not they were actually balloted but they’re referred to in the ballot order that the Commission has issued.

PN28

THE SENIOR DEPUTY PRESIDENT: That’s your submission. They’re not specifically referred to as the three employees at Tullamarine?

PN29

MS GROGAN: The application that we made, which was a form F34, refers to a coverage of employees of Yusen Logistics that would be subject to the proposed enterprise agreement. That’s what our application sets out. It’s also what the order sets out, and these employees were included in the list that was submitted for employees to be balloted.

PN30

THE SENIOR DEPUTY PRESIDENT: Have you got a copy of the list that was submitted?

PN31

MS GROGAN: I do.

PN32

THE SENIOR DEPUTY PRESIDENT: Would you originally say that the criteria, in section 418(1), for the making of the order that’s sought, have not been met?

PN33

MS GROGAN: Yes. We submit that unlawful industrial action is not occurring.

PN34

THE SENIOR DEPUTY PRESIDENT: Why is that?

PN35

MS GROGAN: Because the employees that are seeking to exercise their rights to take industrial action and partake in that process have been referred to in the order that was granted by the Commission.

PN36

THE SENIOR DEPUTY PRESIDENT: Right. This list you’ve given me ‑ ‑ ‑

PN37

MS GROGAN: There’s a stat dec that was in front of that as well.

PN38

THE SENIOR DEPUTY PRESIDENT: There is.

PN39

MS GROGAN: That’s the declaration for a protected action ballot. That was emailed to the Australian Electoral Commission.

PN40

THE SENIOR DEPUTY PRESIDENT: Do you have this list, Mr McDonald?

PN41

MR McDONALD: No, I don’t, your Honour. I have access to the list, at least, electronically that was submitted by the company. As we understand, the way that the Australian Electoral Commission deals with it is they get a list from the company, they look at the list from the union and where people appear on both the lists then they form part of the ballot, so it seems unusual that this could happen, that we don’t submit those employees and the union does and they form part of the ballot. If they’re not on both lists then, as I understand it, the Electoral Commission doesn’t know that they – they don’t include them.

PN42

THE SENIOR DEPUTY PRESIDENT: Is that your understanding, Ms Grogan?

PN43

MS GROGAN: The basis of what Mr McDonald is saying is that they have not – we would say that the employer has not submitted the correct list of employees.

PN44

THE SENIOR DEPUTY PRESIDENT: Did you see the final ballot roll?

PN45

MS GROGAN: I didn’t see the final ballot roll?

PN46

THE SENIOR DEPUTY PRESIDENT: I’m not asking you, the NUW? Did the NUW ‑ ‑ ‑

PN47

MS GROGAN: I would have to seek instruction on that. I’ve – not sure.

PN48

THE SENIOR DEPUTY PRESIDENT: What’s your understanding about the final ballot roll, Mr McDonald, as to who gets to see it?

PN49

MR McDONALD: I’m not sure, your Honour. I understand that the employer doesn’t get to see it. Part of the reason being that it would disclose who, on the list applied by the employer are the union members and who are not.

PN50

THE SENIOR DEPUTY PRESIDENT: Well, who are the three employees on this list that we’re talking about, Ms Grogan?

PN51

MS GROGAN: One of them is Gary McMahon.

PN52

THE SENIOR DEPUTY PRESIDENT: Yes.

PN53

MS GROGAN: I will just have to check the other one.

PN54

THE SENIOR DEPUTY PRESIDENT: Another two, isn’t there?

PN55

MS GROGAN: There’s only two that are members of the NUW that we represent.

PN56

THE SENIOR DEPUTY PRESIDENT: All right. Okay.

PN57

MS GROGAN: The name of that other member I would need to – just trying to look up my database, but ‑ ‑ ‑

PN58

MR McDONALD: There was, attached to Ms Lawson’s statement, in LL4, was a document from the Australian Electoral Commission, being the request for list of employees. They say in the third – that’s on page 10 of the statement.

PN59

THE SENIOR DEPUTY PRESIDENT: Yes.

PN60

MR McDONALD: I can appreciate this can’t be in evidence, but it says at the third paragraph:

PN61

The process of compiling a roll of voters is undertaken by matching a list of employees provided by the applicant and a list of employees provided by the employer. The employees whose names appear on both lists are included on the roll of voters for the ballot.

PN62

THE SENIOR DEPUTY PRESIDENT: Yes.

PN63

MS GROGAN: We would submit that the Australian Electoral Commission it forms an administrative process by which there can be an assessment as to the matching of the lists, but whether or not an employee was voted is not the question to ask. The question to ask is whether or not they are covered by the order that proposes that certain employees are to be balloted. So the Act is very clear on the proposed order. Section 443:

PN64

If the protection action ballot order specifies the following: the names of each applicant for the order; the group or groups of employees who are to be balloted; and the date by which voting in the protection action ballot closes.

PN65

Whether or not the administration has included the correct employees is an administrative question. It’s not a question as to whether or not they were covered by the order for protected action.

PN66

THE SENIOR DEPUTY PRESIDENT: So, in respect of this application before me you want to bring evidence about the coverage under the existing agreement, do you?

PN67

MS GROGAN: We would oppose – if that would assist the Commission to determine whether or not unprotected action is occurring. I do have one statement from an employee that currently works at Tullamarine. If you wish I can submit that as evidence.

PN68

THE SENIOR DEPUTY PRESIDENT: How you run your case is up to you.

PN69

MS GROGAN: We’re opposing the application.

PN70

THE SENIOR DEPUTY PRESIDENT: I know you’re opposing. They’re going to present evidence. I’ve read the statement. You’ll get to cross-examine on that statement. But, as I understand it, one of the bases of your opposition is that the three truck drivers in question, or the three truck drivers/storemen ‑ ‑ ‑

PN71

MS GROGAN: Storemen/drivers.

PN72

THE SENIOR DEPUTY PRESIDENT: ‑ ‑ ‑ as you’ve put them, are within the eligibility rules of the union, and covered by the agreement; is that right?

PN73

MS GROGAN: Yes.

PN74

THE SENIOR DEPUTY PRESIDENT: They’re saying not. If it’s going to a full-blown case, would you wish to present evidence on that?

PN75

MS GROGAN: If there could be an adjournment sought to seek further instructions on that. The eligibility question has not been raised previously, and given ‑ ‑ ‑

PN76

THE SENIOR DEPUTY PRESIDENT: It was certainly put by Mr McDonald, I think, isn’t it, in the affidavit? Have you seen the affidavit?

PN77

MS GROGAN: That was only emailed – it was in the last half an hour, so I haven’t ‑ ‑ ‑

PN78

THE SENIOR DEPUTY PRESIDENT: Yes. I’ve read it.

PN79

MS GROGAN: Yes. We would be appreciative if the Commission could provide more time to seek evidence on the question of rules coverage.

PN80

THE SENIOR DEPUTY PRESIDENT: Yes.

PN81

MS GROGAN: Because that’s not something that we’ve been put on notice on. This application is to do with protected action, and whether or not it’s unlawful protected action. The case we would rely upon includes that when the Commission does issue an order that unprotected industrial action is occurring, it’s in a case where things, like, - that the nature of the industrial action hasn’t been specified on the notice to give action, and notice was only provided an hour before the industrial action was to ‑ ‑ ‑

PN82

THE SENIOR DEPUTY PRESIDENT: Yes, I know, but this case isn’t within that realm. The issue that’s before me, it seems to me, is the company is saying they weren’t on the roll of voters, and they weren’t on the roll of voters because you don’t have eligibility for them. They’re not covered by that agreement. You’re saying, yes, they are covered by that agreement. That’s the nuts and bolts of the argument before me. It seems to me that issue requires substantial consideration of what are the terms of the pre-existing agreement, and whether it falls within your eligibility rules.

PN83

MS GROGAN: Yes.

PN84

THE SENIOR DEPUTY PRESIDENT: If you want to provide evidence on that, if you want to challenge what they’re saying, et cetera, that’s more than a couple of hours case, and if it goes for more than a couple of hours, then we would come into the interim orders provision.

PN85

MS GROGAN: Yes.

PN86

THE SENIOR DEPUTY PRESIDENT: Or a couple of days. I’m not available to deal with this matter tomorrow or the next day, so then I’m straight into the interim orders issue. I understand you’ve got this very matter listed for 4 May. Not the 418 but the issue of coverage.

PN87

MS GROGAN: Well, if the Commission considers that it’s – we don’t have the witness here because he’s at work, but I have got a statement that we could lead around this issue, and there could be evidence led. Whether the Commission thinks that that would be ‑ ‑ ‑

PN88

THE SENIOR DEPUTY PRESIDENT: You’ve got a statement here from someone who’s not here to attest to it?

PN89

MS GROGAN: He signed the statement.

PN90

THE SENIOR DEPUTY PRESIDENT: Yes. Would you wish to cross-examine that person, Mr McDonald?

PN91

MR McDONALD: I expect I probably would, your Honour. But we haven’t seen the statements yet obviously.

PN92

THE SENIOR DEPUTY PRESIDENT: Yes.

PN93

MS GROGAN: In the interests of fairness ‑ ‑ ‑

PN94

THE SENIOR DEPUTY PRESIDENT: We’re talking here about three employees with mooted industrial action over the course of the next two days.

PN95

MS GROGAN: With what, sorry?

PN96

THE SENIOR DEPUTY PRESIDENT: Mooted industrial action over the course of the next two days, is it?

PN97

MS GROGAN: Yes.

PN98

THE SENIOR DEPUTY PRESIDENT: Is there any other way through this matter?

PN99

MS GROGAN: Well ‑ ‑ ‑

PN100

THE SENIOR DEPUTY PRESIDENT: Because, as I understand it, the company is saying the action should stop only in respect of those three employees; is that right, Mr McDonald?

PN101

MR McDONALD: It is, your Honour.

PN102

MS GROGAN: But we would object to the company’s submission that the employees aren’t covered by the proposed agreement.

PN103

THE SENIOR DEPUTY PRESIDENT: Yes. I understand that. I’m just trying to get you through the next few days.

PN104

MS GROGAN: The three employees that wish to take action, I think that it’s – the Commission would need to be satisfied that the unprotected action is occurring, and we submit that there’s no unprotected action occurring. I think it would be prejudicial to the application ‑ ‑ ‑

PN105

THE SENIOR DEPUTY PRESIDENT: All right. Who’s running this ‑ ‑ ‑

PN106

MS GROGAN: ‑ ‑ ‑ the form F34, to issue an order that intervened with the employees’ rights to take protected industrial action under the Act.

PN107

THE SENIOR DEPUTY PRESIDENT: All right. Who, for the NUW is running the negotiations with the company?

PN108

MS GROGAN: Steve Howie.

PN109

THE SENIOR DEPUTY PRESIDENT: Right. Where’s Ms Allison?

PN110

MS GROGAN: Ms Allison? I’m not sure at the moment, but I can – she’s currently – she’s in a different position. She’s no longer working as an industrial officer.

PN111

THE SENIOR DEPUTY PRESIDENT: Sorry?

PN112

MS GROGAN: She’s no longer working as an industrial officer. She’s now the assistant secretary.

PN113

THE SENIOR DEPUTY PRESIDENT: Yes. That she is, that’s why I asked. She’s signed it as assistant, Victorian branch secretary.

PN114

MS GROGAN: Yes.

PN115

THE SENIOR DEPUTY PRESIDENT: So is she in the office today?

PN116

MS GROGAN: She’d left before, but she may be in the office at the moment.

PN117

THE SENIOR DEPUTY PRESIDENT: Right.

PN118

MS GROGAN: What do you seek to understand from Ms Allison?

PN119

THE SENIOR DEPUTY PRESIDENT: She seems to be the one who’s signed the stuff for the Electoral Commission.

PN120

MS GROGAN: Yes. The coverage clause in the current agreement is quite – like, refers to work ‑ ‑ ‑

PN121

THE SENIOR DEPUTY PRESIDENT: Yes. Don’t make a submission on it yet.

PN122

MS GROGAN: Sorry.

PN123

THE SENIOR DEPUTY PRESIDENT: Mr McDonald, I must say this matter is not assisted by video conference.

PN124

MR McDONALD: Yes. I’m sorry, your Honour. Yes, unfortunately with the weather in Sydney today it was looking quite doubtful that I would be able to get there on a plane this afternoon.

PN125

THE SENIOR DEPUTY PRESIDENT: Yes. Mr McDonald, I’m inclined to adjourn into conference, but that may necessitate, in an attempt to resolve the matter, me having to split you both up, that is, the company and the NUW, but I’m concerned that if I do so there may be a difficulty with the further processing of the 418 if it has to go to determination.

PN126

MR McDONALD: Yes. In those circumstances, we would seek that the Commission move to make orders or alternatively that, if it assisted, we try and be in Melbourne as early as the Commission would be able to deal with this, by way of conference, but logistically that’s probably first thing tomorrow morning, if that was convenient to the Commission. But, otherwise we say that for the vast bulk of people there that they can proceed with the industrial action as planned, and we accept that they’ve conventionally been under the agreement, but, we’re really only talking about these three people who have never been involved in it, and for whom there’s already a matter set down to deal with the union’s issue, and, you know, it would – to get the time for these matters to be properly, sort of, ventilated in a way that all the details could be on the table as it were.

PN127

THE SENIOR DEPUTY PRESIDENT: Yes. All right. What I’m going to do is I won’t go into conference, but I am going to adjourn briefly to see if I can find a colleague who can conduct a conference.

PN128

MR McDONALD: If it pleases.

PN129

THE SENIOR DEPUTY PRESIDENT: I’ll adjourn briefly.

SHORT ADJOURNMENT [2.15 PM]

RESUMED [3.09 PM]

PN130

THE SENIOR DEPUTY PRESIDENT: Mr McDonald, you have a witness you wish to call?

PN131

MR McDONALD: Yes, your Honour. I call Ms Lisa Lawson.

PN132

THE SENIOR DEPUTY PRESIDENT: You’ll need to speak up too, please, Mr McDonald.

PN133

MR McDONALD: Yes, your Honour.

PN134

THE SENIOR DEPUTY PRESIDENT: Thank you.

<LISA LEANNE LAWSON, SWORN [3.10 PM]

EXAMINATION-IN-CHIEF BY MR MCDONALD [3.10 PM]

PN135

MR McDONALD: Ms Lawson, you made a statement for these proceedings dated 21 April 2015?‑‑‑That's correct.

PN136

I understand that you wish to not lead paragraph 31; is that correct?‑‑‑Yes.

PN137

Otherwise, do you say that statement is true and correct, to the best of your knowledge and belief?‑‑‑Yes.

PN138

If I may tender that statement.

PN139

THE SENIOR DEPUTY PRESIDENT: I make the statement of Ms Lawson as A1.

EXHIBIT #A1 STATEMENT OF LISA LEANNE LAWSON DATED 21/04/2015

*** LISA LEANNE LAWSON XN MR MCDONALD

PN140

MR McDONALD: Just putting brief questions to the witness, please. Has the issue of coverage at Tullamarine ever come up in your discussions with the NUW in relation to the current enterprise agreement negotiations in Victoria?‑‑‑Yes.

PN141

How did that arise?‑‑‑Via our first meeting.

PN142

What was said?‑‑‑They wished to include Tullamarine employees.

PN143

All right. How did you respond?‑‑‑I said that the job specifications of those particular employees were not aligned to that, or the employees at Dandenong.

PN144

Was there any further discussion about it during your negotiations?‑‑‑There was. Yes.

PN145

What was that?‑‑‑That was just the union asked again at that meeting with myself, and I again reiterated that they wouldn’t be included under our agreement.

PN146

Did you give reasons?‑‑‑The reasons I gave were that of the coverage of the current employees which was via the storage services award, and for those particular sites and the logistics of those employees. The Tullamarine employees are traditionally loading transport distribution and they are drivers predominantly.

PN147

Thank you. Nothing further, thank you, your Honour.

PN148

THE SENIOR DEPUTY PRESIDENT: Cross-examination, Ms Grogan.

CROSS-EXAMINATION BY MS GROGAN [3.13 PM]

PN149

MS GROGAN: Thank you, Lisa. Lisa, when you say the tasks of the employees performing duties at Tullamarine weren’t aligned to tasks at Dandenong, can you say why they’re not aligned in terms of – can you provide a description of how they differ from the tasks performed by those at Tullamarine?‑‑‑Tullamarine, the people there are actually truck drivers. We don’t have truck drivers at Dandenong.

PN150

Under the rule in Browne and Dunn, we will be leading evidence that contradicts your statement that the employees that work at Tullamarine are drivers. Are you saying that, Gary McMahon, his job description is not a storeman/driver?‑‑‑His job description relates to - the main part of his job, from where I sit, is that of a driver.

*** LISA LEANNE LAWSON XXN MS GROGAN

PN151

Okay?‑‑‑And 50 percent of his time is spent driving vehicles, driving trucks from the airport, I think, mainly.

PN152

That includes the delivery of goods, does it?‑‑‑It’s generally delivery of goods, yes, from the – into a bonded warehouse facility.

PN153

Okay. Are you aware of there being any unloading of trucks that occurs at 32 Global Drive?‑‑‑I would assume there would be. Yes.

PN154

Are you aware of any tasks that are performed by Mr McMahon, for example, that involve putting stock into a rack?‑‑‑Generally any instructions with respect to freight comes from the Customs department not from what we do on site.

PN155

Sure?‑‑‑It’s a bonded facility, so any instructions are given via Customs and the Federal agencies.

PN156

Okay. Have you been to the site, Ms Lawson?‑‑‑Yes, I have.

PN157

Okay?‑‑‑Yes, I have.

PN158

Have you seen that there are areas where there is storage of goods that occur, or, you know, that goods are stored at this location?‑‑‑Yes. All the goods are stored there until they’re released.

PN159

Okay?‑‑‑After Customs and quarantine clearance.

PN160

Okay. You said that, you know, when you were being questioned by Mr McDonald you said that the issue of coverage was raised in the first meeting?‑‑‑Yes. That's correct.

PN161

Were you referring to the first enterprise agreement meeting?‑‑‑Yes. That's correct.

PN162

Okay. So were you aware that this issue had been raised prior to that agreement meeting?‑‑‑It was raised in the last negotiations we had before we came to an agreement. Before we finalized the last agreement.

*** LISA LEANNE LAWSON XXN MS GROGAN

PN163

Okay. I’d just like to take you – have you got a copy of the agreement in front of you, the Yusen Logistics agreement?‑‑‑No. No, I don’t, I’m sorry.

PN164

THE SENIOR DEPUTY PRESIDENT: Have we got a copy that can be handed to the witness?

PN165

MR McDONALD: Yes.

PN166

MS GROGAN: Has someone got a copy of the agreement?

PN167

MR McDONALD: There are extras of the agreement, probably the ones my friend wishes to take my witness to, which are found at pages 20 onwards of the statement, being the last attachment, being the application.

PN168

MS GROGAN: I’d like to take the witness to clause 18 of the agreement; the classifications clause.

PN169

MR McDONALD: Yes.

PN170

THE SENIOR DEPUTY PRESIDENT: That’s at page 22 of the witness statement.

PN171

MR McDONALD: Yes. Sorry, can I just inquire of the witness as to what she has, and whether she has a copy in the witness box, please?

PN172

MS GROGAN: The ‑ ‑ ‑

PN173

MR McDONALD: So if I could provide the witness with the attachments to her statement, please? Your Honour, would you mind if approach the witness?

PN174

THE SENIOR DEPUTY PRESIDENT: No, that’s fine.

PN175

MR McDONALD: To hand those documents to her.

PN176

THE SENIOR DEPUTY PRESIDENT: That’s fine. Yes. You’ve got a question, Ms Grogan?

*** LISA LEANNE LAWSON XXN MS GROGAN

PN177

MS GROGAN: Are you currently viewing the Yusen Logistics (Australia) Proprietary Limited and NUW enterprise agreement 2011 to 2014? Okay. If I could just take you to grade 2 as a storeperson. If you could look at the classification there that is on page 14 of the agreement, as grade 2 store person?‑‑‑Yes.

PN178

If you could just take a minute to read through the requirements under that classification. So if I could just take you to point 9 of loading and loading of trucks. You said that the employees that are working in Tullamarine are currently performing those duties when I questioned you before. Do you still maintain that that’s the case?‑‑‑Yes.

PN179

If you could look at the routine maintenance of equipment, forklift or pallet mover, stock control, tasks alike. The employees at Tullamarine are currently performing those duties?‑‑‑I’m assuming there would be forklifts. I don’t know if there is pallet movers. Stock control, I don’t know. Most goods are unwrapped.

PN180

The evidence that the NUW will lead refers to unloading of trucks and re-assembling of orders, so that’s something that the evidence will be led by the NUW. As far as you’re aware the employees at Dandenong, the tasks that they perform, could you describe, to the best of your knowledge, what those would be, please?‑‑‑Well, it’s fairly – it’s supposed to be picking and packing orders.

PN181

Right?‑‑‑It’s orders that come through from our clients via our warehouse management system software into the facilities, depending on the client, and the account. There’s several clients in that location that have different systems and different ordering processes. They need to know how to operate RF Picking guns and stickers and the like, RF guns. They need to be able to unpack and repack boxes. They need to be able to pallet wrap boxes for safe storage in our storage racking. And, of course, at certain parts of the warehouse they have receiving and distribution where they’d all be loaded up for our clients.

PN182

Sure. The ‑ ‑ ‑?‑‑‑(Indistinct) and the like have got all that.

PN183

Okay. The NUW has no further cross-examination questions for the witness.

PN184

THE SENIOR DEPUTY PRESIDENT: Mr McDonald, any re-examination?

RE-EXAMINATION BY MR MCDONALD [3.22 PM]

*** LISA LEANNE LAWSON RXN MR MCDONALD

PN185

MR McDONALD: Yes, we have. At Tullamarine, do the drivers load and unload their trucks?‑‑‑They don’t load the trucks when they’re at the pickup facilities, no.

PN186

Okay?‑‑‑They don’t unload them when they’re delivering them. No.

PN187

At the Dandenong facility, do the drivers load or unload the trucks?‑‑‑No. They’re unloaded for them.

PN188

Nothing further. Thank you.

PN189

THE SENIOR DEPUTY PRESIDENT: You’re excused, Ms Lawson?‑‑‑Thank you, your Honour.

<THE WITNESS WITHDREW [3.22 PM]

PN190

THE SENIOR DEPUTY PRESIDENT: Mr McDonald?

PN191

MR McDONALD: Your Honour, that would conclude our evidence.

PN192

THE SENIOR DEPUTY PRESIDENT: Yes.

PN193

MR McDONALD: Yes. Did the union have a witness they were seeking to bring or?

PN194

MS GROGAN: The NUW would be able to investigate bringing a witness, but the witness is within the central business district area, we we’d have to seek that he be released from work, and we would have to make arrangements to prepare that he can attend.

PN195

THE SENIOR DEPUTY PRESIDENT: Right. I’m only available until 4 o’clock, and I’m not available for the rest of the week.

PN196

MR McDONALD: Your Honour, we’d seek to have the matter determined, if it pleases, this afternoon if that was convenient to your Honour.

PN197

THE SENIOR DEPUTY PRESIDENT: Are you seeking an interim provision?

PN198

MR McDONALD: Yes, we are, your Honour.

PN199

THE SENIOR DEPUTY PRESIDENT: What have you got to say about that?

PN200

MR McDONALD: Your Honour, we say that in relation to section 418(1) that it’s clear from the notice that the NUW as attached to the statement of Ms Lawson that industrial is impending, notification has been given that the union’s intention to take the industrial action, so the requirements of section 418(1) are met. The requirements of section 418 subsection (2) are met, in that the employer would be affected by any industrial action that’s taken, and it’s the employer that brings the application, in this case.

PN201

In relation to these orders, section 420 provides that the matter needs to be determined as far as practicable. The Commission has, of course, assisted in bringing the matter on very quickly, and in giving us the ability to deal with this matter. We say that while the union has raised the issue of maybe needing more time for bringing evidence at some later point in time, at the end of the day, they were the ones who notified of the industrial action at Tullamarine. In our respectful submission, perhaps they should be ready to deal with an application such as this, given the notice that’s been given.

PN202

We submit that there’s nothing in relation to public interest which would suggest that the order should not be issued in the terms that we seek. We say that in relation to the action being unprotected, that there is evidence that the employees at Tullamarine have never really figured in any prominent way in the negotiations regarding the enterprise agreement. There’s been no proposal that driver classifications be included in the agreement, and in the agreement that Ms Lawson has just been referred to, there are no driver classifications in that agreement, and Ms Lawson was referred to clause 18, the classification structure and taken through that. We ask the Commission to note that there is no driver provisions under that. We say that it’s fairly clear cut that when someone is driving for 50 percent or more of the time, as Ms Lawson has given evidence in relation to, that there is nothing in the agreement, and nothing in the rules of the National Union of Workers, which would entitle them to enroll those persons as members.

PN203

We say that in relation to loading and unloading that’s been alerted to we say that that’s something that - a driver may do a bit of unloading or unloading of their own cargo, but that doesn’t make them no longer a driver, in our respectful submission. So we say that if we go to the driving that’s involved, it’s not some small trucks or incidental work, the trucks that are involved are trucks that are large rigid vehicles, and under the specific requirements in terms of heavy vehicle licences and so forth, which would not normally be depicted as a storeman and packer.

PN204

We say that the NUW is not entitled to be the bargaining representative of these drivers. They’re not able to bring a ballot for protected action as their bargaining representative, and that because it wasn’t ever envisaged that these people would be part of any protected action or part of the negotiations because it was too early for discussions, they were not included, in our submission, in the ballot of those seeking to decide as to whether they should approve the taking of protected action. So we conclude our submissions for the moment if that pleases, unless your Honour has any questions of me.

PN205

THE SENIOR DEPUTY PRESIDENT: Mr McDonald, the protected action ballot order, clause 3 of that provided:

PN206

The employees to be balloted are those who will be covered by the proposed enterprise agreement.

PN207

Now, the proposed enterprise agreement, was that to have the same coverage as the Yusen Logistics (Australia) Proprietary Limited and National Union of Workers enterprise agreement 2011 to 2014?

PN208

MR McDONALD: It would be understood that what was sought that it covered the same people. There was nothing to be said about including a driver classification in the agreement. We do concede though that in the discussions the possibility of including Tullamarine was raised but it was said, well, no that they hadn’t been included in the agreements to date, and we don’t want to include them in the future, but that was the end of it. There wasn’t any negotiation, for example, about what might be appropriate, a classification for driver or what might be appropriate conditions for them. But we also submit that, in terms of the protected action ballot order that was sought by the NUW, that was on the basis that they were entitled to enroll those people as members, but if they were seeking the order.

PN209

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you. Ms Grogan, Mr McDonald has sought interim order. What do you say?

PN210

MS GROGAN: Your Honour, we would say that, in the interests of procedural fairness, that granting the interim order before the 48 hours has expired, during which the interim order can be determined, would not afford the respondent or the NUW, in this case, procedural fairness, as we have not had the opportunity to bring a witness to this case. We were unaware that the applicant was going to be filing a witness submission. That was only provided half an hour before the hearing, and we would seek that a witness is examined tomorrow morning, or when the Commission can facilitate that, in order that the statement of Lisa Lawson can be weighed up on a fair basis, so that our opportunity to lead evidence is not prohibited in any way.

PN211

The rules coverage questions that the applicant has raised, we object to. The NUW’s rules of eligibility include the delivery of goods and there needs to be greater consideration given to whether or not the applicant, in this case, has been able to demonstrate that the work performed at Tullamarine is not covered by the NUW’s rules of eligibility. As a registered organisation our rules, we submit, do extend to the coverage of employees performing work, such as that is being performed at Tullamarine, and as evidenced when I was cross-examining Lisa Lawson, there is a clear indication that there is storeperson work being performed at Tullamarine. This site is referred to as a storehouse and there is an emphasis by the applicant to describe the work as the work of drivers but there is stock picking and stock delivery, picking and packing, that is occurring at Tullamarine, so we state that the NUW does have eligibility; we do have coverage of these workers. So we would request that the Commission could relist this matter with the opportunity for the NUW to lead evidence that would back that submission up, your Honour.

PN212

THE SENIOR DEPUTY PRESIDENT: The section 437 application that was made, was that intended to cover – let me rephrase it this way: do you understand the group of employees to be balloted are the same employees who fell within the coverage of the 2011 to 2014 agreement?

PN213

MS GROGAN: We submit that the application under section 437 refers to the proposed enterprise agreement, and that employees that are eligible to take protected industrial action are provided with that opportunity when a protected action ballot order is issued, and we think that it’s quite clear that the application made by the NUW, in accordance with section 437, is an application which has been made in the course of the requirements under the Act, and that that coverage extended to ‑ ‑ ‑

PN214

THE SENIOR DEPUTY PRESIDENT: All right. Let me phrase it this way: were the three employees in question intended to be covered by the protection action ballot order?

PN215

MS GROGAN: Yes.

PN216

THE SENIOR DEPUTY PRESIDENT: Do you say those three employees are covered by the 2011/2014 agreement?

PN217

MS GROGAN: Yes.

PN218

THE SENIOR DEPUTY PRESIDENT: All right. Yes. Was the 437 application intended to cover anyone who was not covered by the 2011/2014 agreement?

PN219

MS GROGAN: No.

PN220

THE SENIOR DEPUTY PRESIDENT: Right. What’s the evidence you want to bring?

PN221

MS GROGAN: We would like to bring evidence that relates to the type of work that’s performed at Tullamarine and the extent to which the employees at Tullamarine have been informed and involved in the bargaining process.

PN222

THE SENIOR DEPUTY PRESIDENT: Yes. So who do you wish to call in that regard?

PN223

MS GROGAN: Mr Gary McMahon.

PN224

THE SENIOR DEPUTY PRESIDENT: Why do you say it would be contrary to the public interest to issue the interim order?

PN225

MS GROGAN: We submit that to issue the interim order would not be in the interests of collective bargaining because the rights under the Act allow employees, when balloted, to take protected action. That the ‑ ‑ ‑

PN226

THE SENIOR DEPUTY PRESIDENT: Is there anything else you want to say?

PN227

MS GROGAN: No, your Honour.

PN228

THE SENIOR DEPUTY PRESIDENT: All right. All right. Anything else, Mr McDonald?

PN229

MR McDONALD: Your Honour, just briefly, in relation to the protected action ballot and who it could extend to, it’s our submission that the provisions of section 437(5) make it clear that the further it would be within – it would only be those people who could be covered by the bargaining representative which, in this case, is said to be the NUW. So that the ballot, in terms of referring to people who could be under the proposed agreement, would be those who could be eligible to be within the coverage of the NUW, we say, on the basis of 437(5). We note that Ms Grogan has made a number of statements from the Bar table about what her view is of the coverage of the agreement, and what the parties’ intentions were, but we say that that’s really a matter for evidence, and we’ve given evidence expressing a particular view of those, in which we’ve given evidence by someone who’s involved in the discussions as to their understanding of the position. In our submission that should be preferred over any submission given from the Bar table in respect of those matters.

PN230

We say that the case, as presented, does raise some significant issues, and it’s difficult in the absence of having a full hearing to get to the bottom of those issues and for the Commission to be in a position where it can determine all those matters, at this time, on the run, as it were, within the tight timeframe that’s allowed for for dealing with these matters, and in those circumstances, in our submission, the Commission couldn’t be in a position to determine all those issues that have been raised in the matter, and it would be appropriate, in the circumstances, to make an interim order. Unless there’s ‑ ‑ ‑

PN231

THE SENIOR DEPUTY PRESIDENT: Mr McDonald, you referred to the NUW rules, and you say these employees do not fall within the NUW rules?

PN232

MR McDONALD: Yes, your Honour. I say that because they’re principally engaged as drivers. It may well be that they do some duties such as loading and unloading as peripheral matters which could be – that are done in their capacity as drivers, could also be done in the capacity as storeman, but we say that those types of incident duties do not make someone a storeman as such. I’m not aware of any situation where the NUW has coverage of drivers under any enterprise agreement.

PN233

MS GROGAN: I just wish to clarify that the NUW would wish that the Commission could provide opportunity for us to put submissions on that point. There are enterprise agreements, to my knowledge, that our union has that covers drivers, and we have eligibility to cover those employees. Thank you, your Honour.

PN234

THE SENIOR DEPUTY PRESIDENT: All right. Do you say the ‑ ‑ ‑

PN235

MR McDONALD: We do say that, in any event, the agreement as proposed has not included drivers.

PN236

THE SENIOR DEPUTY PRESIDENT: All right. Ms Grogan, do you say the NUW has eligibility to cover drivers per se?

PN237

MS GROGAN: The NUW rules – I haven’t had the opportunity to review them in great detail, and I would premise my statement by saying this, but there is, I believe, a reference to delivery of goods in the NUW rules, which may fall within the definition of what a driver does. Our submission that the employees at Tullamarine are engaged as storemen/drivers; that the job description does entail picking and packing and assembly of orders, and that we are eligible to cover these workers; that our rules allow us to represent the industrial interests of these employees.

PN238

THE SENIOR DEPUTY PRESIDENT: The dispute that’s listed for 4 May, has that been listed before?

PN239

MS GROGAN: No.

PN240

THE SENIOR DEPUTY PRESIDENT: Have any directions been issued in respect of that matter?

PN241

MS GROGAN: No. I believe it was listed for a conference before Roe C.

PN242

THE SENIOR DEPUTY PRESIDENT: Right. Very well. It may be that the Tribunal is assisted in this matter by an inspection of the work in the various premises if there’s to be a comparison of who does what where. But I would leave that to some extent to the parties. I propose to issue the interim order.

PN243

Having regard to the need for the NUW to call evidence as they’ve foreshadowed, and the Commission’s inability to determine the application within 48 hours, or two days, then I’m required to make an interim order. Subject to section 423, I’m not satisfied it would be contrary to the public interest to do so. Issues of procedural fairness that were raised go to the issues of the desire of the NUW to call evidence in the matter, and to facilitate that, what I propose to do is allow the NUW to prepare a witness statement and ask them to file that by – how long do you think you’d need to do that, Ms Grogan?

PN244

MS GROGAN: 5.30.

PN245

THE SENIOR DEPUTY PRESIDENT: 5.30 today you can file a witness statement?

PN246

MS GROGAN: I’m not sure. Actually no, probably not by then. It’s being a bit ambitious. Probably get something tomorrow morning.

PN247

THE SENIOR DEPUTY PRESIDENT: All right. I’ll give you until the close of business – given the Commission’s availability you can have until the close of business Friday to do that. You will need to serve it on the employer.

PN248

The parties may wish to think about the issue of inspections by the Commission, which I would be available to do next Tuesday 28 April if necessary, but the parties should advise my chambers as to whether they wish that to occur. We can also sit next Tuesday, if no inspections take place.

PN249

So what I propose to do is adjourn the matter on that basis. The interim order will issue from my chambers as soon as possible. As I’ve indicated, I’m not satisfied it would be contrary to the public interest to issue them, given the need for further evidence in this matter, and the Commission’s inability to determine the application within two days. I’ll now adjourn.

ADJOURNED INDEFINITELY [3.49 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

LISA LEANNE LAWSON, SWORN................................................................. PN134

EXAMINATION-IN-CHIEF BY MR MCDONALD....................................... PN134

EXHIBIT #A1 STATEMENT OF LISA LEANNE LAWSON DATED 21/04/2015 PN139

CROSS-EXAMINATION BY MS GROGAN................................................... PN148

RE-EXAMINATION BY MR MCDONALD.................................................... PN184

THE WITNESS WITHDREW............................................................................ PN189

Fair Work Commission Transcripts

C2015/2608, Transcript of Proceedings [2015] FWCTrans 265 (8 May 2015)