AM2014/91, Transcript of Proceedings [2015] FWCTrans 302 (20 May 2015)

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PN1

SENIOR DEPUTY PRESIDENT WATSON: We'll take appearances in Melbourne in the first instance.

PN2

MS V WILES: If the commission pleases, Wiles, initial V, for the Textile, Clothing and Footwear Union of Australia. With me at the bar table I have Ms M O'Neil and also Ms R Liebhaber, if the commission pleases.

PN3

MR M MEAD: If it pleases, Mead, initial M, on behalf of the Australian Industry Group.

PN4

MR K SCOTT: If the commission pleases, Scott, initial K. I seek permission to appear on behalf of Australian Business Industrial and the New South Wales Business Chamber. With me at the bar table is Mr A Jones.

PN5

SENIOR DEPUTY PRESIDENT WATSON: Yes, very well. We'll go to Sydney.

PN6

MS J GUEAJESTANI: Gueajestani, initial J. I appear for the Australian Workers Union.

PN7

SENIOR DEPUTY PRESIDENT WATSON: That's all we have, although I think there are some preliminary issues concerning the evidence and an application in relation to confidentiality. Perhaps they can be dealt with together, Ms Wiles. I should say we've read the ABI outline in relation to admissibility of evidence, the TCFUA outline in respect to confidential evidence and in response to the ABI challenge to the TCFUA evidence. On that basis, we'll hear further from you, Ms Wiles.

PN8

MS WILES: Thank you, your Honours and Commissioner. As you've indicated, we filed an application seeking confidentiality orders under sections 593 and 594 of the Fair Work Act. We filed that on 11 March and we also attached an outline of submissions in support.

PN9

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN10

MS WILES: We also filed, late yesterday, an outline of submissions in relation to the challenge to the TCFUA's evidence by Australian Business Industrial and the New South Wales Business Chamber. We do apologise for the lateness of that outline, but unfortunately we weren't able to file it before then.

PN11

Your Honours and Commissioner, in some respects the TCFUA's confidentiality application and its submissions in relation to the ABI challenge to the TCFUA evidence are connected, but I'll first go to the application before you for the confidentiality orders.

PN12

SENIOR DEPUTY PRESIDENT WATSON: That envisaged the filing of an amended statement by Ms Nguyen. Is that the case?

PN13

MS WILES: That's correct, your Honour. Clearly we haven't filed that statement for obvious reasons, because it does contain some confidential information in it, but also it would be unfair obviously to provide that ‑ ‑ ‑

PN14

SENIOR DEPUTY PRESIDENT WATSON: The amendment of the statement goes, as I understand it, from paragraphs 15 to 17. In what way is the statement amended?

PN15

MS WILES: It amends it in a number of respects which I will go through. In respect to paragraph 15, the further statement of Ms Nguyen names the employer that she's referring to in that paragraph. It also provides the first name of the Vietnamese‑speaking team leader referred to in that paragraph. In respect to paragraph 16 of Ms Nguyen's further statement, she provides the identity of the employer named in that paragraph.

PN16

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN17

MS WILES: Also in paragraph 16, she names the manager referred to in that paragraph.

PN18

SENIOR DEPUTY PRESIDENT WATSON: Yes. Sorry, the manager is referred to ‑ ‑ ‑

PN19

MS WILES: I should indicate, your Honour, that in Ms Nguyen's first statement, at paragraph 16, she refers to a supervisor. In fact Ms Nguyen would seek to make an amendment to her first statement from ‑ ‑ ‑

PN20

SENIOR DEPUTY PRESIDENT WATSON: So it's a manager?

PN21

MS WILES: Yes, it's manager.

PN22

SENIOR DEPUTY PRESIDENT WATSON: A manager who is named, yes. In 17?

PN23

MS WILES: In 17, Ms Nguyen identifies the employer referred to in paragraph 17.

PN24

SENIOR DEPUTY PRESIDENT WATSON: In no case is the identity of an employee who provided information to Ms Nguyen relied upon for a statement identifying ‑ ‑ ‑

PN25

MS WILES: No, Ms Nguyen hasn't included any of the names of the members.

PN26

SENIOR DEPUTY PRESIDENT WATSON: Okay. How does the identification of the employer and the name of a manager or team leader raise a requirement for confidentiality?

PN27

MS WILES: Your Honour, in our submission we indicate that by revealing the name of the employers, there is a risk that the employer parties in this matter would then seek instructions from those employers. In fact they've said that themselves in the submissions in this matter. In our submission, that would place at risk employees and members of ours who are currently engaged in those workplaces.

PN28

It is not unusual - and we go into this in our outline of submissions - that when employees raise issues or when they tell the union information, who then raise the issue on their behalf, that there is retribution or adverse treatment back on those employees when the matter is notified to the employer.

PN29

SENIOR DEPUTY PRESIDENT WATSON: Can I take you to paragraph 16 of Ms Nguyen's statement:

PN30

In that case, the union found out about the change after it had been implemented - successfully negotiated with the employer.

PN31

So the union has brought the issue to the attention of the employer. In that instance was there any adverse action or detrimental action against any employee? Was there a Spanish Inquisition conducted to identify who might have alerted the union to the issue?

PN32

MS WILES: Sorry, your Honour, do you mind repeating that? I've just got a very heavy cold and my ears are a bit blocked. Sorry.

PN33

SENIOR DEPUTY PRESIDENT WATSON: Yes. Paragraph 16 identifies that the union became involved after the event.

PN34

MS WILES: Yes.

PN35

SENIOR DEPUTY PRESIDENT WATSON: So that alerted the employer to the fact that the union was made aware of the circumstances. Was there any evidence of adverse action or detrimental action taken against any employee or any Spanish Inquisition by the employer to try and identify who alerted the union in that instance?

PN36

MS WILES: Your Honour, I would need to get detailed instructions on that.

PN37

SENIOR DEPUTY PRESIDENT WATSON: Yes, because it's a very generalised submission based on "it's not unusual", but how does the identification of the employer create that risk to a particular member?

PN38

MS WILES: Your Honour, in a number of these workplaces that Ms Nguyen makes reference to in her statement, there are a large - or, you know, a majority grouping of Vietnamese‑speaking workers and those workers on the whole are members of the union. In terms of naming the employers in these proceedings, as I indicated, if they are named and the employer parties in this matter then seek instructions from those employers, those employers will invariably go back to those Vietnamese‑speaking workers and raise that issue with them.

PN39

We would hope that in fact those employers would simply ask the question, "Why have you told the union this?" or, "Why is the union raising this in these proceedings?" but our strong experience and our officials experience is that when these matters are raised, there is invariably adverse treatment against those employees. I should indicate that a number of those employees are silent members ‑ ‑ ‑

PN40

SENIOR DEPUTY PRESIDENT WATSON: But how does the TCFUA ever raise a dispute about a matter?

PN41

MS WILES: Your Honour, I was going to raise about the silent member issue. This is very common in terms of the membership of the union, particularly amongst our Vietnamese members. There are a range of reasons for this. One of the reasons, which I think Ms Nguyen referred to in her first statement, was that there are - how do I put this? There are certain cultural mores in some parts of the Vietnamese community about raising issues against other members in the community.

PN42

In this industry, it's quite common for the employers in the industry to be of the same ethnic grouping or same language group of its members.

PN43

SENIOR DEPUTY PRESIDENT WATSON: I've raised the specific example of paragraph 16. Why should that employer be not identified? The union has already itself brought the complaint to the attention of the employer.

PN44

MS WILES: Your Honour, in that case the matter was settled without identifying the particular employees who notified the union.

PN45

SENIOR DEPUTY PRESIDENT WATSON: All you're proposing to do is identify the employer's name - the identity of the employer and a manager, or a supervisor in this instance.

PN46

MS WILES: That's correct.

PN47

SENIOR DEPUTY PRESIDENT WATSON: So no employee will be identified.

PN48

MS WILES: The concern is of reactivating that dispute and for there to be further retribution against the employees concerned.

PN49

SENIOR DEPUTY PRESIDENT WATSON: The obvious question is what weight can be placed upon evidence which those opposing the application have no ability to test? They've got no ability to say in relation to that evidence, well, what Ms Nguyen was told is simply not accurate. That event never occurred or didn't occur in that way. They may say, well, it did occur in that way, but so what?

PN50

MS WILES: In practical terms if we're talking about naming the employees, if we did that ‑ ‑ ‑

PN51

SENIOR DEPUTY PRESIDENT WATSON: Naming the?

PN52

MS WILES: Employees concerned.

PN53

SENIOR DEPUTY PRESIDENT WATSON: No, I'm talking about naming the employer at this point.

PN54

MS WILES: Well, I mean, in terms of that they can cross‑examine Ms Nguyen today about her statement. They can ask her about the example - the illustrative example - that she has provided in her first statement.

PN55

SENIOR DEPUTY PRESIDENT WATSON: They can ask her what she was told about the example, as I understand it, except in relation to paragraph 16 where she has presumably knowledge from the point she became involved.

PN56

MS WILES: Yes. Ms Nguyen became involved in three of these incidents, so it wasn't simply that she received a phone call from an employee.

PN57

SENIOR DEPUTY PRESIDENT WATSON: But they can't say to Ms Nguyen, "Well, the employer denies that this ever happened. What do you say about that?"

PN58

MS WILES: They can't. That's correct.

PN59

SENIOR DEPUTY PRESIDENT WATSON: What weight can we possibly place on evidence of that kind?

PN60

MS WILES: It's an illustrative example in the context of modern award proceedings. It's not a situation where we've got ‑ ‑ ‑

PN61

SENIOR DEPUTY PRESIDENT WATSON: It's an illustrative example, excepting that it's properly based probative evidence that can be relied upon. I take you to the Hail Creek decision which is cited in the ABI material, at page 3. Whilst the commission is not bound by the Rules of Evidence, it is required to apply natural justice and we can't set aside - we can't accept evidence on the basis that it advantages one party and disadvantages the other, in that the other party has no opportunity to test that evidence. Doesn't that represent a denial of natural justice?

PN62

MS WILES: Your Honour, ultimately it does depend upon the weight that the bench applies to that evidence. That can be assessed from Ms Nguyen's demeanour and credibility as she gives her evidence about those matters. I should have indicated earlier when you asked me about the what the witness statement of Ms Nguyen contains - I should have also indicated that there is an exhibit. The exhibit contains correspondence between the TCFUA and the company, referred to ‑ ‑ ‑

PN63

SENIOR DEPUTY PRESIDENT WATSON: In 16, presumably.

PN64

MS WILES: Yes - in paragraph 15.

PN65

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: 15, you said?

PN66

MS WILES: Yes.

PN67

SENIOR DEPUTY PRESIDENT WATSON: I see. So having identified the company, she then provided the ‑ ‑ ‑

PN68

MS WILES: That's correct, yes, which confirms the nature of the dispute, et cetera.

PN69

SENIOR DEPUTY PRESIDENT WATSON: Yes, very well. Go on. I wonder if you could get instructions on whether there was any retribution, if you like, arising out of the issue that the union brought to the attention of the employer in paragraph 6, I think it was.

PN70

MS WILES: Your Honour, would you like me to do that now?

PN71

SENIOR DEPUTY PRESIDENT WATSON: If it only takes a very short period.

PN72

MS WILES: It should only take a few minutes.

PN73

SENIOR DEPUTY PRESIDENT WATSON: Yes, Ms Wiles.

PN74

MS WILES: Thank you, your Honour, for that brief period of time for the union to get instructions. My instructions are that in relation to paragraph 15 of Ms Nguyen's first statement, I have altered instructions in regard to that paragraph and we are prepared to not have confidentiality applied to that part of her second statement.

PN75

SENIOR DEPUTY PRESIDENT WATSON: Paragraph 16?

PN76

MS WILES: 15.

PN77

SENIOR DEPUTY PRESIDENT WATSON: 15, yes.

PN78

MS WILES: But in relation to the companies referred to in paragraphs 16 and 17 of Ms Nguyen's first statement, the history of retribution against workers in that company will prevent us ‑ ‑ ‑

PN79

SENIOR DEPUTY PRESIDENT WATSON: Was there an issue with paragraph 16 when the union raised the issue?

PN80

MS WILES: That's correct, but my instructions are that the level of adverse treatment - two things. One is that the majority of the members in the company referred to in paragraph 16 are silent members. When they contacted Ms Nguyen, it was on the basis of being a silent member and not in any way be identified. Similarly, there is a history of adverse treatment of employees in this particular company and on that basis we're not prepared to provide that information other than to the commission. Similarly, with paragraph 17.

PN81

SENIOR DEPUTY PRESIDENT WATSON: Yes. Anything further?

PN82

MS WILES: Your Honour, obviously in our outline of submissions - I won't repeat them, but in terms of some key issues, we do say that confidentiality orders have been made in a broad variety of circumstances by the commission. We indicate those, I think, at paragraph 19 of our outline of submission. We say that the terms of sections 593 and 594 give broad discretion to the commission in terms of making confidentiality orders, particularly in the context of the term "because of the confidential nature of any evidence or for any other reason."

PN83

SENIOR DEPUTY PRESIDENT WATSON: Can I take you back to the examples. There is no doubt the commission has an express power to make confidentiality orders. Do any of those instances relate to circumstances that are in any way comparable to those that currently arise?

PN84

MS WILES: There are certainly examples where the names of individual employees are ‑ ‑ ‑

PN85

SENIOR DEPUTY PRESIDENT WATSON: We're not talking about that in this instance.

PN86

MS WILES: About the employers, yes. I think the main one, just looking at this, relates to the confidentiality orders in the 2012 modern award review where the Australian Industry Group sought confidentiality orders around the identity of a number of their employer witnesses.

PN87

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN88

MS WILES: In that case, Jones C made orders which provided that the AI Group witness statements be marked confidential, provided only to specified parties for the purpose of the award modernisation review and with provision for other parties to apply for access. Your Honours and Commissioner, I should have indicated this at the outset: we do have a folder of authorities to hand up to the bench which contain the majority of the authorities referred to both in our outline of submissions in support of the application and also in relation to the hearsay evidence and opinion evidence issue.

PN89

SENIOR DEPUTY PRESIDENT WATSON: The orders of Jones C in the matter you specifically referred to are of a very different nature, are they not? Materials were provided to parties with an interest in the matter.

PN90

MS WILES: That's correct.

PN91

SENIOR DEPUTY PRESIDENT WATSON: And the order was made in order to avoid competitive issues for the particular employer.

PN92

MS WILES: A commercially sensitive element, yes.

PN93

SENIOR DEPUTY PRESIDENT WATSON: So it was seeking to shield the information from other employers for reasons of commercial confidentiality; so it's not comparable to the current circumstances.

PN94

MS WILES: No. I agree, your Honour. It's not directly comparable, yes.

PN95

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN96

MS WILES: In terms of the expression "for any other reason", we submit that that term can include considerations of potential impact on an employee's freedom of association and the capacity of a union to effectively represent its members' industrial interests by the disclosure of certain information to the commission and/or parties to a proceeding.

PN97

In relation to the TCFUA evidence filed in this matter, we summarise key aspects of that at paragraphs 37 to 43 of our outline of submissions in support of the confidentiality orders. In particular, that evidence goes to the particular nature of the TCF industry and its workforce, and the particular vulnerabilities of certain classes of employees within the industry and the difficulty for many of those members in actually raising issues with the union on a confidential basis.

PN98

We say that that evidence illustrates the inherent difficulties in the TCFUA providing evidence of the reality of conditions and practices and conduct of some employers in the TCF industry when the fear of reprisal or adverse treatment of employees by the employers is paramount. We say that in practical terms these circumstances typically mitigate against those affected employees giving direct evidence themselves and restrict the TCFUA, through its officials and officers, personally identifying those employees affected and their employers.

PN99

Your Honour, the other thing we would say is that apart from examples of where individual employees have been subjected to adverse treatment and retribution, it's also the case that groups of employees or whole workplaces have been subjected to adverse treatment ‑ ‑ ‑

PN100

SENIOR DEPUTY PRESIDENT WATSON: Sorry, I wonder if you could speak up a little.

PN101

MS WILES: Sorry. It's also the case that apart from individuals in the TCF who have been subjected to adverse treatment and retribution once they raise issues, it's also the case that on some occasions groups of workers are also subjected to that sort of treatment from their employer.

PN102

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Have any of those instances been the subject of applications made pursuant to the Fair Work Act?

PN103

MS WILES: Your Honour, we have had cases where employees have made application to the Federal Court in relation to adverse treatment and those matters ‑ ‑ ‑

PN104

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Have any of those proceeded to a conclusion?

PN105

MS WILES: They've concluded in terms of settlements, yes. There have been a number of those. I can say that from the bench. I know that isn't evidence, but it has been the case. Quite serious ‑ ‑ ‑

PN106

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: There are no decisions that you can refer us to in that regard, are there?

PN107

MS WILES: I can take that question on notice, your Honour. I don't think so. There may be one or two, yes. It's certainly the case though that the union has issued prosecutions around a number of other issues, including in relation to outwork provisions in the award. Your Honours and Commissioner, other than those submissions, we continue to rely on our outline in relation to the confidentiality order application.

PN108

SENIOR DEPUTY PRESIDENT WATSON: The effect of your application is the additional information will be provided only to the bench.

PN109

MS WILES: Other than in relation to paragraph 15.

PN110

SENIOR DEPUTY PRESIDENT WATSON: Other than in relation to paragraph 15, yes. The effect of that in terms of natural justice implications would be that the opposing employers would have no opportunity to test the evidence at all, whether through cross‑examination with proper instructions or through introducing rebuttal evidence. You say that can be considered as a matter of weight. In those circumstances, is there any point in identifying the employers at all?

PN111

MS WILES: Are you referring to paragraph 15?

PN112

SENIOR DEPUTY PRESIDENT WATSON: 15, you're happy to do that; but in relation to 16 and 17, is there any point in identifying the employers?

PN113

MS WILES: There is, I guess, a point in identifying those employers at least to the bench, because it evinces ‑ ‑ ‑

PN114

SENIOR DEPUTY PRESIDENT WATSON: How does that alter the state of the evidence? The bench is aware of who Ms Nguyen says she was told something about. No-one else is, other than the union. How does that assist the state of the evidence?

PN115

MS WILES: It demonstrates that it exists.

PN116

SENIOR DEPUTY PRESIDENT WATSON: I don't think there's any difficulty with the proposition that Ms Nguyen's evidence is that she was told that certain things occurred in relation to an unidentified employer. Does it particularly matter who the employer was?

PN117

MS WILES: Sorry, your Honour, I missed what you last said.

PN118

SENIOR DEPUTY PRESIDENT WATSON: Ms Nguyen gives evidence that certain things were said to her in respect to an unidentified employer. In terms of the disposition of this case, does it matter at all who the employer was? The only relevance of the identification of the employer is to provide the employers opposing with an opportunity to test the veracity of what was said to Ms Nguyen.

PN119

MS WILES: That's probably correct, your Honour. I mean, in our submission, it shouldn't be necessary that Ms Nguyen have to identify the actual names of the employer. Her evidence is essentially about giving illustrative examples of her experience in terms of when employers have not followed proper consultation proceedings. As an example, I would agree with you that in fact the particular names of the employers aren't that relevant. We're only having this discussion or these submissions now because of the objection raised by ABI.

PN120

SENIOR DEPUTY PRESIDENT WATSON: If that's the case, isn't the better course to bring the identifying information in respect to 15, which you have no issue with ‑ ‑ ‑

PN121

MS WILES: That's correct.

PN122

SENIOR DEPUTY PRESIDENT WATSON: ‑ ‑ ‑ and the associated materials, much provided to everyone, and that you rely on paragraphs 16 and 17 as they were and you face the natural justice argument and weight argument from the employer? I don't think there's any particular utility in us, the bench, knowing it was employer X as against employer Y that the witness was referring to.

PN123

MS WILES: I take your point, your Honour. Part of the reason that the union has made the application for the confidentiality orders is that ABI in its submissions have said that paragraphs 15, 16 and 17, amongst others, should be excluded on the basis that the union has not disclosed the identity of both the employers and the employees. We were merely responding to their challenge.

PN124

Obviously the next point, if the bench is not minded to make those confidentiality orders, we will then address the issue in terms of the challenge around hearsay evidence.

PN125

SENIOR DEPUTY PRESIDENT WATSON: Yes. Very well. That's all you wanted to put on that?

PN126

MS WILES: Yes.

PN127

SENIOR DEPUTY PRESIDENT WATSON: Can I ask the employers to address this proposition when they address us. If the union were to amend the statement only in respect to clause 15 to identify the employer and introduce additional material, and that's made available to you, and otherwise rely on the statement of Ms Nguyen as it is, what is their position in relation to the admissibility of the evidence? That's the question, essentially, if they were to amend in that way - their approach in that way. Who would like to lead off? The ABI has probably earned itself the right to ‑ ‑ ‑

PN128

MR SCOTT: Thank you, your Honour.

PN129

SENIOR DEPUTY PRESIDENT WATSON: Sorry, before I do go to that, is there anything the AWU wishes to say in relation to this debate?

PN130

MS GUEAJESTANI: Yes, your Honour. What we wish to say, we do strongly support the submissions that the TCFUA has made in writing, as well as orally today. We think it's extremely difficult for unions to obtain direct evidence from their members and decades of research into union voice and employee voice does illustrate that workers are fearful to openly express their views at the workplace, let alone giving direct evidence in writing or before a full bench.

PN131

This is much more prevalent in the textile, footwear and clothing industries where a large number of employees are from non‑English speaking backgrounds, mainly women, and are also very vulnerable in the workplace and, therefore, they fear retribution from their employer. So we do agree with the TCFUA and support their submission in relation to the confidentiality orders, as well as the admissibility of the evidence.

PN132

SENIOR DEPUTY PRESIDENT WATSON: Yes. Very well. Thank you, Ms Gueajestani. Mr Scott?

PN133

MR SCOTT: Thank you, your Honour. If I can just start by addressing permission to appear in section 596(2). There was an application for permission to appear. I'm assuming that has been granted or there is no objection to that, but I thought I might just address that particular issue. Does your Honour wish to hear some short submissions on 596(2)?

PN134

SENIOR DEPUTY PRESIDENT WATSON: Sorry, on?

PN135

MR SCOTT: On permission to appear, your Honour.

PN136

SENIOR DEPUTY PRESIDENT WATSON: Permission to appear. Is there any issue about that?

PN137

MS WILES: No, your Honour.

PN138

SENIOR DEPUTY PRESIDENT WATSON: Very well. I think we've come to learn that the case has been made more complex than it needs to already, so we're satisfied that permission should be granted, Mr Scott.

PN139

MR SCOTT: Thank you, your Honour. Can I turn to the application that was filed two days ago for confidentiality orders in respect of the evidence of Ms Nguyen. Can I start by saying this: the union's application is extraordinary, in the sense that what the union is asking the commission to do is accept a witness statement without any of the parties in the proceedings having seen the witness statement.

PN140

As a first point, it appears that what is being proposed by the union is that a further witness statement be filed by Ms Nguyen as opposed to an amended statement. That's certainly my understanding. That further statement, it's not clear to the parties that what contains.

PN141

SENIOR DEPUTY PRESIDENT WATSON: Just one minute. Ms Wiles, was the further statement simply amending paragraphs 15 to 17 as you indicated and introducing the email material in relation to paragraph 15 or did it go beyond that?

PN142

MS WILES: Your Honour, as you've indicated, the further witness statement identifies the names and addresses of the employers referred to in paragraphs 15 to 18.

PN143

SENIOR DEPUTY PRESIDENT WATSON: And the supervisor, manager.

PN144

MS WILES: Yes, then the supervisor, manager.

PN145

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN146

MS WILES: It also contains some amendments to her first witness statement, but that was just merely for completeness. If those paragraphs are admitted into evidence, then we can have ‑ ‑ ‑

PN147

SENIOR DEPUTY PRESIDENT WATSON: So there's no substantive ‑ ‑ ‑

PN148

MS WILES: No. It's a short statement of, I think, two pages. That's really all it does.

PN149

SENIOR DEPUTY PRESIDENT WATSON: The major addition is the introduction of the email material.

PN150

MS WILES: Yes, as the exhibit. That's correct.

PN151

SENIOR DEPUTY PRESIDENT WATSON: Yes, very well. That might avoid you having to deal with ‑ ‑ ‑

PN152

MR SCOTT: I think so, your Honour. The point I want to make at the outset is that the proposal puts the bench in quite a unique and very difficult position, because what's being asked of the bench is to accept evidence that no other party in the proceedings has seen. In terms of the requirements under section 577 to ensure that there is a fair and just hearing, we say that that proposal would represent a fundamental breach of the requirements for natural justice.

PN153

I note that much has been put on the record in respect of admissibility of evidence and I'm not going to deal with that in particular, but we say that firstly there's a fundamental breach of natural justice if the commission accepts evidence which no other party has seen. In terms of the application under sections 593 and 594, the normal course in such applications would be that a witness statement may well be filed with the commission redacting certain parts of that statement which are asserted to be confidential. The witness statement would ordinarily be provided to the parties in the proceedings.

PN154

An unredacted version may well be provided to the other parties in the proceedings and of course I'm not aware of a situation where a witness statement is provided to the commission and it's redacted, and the identities of certain individuals are not disclosed not only to the other parties in the proceedings, but the advocates themselves.

PN155

So in respect of the outline of submissions filed by the union which looks at some of the authorities and some situations where previous confidentiality orders have been made, I'm not aware of any order which has extended that confidentiality regime to advocates and to parties. For example, in the bullying jurisdiction it's not uncommon for individuals to be - for their identities to remain confidential in respect to the public.

PN156

SENIOR DEPUTY PRESIDENT WATSON: It happens in unfair termination matters on occasions.

PN157

MR SCOTT: That's right. Ordinarily the other parties in those proceedings know who the individual is.

PN158

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN159

MR SCOTT: We say it's extraordinary in that sense. The application seems to rely on very general assertions of adverse action or a very real risk that employers, once they become aware of employees who have raised issues, will invariably as day follows night take adverse action against employees. We say that's an extremely serious allegation and one which should be properly supported by specific evidence in respect of those specific individuals in question.

PN160

The union is relying on vague and generic assertions about what generally happens or what might happen. There's no specific evidence about what has happened and, in any event, that evidence does not relate to the individuals in question in respect of Ms Nguyen's statement. There's no evidence before the commission from the specific individuals. There's no witness statement saying that they are fearful and they've previously been subjected to adverse action. The commission does not have that evidence before it.

PN161

The second point is that even if that information was today made available to the advocates or the other parties, that does not assist the other parties in having a fair hearing, in the sense that that doesn't help them being able to test the evidence. In the ordinary course of proceedings the employers or the other interested parties, if there's a particular allegation made that an employer has, you know, done something improper - the interested party would make contact with that employer and get their version of events. The fact that some employers may now be disclosed today to the interested parties serves no utility whatsoever.

PN162

SENIOR DEPUTY PRESIDENT WATSON: It appears there's a preparedness to identify a paragraph 15 employer.

PN163

MR SCOTT: Yes. That submission is limited, in any event, to paragraph 15, where my understanding is the union are prepared to disclose the employer today to the parties. I say that won't help us. That doesn't provide a fair hearing. In any event, paragraphs 16 and 17 - there's no preparedness by the union to disclose the identities of the employers in respect to those paragraphs.

PN164

Our submission is that the further statement of Ms Nguyen should not be admitted; should not be accepted by the commission. The other parties haven't seen that and it's not proposed that the parties will see that, other than to have a copy with, you know, the identity of the employer at 15.

PN165

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN166

MR SCOTT: In respect of the first Ms Nguyen statement, if I can describe it as that, being the statement filed in December, we're prepared to deal with our objections to particular paragraphs of that statement at that time. I think in respect of your Honour's question about whether there's any utility or what the employer parties' position is if Ms Nguyen's initial statement from 18 December was admitted into evidence with paragraph 15 being amended to disclose the employer's identity, as I said, we would object to the admissibility of that particular paragraph for the basis that it does not allow us to properly or effectively test that proposition.

PN167

SENIOR DEPUTY PRESIDENT WATSON: Other than by being afforded an opportunity to do so by adjournment or whatever.

PN168

MR SCOTT: That's right.

PN169

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN170

MR SCOTT: Yes. The union filed their evidence in the matter on 18 December or thereabouts. It's a matter for the union as to what form their evidence is advanced. The union are now seeking to rely on additional material that the parties are yet to see and the parties are being put on notice as of two days ago that they would seek to rely on that, but, even then, other than the bench, no other party would have any knowledge of what that information is.

PN171

Our respectful submission is that if the commission was to accept the application and grant the application that has been made by the union, that would lead to a breach of section 577 of the Act. I can't put it any higher than that.

PN172

SENIOR DEPUTY PRESIDENT WATSON: Yes, very well. Did you intend to say anything further on the hearsay point you've raised of the expertise of Ms O'Neil or you're content to rely on your written submissions?

PN173

MR SCOTT: Your Honour, I thought I would deal with that briefly at the time that Ms O'Neil was called as a witness and deal with objections to her witness statement at that time, but I'm happy to deal with those now.

PN174

SENIOR DEPUTY PRESIDENT WATSON: The bench would prefer that you dealt with that now and only in an elaboration of what you've put in writing.

PN175

MR SCOTT: Sure. I note that we have filed fairly comprehensive written submissions. We rely on those, of course. I note that at around 7 o'clock last night, we received some responsive submissions from the union. We've had regard to some of that. The bulk of Ms O'Neil's statement is opinion evidence in the context of the Rules of Evidence. The commission is not bound by the Rules of Evidence, we accept that.

PN176

We accept that Ms O'Neil has considerable experience in the industry. The evidence is not expert evidence in the sense that there may be certain assumptions which underpin the expert's opinion. In the strict sense, it's opinion evidence. Given Ms O'Neil's considerable experience in the industry, we do object to the relevant paragraphs of her statement, but if the commission is minded to accept those statements into evidence, we say that they should be accepted subject to weight. That's in respect to the opinion evidence.

PN177

If I can deal with paragraph 28 of Ms O'Neil's statement - if I can just grab a copy of that. That entire paragraph is in the nature of a submission. It's a submission which is contained within the union's very comprehensive written outline of submissions, so we object to paragraph 28 in its entirety on that basis. It serves no forensic purpose.

PN178

Paragraphs 29, 31 and 32. Our objection to those paragraphs is based on relevance. It starts with the second sentence in paragraph 29 and including 31 and 32. The evidence is so vague and so generic that we say it serves no probative value. There's no probative value in those particular paragraphs. For that reason, given the lack of probative value, we say those paragraphs have no relevance to the proceedings.

PN179

If I can then take your Honours to paragraph 36 of Ms O'Neil's statement. Paragraph 36 is like paragraph 28; it's a submission.

PN180

SENIOR DEPUTY PRESIDENT WATSON: Can I say if this objection was raised in every matter before the commission and submissions incorporated into witness statements were excluded, the volume of evidence in this place would be a small fraction of what is put before us. I think it is generally dealt with by way of members being competent enough to distinguish between the two.

PN181

MR SCOTT: I note your Honour's comments. What I say is this: the submissions that are in the witness statement are already very comprehensively set out in written submissions.

PN182

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN183

MR SCOTT: So in that sense it serves no utility to have it in a witness statement. It's a submission. It's in their submissions. It has been filed. It's on the record. To admit that into evidence is of a different character and it's unnecessary.

PN184

SENIOR DEPUTY PRESIDENT WATSON: Yes. Very well.

PN185

MR SCOTT: In respect of the hearsay issue, that relates to the statement of Ms Nguyen, so that's all in terms of Ms O'Neil's statement. Would your Honour like me to deal with Ms Nguyen's statement? In addition to paragraphs 15, 16 and 17, we also object to paragraphs 11 and 13. We say that paragraph 11 is unfairly prejudicial to the other parties in the sense that it refers to some workplaces which are not disclosed. ABI has requested disclosure quite some time ago, so the union have been put on notice that there would be a challenge to particular undisclosed references in their statement. It was a matter for them as to whether they decided to disclose the particular identities or not and it's clear that they have not done that.

PN186

In the circumstances in respect of paragraph 11, again we're unable to effectively test the evidence that is in that paragraph. The source of Ms Nguyen's knowledge of paragraph 11 is not clear. It appears to be hearsay, although it's not clear. In respect of the issue with hearsay generally, as your Honours are aware, there have been some detailed submissions filed both by ABI and the union in respect of hearsay and my understanding of the union's submissions that were filed last night was that they were relying on some exceptions to the hearsay rule.

PN187

Now, our submission is the paragraphs of the statement which we refer to in our written outline of submissions are hearsay evidence and they're inadmissible in the sense of being hearsay. The union in their reply submissions are saying that there are a number of exceptions to the hearsay rule, which is correct, so hearsay evidence is not automatically inadmissible. There are some exceptions, depending on the purpose in which the evidence is put forward.

PN188

We say that none of the exceptions in the union's reply submissions on the issues of admissibility of evidence apply in this case.

PN189

SENIOR DEPUTY PRESIDENT WATSON: Very well.

PN190

MR SCOTT: If your Honour can just bear with me, I'll find the correct document which was served last night. From about paragraph 11 onwards of the submission that I understand your Honours have, it deals with hearsay evidence generally. From about 16 onwards, it deals with the fact that hearsay is not automatically inadmissible. From around paragraph 23 onwards, they refer to section 64 of the Evidence Act.

PN191

At 22, they note that there are various exceptions to the hearsay rule, one of which is evidence relevant to a non‑hearsay purpose. It's my understanding of the union's case that they're not seeking to rely on that evidence for a purpose other than the hearsay purpose. That is, to assert that the representations were made and to assert the fact that those representations were true.

PN192

They refer in their submissions to Hail Creek and the fact that the decision in Hail Creek was to accept the hearsay evidence. In that case the party relying on the hearsay evidence was not relying on it for a hearsay purpose. I think there's a distinction here and my understanding is that the union is not seeking to rely on the evidence for a non‑hearsay purpose.

PN193

The other exception to the hearsay rule they may rely on is the fact that the maker of the representation is unavailable or that the maker of the representation is available. There's no evidence to suggest that the maker of the representation is not available. The union are seeking to rely on the exception to the hearsay rule in section 64 of the Evidence Act which talks about the person being available, but it's not "reasonably practicable to call the person who made the representation to give evidence."

PN194

Again they rely on some general assertions or characteristics of the industry, the asserted vulnerability of workers generally. There's no evidence of the fact that the particular individual who made the representation - there's no evidence at all from that individual as to why they're unavailable or why it's not reasonably practicable. To summarise the submission, the evidence is hearsay. It's inadmissible. None of the exceptions to the hearsay rule apply.

PN195

If your Honours are minded to accept the hearsay evidence as evidence in the tribunal, it should not be on the basis that it is admissible as an exception to the hearsay rule. That's not the case. If your Honours were minded to accept the evidence - and our submission is that you should not, but if your Honours are minded to do that, we say that it would be on the basis that it is hearsay evidence.

PN196

It's strictly inadmissible under the Rules of Evidence, although the commission is not bound by that, and it would be accepted subject to weight. I think that's an important distinction to make. In any event, we deal adequately I think with the issue in our written submissions, in the sense that it's hearsay. Further, there's no disclosure of the person who made the representation. There's no fair and just hearing in the sense of section 577 that the parties can actually go and test the evidence.

PN197

On the basis of those submissions in respect to the Ms Nguyen statement, we object to paragraph 11, paragraph 13 and paragraphs 15 to 17.

PN198

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN199

MR SCOTT: I note what your Honour has said in relation to paragraph 15 and the fact that the union are now prepared to disclose the identity of the employer. That does not change the fact that we object to that, for the reasons that I think I've explained.

PN200

SENIOR DEPUTY PRESIDENT WATSON: Yes, very well.

PN201

MR SCOTT: So those are my submissions.

PN202

SENIOR DEPUTY PRESIDENT WATSON: Thank you. Mr Mead, did you want to say anything further?

PN203

MR MEAD: Your Honour, I'll be very brief and just deal with perhaps four issues that arise from Ms Wiles' oral submissions this morning. Obviously, needless to say, we concur with the submissions that have been put by Mr Scott, indeed including the written material filed by ABL. As to this general assertion - I think Mr Scott used the phraseology as night follows day there will be repercussions as a result of these employees being identified or the employers being identified. Quite simply we say that that's a fanciful and, with respect, absurd submission.

PN204

Your Honour the Senior Deputy President asked whether there was any evidence in terms of Federal Court or Federal Circuit Court proceedings alleging adverse action and I believe Ms Wiles said perhaps one or two. One needs to only refer to the TCFUA's own web site and media releases where they identify the number of employers they have pursued for breaches of award conditions and outworker provisions to show that the assertion of one or two matters before the court falls well short of this invariable concept that they have sought to espouse.

PN205

The bench may recall that approximately 12 months ago there was a great deal of media attention stimulated by the TCFUA in relation to 23 clothing companies they were pursuing through the Federal Circuit Court and in a media release put out by Ms O'Neil, she identified that those 23 companies -

PN206

joined some other 170 other companies the TCFUA has pursued for breaches of award and outworker conditions.

PN207

There has been no evidence, no indication, in relation to all those various companies that have been pursued that employees have been persecuted as a result. The second point to make is that the idea that employees in the industry provide evidence to support the claims advanced by the union, is not new. One need only look at the transitional award review proceedings to make good that point. In that matter there was much debate about proposed variations advanced by the AI Group to schedule F, the outworker provisions.

PN208

In response, the TCFUA, in addition to having evidence from Ms O'Neil and an organiser, filed evidence on behalf of two outworkers. They are identified in that decision - and I'll give the reference: (2013) FWCFB 5729 at 52 - a Ms Susan Tran and a Ky Dang To. Once again, we've heard nothing in relation to repercussions or reprisals as a result of those individual employees giving evidence in these proceedings or action taken by their employers.

PN209

Your Honour's specific question in relation to if paragraphs 15, 16 and 17 are subject to the question of weight, does that satisfy us, I think we would have to accept that subject to their being an opportunity for there to be an adjournment and for us to take on notice the name of the employer and the relevant material in relation to paragraph 15, that would perhaps extinguish our concerns in respect of natural justice.

PN210

We're not saying, however, that the bench should be minded to do that and we say that for two reasons. First of all, as would be clearly obvious from the instructions that were obtained today with the short adjournment that the bench allowed Ms Wiles, that material could have been provided to us a long time ago. There's no problem clearly by their willingness now to disclose that information, with that information being provided to us at first instance so we could go away and test the material appropriately.

PN211

The fact that we might be given an opportunity prospectively now to have the proceedings adjourned and for us to all come back here and argue the point, we say is a waste of the tribunal's time. It doesn't satisfy a fair, just and efficient process as prescribed by 577 and 578 of the Fair Work Act. Quite simply, the TCFUA shouldn't be given that latitude when they had the opportunity to forward us that information in response to ABI's requests.

PN212

In respect of paragraphs 16 and 17, reducing that evidence to a question of weight we say does not solve the problem. Even if that material in the statement is given no weight, the fact is that in examination‑in‑chief or in re‑examination, the union might be able to improve the evidentiary position that they put forward in the written material. Once again we're still confronted with the problem of a denial of natural justice because we don't know how to appropriately test any evidence that might be provided orally by Ms Nguyen.

PN213

We say that consistent with the submissions made by ABI going to the point of natural justice, those paragraphs should not be admitted and they should be struck out and dealt with on that basis. Those are our submissions.

PN214

SENIOR DEPUTY PRESIDENT WATSON: Thank you for that, Mr Mead. Ms Wiles?

PN215

MS WILES: Your Honours and Commissioner, I might just deal with a couple of matters raised by Mr Mead firstly. He referred you to the fact that the union has initiated proceedings in the past in relation to breach of outwork provisions in the TCF Award in relation to quite a large number of companies. It's worth noting that in initiating those proceedings, those proceedings are primarily initiated against the principal fashion house or retailer at the top of a contracting chain.

PN216

They are not made against particular manufacturers or makers further down the chain and that's because the obligations in schedule F of the TCF Award essentially relate - or primarily relate to the principal fashion house in terms of the transparency obligations in terms of the contracting chain.

PN217

SENIOR DEPUTY PRESIDENT WATSON: But the information upon which the prosecution was based must have come from somewhere within the chain.

PN218

MS WILES: That's correct, your Honour.

PN219

SENIOR DEPUTY PRESIDENT WATSON: And the identification of the principal would presumably identify to the employers ‑ ‑ ‑

PN220

MS WILES: You're correct, in that the information the union gathers when it prepares a prosecution actually comes from each level of the chain.

PN221

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN222

MS WILES: That's correct, including from outworkers, but in submitting or initiating those proceedings and in terms of supporting affidavit material, none of the workers in that chain are identified, including none of the outworkers. I think it's misleading of Mr Mead to indicate, well, the union was quite happy to initiate multiple proceedings in relation to breach of outworker terms, but, you know, where is the evidence that any employees or outworkers have suffered retribution from that process? I think it's a different set of circumstances to what we're dealing with here, where the relationship is much more direct in terms of Ms Nguyen's evidence and the employers and employees of those employers.

PN223

Mr Mead also referred to the full bench hearing which determined variations as part of the 2012 transitional review in relation to the TCF Award. That was the outworker bench headed by his Honour Hamberger SDP. Mr Mead indicated that the TCFUA filed evidence from two of its officials and also two outworkers. That's correct.

PN224

The difference again is that those outworkers consented to give evidence. They were not forced to give evidence. They voluntarily chose to give evidence about their conditions of employment as outworkers. Again, that is a different scenario to what we're dealing with here, where the workers who have advised Ms Nguyen have not consented to be identified or otherwise have their issues identified in a way that they could then be identified.

PN225

In terms of ABI and the New South Wales Business Chamber’s submissions, we do rely on our written outline of submissions that were filed yesterday. In terms of Ms O’Neil’s statement, we outline in some detail - and I’ll just find the paragraphs - at paragraphs 31 to 40 of Ms O’Neil’s statement we outline why we submit that Ms O’Neil’s evidence in relation to paragraphs 28, 29, 33 to 37 and 39 should be admitted into evidence. We do reiterate that the Commission is able to inform itself in relation to any matter before it in whatever manner it considers appropriate, as per section 590; is not bound by the rules of evidence and does have a discretion to admit evidence that would otherwise be inadmissible under the rules of evidence.

PN226

We also submit that the tribunal has traditionally admitted this type of evidence subject to submissions as to weight. In our outline of submissions at paragraph 32 we refer to a number of cases of the New South Wales Court of Appeal relating to similar provisions in workers’ compensation legislation. In particular there is the case of Bramble Industries Pty Ltd v Bell [2010] NSWCA 162 and East Coast Timber Products Pty Ltd [2011] NSWCA at 11. The Court of Appeal - as I said, they dealt with appeals from the Workers’ Compensation Commission alleging an error of law in that the Commission relied upon opinion medical report evidence that was as a matter of law inadmissible.

PN227

In Bell, the court stated that:

PN228

A tribunal authorised to inform itself as it sees fit could not make an error of law by admitting particular material.

PN229

And that:

PN230

The contention can only succeed if the relevant opinion was of no rational probative value and as such as a matter of law was of no weight.

PN231

Then in the East Coast Timber case, it was said there by their Honours, Giles and Tobias JJ, that:

PN232

In a case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight.

PN233

Now, we also say that under the Evidence Act there are particular exceptions in terms of the opinion rule and section 79 specifically states:

PN234

If a person has specialised knowledge, based on a person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

PN235

Now, the TCFUA submits that Ms O’Neil does have specialised knowledge within the meaning of section 79 based on her more than 25 of years’ experience in the TCF industry as both an elected officer and an employee of the organisation. Ms O’Neil is the most senior national official of the union and has held multiple and varied elected positions within the union. At paragraph 35 we outline in summary form the positions that Ms O’Neil has held. She has also represented the TCFUA on numerous industry committees and policy bodies and we outline those at paragraph 36.

PN236

In addition Ms O’Neil has a number of international roles on important international labour bodies and we indicate what those are at paragraph 37. Just as fundamentally, Ms O’Neil in her evidence in her statement of 18 December 2014 indicates that she has - or gives evidence that she has visited hundreds of workplaces in her time as an official and she has met with and represented thousands of employees in the industry, both in the formal and the informal sector.

PN237

At paragraph 10 she gives evidence that she’s been:

PN238

Involved in the TCFUA’s representation of its members and other workers in the TCF industry in countless industry disputes, award proceedings, enterprise agreement negotiations, court proceedings, individual workplace issues, redundancies, insolvencies, restructures and other inquiries.

PN239

In our submission it would be difficult to identify a person in Australia, with respect, who has had more extensive experience and direct knowledge of the TCF industry and in particular the nature of its workforce. In this context we do submit that Ms O’Neil is a person who does have specialised knowledge of the TCF industry and its workforce based on her experience and her opinion provided in these proceedings is wholly or substantially based on that knowledge. There is a direct nexus between her knowledge and the opinion that she’s giving in her witness statement. On that basis we do submit that paragraphs 28, 29, 33, 35 to 37 and 39 of Ms O’Neil’s statement should be admitted into evidence and that any contentions relating to the probity of that evidence essentially goes to what weight should be accorded to that evidence by the full bench.

PN240

In terms of Ms Nguyen’s statement and the issue of hearsay evidence we do submit that the Commission is vested with a discretion to accept into evidence material which otherwise would not meet the standard required under the rules of evidence. In our submissions at paragraphs 13 onwards we refer to a number of decisions on this issue. At paragraph 14 we refer to the decision of R v Deputy Industrial Injuries Commissioner ex parte Moore [1965] 1 QB 456. At 488 the court observed:

PN241

These technical rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based on material which deems to logically show the existence or non-existence of facts relevant to the issue to be determined or to show the likelihood or unlikelihood of the occurrence of some future event, the occurrence of which would be relevant.

PN242

It goes on to say that:

PN243

The court may take into account any material which as a matter of reason has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom the parliament has entrusted the responsibility of deciding the issue.

PN244

In our submission, the evidence provided by Ms Nguyen at paragraphs 11, 13 and then 15 to 17 does have probative value in terms of there being illustrative examples of where employers in the industry have not correctly followed consultation procedures under the award. Now, even though the employees are not named we do not think that - for the reasons that we outline in our submission we do not think that diminishes Ms Nguyen’s evidence because she directly has experience of those employees who have contacted her and told her about those matters. In terms of paragraph 15, we are in a position to concede the identity of that employer today because the instructions that I received is that the majority of those employees have since been made redundant and are no longer at the workplace and therefore would not be subject to any further retribution or adverse treatment by their employer.

PN245

In terms of hearsay evidence, again, under the Evidence Act there are also various exceptions to the hearsay rule and they are found at section 60, 63 and 64. For the point of clarity the union is relying on the exception in section 64, which essentially in summary says that:

PN246

The hearsay rule does not apply to evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made or a document, so far as it contains the representation or another representation to give evidence if it would cause undue expense or undue delay or would not be reasonably practicable to call the person who made the representation to give evidence.

PN247

Now, we submit that in terms of the employees who have advised Ms Nguyen of their situation that it would not be reasonably practicable to call those people who made the representation to give direct evidence. We say that it’s not reasonably practicable for a number of reasons. We say that’s due to the nature and characteristics of the TCF industry and the particular vulnerabilities of a certain classes of TCF workers. Secondly, the high percentage of non-English-speaking background members in the TCF industry, many of whom have limited English speaking and written literacy.

PN248

The reluctance of many TCF workers to either be identified as union members and/or be identified in making a complaint about their employer to the union; the fear of many TCF workers of being subjected to retribution and adverse treatment by their employers, including having reduced work or being terminated; also including prevailing cultural attitudes in some communities where - not to make trouble in the community. The relationship of confidence between the TCFUA and its members including that members ‑ ‑ ‑

PN249

SENIOR DEPUTY PRESIDENT WATSON: Where are you reading from, Ms Wiles?

PN250

MS WILES: Sorry?

PN251

SENIOR DEPUTY PRESIDENT WATSON: Where are you reading from?

PN252

MS WILES: I’m reading from paragraph 26 ‑ ‑ ‑

PN253

SENIOR DEPUTY PRESIDENT WATSON: Of?

PN254

MS WILES: - - of the outline of submissions that the union filed yesterday.

PN255

SENIOR DEPUTY PRESIDENT WATSON: Yes, we’ve read those, as I’ve indicated earlier.

PN256

MS WILES: Just a couple of matters raised by Mr Scott: he indicated that the ABI requested disclosure of the names of employers and employees some time ago. I should indicate that the first correspondence that the union received - I think it was on 23 January - only related to paragraphs 15 to 17 and it was only relatively recently that ABI’s challenge to the further paragraphs were made known to the union. If the Commission pleases, we have no further submissions to make on those issues, unless there are questions.

PN257

SENIOR DEPUTY PRESIDENT WATSON: Very well. We’ll adjourn briefly.

SHORT ADJOURNMENT [11.59 AM]

RESUMED [12.13 PM]

PN258

SENIOR DEPUTY PRESIDENT WATSON: Yes, the bench has considered all that has been put to us in relation to the matters dealt with this morning. We’ve decided that we will not receive a new statement from Ms Nguyen at this late stage and having regard to the basis upon which it is proposed that it be admitted. We will, however, allow Ms Nguyen to amend her current statement in the course of her evidence at least to the extent indicated by Ms Wiles this morning.

PN259

We are not persuaded that a confidentiality order should be made which would restrict access to the amended statement to the full bench and denying access to it to any other party, other than the TCFUA. It will be a matter for the TCFUA as to how it amends Ms Nguyen’s statement, having regard to our ruling in relation to the confidentiality application as it applies to that statement as amended. The employer parties are at liberty, once they’ve received and considered and sought instructions in relation to amendments to Ms Nguyen’s statement to apply to recall Ms Nguyen or call evidence in rebuttal. If this needs to occur the full bench may delegate a single member of the bench to hear that evidence and related submissions. We will not exclude any evidence from any statement. We will, however, consider and determine the appropriate weight if any to be given to the evidence and particular parts of it, having regard to the nature of the evidence, its relevance, its probative value, natural justice considerations and any other basis put to us.

PN260

In that regard we will rely on what has been put to us this morning by the parties and their written submissions on those matters and on any elaboration in final submissions in making our determination as to the weight attributed to the particular evidence. So we intend to proceed on that basis. Can I ask the parties generally how we are progressing in this matter? How long do you expect we will require with the relevant witnesses and for subsequent submissions? Ms Wiles, are you able to assist from your perspective?

PN261

MS WILES: Your Honours, as you know the TCFUA have called two witnesses: Ms O’Neil and Ms Nguyen. I would estimate that there would be a relatively small number of questions that will be put to those witnesses as a part of examination in chief. Obviously it’s up to the employer parties, the extent of cross-examination and then re-examination.

PN262

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN263

MS WILES: In terms of the ABI witnesses, I understood that there is - I think - maybe five or six, depending on whether Mr Hicks is intending to give evidence. I’m not sure if that’s still the case. So that’s probably ‑ ‑ ‑

PN264

SENIOR DEPUTY PRESIDENT WATSON: There are now three, as I understand it.

PN265

MR SCOTT: Perhaps if I can clarify, your Honour: the ABI has filed six witness statements. Three of those witnesses are present and able to provide evidence. Mr Jones is here today. Mr Butler is available in Sydney this afternoon. Mr Kiriakidis - there were some directions for him to attend the Brisbane registry this morning. My very recent instructions are that he is unavailable to do that but he is available to provide his evidence by telephone and I’ve provided your Honour’s associate with those contact details.

PN266

In respect to the statement of Mr - Mr Roy Wilkinson is also available to give evidence via telephone in accordance with your directions. In respect of the witness statement of Bill Chloris, that’s no longer relied on. There was a sixth witness statement filed by Mr Tim Hicks. Now, that was filed in response to the directions issued to ABI to provide a brief explanation as to the creation of a particular table. We provided that brief explanation in the form of a witness statement.

PN267

There has been no request by any of the parties, nor the Commission, to provide - make Mr Hicks available for cross-examination so that hasn’t been arranged. So he’s not currently available, although if he’s required by the Commission I can certainly make some inquiries as to whether he can make himself available.

PN268

SENIOR DEPUTY PRESIDENT WATSON: Yes, very well. Whilst you’re on your feet, how long would you think you would require with Ms Nguyen and Ms O’Neil?

PN269

MR SCOTT: I imagine probably about 20 minutes with each witness. It may be half an hour. It may be less. It’s very difficult.

PN270

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN271

MR SCOTT: But I would say in the ball part of 20 minutes to half an hour for each witness. In respect to closing submissions I imagine maybe half an hour as well.

PN272

SENIOR DEPUTY PRESIDENT WATSON: Yes, very well. Yes, Mr Meads.

PN273

MR MEADS: Thank you, your Honour. I guess it depends on how accommodating Ms O’Neil is in terms of answering my questions but perhaps 45 minutes with Ms O’Neil.

PN274

SENIOR DEPUTY PRESIDENT WATSON: So you’d suggest a couple more weeks?

PN275

MR MEADS: Perhaps 45 minutes with Ms O’Neil, 15 minutes with Ms Nguyen, 30 minutes closing submissions.

PN276

SENIOR DEPUTY PRESIDENT WATSON: Yes, and ‑ ‑ ‑

PN277

MR MEADS: No questions for ‑ ‑ ‑

PN278

SENIOR DEPUTY PRESIDENT WATSON: - - your submissions?

PN279

MR MEADS: 30 minutes, I imagine.

PN280

SENIOR DEPUTY PRESIDENT WATSON: 30, sorry, yes, okay - back to you, Ms Wiles.

PN281

MS WILES: Your Honour, we have foreshadowed to ABI that we will be cross-examining their witnesses. We did that some time ago. We also foreshadowed that we were objecting to the receipt of Mr Butler’s statement on the basis that it was filed I think almost six days after the directions and no request for an extension was made by ABI and we maintain that objection. In terms of Mr Kiriakidis ‑ ‑ ‑

PN282

SENIOR DEPUTY PRESIDENT WATSON: Well, you’re in a position to deal with it, aren’t you, Ms Wiles; the statement of Mr Butler?

PN283

MS WILES: Well, we are but in terms of your directions, your Honour, we think - look, generally we understand that all parties in this process are under significant pressure in terms of resources and complying with directions but in this case we think ‑ ‑ ‑

PN284

SENIOR DEPUTY PRESIDENT WATSON: Indeed you yourself intend to bring additional material this morning.

PN285

MS WILES: Sorry, your Honour?

PN286

SENIOR DEPUTY PRESIDENT WATSON: You yourself intend to bring additional material this morning through Ms Nguyen.

PN287

MS WILES: Yes, but in response to an objection made by ABI. We wouldn’t have sought to bring that material other than that for that purpose.

PN288

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN289

MS WILES: In terms of Mr ‑ ‑ ‑

PN290

SENIOR DEPUTY PRESIDENT WATSON: Well, how long to deal with - assuming Mr Butler is joining us?

PN291

MS WILES: Look, it’s difficult to say, your Honour; probably 15 minutes for each witness.

PN292

SENIOR DEPUTY PRESIDENT WATSON: Yes, very well.

PN293

MS WILES: I should also indicate, your Honour, that with Mr Kiriakidis we also objected and we’ve put that in writing previously too, I think to ABI and the Commission, that we would also object to him appearing by telephone.

PN294

SENIOR DEPUTY PRESIDENT WATSON: Yes. Well, he will be available by telephone, it appears.

PN295

MS WILES: That’s obviously in the Commission’s discretion, as to how he gives his evidence.

PN296

SENIOR DEPUTY PRESIDENT WATSON: Yes. Do you require Mr Hicks to attend? I mean, all he’s done in his statement is answer the question from the Commission as to the methodology used to derive his table. I’m not sure there’s much scope for examination; he either did that or he didn’t and ‑ ‑ ‑

PN297

MS WILES: Your Honour, we can probably deal with that in terms of submissions, in terms of any issues arising from the material that he’s ‑ ‑ ‑

PN298

SENIOR DEPUTY PRESIDENT WATSON: Yes, very well. How long do you think you would need for your submissions?

PN299

MS WILES: Your Honour, I would think maybe 45 minutes.

PN300

SENIOR DEPUTY PRESIDENT WATSON: Yes, very well.

PN301

MS WILES: Your Honour, I should indicate that in terms of Mr Kiriakidis that you had advised ABI that he should attend personally at the Brisbane registry to give his evidence. That was on 4 March.

PN302

SENIOR DEPUTY PRESIDENT WATSON: Yes, I’m aware of that and that was the position which the full bench indicated should occur. I don’t know what the circumstances are there. If you’re suggesting we need to adjourn until - well, it’s a matter of whether you want to press evidence as to Mr Kiriakidis’ inability to be at the registry and what flows from that but I mean, the scheme of things - is it of great significance?

PN303

MS WILES: Well, I mean, in our view directions must have some integrity and obviously the significance of his evidence is something that the Commission will need to determine.

PN304

SENIOR DEPUTY PRESIDENT WATSON: Yes, well, are we in a position to deal with the evidence at least today and conclude that? Is that ‑ ‑ ‑

PN305

MS WILES: Sorry, your Honour?

PN306

SENIOR DEPUTY PRESIDENT WATSON: Are we in a position to at least deal with the evidence today and conclude the evidence today?

PN307

MS WILES: I mean, I would have thought so unless something aberrant occurs.

PN308

SENIOR DEPUTY PRESIDENT WATSON: Perhaps we’ll do that then. Very well, subject to what the parties may say we are disposed to adjourn now until, say, 1.20 and then resume for - let’s make it 1.15 - then resume, if that’s all right? Resume at 1.15 and then start with the evidence and that will allow you, Ms Wiles, to work out what you wish to do in relation to Ms Nguyen’s evidence. Very well, we’ll resume at 1.15.

SHORT ADJOURNMENT [12.26 PM]

RESUMED [1.22 PM]

PN309

SENIOR DEPUTY PRESIDENT WATSON: Ms Wiles, as Lou Costello once said, who’s on first?

PN310

MS WILES: Your Honour and Commissioners, we intend to call Ms Nguyen first, followed by Ms O’Neil.

PN311

SENIOR DEPUTY PRESIDENT WATSON: Yes, okay.

PN312

MS WILES: I should indicate that Ms O’Neil is my instructor so in terms of witnesses being out of the room we would seek that she remain in the room.

PN313

SENIOR DEPUTY PRESIDENT WATSON: Yes, is there any issue with that?

PN314

MR MEADS: We would object to that, your Honour. Ultimately Ms Nguyen’s evidence and Ms O’Neil’s evidence goes to largely the same issue. In terms of the idea of Ms O’Neil being Ms Wiles’ instructor, this, we say, is not a party-party proceeding as that concept traditionally have an instructor for an advocate. The union is here under its own steam pressing for a variation of the award. Ms Wiles has identified in all the correspondence and submissions as the author so it’s difficult to see on what basis Ms O’Neil needs to be instructing, as it were, and we say that Ms O’Neil’s evidence could be prejudiced as a result of being given the opportunity to hear Ms Nguyen’s evidence.

PN315

Now, it’s easily remedied, we say, by having Ms O’Neil go first and Ms Nguyen excluded from the proceedings, if that’s Ms Wiles’ concern but to do it the other way, we say gives Ms O’Neil an unfair advantage in relation to some questions that we might ultimately put to her.

PN316

SENIOR DEPUTY PRESIDENT WATSON: Yes. Ms Wiles, are we able to short-circuit this by doing it in reverse, starting with Ms O’Neil?

PN317

MS WILES: We are, your Honour. I should put on the record in response to Mr Mead, I am an employee of the TCFUA, not an elected official and in terms of any documents ‑ ‑ ‑

PN318

SENIOR DEPUTY PRESIDENT WATSON: Yes, but if you are happy for Ms O’Neil to go first that would ‑ ‑ ‑

PN319

MS WILES: Yes, we’re not pressing that point. I just thought it was useful to put on the record.

PN320

SENIOR DEPUTY PRESIDENT WATSON: Yes, I think we should move straight to Ms O’Neil’s evidence.

PN321

MR SCOTT: Sorry, your Honour, it might be appropriate - Mr Jones is also a witness in these proceedings. He’s filed a statement going towards quite discrete issues. He’s an employed paralegal within our firm. So I can’t see any prejudice by him staying in the room. I note that if I can have regard to his statement, it goes towards two issues: one is certain data that he’s collected through his research or through Mr Hicks. His statement was filed for the purposes of merely annexing those documents and getting them into evidence.

PN322

I note that we perhaps could have done that by tendering the documents but we’ve done it through a witness statement. Mr Jones doesn’t make any assertions whatsoever about what’s contained within those documents. He’s not saying that the data is accurate. He’s not saying that the data is reasonable. He’s saying, “I was given a document and here it is.” The second aspect of Mr Jones’ statement is that he was asked to obtain some quotes in relation to the costs of written translations and Mr Jones’ statement says that he called around some translation companies and he was provided with a written quote and they’re annexed.

PN323

His statement doesn’t say anything about the reasonableness of the cost. He’s not asserting that it’s cheap or expensive. He’s not an employer in the industry. He’s simply saying, “I was asked to obtain some quotes and here they are.” So his evidence goes towards a very narrow subject matter. We can’t see how his presence in the Commission room today would be prejudiced in any way. So we would seek that he stay in to assist.

PN324

SENIOR DEPUTY PRESIDENT WATSON: Very well. We’ll tend to exclude all witnesses including Mr Jones, unless - given the nature of his evidence, Ms Wiles - the union has no objection to him remaining.

PN325

MS WILES: Your Honour, we do object. We think all witnesses should be out of the courtroom.

PN326

SENIOR DEPUTY PRESIDENT WATSON: Very well. Ms Nguyen and Mr Jones, if you could leave us and see whether you can resolve the issues in contention outside.

<MICHELE O'NEIL, AFFIRMED [1.27 PM]

EXAMINATION-IN-CHIEF BY MS WILES [1.27 PM]

PN327

SENIOR DEPUTY PRESIDENT WATSON: Yes, very well. I wonder if everybody could speak up, including the bench? There’s some background noise in here which makes it difficult to hear on all occasions. That includes you as well, Ms O’Neil. I should indicate we don’t intend to mark any of the submissions. They’re all identified by date on the website. We will mark the witness statements.

PN328

MS WILES: Ms O’Neil, could you please state your full name and address for the record?‑‑‑Michele O’Neil (address given.)

PN329

Thank you. You’re aware that a witness statement has been prepared on your behalf in this matter?‑‑‑I am.

PN330

Do you have a copy of your witness statement with you today in the witness box?‑‑‑I do.

PN331

Have you had an opportunity to re-read your witness statement recently?‑‑‑Yes, I have.

PN332

Are there any amendments or changes that you wish to make to your witness statement?‑‑‑No, there isn’t.

PN333

Are the contents of your witness statement true and correct in every particular?‑‑‑They are.

PN334

Your Honours, Commissioner, I seek to tender the witness statement of Michele O’Neil.

PN335

SENIOR DEPUTY PRESIDENT WATSON: Very well. I’ll mark the 18 December 2014 statement of Michele O’Neil exhibit TCFUA1.

EXHIBIT #TCFUA1 WITNESS STATEMENT OF MICHELE O'NEIL DATED 18/12/2014

*** MICHELE O'NEIL XN MS WILES

PN336

SENIOR DEPUTY PRESIDENT WATSON: Excuse me one moment. Yes, go ahead.

PN337

MS WILES: Ms O’Neil, you state at paragraph 21 of your witness statement that the TCFUA when necessary translates its information for workers into relevant community languages and when necessary uses interpreters. Why does the union do that?‑‑‑We do that to insure that the workers that we’re representing and the workers that we’re speaking to or the workers that we’re trying to communicate with understand the issues. It’s our experience that the great majority of workers in our industry don’t have English as a first language so over many years we’ve adopted a practice where ever we can of trying to translate information into different languages or having interpreters translate information and interpret in meetings that we hold.

PN338

Thank you. Ms O’Neil, have you read the submissions and witness statements filed by Australian Business Industrial and the New South Wales Business Chamber?‑‑‑I have.

PN339

You’ve read the statement of Mr Adam Jones?‑‑‑Yes, I have.

PN340

Now, Mr Jones’ statement contains general statements around his inquiries around the translation of material. Do you recall that?‑‑‑I do.

PN341

He said that - well, his evidence was that in terms of the quotations that he received that they varied between $45 to $72, depending on whether it was per page or 100 words. Do you recall that evidence?‑‑‑Yes.

PN342

Are these quotes what you would expect to pay for translations of material?‑‑‑That’s right. They’re in the ballpark.

PN343

As part of these proceedings, have you sought your own quotation for translation of material of information relating to consultation?‑‑‑I have. I asked my executive assistant just on 10 March to receive a quotation for an example document that was a one-page document about a hypothetical; about a change to hours and rosters.

PN344

Thank you, Ms O’Neil. I’m now going to provide a document to you and ask you to describe the contents of that document.

*** MICHELE O'NEIL XN MS WILES

PN345

MR MEADS: I’m perhaps anticipating where Ms Wiles is going to take Ms O’Neil in relation to this: we’d object to this document being provided. Ultimately we say this goes beyond examination in chief. It’s a new document for which, once again, we can’t test the veracity of it so we say it shouldn’t be admitted, nor should questions in relation to this material be permitted.

PN346

SENIOR DEPUTY PRESIDENT WATSON: Yes. Yes, we will admit that document from the evidence of Ms O’Neil. It would seem it confirms the similar estimates obtained by Mr Jones are of a similar order.

PN347

MS WILES: Thank you, your Honour. Ms O’Neil, could you please describe the contents of the document before you?‑‑‑It’s a quote from Oncall Interpreters and Translators, which is a large interpreting and translating service here in Victoria. It is a quote for, as I said, a hypothetical letter that we provided to them and asked that they translate into two languages.

PN348

Which two languages are those?‑‑‑Vietnamese and Chinese.

PN349

Could you just tell the Commission what was the quote for the translation of that material?‑‑‑It was $65.50 per language and then with GST - so for the two languages it was a total of $144.10.

PN350

Thank you. Your Honours and Commissioner, we seek to tender that document.

PN351

SENIOR DEPUTY PRESIDENT WATSON: Yes, we’ll mark the quotation documents TCFUA2.

EXHIBIT #TCFUA2 TCFUA WRITTEN QUOTATION FOR TRANSLATION SERVICES

PN352

MS WILES: Ms O’Neil, at paragraph 10 of your statement you state there that in the period of your employer with the TCFUA, that you visited hundreds of TCF workplaces and represented thousands of workers in the industry. Do you recall that?‑‑‑I do.

PN353

Yes. So can you just clarify, is that direct contact with workers at workplaces?‑‑‑That’s right and I think it’s probably an underestimate in terms of the number of workplaces. It may well have got above the hundreds and it is definitely about direct contact, both with workplaces and with workers.

*** MICHELE O'NEIL XN MS WILES

PN354

In your experience, is it common for employers in the TCF industry to provide written translated material for workers from a non-English-speaking background?‑‑‑No, it’s not.

PN355

Now, I want to ask you some questions in relation to the witness statement of Mr Kiriakidis, who is the financial controller of George’s Apparel and Australian Apparel. Now, at paragraph 7 of Mr Kiriakidis’ statement he says, “In our business managers typically communicate with staff members verbally. Where an employee does not understand something a colleague who is more fluent in English will be asked to assist to explain the issue to that staff member.”

PN356

In your experience in working with workers in the TCFUA, do you believe this is an effective way to communicate important information to a worker from a non-English-speaking background?‑‑‑No, I don’t, and that’s because of my own experience of having witnessed that on many occasions. It is a difficult job to explain something from one language to another and there is a difference between those workers that may be bilingual in the workplace and those people that are either qualified as interpreters or in fact highly experienced as interpreters, doing it as part of their day-to-day work. So from the union’s perspective, we use both bilingual union officials and organisers who on a daily basis interpret both verbally and translate documents and who have developed a great expertise in it but we also use frequently professional interpreters either in meetings or by telephone or in workplaces. So there is a really big difference between someone who works alongside you in a workplace who may have a little bit more English than you than the type of people I just described. I’ve had workers who have been frequently asked to provide that service in a workplace for other workers raise with me how uncomfortable they are about it, how stressful it is because they don’t feel qualified and competent to do the task they’re being asked; how it often puts them in an invidious position because they’re being told, “Well, you have to do this,” and they really feel like they haven’t got the skill, education or experience to do what they’re being asked but feel unable to say no.

PN357

The other thing that characterises this happening is that it’s often a person who’s in a position of authority or power over the worker who’s being asked to also play the role of interpreting or translating; frequently a supervisor or a manager who may have greater English skills as well as speak the first language of some of the workers. In that case it becomes even more complicated because it’s not a simple service that’s being provided; in fact, someone who - if for example the person is being disciplined or being asked to agree to a change in hours or rosters, the person who actually also has the power to hire or fire them or affect their job security is also trying to interpret the information to them and you can see how that could complicate it.

*** MICHELE O'NEIL XN MS WILES

PN358

SENIOR DEPUTY PRESIDENT WATSON: How would the provision of information for the purpose of in 9.2 consultation address that issue?‑‑‑It is about providing the information in writing, your Honour.

PN359

Yes?‑‑‑So in the first instance, it doesn’t rely on someone who is inexperienced or unskilled in the workplace to explain it; it’s firstly provided in writing and then if there is a need for translation there is a requirement for it to be translated. It would follow that that would have to be a formal translation, that it is important that someone who provides a translated document can verify that it accurately translates what’s been provided.

PN360

How would that affect the preparedness of an employee to accede to the proposition through ‑ ‑ ‑?‑‑‑They’ll understand it better, your Honour; they’ll be able to get advice about it if they see it in writing and in writing in their own language. SO they’ll have a genuine capacity to understand what’s being proposed, to seek advice or support or information about it if they need to. It would follow that they would be able to raise any concerns because they understand it and if they therefore have concerns about family responsibility or other matters they would then be able to raise those matters and hopefully have them taken into account. So it changes the nature of what is a very informal practice that’s described in Mr Kiriakidis’ witness statement, into a more formal process and that signifies to the worker that it’s something that will affect them. From my experience, your Honour, sometimes when things are verbally told to people there is a sense that, “I’ll find out later,” or, “I’ll ask somebody later what that meant.” Getting a written document in itself signifies that, “This is a matter that I should take account of,” and even when it’s provided in English workers will frequently then take that home, either ask a family member to explain it to them or ring the union and say, “I’ve got a document I don’t understand,” which would then trigger us either interpreting the document for them or helping them to understand it.

PN361

Very well.

*** MICHELE O'NEIL XN MS WILES

PN362

MS WILES: Ms O’Neil, in your experience, if a worker with limited English skills is given information in English which they do not fully understand, are they likely to say so at the time the information is given?‑‑‑No. My experience is the opposite to that. I’ve been in many workplace meetings where information has been provided in English and at the end of the information being provided the person providing it has said, “Do you understand,” and workers commonly nod or indicate some level of - either saying nothing or nodding or indicate a level of understanding. When the employer then leaves the room those workers have - I cannot tell you how many times this has happened to me - have then turned and said, “What just happened? What was said? What’s going to happen, what did that mean?” That’s after I’ve witnessed them nodding when asked at the end of the meeting whether they understood. So it is really common because of, I think, you know, a large degree of fear and concern about not wanting to be seen to be creating a problem. It’s really common in our industry to - and politeness - to give an indication of, “Yes, I understood,” or, “Yes, everything is okay,” and then only once the person in authority - frequently the boss, the employer, the supervisor - is not in the room that the worker then indicates that they didn’t understand or that they do have a problem.

PN363

Thank you. Now, at paragraph 8 of Mr Kiriakidis’ ‑ ‑ ‑?‑‑‑Sorry, can I give you one example? I actually witnessed a company director address a large group of workers where he advised them in English that they were all losing their job that day; that this was the end of their employment, they were all being terminated as at the end of that meeting, that they were to leave the workplace and not come back. That information was provided in English. There had been no prior warning of it and that would have been a room of 150 people and when the employer left the room - the director of the business - left the room, the majority of those workers came up to myself and the other officials in the room and said, “What just happened?” So they did not understand that they’d been sacked. They did not understand that - some of them had worked there for 30 years - that they had to pack up their belongings and leave the workplace that day.

PN364

Thank you. Now, Mr Kiriakidis at paragraph 8 states that at his business he rarely communicates with his staff in writing. However he states that when he has he has never received any complaints from employees about the correspondence being in English or them requesting translations into their own language. From your experience working with employees from a non-English-speaking backgrounds and with limited English do you think it is important that information about work matters is provided in writing by the employer?‑‑‑I think it’s important for reasons that I outlined to his Honour before: it indicates there is something to pay attention to; it indicates that it may affect you in some way and it then provides you the opportunity to both consider what’s being proposed and get some advice about it.

*** MICHELE O'NEIL XN MS WILES

PN365

Thank you. What would be your response to Mr Kiriakidis’ statement that he has never had a request from any of his employees for information to be translated?‑‑‑That doesn’t surprise me at all. It’s not common in your industry - particularly in smaller and medium-sized workplaces where there may not be an elected representative or in fact if the workers don’t speak English - for them to request a translation because they may not be confident of their own spoken English enough to make the request. They may be - and frequently in our industry given the pattern of employment and how insecure they are in the labour market, they’re frequently fearful to be seen to raise their head and be the one asking a question or identify or single themselves out in any way. That’s a very common thing in our industry, that workers want to be part of the group and not identify themselves as different to the group for fear of retribution or for fear of somehow being targeted in the future. So it doesn’t surprise me that even if workers didn’t understand that they don’t ask; they don’t know they have a right. If workers know they have a right then that will encourage them to ask but if they don’t know they’ve got a right to get some information in writing or in their own language, then it doesn’t surprise me at all that they wouldn’t ask.

PN366

Thank you. The Australian Business Industrial and the New South Wales Business Chamber, they content in their submission at paragraph 8.2 that:

PN367

The Commission should resist imposing a requirement to employers to provide written translations in circumstances where the potential benefits to employees are largely unknown.

PN368

What is your response to that contention?‑‑‑Well, I think it’s clear, the benefits to employees. I can’t understand how that could be stated that the benefits are unknown. It is clear from our experience that providing written information in multiple languages increases workers’ understanding of information, rights, changes. It’s also clear that having someone - having that explained in their own language in writing affects - it gives meaning to the notion of consultation and efficacy. It gives it some efficacy. I mean, how can consultation having meaning if the person doesn’t understand what it is they’re being consulted about? So it’s a very simple and practical thing that we’re describing here. It’s about making something easy to understand, simple and clear. That gives meaning and efficacy to the very notion of consultation.

PN369

Thank you. Ms O’Neil, in your experience, what is the general approach to consultation obligations by employers in the TCF industry?‑‑‑Generally, they are ignored. Not in all cases but I would confidently say the majority of cases, that there is not adherence to requirements to consult prior to change.

PN370

SENIOR DEPUTY PRESIDENT WATSON: How would the form of consultation change that?‑‑‑Well, I think, your Honour, where it changes is where there’s advice and information given about the rights. So where we’ve seen it ‑ ‑ ‑

*** MICHELE O'NEIL XN MS WILES

PN371

The majority of employers, you say, are not adhering in any way to the obligations to consult, it doesn’t matter what the content of the obligation is. If they’re simply not consulting they’re not consulting?‑‑‑What happens, your Honour, is that in the first instance, they don’t. Then, when it’s brought to our attention, we have many times brought before this Commission and/or raised and resolved at the workplace with the employer the requirement to consult. So my evidence, as I was going to go on to say to Ms Wiles, is that mostly it’s ignored in the first instance. If it’s brought to the employer’s attention - and it frequently is by our union - that they have an obligation to consult, then it does in some cases change behaviour so you then are more likely to see the requirements met. So we do a lot of education of the employers in our industry about this obligation. We talk about it a lot so my evidence is that in the first instance it’s often ignored but if it’s been raised by the union and the matter has either been raised in the workplace and resolved or in fact in this Commission and resolved, they’re more likely to then consult in the future.

PN372

That says the obligation to consult needs to be conveyed better to employers. It doesn’t necessarily go to the form of consultation required?‑‑‑That’s right. It’s both. I mean, there is a clear problem in terms of a culture where consultation is not well respected in the industry but hopefully, I think, something that’s changing and the changes that brought about the introduction of this requirement into the awards overall - modern awards overall - was in recognition of the special needs around family and work-life balance and the need to have specific consultation requirements to do with hours and rosters. So we’re seeing a change in the community understanding of this and the culture in it across all industries. What I’m hoping and what we spend a lot of time doing is trying to encourage the employers in this industry to understand their responsibility and meet their obligations. I think this would assist. I think it would assist in having workplaces that are more cooperative and productive. I think it would assist in terms of having family-friendly balances.

PN373

But is it necessary to make them modern award objectives? This is the question we’re facing; not whether it would assist?‑‑‑I think it’s necessary to meet it because how can consultation have any meaning if the person who is being consulted doesn’t understand? So if you are being consulted about a change to your hours of work or your roster and you do not know what’s being put to you then you are not genuinely being consulted. That is a meaningless exercise. The only way that it has efficacy is if you understand it.

PN374

Well, if it’s not consultation it’s in breach of the award?‑‑‑Well, I suppose it’s about how to make it operate in a practical way, your Honour; it’s saying, “This is a way that you can make it - it’s a practical measure that will insure that consultation does operate.”

*** MICHELE O'NEIL XN MS WILES

PN375

But is it practical to require every employer in every instance - for example simply wanting one employee to change hours on one day - to require that to be in writing, possibly translated, rather than, “Well, I’ve got this problem. I need to get this order out. Can you help me? I can’t do it on that day but I can do it on that day,” and that’s the end of the matter?‑‑‑Well, I suppose, your Honour, that given the sort of history of this around and the large number of women in our industry as well, things like changes to hours and rosters are very much related to child care responsibilities. So even though it may be one day, if you’re being asked verbally to change the time you’re going to finish or start or in any way alter the normal pattern then that could have quite serious consequences if you don’t understand it because if you do have obligations in terms of picking up children from school or caring responsibilities in terms of a set time, and you’re being asked to change that without knowing what you’re changing, then you have no capacity to make the arrangements that you or I would make to make that work. So it is a practical tool to make it work and not an onerous one. You could think, using your example, that it wouldn’t be difficult if you knew that there was two or three common languages in your workplace to have some standard forms that were translated as templates that you could use on occasions like the ones you’re talking about.

PN376

But in that example there’s no actual proposal. It’s, “I need to get this work done,” and a discussion about how that might be accomplished and the employee might volunteer, “Well, I can’t do it then because of family commitments but I can do it then”?‑‑‑But, your Honour, if you don’t understand what you’re being asked to engage in a conversation about, how can you properly respond?

PN377

Yes, well, we’ll hear more about all this later, no doubt.

PN378

MS WILES: Ms O’Neil, can you give any recent examples of poor consultation processes in the industry?‑‑‑I can.

PN379

MR MEADS: I’m going to have to object. I think I’ve given Ms Wiles a little bit of an indulgence but this is really starting to stretch well beyond what could legitimately be called examination in chief. Now Ms O’Neil seems to be filibustering largely in relation to additional material and evidence that wasn’t provided to us at first instance.

PN380

SENIOR DEPUTY PRESIDENT WATSON: Yes, where are you taking us with this, Ms Wiles? You’re now trying to supplement what are fairly general statements with specific statements which could have been addressed in the original statement.

PN381

MS WILES: I’ll withdraw the question.

PN382

SENIOR DEPUTY PRESIDENT WATSON: Yes, very well.

PN383

MS WILES: I have no further questions for Ms O’Neil.

PN384

SENIOR DEPUTY PRESIDENT WATSON: Very well, thank you. Mr Meads.

PN385

MR MEADS: Thank you, your Honour.

*** MICHELE O'NEIL XN MS WILES

CROSS-EXAMINATION BY MR MEADS [1.54 PM]

PN386

MR MEADS: Your Honour, just before I commence it may assist - I’ve got a tender bundle to provide to the bench and also to Ms O’Neil. We’ll provide a copy to Ms Wiles as well. They’re just a series of documents that I intended to use in my cross-examination of Ms O’Neil. They’ve been paginated just to assist the flow of questioning I thought it was appropriate ‑ ‑ ‑

PN387

SENIOR DEPUTY PRESIDENT WATSON: You want to revise your estimate; time estimate?

PN388

MR MEADS: I believe it looks bigger than it actually will be.

PN389

SENIOR DEPUTY PRESIDENT WATSON: Right.

PN390

MR MEADS: Look, I don’t expect that anything in the tender bundle will be controversial. However, I’m happy to hear from Ms Wiles at the appropriate point in time if they are. Just to give you an indication; some of the material is just - for example, at tab 1, the extracted copy of the proposed variation just for ease of reference. Tab 2 has a copy of the TCF award.

PN391

SENIOR DEPUTY PRESIDENT WATSON: Well, just proceed with your questioning.

PN392

MR MEADS: Thank you.

PN393

SENIOR DEPUTY PRESIDENT WATSON: If there is any issue about any of the material it will no doubt be drawn to your attention.

*** MICHELE O'NEIL XXN MR MEADS

PN394

MR MEADS: Thank you, your Honour. Ms O’Neil, could I just ask you to go to tab 1, page 1 of the material? What you’ll see there is - it’s just an extract from TCFUA’s written submissions, paragraphs 15 and 16, and really, that extracts the proposed variation that you see. I just want to understand, in particular in relation to what is the proposed 9.2(c) that I’m clear in terms of what the union is in fact proposing. So you’ll see there at 9.2(c) it says, “Where the employee’s understanding of written English is limited the employer must take measures, including translation of information, required in 9.2(b)I, into an appropriate language to insure the employee understands the proposed change.” So just so I understand it - so the trigger for 9.2(c) is that understanding of written English is limited, so it doesn’t just apply to individuals of a non-English-speaking background but also individuals that might have poor literacy or numeracy. Is that correct?‑‑‑Well, read in full it wouldn’t - clearly you wouldn’t provide a written document in any other language if someone spoke English as a first language and had a problem with English literacy. So reading the full statement, no.

PN395

Well, that does assist so you’re not saying this obligation is triggered in circumstances where someone has poor English literacy and when the proposal is provided to them in writing they may not understand it?‑‑‑No.

PN396

That doesn’t trouble you?‑‑‑No.

PN397

I see. Just in relation to the ‑ ‑ ‑?‑‑‑Sorry, just to clarify; the provision of information in writing, it’s nowhere suggested that that’s the sole form of communication. So we would expect that if an employer was aware of a person who had English as a first language having literacy problems that they would effectively communicate verbally in English with them and there’s nothing in the clause that prohibits that.

PN398

Okay, I understand. Then the obligation to translate for people of a non-English-speaking background who have a limited understanding of English, that’s an absolute obligation, isn’t it? So it’s one of perhaps a number of steps that needs to be taken but in absolute it must be a written translation in a language that they understand, that’s appropriate?‑‑‑As one it talks about taking measures, so it may be one of a number of measures but yes, it is the one measure that’s mentioned and required.

PN399

Okay. Then that measure is taken to insure the employee understands the proposed change. It’s fair to say, though, that the employer that obtains the translation, they have no way of understanding whether in fact the translation they’ve obtained and provided to the employee is accurate, do they?‑‑‑Well, that’s why you would hope they would use a professional interpreting service so that it is.

PN400

I appreciate that but the obligation is absolute on the employer and what I’m trying to understand is if they use their best endeavours to insure that the information is accurate but for some reason it’s not, and they can’t tell because they don’t speak the language, they’ve fallen short of the obligation that you’ve proposed, haven’t they?‑‑‑I don’t know. It hasn’t been tested. But I think if someone had used their absolute best endeavours, used a professional interpreting service, provided it to the worker and then it was found to be later inaccurately interpreted I can’t imagine that they would be held responsible for that. Is that what you were suggesting?

*** MICHELE O'NEIL XXN MR MEADS

PN401

SENIOR DEPUTY PRESIDENT WATSON: That might go to penalty, rather than whether or not there was a breach?‑‑‑Yes.

PN402

MR MEAD: I'm just trying to understand the way in which the clause works. So it's an absolute obligation and best endeavours, whilst it might assist in terms of what penalty might be issued against the employer, it would still technically be a breach of the industrial instrument?‑‑‑Well as would, Mr Mead, if someone currently provided a supervisor translating and said that's met the requirement of consultation and it was later turned out to be the fact that the worker hadn't been consulted. So right now, with the current clause, your example would stand as well, because if someone said, "I've consulted," and then we were able to say, "Well, here's a worker who had understood nothing of what was said to them," they're in breach of the clause.

PN403

So you're saying currently that if a worker doesn't understand the substance of the consultation, the obligations in respect of consultation in your view haven't been met?‑‑‑That's right.

PN404

So if understanding is the touchstone to where consultation has occurred or hasn't occurred, why do you need the variation?‑‑‑Because it's a practical tool. It's about making the award modern. It's about making it simple and easy to understand. It's about making it useful and giving it to some efficacy.

PN405

Ms O'Neil, in your role as national secretary, obviously you give evidence in proceedings such as this and you've given evidence in a number of award proceedings that at least I've been a party to over the last few years, that's correct?‑‑‑That is. Nice to see you, Mr Mead.

PN406

And you too, Ms O'Neil. You've also given evidence in relation to senate committees, in relation to legislative amendment regarding this industry and the Fair Work Act more generally?‑‑‑That's right.

PN407

In relation to the submissions that the TCFUA files in matters such as this, although I believe Ms Wiles' name is listed as the contact, you would have some oversight or whoever submits the files they file, they reflect your views of what is appropriate for the industry?‑‑‑That is usually the case.

PN408

In relation to this matter, you're aware of the submissions that were filed?‑‑‑Absolutely, yes.

*** MICHELE O'NEIL XXN MR MEADS

PN409

They accord with your views of what's required?‑‑‑That's right.

PN410

In relation to earlier award matters, say the two-year review of the Part 10A proceedings that you refer to in your evidence, once again they reflect at that particular point in time what your view of the award was in relation to what instrument?‑‑‑Well, it's probably more accurate to say that I'm an elected leader of the TCFUA. So the responsibility I have in terms of formalising and approving submissions and documents is not one that's necessarily reflecting my personal view. It's about ensuring that it reflects the view of the TCFUA.

PN411

Yes, and what's needed for the industry, your observations about what's needed in the industry?‑‑‑Well, the view to the TCFUA as to what's the correct ‑ ‑ ‑

PN412

Okay, thank you. You've indicated in your evidence that your observations are based on your experiences as a union official for the TCFUA. And I note that you indicate that prior to taking the position of national secretary, you also had the role of State Secretary of the Victorian and Queensland Branch?‑‑‑That's a role I currently hold as well as national secretary.

PN413

Thank you. Just so I understand in my own mind the way in which the union is structured; so is it correct the Victorian and Queensland is largely grouped together as one bundle of responsibilities; a branch if you will?‑‑‑It is a branch of the TCFUA.

PN414

Then New South Wales, South Australia and Tasmania, another branch?‑‑‑That's correct.

PN415

I'm correct, aren't I, that there's no branch for Western Australia?‑‑‑I'm sorry, I have to correct my earlier answer. Just in the last three weeks, it's become the TCFUA, Queensland/Western Australian Branch of the TCFUA, my apologies.

PN416

In the Northern Territory and ACT there's no branch reflecting those?‑‑‑New South Wales has responsibility - New South Wales, South Australia and Tassie has responsibility for the ACT and for the Northern Territory.

PN417

I see. In terms of the TCF industry generally, it would be a fair assessment that it's an industry that's under considerable stress in terms of its shrinking employment numbers, its shrinking profit margins for business. It's an industry that is struggling?‑‑‑I'd agree with your first statement. I wouldn't necessarily agree in relation to profit margins. The great bulk of companies in the industry are privately listed companies. I'm not privy to the degree of profit that they make. It's definitely the case that the industry has been under considerable pressure.

*** MICHELE O'NEIL XXN MR MEADS

PN418

Yes, as a result of things like tariff reductions and other macro-economic forces the industry is under some strain?‑‑‑Do you want examples as to the strain?

PN419

Well, it's a yes or no answer. You would agree that the industry ‑ ‑ ‑?‑‑‑It is under some strain, yes.

PN420

If I could ask you - and this might assist - to go to page 226 of the bundle, it's behind tab 6. Ms O'Neil, I'll just identify the document for you?‑‑‑Sorry, I haven't got a page 226 behind - oh, sorry, at the bottom. New pages. Sorry, Mr Mead. Go ahead.

PN421

No, that's fine. So the document in question, it's a submission essentially the TCFUA made to the post-implementation review of the Fair Work Act Textile Clothing and Footwear Industry Amendments?‑‑‑Yes.

PN422

So you're familiar with that submission, aren't you?‑‑‑It's authorised on the front page by yourself?‑‑‑That's right.

PN423

So just in terms of that observation you said regarding the profitability of employers in the textile industry, if I could just ask you to look at - actually perhaps 227 is the best page to assist with that. Figure 3 on page 227 shows the company gross operating profit over the period from 93 down to November 2013. And you will note that there's a significant trend line that slopes down the page, indicating a decreasing gross profit margin. And if you look at the high point around November 2005, the company gross operating profit was around 250 million and now, based on these figures that were submitted your submission, you'd agree it's probably around in the November 2013 period, 75 million or thereabouts?‑‑‑Thereabouts.

PN424

So I guess a significant contraction of company gross operating profit over the least eight years?‑‑‑In relation to this statistics from the ABS, that's correct.

PN425

Do you quibble with the statistics? They form part of your submissions, so I'd assume that ‑ ‑ ‑?‑‑‑No, I'm just clarifying that - where they're drawn from.

PN426

No, that's fine. And then in relation to, I guess, that operating profit picture, that translates into employee numbers in the industry as well, doesn't it?‑‑‑No, there's not always a direct relationship between employee numbers and profit, no.

*** MICHELE O'NEIL XXN MR MEADS

PN427

Well, maybe let's just look at the same period. So you can go to page 226 now for me and you'll see figure 1. It's drawn over a slightly longer period of time from February 1984 to February 2014; once again, at its height in the early 80s, approximately 120,000 people employed in the industry. Now, you'd agree with me looking at those figures, and just a rough estimate, would you say between 40 and 50,000 employed in the industry?‑‑‑No, I wouldn't, because you would - I can't take you to the paragraph without a bit more time, which I'm happy to take, if the Bench would like me to, but you would know, Mr Mead, that would draw attention in this submission and pretty much every submission we ever make about the size of the industry, about the large number of home-based outworkers in the industry and how the figures in terms of these figures don't accurately reflect the number of workers in the industry. So they reflect what is known to all, which is a drop in the formal employment in what we characterise as the formal sector. And it is true that there's absolutely been that drop of employment in the formal sector, but I wouldn't agree with the notion that that accurately indicates the number of workers employed in the industry.

PN428

Ms O'Neil, I might just ask you to look at the paragraph 10.10 and see if you may want to, I guess, amend that statement. Paragraph 10.10 describes what's shown in figure 1 and it says employment in the industry is shown in figure 1, so no qualification of the nature you've identified?‑‑‑Sorry, Mr Mead. What I'm saying to you is that I would put money that somewhere in this document there is a reference to the large number of home-based workers in the industry. So I can't draw your attention to it, given you've just put it in front of me this minute, and that paragraph does accurately reflect the drop of employment in the formal sector, but somewhere else in this submission would refer to the fact that there's home-based outworkers in the industry.

PN429

Well, if you go perhaps to 10.9. There is a statement made there once again in the TCFUA submission that the compound annual growth rate of employment in the industry, in that period between 1984 and May 2012 is negative four per cent. So as I understand that, in that period employment has been contracting in this industry by a rate of approximately four per cent year on year. Is that what that paragraph means?‑‑‑I'm sorry, I'm going to give you same answer again. Yes, in terms of the formal sector, and the employment figures that are collected by the ABS, that's absolutely correct. But we continue to have a few, based on our experience of this industry that there are workers in the industry who are not captured by these statistics. Their employment has also reduced. So if your point is that there's been a reduction in employment over the period of time, yes, I agree.

PN430

Would you agree it's a sharp reduction?‑‑‑Absolutely a significant reduction.

PN431

Okay. Perhaps I should have just taken you to that question?‑‑‑Yes.

*** MICHELE O'NEIL XXN MR MEADS

PN432

I apologise. Would it be fair to say that - if you go now to tab 7, Ms O'Neil, and I'll just identify that document for you as well, it's a copy of the financial reports for the TCFUA National Office, taken from your web site for the period of December 2013?‑‑‑Yes.

PN433

And page 235, you will see there is a headline figure there dealing with revenue. Am I correct in assuming that that revenue figure is driven by membership numbers and subscriptions? So the way you generate revenue ‑ ‑ ‑

PN434

MS WILES: Sorry, your Honour. Similarly, I think I've let Mr Mead go on for quite some time, but I do raise the issue of the relevance of this line of questioning, given the issues before the bench.

PN435

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN436

MR MEAD: It can be dealt with simply, your Honour. The fact is that we say the proposed variation will have impacts on the way the industry responds to its market and its customer need. The fact is that this evidence bears out the fact that there is a sharp diminution in and also employee numbers. So any variation to the award which increases regulation could have a damaging effect on employment growth and other factors relevant to the modern award's objective.

PN437

SENIOR DEPUTY PRESIDENT WATSON: I don't think that necessarily follows, but in any case I think the point being made by Ms Wiles here is the relevance of this line of questioning. You're trying to establish another mode of addressing likely employment in an industry by reference to the revenue base of the union. Is that what you're doing?

PN438

MR MEAD: Well, I'm just trying to understand what the numbers mean and then I will get to the pointed part of the question.

PN439

SENIOR DEPUTY PRESIDENT WATSON: Do you need to know what the numbers mean?

PN440

MR MEAD: I will.

PN441

MS WILES: Your Honour ‑ ‑ ‑

*** MICHELE O'NEIL XXN MR MEADS

PN442

SENIOR DEPUTY PRESIDENT WATSON: I mean, it's been conceded that employment has been reducing and the industry has some difficulties.

PN443

MS WILES: I think Ms O'Neil has conceded that. But in terms of tab 7, this is a financial report of the TCFUA national office, which isn't actually about employment in the industry.

PN444

SENIOR DEPUTY PRESIDENT WATSON: Where are you going to end up with this document, Mr Mead?

PN445

MR MEAD: I'll end at the appropriate point in three questions and then if they're irrelevant ‑ ‑ ‑

PN446

SENIOR DEPUTY PRESIDENT WATSON: What are the questions about?

PN447

MR MEAD: So the questions are going to be about the way in which the revenue figures are driven. Is it a reflection of membership numbers ‑ ‑ ‑

PN448

SENIOR DEPUTY PRESIDENT WATSON: Well, why do we need that information? It's been conceded that employment in the industry is declining and has been over a number of years.

PN449

MR MEAD: What I am trying to test, your Honour, is that Ms O'Neil makes a number of assertions about her experience as a union official.

PN450

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN451

MR MEAD: That's necessarily connected to the number of union members that the TCFUA represents.

PN452

SENIOR DEPUTY PRESIDENT WATSON: I see.

PN453

MR MEAD: And what that looks like, relative to the overall employment in the industry.

PN454

SENIOR DEPUTY PRESIDENT WATSON: Okay. Well, that's a slightly different issue. Could you simply ask Ms O'Neil what membership is, and what it was at some recent time, and is it declining or is it increasing?

*** MICHELE O'NEIL XXN MR MEADS

PN455

MR MEAD: The only difficulty with that - perhaps I could ask that question now - is there is no way to test whether in fact that figure is correct. So I was trying to understand the revenue figures to drive the membership numbers.

PN456

But Ms O'Neil, can you tell me how many members the TCFUA has nationally?‑‑‑I can give you an approximate figure as of today. So approximately we have 5000 members nationally.

PN457

So that would be approximately 10 per cent of the sector?‑‑‑I think I've explained my view of the figures of the sector.

PN458

SENIOR DEPUTY PRESIDENT WATSON: Well, it would be less if you include the outworkers?‑‑‑Yes, that's right.

PN459

MR MEAD: So it would be less. So it would be five per cent of the sector are members of the TCFUA?‑‑‑Well, as I've said repeatedly, Mr Mead, I'm not going to put a figure on the number in the informal sector for you, but it's an accurate - your percentage in terms of the formal sector.

PN460

SENIOR DEPUTY PRESIDENT WATSON: So I think the Industry Commission in the ABI material, which is very dated, suggested the TCFUA put a huge figure and the tax officer a small figure, and that it was impossible to determine what the real figure was, but it was somewhere in between the two. I think that was about where they got to, and I must stress, in 1997.

PN461

MR MEAD: I'll move on.

PN462

SENIOR DEPUTY PRESIDENT WATSON: I think they've been working on the problem ever since and still haven't got the answer.

PN463

MR MEAD: Ms O'Neil, if I could draw your attention to paragraph 23 of your statement?‑‑‑Sorry, Mr Mead, what paragraph?

PN464

23, please.

PN465

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: 23 of what?

PN466

MR MEAD: Sorry, 23 of Ms O'Neil's statement.

*** MICHELE O'NEIL XXN MR MEADS

PN467

So at 23 you say a significant percentage of TCFUA workers are solely dependent on the TCF Award for their primary source of income each week. And at 24 you talk about, essentially, enterprise bargaining not being as prevalent in the TCF sector as it is in other industries?‑‑‑That's right.

PN468

So I've taken from that that largely the employees in the TCF sector, on your evidence, have the terms and conditions driven by the award?‑‑‑That's right.

PN469

It's your evidence then that things like individual flexibility arrangements are not a common feature of this industry?‑‑‑In terms of formal individual flexibility agreements that have actually met the requirements of the award, no.

PN470

Sorry, I'm not talking about circumstances where employers breach the award obligations, but the utilisation of individual flexibility agreements as the award requires them to be used is not a common feature?‑‑‑ Well, the award doesn't require them to be used. The award is required to have them there, so there's no requirement to use them. But no, they're not that common.

PN471

Do you have a ballpark figure in terms of what that might look like?‑‑‑No, I haven't actually inquired into it. I would - you know, I could make a guess, but I'm not sure if that would be very useful to you.

PN472

No, that's fine. Would you also agree with me then in relation to the facility provisions in the award, once again that they are not commonly used in the industry?‑‑‑They're more commonly used than IFAs?

PN473

Would you be able to hazard a guess in terms of the frequency with which they are used?‑‑‑Well, they're more commonly used in the medium to larger-sized workplaces and they are not uncommon in the use at all.

PN474

Ms O'Neil, at paragraph 25 of your statement, you talk about noncompliance in the TCF industry. Do you see that there?‑‑‑I do.

PN475

And you say it's systemic in relation to outwork and sweatshops?‑‑‑That's right.

PN476

I guess, just dealing with the outwork sector - so when you say it's systemic, what you are talking about is noncompliance with Schedule F of the award?‑‑‑No, no. I'm talking about noncompliance with the award broadly; not just Schedule F.

*** MICHELE O'NEIL XXN MR MEADS

PN477

But Schedule F would also be a part of it; it prescribes key outwork conditions?‑‑‑That's right.

PN478

You agree with me, don't you, that your proposed variation will do nothing in relation to outworkers?‑‑‑I don't understand the question.

PN479

So the consultation obligations you've proposed won't have any effect in relation to the terms and conditions, or rather, the consultation obligations don't touch on the outwork arrangements?‑‑‑No, I don't accept that. The obligations would apply in relation to outworkers as well.

PN480

So outworkers though don't have a regular roster, do they?‑‑‑Some do.

PN481

There's no requirement under Schedule F for outworkers to have regular rosters?‑‑‑The terminology "roster" is not used.

PN482

They have no ordinary hours, outworkers?‑‑‑Some do.

PN483

But what's in Schedule F doesn't require there to be ordinary hours in respect of outworkers, only a fixed number of hours prescribed for a particular job or piece of work?‑‑‑I haven't got Schedule F in front of me, Mr Mead, so I'm happy to have it in front of me and give you a clearer answer.

PN484

Please, go to tab 2, Ms O'Neil. Schedule F starts at page 92 of that bundle. So in terms of the general requirements in relation to making arrangements for outworkers, they're at F.3, and on my reading, unless I'm missing something, F.3.2(a)(viii) just requires that the amount of time including sewing time for work on each garment is required?‑‑‑No, if you look at F.2(a)(v), it also says the time and date for commencement and completion of the work. So depending on whether it was a day or a week or a month that could be seen to be a requirement in relation to hours.

PN485

But it's not a requirement in relation to hours, the clause is triggered in 9.2 by an employee having ordinary hours or a regular roster, and you would agree with me that outworkers have neither of those two things?‑‑‑Well, I've just tried to say to you that it depends upon the arrangement with the outworker.

PN486

Where are the rostering provisions in Schedule F?‑‑‑There isn't rostering provisions, there is provisions that say that the time and date for commencement and completion of the work must be part of the arrangement and the work record.

*** MICHELE O'NEIL XXN MR MEADS

PN487

What I am putting to you is that that is completely different to triggers for the consultation obligations in your proposed clause?‑‑‑So you want me to look at 9.2?

PN488

I'm saying that if there no provisions in relation to ordinary hours or regular roster in Schedule F for outworkers, the provision you propose can't be triggered?‑‑‑Could you give me a moment to look at 9.2, Mr Mead.

PN489

That's fine, it's tab 1, page 1?‑‑‑So it doesn't use the term "ordinary". It uses the terms "regular roster" or "ordinary hours of work". So I'm reluctant to say that it would never apply to an outworker, if that's where you're trying to get me to head. I wouldn't say that. There may be circumstances where it would.

PN490

Well, let's move on then to sweatshops and you identify that that's the other area where there is systematic noncompliance. And if I can take you to once - and just refer to the bundle of documents - page 210 of that bundle.

PN491

SENIOR DEPUTY PRESIDENT WATSON: Two what, sorry?

PN492

MR MEAD: 210, your Honour.

PN493

Once again, that's from the submission made to the post-implementation review. Now, specifically, it's really at 5.2(8), you go on in some detail to describe the experience in sweatshop environments, cash-in-hand environments where employees aren't officially on the books. Time and wage records are not kept, and over the page on what is page 24 of your submission, you talk about the key elements which characterise a sweatshop. You see that there at the top? Groups of workers labouring under appalling physical workplace conditions in isolation, receiving under-award rates of pay, with little or any autonomy over the work they perform; so fairly egregious conditions, you'd agree, in sweatshops?‑‑‑I would.

PN494

You'd agree with me also that if the proprietors of these establishments aren't complying with the most basic award conditions now, they are unlikely to comply with the proposed variation that you sort to the award in relation to consultation, are they?‑‑‑Well, my view is that noncompliance in the industry is not an argument to not have effective, clear regulation and obligations.

*** MICHELE O'NEIL XXN MR MEADS

PN495

SENIOR DEPUTY PRESIDENT WATSON: I think the question being put is: how would the variation affect that sort of noncompliance?‑‑‑Well, what it would mean is that when we were, as a union, cleaning up that noncompliance, this would be one of the things that we would also ensure was understood, both by workers and by employers. So we regularly spend an enormous amount of the union resources and time dealing with noncompliance, and part of that role is making sure workers understand their rights and part of that role is, in fact, educating employers about their obligations. So our knowledge of sweatshops is not because we go in and have a look and then leave and do nothing about it; our knowledge is because we go in and try and enforce and ensure compliance.

PN496

MR MEAD: But the proposed variation isn't about education of employers. It's not about the TCFUA taking action. What I'm putting to you is that your proposed variation will do nothing to improve noncompliance in this sector?‑‑‑In and by itself, no, it doesn't improve noncompliance, no.

PN497

Indeed, there are already quite restrictive obligations in Schedule F, aren't there, in relation to providing information to workers in writing in a language they understand?‑‑‑For outworkers, that's correct.

PN498

There is also quite prescriptive obligations to translate in terms of Schedule F for outworkers that are imposed on the principle?‑‑‑That's right.

PN499

So you'd agree with me that the obligation to provide information in writing and translated to people of a non‑English speaking background does nothing to improve compliance in the sector?‑‑‑No, I wouldn't agree with that at all. I don't think that follows, those two statements, at all.

PN500

Well, your earlier evidence was that in the outworker sector there are systemic breaches of award obligations?‑‑‑Yes. You were taking me to the sweatshop sector, but there's systemic breaches in both, yes.

PN501

Yes, and what I'm putting to you is that Schedule F provides precisely the same protection as you are trying to insert into clause 9.2 and clearly, based on your evidence, that's done nothing to improve compliance in the outwork sector?‑‑‑Well, it's not precisely the same, so it's - this obligation is in relation to changes to rosters and hours of work. The obligations in terms of the Schedule F provisions are about the schedule itself being understood by outworkers and the work arrangements et cetera being understood by them. So they are not the same thing, but the requirement in terms of providing the translation is common.

*** MICHELE O'NEIL XXN MR MEADS

PN502

Ms O'Neil, I want to be fair to you, I don't want you to have to answer that question blind, so perhaps you want to look at page 95 of the bundle, and specifically clause F.4.3 that deals with a written agreement that must be struck between the principal and the outworker, and obligations in relation to when there are variations to that written agreement?‑‑‑That's right, Mr Mead. What I'm saying to you is that it's not precisely the same. That obligation is a translation of the written agreement. The obligation that we're dealing with today is the obligation in terms of consulting around rosters and hours of work. So both of them require translation, but they're not precisely the same.

PN503

I'm just struggling with that answer, Ms O'Neil, because as I said, your evidence is that there are systemic breaches of Schedule F in this sector, but the protections that you are seeking to have included into clause 9.2 under the guise of improving compliance and consultation obligations clearly don't work, based on the evidence you've provided about experiences of employees under Schedule F?‑‑‑No, I don't accept that.

PN504

44, 45 and 46 Perhaps we'll come at this a different way. Ms O'Neil. Ms O'Neil, in relation to submissions you've provided to the Commission regarding the award flexibility terms, and those are found at page 174 of the bundle. The TCFUA had some strong views in relation to the effectiveness of the protections in the IFA provisions of the TCF award. Now, first of all, you'd agree with me that part of the essential protections in the IFA provisions are to provide a copy of the proposal in writing and also to translate that proposal?‑‑‑Yes, that's right.

PN505

Yes. Well, I draw your attention, at page 174, to paragraphs 44, 45 and 46. We'll start with 44:

PN506

TCFUA officers and organisers regularly come across circumstances where employers have exerted pressure on workers to accept inferior conditions or simply have implemented changes to workplace operations without any consultation or agreement

PN507

So that's your view about the way in which IFA provisions are currently operating, that's correct?‑‑‑That's right.

PN508

You go on at paragraph 45:

PN509

In the TCFUA's experience, in many cases employers simply impose the arrangements without even resorting to a process of formally entering into an IFA and invariably does not comply with clause 7 of the TCF award.

PN510

And you go on at 46:

*** MICHELE O'NEIL XXN MR MEADS

PN511

In the TCFUA's submission, the current safeguards contained in the flexibility clause are nowhere near adequate to prevent abuse of the provision.

PN512

So what I am putting to you is that by your own submissions, by your own hand, translation and information provided in writing does not result in improved compliance?‑‑‑No, I don't accept what you are putting to me. It's like saying that if I was a police person giving evidence about the number of people speeding, that somehow I then accept that there is no point in having a speeding limit. Like, I don't accept the connections you are drawing between this. Having obligations and requirements, the fact that they are being breached is not an argument to not have them.

PN513

Do you accept this proposition then: in relation to the creation of the modern award, you didn't believe that translation obligations in relation to consultation generally was required?‑‑‑No, I don't accept that. We make judgments in terms of the union's capacity, resources, likely effectiveness of the work we do at different points and that's a very legitimate thing for us as a union to do. My general view is that there should be vastly more translated information in this industry.

PN514

Then I will just take you to page 284 in the bundle and this might refresh your memory. Page 284, behind tab , is the TCFUA's submission to the exposure drafts for the making of the TCF Award. At 284, paragraph 27, you identify your observations in respect to consultation and what you say there, halfway down, is that:

PN515

We believe the modern award should contain a clause concerning the establishment of consultative committees to facilitate communication between workers and management to assist in the promotion of a flexible modern work practices -

PN516

and it goes on. Then you will see, if you go to page 303, the proposed modern award that you put forward at that stage, and what I'm saying is that there were no translation obligations contained in the proposed award that you drafted with respect to consultation?‑‑‑Well, sorry, Mr Mead, I obviously haven't had a chance to review the documents you've provided me with today.

*** MICHELE O'NEIL XXN MR MEADS

PN517

That's fine?‑‑‑But I think my answer to your earlier question was clear, which is that we make choices as a union about at what point we pursue improvements in areas that are of concern to us. So it's completely valid for us, as a union, to make a call as to what's achievable and within our resources at any particular time. So it doesn't surprise me that you've provided me with a draft that doesn't have a translation requirement in it, because we make those choices on a whole range of factors. It doesn't change my view that generally there is a under - there is not enough attention paid to translating and interpreting information to workers in the industry and it needs to change.

PN518

But it wasn't something that you thought was necessary when the award was being ‑ ‑ ‑?‑‑‑No, no. You're misunderstanding my answer. I've always thought it was necessary. In fact, the very first job I did at the TCFUA was about implementing consultative provisions in the award and in the workplaces, and getting workers and employers to consult for the very first time, and it's been my view since the first time I started that job that there should have been translated information. So I've never had a view that it wasn't going to be useful. We make a decision, as a union, as to what is achievable at different points in history.

PN519

So it wasn't the union's view, when this award was created that translation obligations were necessary to give efficacy - as you put it - to the consultation obligations?‑‑‑No, I'm not going to agree with that statement, because it's not what I've said to you. My view, and the union's view, is that translation will always improve effective consultation. We made a decision at that point in relation to that draft to not include it.

PN520

Ms O'Neil, I fail to see how you can make that (indistinct) but I'll move on. Paragraph 35, Ms O'Neil, of your statement now, and I apologise to be jumping around somewhat. You say at paragraph 35 in relation to the translation obligations you do not accept that the obligation to provide a proposed change in writing is an onerous one and that it's 36 - sorry, my mistake:

PN521

I do not accept the requirement to translate the information is onerous.

PN522

So you accept though that as a result of those obligations there will be delays in the implementation of variation to hours and rosters?‑‑‑No.

PN523

Well, with respect, to use his Honour Watson SDP's example, if an employer went to an employee and said, "I would like you to work some additional hours tomorrow, can you do that?" That conversation can't occur absent a document in writing and also a document translated should that employee be of limited understanding of English. So those steps would delay the process, wouldn't it?‑‑‑No, as I suggested to his Honour when we were discussing it before, common changes or questions like that, it would be completely sensible for an employer to have a number of templates in the key languages spoken in the workplace. So if it was a simple request that was going to be commonly asked, then you could be well prepared to have template documents in the key languages. And in those cases, if you were well prepared and organised as a manager, you would have no delay.

*** MICHELE O'NEIL XXN MR MEADS

PN524

So let's assume that those templates don't exist. You would accept, in the absence of those templates, there will be delays between the employer's desire and the ability to implement the change?‑‑‑No, because it depends when the employer decides they want to do it. In many cases, in my experience, a change in hours or rosters is planned some time in advance.

PN525

You do say that, I believe. You identify that, I believe, at paragraph 36 that:

PN526

Decisions in relation to changing hours are usually planned well in advance.

PN527

That's the observation made. Can I ask you, is that a perspective you've formed recently or is that a view that you've had over some time in relation to your experience with the textile industry?‑‑‑Both. It's both current experience and a view I've had over some time.

PN528

Ms O'Neil, you recall back in February 2012 and tell me if you don't, you gave evidence in a senate estimates hearing in relation to the Fair Work ‑ ‑ ‑?‑‑‑I love how you pay so much attention to this evidence I'm giving, Michael. It's very good that you pay attention to it.

PN529

You do recall that you gave evidence in those proceedings?‑‑‑I do. I do.

PN530

If it assists, and you turn to tab 13, that's a transcript of the proceedings. So it may assist you in refreshing your memory. Now, specifically, if you go to page 434, and just take a little while to look about two-thirds down the page, you'll see that Senator Back asks a question and it starts:

PN531

You would have heard me ask previous witnesses about this. I understand over the last several years the number of employees in the sector has decreased dramatically.

PN532

Do you see that question there?‑‑‑I do.

PN533

Yes. And then Senator Back, about two sentences later, says:

PN534

You and your colleagues must have given thought to where the relocation of workers in this sector will be as it inevitably moves, and even more accelerated overseas. Is that an unrealistically pessimistic view?

*** MICHELE O'NEIL XXN MR MEADS

PN535

And then you provide a response to the senator, where you say and you said it there:

PN536

We're not quite as pessimistic about the future of the industry.

PN537

You start to talk about the capacity for the textile, clothing and footwear industry to survive. Do you see that?‑‑‑Yes, with difficulty. It's very small.

PN538

I apologise. Take your time. What I'm interested in then is the second paragraph under that response, Ms O'Neil, where you start - and I'll read it for you?‑‑‑I can read it.

PN539

Well, perhaps I'll just read it onto the record and then we can have a little discussion about it:

PN540

But we do see great diversity in the local industry and some companies there that are thriving. Where we do see that, it is related to great design quality, innovation and work put into research, design and innovation aspects of a product, as well as great customer service and responsiveness to the customer.

PN541

You then go on to say:

PN542

That means quick turnaround times and quick delivery. Those of us who have an interest in women's fashion will notice that fashion changes very rapidly. That lends itself to having a local industry that can respond very quickly to trends and changes.

PN543

So you would agree with me that the requirement to respond quickly; a requirement, in your words, to be responsive to the customer and have a quick turnaround time and quick delivery, that's imperative for business in the modern TCF industry to thrive?‑‑‑I think so.

*** MICHELE O'NEIL XXN MR MEADS

PN544

And you also agree with me or I put it to you that a provision such as you've proposed, which necessarily slows down the ability for businesses to be dynamic and implement changes to hours of work has an adverse effect on the ability for TCF businesses to thrive?‑‑‑Absolutely not. What I'm referring to here is particularly responsiveness to changes in fashion and design and it's very common now, because there are shorter orders and there is a connection into the retail stores, that customer's orders will not be as large and that they will say, "Well, we want a hundred of the orange, and then we want - we've changed our mind, we want 300 of the blue." That doesn't necessarily have any impact in relation to hours or rosters, that's an issue to do with the design, it's an issue to do with the colour of the garment. It's not necessarily related to consultation in any way about hours or rosters. You could be incredibly quick in delivery, flexible, responsive to customer demands and changes and in fact work a standard hourly roster in a workplace with no changes. So I don't accept the premise, no.

PN545

You could, but also the contrary applies as well. You could need to respond dynamically, have quick delivery, quick turnaround times and therefore vary hours to respond to customer needs, could you?‑‑‑And as I said to you, I don't accept that our variation would cause a delay.

PN546

Well, if I take you to TCFUA 2, the quotation that you received, that has an estimated turnaround time, save and except for seeking urgent delivery of approximately five business days?‑‑‑25 per cent more and you get it in two.

PN547

Yes, well, that comes down to the ability for the employer to absorb cost, but assuming that ‑ ‑ ‑?‑‑‑So the difference between $144 and - what would it be - maybe $170?

PN548

Perhaps stay with the question. So the standard turnaround is five business days unless you want to pay a premium for it. That's correct, isn't it?‑‑‑I've said to you there's a 25 per cent premium and you get it in two days.

PN549

I think this is just a simple yes or no answer. The standard delivery time is five business days, unless you want to pay a premium?‑‑‑And I've said there's a 25 per cent premium and you get it in two days.

PN550

I'll take that as a yes. And then if you want to pay a premium, it's a 25 per cent additional surcharge. Now, I take it from your response to my earlier question that you largely disregard the additional surcharge as being relevant to the employer's cost base and that, as you said, it's $144, and what's an additional 25 per cent?‑‑‑I didn't actually say that. I was trying to work out how much it would be and my maths wasn't quite quick enough that I don't - I actually think, given that the hypothetical example we used was a full-paged document, it's often the case that this type of consultation wouldn't even require that, I think that's a very reasonable price myself. I don't think it's exorbitant. I don't - from the cost structures that I am aware of in the industry, no, I don't accept that it would send anyone broke.

PN551

Well, that's your assessment, as you said ‑ ‑ ‑?‑‑‑That's right.

*** MICHELE O'NEIL XXN MR MEADS

PN552

Not knowing their profitability, not knowing their balance sheets. That's what you said to me earlier when I asked you about the profitability of those businesses?‑‑‑That's right. I said my knowledge of the cost structures in the industry, which I do have some knowledge of, it will not send anyone broke.

PN553

But that's predicated on there just being two languages that need to be translated. In your statement at paragraph 12 and 13, you don't need to go to it, or perhaps you can if you don't take my word for it, you identify some 13 different countries where you say it's common for there to be TCF workers that originate from Germany, some of the Yugoslav countries, the Southeast Asian countries?‑‑‑I don't think we mentioned Germany.

PN554

Well, if I've misquoted you, I do apologise?‑‑‑I'd be very surprised if I did.

PN555

Sorry, I withdraw that. Greece, Italy, Turkey, Poland, the former Yugoslavia?‑‑‑I think you incorrectly - I'm happy for you to refer to the whole quote. What I was describing was that the languages in the industry reflect the demographic profile which in fact has changed over time. So I was describing that when I first commenced with the TCFUA there were much larger groups of workers from European origin and that's shifted over time where there's now greater numbers of Vietnamese or Chinese workers. In summary, that's my evidence.

PN556

So let's deal with what you say is the current trend. I counted in paragraph 13 eight different countries of origin. So that would mean, assuming that an employer had all eight of those ethnicities in their business, that your quote you provide in TCFUA 2, that you think isn't cost prohibitive would need to be multiplied at least four times to arrive at the accurate figure for translation for that one change to roster?‑‑‑No, because I think you are again misrepresenting what the change in the clause says. So it's where an employee's understanding of written English is limited, the employer must take the measures. From my experience, and let's use India as an example, the great bulk of Indian workers that I have come across in our industry - not solely - but the majority of whom actually are confident in both spoken and written English. So there are differences in different nationalities just by virtue of coming from a non-English-speaking background in of itself does not indicate that you are not confident in English.

PN557

Is it common in your experience for employers to ask their employees what country they come from as a question on a job application form for example?‑‑‑No.

*** MICHELE O'NEIL XXN MR MEADS

PN558

You would agree with me that if an employer did ask that question they might rightfully be concerned at being accused of being discriminatory as a result of putting that in the mix?‑‑‑Well, I can't imagine - the country someone is coming from tells you nothing about the language they speak. So I can imagine it would be not discriminatory to try and identify the language that people spoke, which is a very different question than the country they come from.

PN559

But the language that a person speaks, once again, isn't the trigger for the operation of your clause?‑‑‑No.

PN560

It's about whether in fact their understanding of written English is limited?‑‑‑That's right. So the country they come from or the language they speak isn't the trigger.

PN561

Well, you'd agree with me that it is not common for an employer to undertake some form of literacy or numeracy test with employees when they commence employment?‑‑‑Not in our industry, no.

PN562

So in terms of an employer being able to understand whether there are actual obligations it needs to abide by, that wouldn't be something they commonly do or indeed do largely at all presently?‑‑‑Sorry, can you ask that question again? I'm not quite sure what it meant.

PN563

In terms on an employer being able to understand whether in fact it has obligations it needs to apply, and employer from your experience wouldn't currently have those systems, processes or practices in place?‑‑‑Some would, but the majority wouldn't.

PN564

Ms O'Neil, if I could just ask you to direct your attention now to paragraph 21 in your statement. You say they're that - you talk about the consciousness of the TCFUA in relation to the demographic of the industry and the way it engages with its members. Do you see that? I think Ms Wiles asked you some questions in relation to that paragraph?‑‑‑That's right.

PN565

If I could direct your attention in the bundle of documents once again, to page 126, are you there Ms O'Neil?‑‑‑I am.

PN566

That document is familiar to you, isn't it? It's the copy of the TCFUA Vic and Queensland branch membership form?‑‑‑It's the English-language version of it, yes.

PN567

It's found on your web site, isn't it?‑‑‑I don't know where you got that one from, it's found in multiple places. Hopefully in many workplaces.

*** MICHELE O'NEIL XXN MR MEADS

PN568

Yes. There's a copy on your web site?‑‑‑Look, I'll take your word for it, Mr Mead.

PN569

So you wouldn't be able to confirm for me - or either I put it to you that there's no translation of this form on the TCFUA web site?‑‑‑I couldn't say about the web site. I can tell you that we have that membership form translated into Vietnamese and Chinese at least, and I think other languages, and it's commonly provided throughout the industry in all those languages.

PN570

Let's just deal with your web site for a moment, and I presume you think to communicate with your members via your web site?‑‑‑Not many of them, no. The great bulk of people who visit our web site are not members. In fact, Mr Mead, with respect it's more likely to be advocates such as yourself or employers in the industry.

PN571

I see, so you're telling me that the purpose of the web site isn't directed at members in the - employees in TCF industry?‑‑‑No, well, the purpose of our web site is to communicate with a whole range of people. So we of course encourage members also to look at the web site, but our experience and my evidence would be that the vast bulk of the members of the TCFUA do not gather any information about our union from our web site, unlike other unions where they have the opposite to be the case.

PN572

Let's just work through some of the pages in your web site so I can understand exactly where you sit on this communication issue. So page 121, Ms O'Neil. It's taken from your home page. Does that look familiar to you? You'd agree with me that that's the home page?‑‑‑I believe you again. I haven't looked at it recently, Mr Mead.

PN573

Okay. You talk about a national day of action - -

PN574

SENIOR DEPUTY PRESIDENT WATSON: Sorry, Mr Mead. Is it quicker to ask if there is any translated information on the union web site?

PN575

MR MEAD: Perhaps it might be. I'll perhaps put this one question to preface and then I'll move to that question.

PN576

SENIOR DEPUTY PRESIDENT WATSON: Yes. I mean, you've provided screen shots of various information which is plainly in English.

*** MICHELE O'NEIL XXN MR MEADS

PN577

MR MEAD: So what I'd put to you Ms O'Neil is that in total, the bundle that I've provided behind tab 3 has some 12 pages, dealing with such matters as why you would join the union, how to join the union, redundancy schemes that apply if you are in the TCF industry, workplace health and safety initiatives, including the tea break initiative and the cool work initiative, and how union members are to contact you if they have a problem in their workplace. What I put to you is that none of those forms are translated on your web site, are they?‑‑‑Mr Mead, the quick flick through, the majority of these documents we translate and have translated versions of that we provide in workplaces every day. So as I said to you, I can't tell you whether there's translated versions on the web site. It's not our main means of communicating with our members and the majority of these documents you've given me, if not all, we have translated versions of that we provide every single day to workers in the industry.

PN578

Well, I was only able to locate two translations on your web site, Ms O'Neil, and they're dealt with at paragraph - well, page 140. In relation to return to work, there's a translation that you provided in Vietnamese and Chinese. That's the only evidence on your web site of translated documents. I guess the question I have for you is in terms of the reasons why they don't find their way to your website, was it to onerous a process, too costly or it just wasn't needed?‑‑‑I wouldn't agree with any of those three statements. I think I've explained to you that our primary means of communicating with our members or workers in the industry is through information we distribute in workplaces. The information we distribute in workplaces including the majority, if not all, of the ones that you've given us examples of today we have translated versions of that we provide. We find this the most effective way of reaching workers in our industry with translated information. That's because, as well as communicating via our organisers and officials up until this year for 15 years we've run English language and literacy classes for workers in the industry, factory workers and home-based outworkers. So we have a pretty high degree of expertise about their understanding of English and how they prefer to get information. I formed the view, and I still have, that it's much more effective to provide written information to people in their hand in a workplace than expect them to see it on a web site.

PN579

If in fact you have that information, Ms O'Neil, what I don't understand is how it hasn't found its way to your web site. The fact is that you've uploaded to solitary documents and the rest - we'll just have to take you at your word, I guess?‑‑‑That's right, you will.

PN580

In terms of the translations that you did refer to, and I mentioned that Vietnamese and Chinese are the two languages that you've referred to here. I think in your evidence you indicated that those of the languages that - I withdraw that. Nothing further.

*** MICHELE O'NEIL XXN MR MEADS

PN581

SENIOR DEPUTY PRESIDENT WATSON: Very well. Thank you, Mr Mead. I'm currently drafting a submission in the Productivity Commission to add a new section 678 to the Act, which makes it an offence to provide misleading estimates of time. I'm not sure whether imprisonment for 12 months is an adequate penalty though.

PN582

MR MEAD: I'd [indistinct 2.56.35] if Ms O'Neil was going to be compliant.

PN583

SENIOR DEPUTY PRESIDENT WATSON: Can I ask a question before we go to Mr Scott, just to clarify something, Ms O'Neil? The claim for the new clause 9,2(c), the translation, is that contingent upon the TCFUA succeeding in having the requirement to provide the information in writing including in clause 9.2(b)(i)?‑‑‑No. I think, your Honour, it could stand alone.

PN584

In that form?‑‑‑Your Honour, if it was to stand alone, I would suggest that there would be - we would seek a very minor amendment. It is written and drafted as consecutive. If it was to stand alone I'd think its meaning is clear, but it could be slightly clearer. So if it was the Bench's view that that was something we should consider, we could do that.

PN585

Very well. Thank you, Mr Scott.

CROSS-EXAMINATION BY MR SCOTT [2.57 PM]

PN586

MR SCOTT: Ms O'Neil, have you had an opportunity to have a look at the document which appears as attachment B to the statement of Anna Jones, which was filed in these proceedings?‑‑‑Yes, I have, but I haven't got it in front of me.

PN587

I can hand a copy up to you if that assists?‑‑‑Thanks.

PN588

Can I assume you have also had an opportunity to have a look at the statement that was filed recently in relation to a statement of Tim Hicks?‑‑‑Yes, but again I haven't got it in front of me. Have you got a copy of that for me, Mr Scott?

PN589

I'm not sure. I'm not asking you any questions about the statement of Mr Hicks; I'm not sure that it's necessary. If you want, I can give you a copy?‑‑‑That would be great. Thank you.

*** MICHELE O'NEIL XXN MR SCOTT

PN590

So if I can take you to the table, can you see there that the table sets out a number of figures in relation to varying levels of spoken English language proficiency, both in the textiles, leather, clothing and footwear manufacturing industry and then in all industries?‑‑‑Yes.

PN591

Can you see there at the very right column of the table, which is headed as "Total", there's a sample size of 25,105 people in the textiles, leather, clothing and footwear manufacturing industry?‑‑‑Yes.

PN592

If I can take you then to the column which is headed, "Speaks English Only", can you see there that there's a number which is 15,554, which is said to represent 62 per cent of the survey respondents?‑‑‑Yes.

PN593

And then to the right of that column, there's varying levels. The next two are "Very well" and "Well", and so that's where a person who speaks a language other than English and then may speak English either very well or well, and you can see there that the percentage figures are 12 per cent for very well, and 13 per cent for well. Can you see that?‑‑‑I can, yes.

PN594

Great, you're sticking with me. If you add up those three percentage figures of 62, 12 and 13, do you accept that the table shows that a total of 87 per cent of people in that textile, leather, clothing and footwear manufacturing industry have assessed themselves as speaking English either well or better?‑‑‑I haven't done the calculation, but I will accept that you have.

PN595

Then if you look at the next two columns, there's "Not well" and "Not at all", and there's figures which represent 11 per cent and then one per cent, and I don't want to be rude, but I'm hoping that you can do the maths there that represents 12 per cent of employees who describe themselves as speaking English not well or not at all?‑‑‑Yes, I can quickly add 11 and one together.

PN596

Great. You say at paragraph 15 of your statement - you've got a copy with you there?‑‑‑I do.

PN597

That many of these members have limited English language spoken and written skills, and you're referring in the previous paragraph to members being the TCFUA members. Do you accept that it's actually only a very small proportion of employees in the industry, around about 12 per cent who have limited spoken-English skills?‑‑‑No, I don't accept that.

*** MICHELE O'NEIL XXN MR SCOTT

PN598

Do you accept that the 2011 Census data, based on a sample size of 25,105 respondents indicates that only 12 per cent of employees have described themselves in the TCF industry as having limited English skills in the sense that they speak English not well or not at all?‑‑‑I would have to inquire a lot more as to the basis of this particular extract out of the Census to have any confidence in it. In itself it is selective. It obviously ‑ ‑ ‑

PN599

SENIOR DEPUTY PRESIDENT WATSON: Ms O'Neil, I say that's precisely why I put the union on notice prior to the hearing so that investigation could be made?‑‑‑But your Honour, I was going to make a specific comment about my view from having had some initial look at it, which is that it obviously excludes outworkers in that it, I think -I don't have the document in front of me, but in the explanation document from Mr Hicks, in terms of how the question - how the table was formulated, he specifies the exclusion of employee not owning business. It's very common in terms of home-based outworkers that they may be required to own or indicate ownership of their own business. So to exclude that group ‑ ‑ ‑

PN600

Well, are they covered by the award in that circumstance?‑‑‑Yes, they are. Specifically, they are.

PN601

Specifically they are?‑‑‑Yes, because in the definition of "outworker" it is - the requirements of the award cover both contract outworkers and employee outworkers. It's a specific provision in our award.

PN602

Very well

PN603

MR SCOTT: I think a short time ago, Mr Mead put a proposition to you which was that outworkers don't - the outwork provisions in the award at Schedule F don't have regular hours of work specified?‑‑‑And I disagreed strongly with Mr Mead.

PN604

I rely on the terms ‑ ‑ ‑

PN605

SENIOR DEPUTY PRESIDENT WATSON: Well, they don't specify. They may be outworkers who are working regular hours, but the outworker's provisions in Schedule F do not specify?‑‑‑No, it - I think your Honour, I took it to the requirement to specify when the work was going to begin and end, which is a different requirement than a ‑ ‑ ‑

PN606

That's two discrete points of time?‑‑‑Yes, that's right.

*** MICHELE O'NEIL XXN MR SCOTT

PN607

That's not regular ‑ ‑ ‑?‑‑‑That's right. It's not the same as the hours, but I wouldn't - I wasn't prepared to concede and I don't believe that there are not some outworkers that would have specific hours.

PN608

Yes?‑‑‑So that may trigger the clause. The issue is about - I think the clause isn't about regular - I have to check it again, 9.2.

PN609

Regular rosters and ordinary hours?‑‑‑Yes, regular rosters and ordinary hours. So the terminology "regular roster" may apply.

PN610

MR SCOTT: Would you agree that Schedule F does not contain a span of ordinary hours?‑‑‑Yes.

PN611

I'll just try and ‑ ‑ ‑?‑‑‑So, sorry, to finish my point, so it excludes employee outworkers. So this is one of the reasons why I think that it is less effective as a table in terms of its accuracy. The other thing that is true in terms of a capture of people in the industry - and I note this wasn't part of the evidence that was provided; you provided the 1997 report - but a more recent report into the industry in 2008 by Prof Roy Green, which is the most sort of comprehensive up-to-date - as up to date as 2008 is - overview of the industry went to some length to talk about the changing nature of who is captured in the industry and talking about those people involved in design, edges sticks, retail et cetera, often now being seen to be captured in the TCF characteristics of the industry as well. So our other concern about the ABS figures, as at that point, is that when we talk about employees or members, we are talking about shop-floor workers in the industry; those involved in what would traditionally have been seen as the blue-collar or shop-floor work. There's many workers in the industry and increasingly those that would not fit that characteristic and who I would put would probably be more likely to have English language skills, so managerial work, those involved in logistics and coordination, those involved in dealing with marketing et cetera, are within the industry but are not within the group that are covered by the award. So, sorry to be long‑winded, but they were two elements of concern that I had when I saw the table and the basis by which it had been pulled together.

PN612

Do you accept that the table that was prepared by Mr Hicks deals with the sample size of 25,105 individuals who have described themselves as being employed in the textile, clothing, footwear and manufacturing industry?‑‑‑Yes, I do.

PN613

SENIOR DEPUTY PRESIDENT WATSON: I think the sample size in the Census is the entire population and that's then number of respondents who identified them in that cohort.

PN614

MR SCOTT: Yes, and I think that was the proposition I was trying to put.

PN615

SENIOR DEPUTY PRESIDENT WATSON: Yes.

*** MICHELE O'NEIL XXN MR SCOTT

PN616

MR SCOTT: That there were 25,105 individuals.

PN617

SENIOR DEPUTY PRESIDENT WATSON: Individuals out of the total sample of a population who identified themselves as TCF workers.

PN618

MR SCOTT: That's right, and if you look at the bottom right of the table where it is talking about all industries, it shows that there's a total survey respondency of 8.29 million. So presumably of that 8.29 million are 25,105 who have described themselves as being in the manufacturing industry and then in the sub‑group textile, leather, clothing and footwear manufacturing industry.

PN619

So I think the proposition is a fairly simple one that I want to put to you ‑ ‑ ‑

PN620

SENIOR DEPUTY PRESIDENT WATSON: Sorry, I understood from Mr Hicks' statement that the "all" refers to all industries.

PN621

MR SCOTT: That's right.

PN622

SENIOR DEPUTY PRESIDENT WATSON: So where did the manufacturing industry come into it?

PN623

MR SCOTT: At least my understanding from speaking with Mr Hicks, it's not in his statement and I don't think it's centrally relevant in any event, is that there's a manufacturing category and then within that manufacturing category there are further sub-categories, and textiles is one of the sub-category, and I understand that that's how the Census data is collated.

PN624

SENIOR DEPUTY PRESIDENT WATSON: Yes, okay.

PN625

MR SCOTT: So the proposition I will finish with, and I think this is a simple one, is would you accept that the table that was prepared by Mr Hicks suggests that 12 Per cent of the 25,000 in the textile, leather, clothing and footwear manufacturing industry have described themselves as speaking English either not well or not at all?‑‑‑If you're asking me to say what the table ‑ ‑ ‑

PN626

That's precisely it?‑‑‑That's what the table says.

*** MICHELE O'NEIL XXN MR SCOTT

PN627

Yes. Would you accept that 12 per cent is a fairly significant minority?‑‑‑As I've said to you, I don't accept the accuracy ‑ ‑ ‑

PN628

No, and that's not the proposition. The proposition is 12 per cent is a fairly small proportion?‑‑‑Is a very what?

PN629

Small proportion?‑‑‑I don't think I'd describe it as that, but I mean, I'm not quite sure what you are putting to me?

PN630

Well, the proposition is that 87 per cent, for example on the flip side, would you accept that 87 per cent of any category of people is a fairly significant majority?‑‑‑I think you're just - I don't really understand the point. I mean, the minority of this table are indicating that ‑ ‑ ‑

PN631

SENIOR DEPUTY PRESIDENT WATSON: I think the question is do you accept the proposition which could be drawn from this table that it's a small minority of employees in the TCF industry who have no English-speaking skills or do not speak English well?‑‑‑No, I don't, your Honour.

PN632

On what basis do you draw that conclusion?‑‑‑I draw that conclusion on the basis of the limitations of the table in the manner that I've said where it excludes, I believe, significant numbers of outworkers, where it doesn't reflect necessarily those people that would be covered by the TCF award. That it is likely to and would include employees that would not be covered by the TCF Award and would be covered by other awards or in other types of positions that the award doesn't apply to. And what I don't know, but I have a concern about, is a question to do with methodology. And I know - and that's an issue to do with - it goes back to the core of this about whether ‑ ‑ ‑

PN633

SENIOR DEPUTY PRESIDENT WATSON: I can assure you the ABS has pages and pages of explanation on the Census methodology?‑‑‑I looked at it, your Honour, and I'm sorry to say it didn't completely - I wasn't completely confident that I understood it at the end. So I'm not going to pretend to be a statistical expert, I'm clearly not, but I do have concerns about this table and I don't believe it accurately reflects what I know is the profile of workers covered by the award in the industry. The other thing that I want to draw attention to ‑ ‑ ‑

PN634

Well, is there any statistical basis for that, or are we to rely for that proposition on evidence of the type you've given that workers come predominantly from Vietnamese and Chinese backgrounds, and many of these members have limited English‑language spoken and written skills. Is that as precise as we're able to get?‑‑‑No, there is other documentation in terms of reports in the industry.

*** MICHELE O'NEIL XXN MR SCOTT

PN635

Well, there is none before us?‑‑‑Not that I have in my evidence, your Honour, no. But there is also the case, your Honour, that this is talking about spoken English, and you would appreciate that our variation is about written English. So it's about people understanding its - as you know, it's got three prongs, the second of which is making sure it's provided in English, in writing, to people and then if people have limited understanding of English, the translation. So there is a difference, your Honour, between those people that may indicate a degree of spoken English compared to those that have fluency in written English.

PN636

Yes. Well, that's understood.

PN637

MR SCOTT: I think you told Mr Mead before that TCFUA - you estimate a national membership to be about 5000 members?‑‑‑That's right.

PN638

Has the union in the last, say, five years conducted any surveys of their members asking them what their proficiency level of English, either verbally or in written form is?‑‑‑No, as I said, we run English language classes and we also regularly collect data in workplaces. So just to answer you fully Mr Scott we haven't done a survey but we have collected data. So there is a difference in terms of our data collection methods. We regularly collect data about the languages spoken in the workplaces that we visit.

PN639

If I can take you back to your statement and to paragraph 11, and the second part of paragraph 11, you say there that almost universally the country of origin of TCF outworkers and workers in sweatshops is other than Australia. And then you continue:

PN640

Commonly, although not exclusively, the employers of sweatshop labour and those who directly engage outworkers come from the same or similar backgrounds.

PN641

So where employees and employers come from the same ethnic background, is it fair to assume that in many cases the employee and the employer would share a common language which is other than English?‑‑‑Yes.

PN642

So, for example, the employer may speak Vietnamese or Vietnamese background, and in the artwork sector they engage outworkers who are of the same or similar background?‑‑‑Yes.

*** MICHELE O'NEIL XXN MR SCOTT

PN643

Would you agree that no verbal communications difficulties would arise, in those circumstances?‑‑‑No.

PN644

So your evidence is that where an employer, and using the example of Vietnamese, the employer speaks Vietnamese, and the employees are of a Vietnamese background, your evidence is that there still will be verbal communication difficulties in that context?‑‑‑Yes.

PN645

I put it to you that that would be very rare indeed?‑‑‑No, because, as a contrast there’s significant communications difficulties between those who speak English and who are communicating with others who speak English in our industry. Communication, especially about change, I’ve already given evidence about the difficulty and the problems with not effectively consulting, and people not being well communicated with, so that’s true in people’s first language, as well as when they’re communicating cross-languages.

PN646

So, in circumstances where an employer, or a person who engages directly outworkers, is of a Vietnamese background, and that employer speaks Vietnamese?‑‑‑Yes.

PN647

But the evidence that you’re putting before the Commission is that it’s actually rare - where they directly engaged employees of a Vietnamese background, it’s rare for them to be able to verbally communicate effectively in Vietnamese?‑‑‑No, I didn’t say it was rare. I said there’s – you said there’s no difficulties, and I said there is difficulties, because the difficulties are not about the language, it’s about the information, so ‑ ‑ ‑

PN648

But if I – just dealing with the language ‑ ‑ ‑ ?‑‑‑So, can I just answer your question properly?

PN649

Yes, sure?‑‑‑So what I’m trying to get to here is that if something is being said to you, even if it’s in the same language, if it’s being put verbally, there is often misunderstanding in our industry. People are fearful; people aren’t clear; communication is not always straight forward. So even if it’s in a common language, my experience is it’s not always understood what people are being asked. People frequently think they’re being asked to take a day off because there is not enough work, and then find out that they’re being stood down every Friday for six months. That’s a very common experience of ours, when they think they’re agreeing to one day, and that’s in the same language.

*** MICHELE O'NEIL XXN MR SCOTT

PN650

So if we could put to the side, for a moment, the particular information that’s being relayed between the two parties, and if we think of an example of a very basic communication of requiring, as I think you previously gave evidence about, a situation where there might be an order for something to be in orange, and then the order is changed to blue, in that very basic circumstance, where the employer speaks Vietnamese and the outworker speaks Vietnamese, are you suggesting that the employer, or the contractor, in that instance, would be unable to effectively communicate verbally that the order has changed from blue to orange?‑‑‑No, I’m not saying that. It depends upon the complexity of what’s being communicated, and the circumstances and the context of it.

PN651

Absolutely. So if I can then just extrapolate on that. You accept that, where an employer, or someone engaging outworkers, speaks Vietnamese, and they engage an employee or an outworker, who also speaks Vietnamese, in the vast majority of circumstances, they will be able to communicate work-related tasks and instructions in an effective manner?‑‑‑No.

PN652

I have to put it to you that that’s quite an outrageous proposition.

PN653

MS WILES: Sorry, your Honour ‑ ‑ ‑

PN654

THE WITNESS: Well, I have to put it to you that your knowledge of the industry, and the suggestion that it’s a vast majority, is wrong.

PN655

MS WILES: Sorry, your Honour, I think I’ve let Mr Scott go for some time, but I think he is actually harassing the witness. I mean, Ms O’Neil is giving her evidence ‑ ‑ ‑

PN656

SENIOR DEPUTY PRESIDENT WATSON: He’s making what?

PN657

THE COMMISSIONER: Harassing.

PN658

MS WILES: He’s harassing the witness. He’s giving his own opinion of Ms O’Neil’s evidence rather than asking a question.

PN659

SENIOR DEPUTY PRESIDENT WATSON: I don’t think he’s strayed into that territory of harassment at this point.

PN660

MS WILES: He just indicated that he thought Ms O’Neil’s answer was outrageous, and I think that’s inappropriate for an advocate to put that.

PN661

SENIOR DEPUTY PRESIDENT WATSON: Yes. He was challenging her answer in a vigorous way.

*** MICHELE O'NEIL XXN MR SCOTT

PN662

MR SCOTT: I’ll try to contain my vigour, your Honour. I think that’s a really important point. I just wanted to get some precision around that, because my understanding was that you were suggesting that where an employer and an employee both share a common language, for example Vietnamese, they would be unable to verbally communicate effectively?‑‑‑No, you keep trying to put words in my mouth, and what I’m trying to get to is an issue to do with communication varies depending on the para-relationship; the particular complexity of the information that’s being communicated; the context it’s being communicated in. So communication is a very complex matter, and whether you speak the same language or not, the dynamic of being an employer and employee, in my experience in our industry, greatly affects how people communicate. So, yes, if you speak the same language you’re more likely to be able to understand each other, but all of those variables I mentioned affect how you hear something, whether you fully understand it, and whether you’re able to then accede to it or not.

PN663

So you draw a distinction between the ability to communicate effectively, and the ability to comprehend? Is there a distinction there?‑‑‑I don’t understand the question.

PN664

So, the question is, if an employer speaks Vietnamese and an employee speaks Vietnamese, and there’s an instruction issued by the employer, the employee will ordinarily comprehend the instruction?‑‑‑I’m just really not sure what your question is.

PN665

Is it that you don’t – well, I’ll try and repeat the question. If an employer speaks Vietnamese fluently, and an employee speaks Vietnamese fluently, and the employer asks the employee to create 100 garments in blue, would you accept that the employee will comprehend that instruction?‑‑‑In most circumstances, yes.

PN666

Okay. That’s because they share a common language?‑‑‑No, as I said, it would depend on how the information – and the delivery of the information as well.

PN667

SENIOR DEPUTY PRESIDENT WATSON: Well, I think we’re into debating.

PN668

THE WITNESS: If someone screamed that, they often don’t hear it as clearly as if it’s said calmly to them.

PN669

SENIOR DEPUTY PRESIDENT WATSON: Sorry, Ms O’Neil, can I interrupt, I think you’re into debating. I think you should move on, Mr Scott, and frankly the Bench would be interested in some facts as distinct from argument and opinion.

*** MICHELE O'NEIL XXN MR SCOTT

PN670

MR SCOTT: I think you’ve accepted this, but I just want to put it to you: would you accept that employees in the textiles industry, in the formal factory setting, or the formal employment sector, as you call it, would ordinarily be required to follow basic instructions at work?‑‑‑Yes.

PN671

Would you accept that they would be required, from time to time, to liaise with their fellow colleagues in the factory?‑‑‑Yes.

PN672

So you accept that a basic ability to communicate verbally, in the workplace, with supervisor or employees, is a requirement in order to be employed usefully in the industry?‑‑‑No.

PN673

So you’re suggesting that employees don’t need to have a basic ability to communicate at work?‑‑‑No. You were saying whether it was a requirement to be employed in the industry, and I said no to that.

PN674

I think I said employed effectively, or useful?‑‑‑Well, I don’t – sorry, it’s a very subjective term. I’m not really sure what you’re getting at.

PN675

Would you agree that the vast majority of day-to-day communication between employers and employees in the textiles industry takes place verbally as opposed to in writing?‑‑‑Yes.

PN676

Where businesses have one or more employees, who are not proficient in spoken English, do you accept that the business might have a number of methods to deal with that situation?‑‑‑Well, a business or?

PN677

So, for example, in some cases the employer would share a common language and would therefore be able to communicate in a language other than English?‑‑‑Yes.

PN678

You’d accept that another method that businesses use, in the textiles industry, might be to utilise another employee or a manager who can effectively communicate in a different language to the employee?‑‑‑Well, you’ve again added the word “effectively” in there, and I’d have to not agree with you, given that comment. So, it is the case that I have frequently witnessed employers relying on other workers to translate information. My evidence is that that is often ineffective.

*** MICHELE O'NEIL XXN MR SCOTT

PN679

SENIOR DEPUTY PRESIDENT WATSON: But that would be true of any communication, would it not? If there’s a difficulty of an employer to - a communication about work requirements, and the basic proposition is that any verbal communication is ineffective, so that people would be producing the wrong things because they’ve misunderstood the instruction and whatever else?‑‑‑I think there’s a spectrum, your Honour, for sure. There is a spectrum, so I think the seriousness of the information, it’s the degree of impact, the ‑ ‑ ‑

PN680

It’s pretty serious to get your product right?‑‑‑The context of it. So something that happens every day, so a daily occurrence I think people – there’s a whole range of methods that people use to try and get to understand each other, sometimes more effectively than others, so there’s a difference between what happens every day, in the day-to-day usual operations, and then what may happen more occasionally or irregularly.

PN681

Yes. That’s true equally of changes in hours of work; regular hours an ordinary hours, as it is of other matters. There’s a spectrum; some things are more serious, would require different and better modes of communication, and at the end of the day, the test for whether consultation has occurred, as was said by the consultation - the 145(a) Full Bench, is whether there was an opportunity to have an input and to influence the outcome?‑‑‑Yes, your Honour.

PN682

That does depend, as that same Full Bench indicated, on the circumstances, and they vary. In some cases, written communication may be required, in others it may not. Some circumstances translation, in others it may not?‑‑‑Well, I suppose the – where we’ve got to, your Honour, is a view that to give effect to consultation, the use of the tool of the translated material, for those that aren’t confident in English, can provide all parties with confidence that it’s been understood, so it’s a simple measure that would greatly enhance every parties’ confidence that there’s been genuine consultation. It proves the point. It ends the argument.

PN683

Yes. I hear your evidence. Yes, Mr Scott?

PN684

MR SCOTT: So based on your experience, you’ve previously told me that most day-to-day communication in the industry takes place verbally as opposed to in writing?‑‑‑That's right.

PN685

Would you therefore agree that employees in the textiles industry would be more – employees of a non-English speaking background would, on a day-to-day basis engage in verbal communication more than they would in writing at the work place?‑‑‑Well, their jobs don’t involve them much in writing at all.

*** MICHELE O'NEIL XXN MR SCOTT

PN686

So they’d be much more experienced communicating verbally as opposed to in writing?‑‑‑Well, there’s some workplaces in the industry that actually only allow people to speak in their luncheon lunch break, so there’s not a lot of either communication in some workplaces, but, yes, it’s more common to speak verbally than in writing for sure – communicate verbally than writing.

PN687

Would you agree that there a number of workplaces in the industry which have employees who come from a large number of ethnic backgrounds?‑‑‑What do you mean by large number?

PN688

Let’s say nine. Would you be surprised?‑‑‑Look, I think – I remember, in fact, talking many years ago about a workplace where I was aware of more than double that number of languages, but that’s becoming rarer is my experience, so the reduction in the formal size of the industry, it is also the case that it’s more common now to find a fewer numbers of languages spoken in a workplace. So it would be rare, in my experience, now, in 2015, to find nine languages in a workplace. I can’t think of one.

PN689

Do you accept that it’s possible?‑‑‑Of course it’s possible.

PN690

Would you accept that there would also be other employers in the industry whose employees would be made up exclusively of native English speakers?‑‑‑Yes.

PN691

Would there also be other workplaces where, regardless of the ethnic background of the employees, all employees in that workplace are able to communication verbally in English?‑‑‑Yes.

PN692

Clause 9.2 of the award, would you agree that it’s been in operation since 1 January 2014?‑‑‑Yes.

PN693

Since that provision came into effect are you aware of any Court proceedings involving any alleged contravention of clause 9.2 of the textiles award?‑‑‑I’m aware of Commission proceedings.

PN694

But Court proceedings. So that is Federal Circuit Court, Federal Court contraventions?‑‑‑No.

PN695

No further questions, your Honour.

PN696

SENIOR DEPUTY PRESIDENT WATSON: Yes. Very Well. Yes, Ms Wiles?

*** MICHELE O'NEIL XXN MR SCOTT

PN697

MS WILES: Your Honour, I was wondering whether I could indulge the Bench for a five minute adjournment?

PN698

SENIOR DEPUTY PRESIDENT WATSON: Yes, very well. We’ll take a five minute adjournment.

SHORT ADJOURNMENT [3.30 PM]

RESUMED [3.42 PM]

PN699

SENIOR DEPUTY PRESIDENT WATSON: Yes, Ms Wiles?

PN700

MS WILES: Thank you, you Honours and Commissioner for that short adjournment. Ms O’Neil, you said in your earlier evidence that the union translates material for its members?‑‑‑That's right.

PN701

That includes its membership forms? Yes. Now, your Honours, Commissioner, I have copies of two translations of the TCFUAs membership. I only have a single copy, but I do wish to tender these through Ms O’Neil.

PN702

SENIOR DEPUTY PRESIDENT WATSON: That’s a copy of what?

PN703

MS WILES: It’s a copy of the TCFUAs membership form for the Victoria and Queensland branch, Western Australian branch and they’ve been translated in ‑ ‑ ‑

PN704

SENIOR DEPUTY PRESIDENT WATSON: Yes. In what language?

PN705

MS WILES: They’re in Vietnamese and Chinese.

PN706

SENIOR DEPUTY PRESIDENT WATSON: Vietnamese and Chinese. Is there any issue with that being the case from the employer’s side?

PN707

MR MEAD: What was that, sorry?

PN708

SENIOR DEPUTY PRESIDENT WATSON: Is there any issue, assuming your Vietnamese and Chinese skills are sufficient, any issue in accepting that there are translations made as indeed was Ms O’Neil’s evidence?

*** MICHELE O'NEIL XXN MR SCOTT

PN709

MR MEAD: No, no objection.

PN710

SENIOR DEPUTY PRESIDENT WATSON: Yes. Very Well. Mr Scott, you don’t have any objection?

PN711

MR SCOTT: No. No objection there.

PN712

SENIOR DEPUTY PRESIDENT WATSON: I don’t think we need to have them tendered. Ms O’Neil’s ‑ ‑ ‑

PN713

MR MEAD: Although, your Honour, perhaps there is just one to thing to note, there are still large slabs of text here in English, such as the terms and conditions of direct debit and ‑ ‑ ‑

PN714

SENIOR DEPUTY PRESIDENT WATSON: Look, we’ll receive them as an exhibit, TCFUA3.

EXHIBIT #TCFUA3 TRANSLATION OF MEMBERSHIP FORMS

PN715

SENIOR DEPUTY PRESIDENT WATSON: I would ask you, Ms Wiles, if you could translate them for the Bench as well.

PN716

MS WILES: Your Honour, I’ve got skills in some areas but that’s not – we can get Mr Nguyen to translate them if you wish, at least the Vietnamese version. As I indicated, I’ve only got one copy of each but we undertake to provide ‑ ‑ ‑

PN717

SENIOR DEPUTY PRESIDENT WATSON: Yes. Well, we’ll have copies made and we’ll put them on the website and that way everyone can access them. It will be TCFUA3.

PN718

MS WILES: Your Honour, should I tender them through Ms O’Neil?

PN719

SENIOR DEPUTY PRESIDENT WATSON: Sorry?

PN720

MS WILES: Should I seek ‑ ‑ ‑

*** MICHELE O'NEIL XXN MR SCOTT

PN721

SENIOR DEPUTY PRESIDENT WATSON: It’s not necessary.

PN722

MS WILES: No. Okay.

PN723

SENIOR DEPUTY PRESIDENT WATSON: She has accepted what they are and on their face they’ve got some English on them. Let’s move on.

PN724

MS WILES: Ms O’Neil, you were asked a question about whether you were aware of any Court proceedings in relation to breaches of the consultation clause. It was the 1st of the 1st 2014?‑‑‑Yes. I’ve remembered before you even put it to me. We have commenced proceedings in relation to Bruck, in terms of the consultation provision since the introduction of that clause. Bruck was a large textile company, Bruck Textiles in Wangaratta that had last year sold the business from one entity to another owned by the same person and with the same directors, managers, staff, and premises and customers for a dollar, and told the workers the following day, including informing them that 60 of them had lost their jobs and all their entitlements. So as one of a number of cases that are being pursued in relation to that, there is a Federal Circuit Court proceedings ‑ ‑ ‑

PN725

SENIOR DEPUTY PRESIDENT WATSON: That’s in relation to redundancy ‑ ‑ ‑ ?‑‑‑Consultation provisions, your Honour.

PN726

‑ ‑ ‑ and a significant change provision, not ‑ ‑ ‑ ?‑‑‑No, no, there’s a specific requirement in the Bruck agreement regarding consultation, and it was a – so it’s the breach of the consultation provision of that.

PN727

Yes. But the question I’m asking, it’s not a dispute about consultation about changing regular hours, regular rosters and ordinary hours, under clause 2.9 of the award?‑‑‑The year before, in 2013, we had a matter before this Commission with the same company, in relation to changes to rosters and regular hours, and the breach of the consultation provisions, but the matter that’s now before the Federal Circuit Court, is with the same company, and the directors of that company, for the breach of the consultation provision of the agreement.

PN728

Yes. I’ve got to say, in my examination of the Commission databases it’s since clause 9.2 came into the award on 1 January 2004 [sic], there were some nine disputes involving the TCFUA, none of which involved clause 9.2 of the award. They were predominantly underpayment, mainly super, and redundancy and failure to consult in respect to redundancy. Is that your understanding of ‑ ‑ ‑ ?‑‑‑When I was referring to consultation matters, your Honour, I may well have been referring to consultation in relation to redundancy.

*** MICHELE O'NEIL XXN MR SCOTT

PN729

Are you aware of any disputes brought here or prosecutions made in respect to clause 9.2 of the award?‑‑‑Since the beginning of 2014?

PN730

When it had effect. Yes?‑‑‑No, your Honour.

PN731

When you referred in your statement to disputes about various things, at any level, have there been disputes about clause 9.2 obligations, whether or not brought here?‑‑‑Your Honour, what I would say, without having done a thorough check with all our branches about it, is that I would be confident that a number of the matters where the dispute has come here may well be in relation to a particular – it may be listed as a matter to do with a particular dispute, say, in terms of rosters or hours or superannuation or whatever, but an element of that dispute would have been raised in the case and in the conciliation of concern around consultation, so I haven’t done a thorough check. We could do so, your Honour, but it is commonly a subset, the consultation element, of other matters that we bring here.

PN732

Yes. I couldn’t find one, notifications that specifically referred to such consultations?‑‑‑No. I accept that, your Honour. I accept that.

PN733

Yes. Very well. Ms Wiles?

PN734

MS WILES: Ms O’Neil, just on this point, are you aware of consultation disputes, as being notified as a dispute, about clause 9.2 since the model clause commenced, involving the TCFUA?‑‑‑No.

PN735

No. Okay. Ms O’Neil, I want to take you to - both Mr Mead and Mr Scott asked you some questions around outworkers and whether the consultation clause applied to outworkers under the TCF award?‑‑‑Sorry, Ms Wiles, I thought you were asking the same question as your Honour had. Did you ask about disputes about it, or disputes that had come here?

*** MICHELE O'NEIL XXN MR SCOTT

PN736

No, disputes about it?‑‑‑I’m sorry. I thought you were asking the same question. I am aware of disputes in relation to clause 9.2, and multiple disputes in relation to 9.2 that have been raised at a workplace level. They include disputes in terms of, in fact, just this week with a company where there was three workers who worked in a small business where they were told that they were no longer going to work on a Friday; that, in fact, they were being changed from full-time to part-time employees, and there was no prior consultation of that. They were just advised of it, and we had raised that matter, and the company have now agreed to consult. That’s just happened this week, and is an example. There’s also recently been examples in terms of three workers, in 2014, made redundant at a workplace where they were called into the office and provided, in writing, a – sorry that wouldn’t be under 9.2, that’s a consultation regarding redundancy. Leave that one aside. There’s also been ones in terms of a new roster being provided in a workplace where, again, the roster was provided to workers without any opportunity for them to consult or have a view of it. Again, we raised that roster change in the workplace, and the company then agreed to consult. There’s another example in terms of a company that characterised it as a stand down, but, in fact, again was a change to the regular hours of workers. This is in a soup manufacturing company, here in Melbourne, where the workers were advised of the change that they would no longer be working – that they would be stood down one day a week over a period of time, without any prior consultation. Again, we raised that with the company and they agreed to consult. So in all of those examples I’ve given they’re all 2014 except for the one in 2015 I gave you, they’ve all happened since the provisions. They all relate to either changes of rosters and hours of work, and in all cases we raised the dispute at the workplace level, and then resolved the matter at the workplace level, hence why they didn’t come here.

PN737

SENIOR DEPUTY PRESIDENT WATSON: Each involved a failure to consult at all?‑‑‑Sorry, in one case the roster was posted, so there was no – yes, they all involved a failure to consult at all.

PN738

Yes?‑‑‑But they also, in one case, at least, it involved provision of information, at the time, so both failure to consult before, but also only provided information in English, which wasn’t understood by the workers, so it had a number of the characteristics that we’re addressing in this case.

PN739

Very well.

PN740

MS WILES: This information that you’ve just given evidence about, on what basis have you obtained that information?‑‑‑In some cases I’ve spoken directly to the workers involved. In other cases I regularly meet on a weekly, if not, daily basis with the organisers in the Victoria and Queensland branch, and I was advised by the organisers responsible for that workplace, who report to me about disputes that they’re having in those workplaces.

PN741

Thank you. Can I take you to schedule F of the Textiles Clothing and Footwear Award.

PN742

SENIOR DEPUTY PRESIDENT CALLAGHAN: I’m sorry, Ms Wiles, can you speak up a bit?

*** MICHELE O'NEIL XXN MR SCOTT

PN743

MS WILES: I’m sorry, your Honour. I don’t want to cough. I’m just taking Ms O’Neil to schedule F of the Textiles Clothing and Footwear Award?‑‑‑Yes, I have that, Ms Wiles.

PN744

I want to take you to clause F.5.8?‑‑‑Yes, F.5 ‑ ‑ ‑

PN745

This clause basically sets out – so I’ll go back, I’ll withdraw that. You accept that schedule F is a specific set of provisions that deal with outworker and related provisions, in particular, which regulates supply chains in the TCF industry?‑‑‑That's right.

PN746

Other than those specific provisions, it’s your understanding that the rest of the balance of the award applies to outworkers?‑‑‑That's right.

PN747

Clause F.5.8?‑‑‑Yes.

PN748

Could you read out that sentence, the top sentence?‑‑‑

PN749

A principal must apply the remaining provisions of this award to the worker as though the worker is an employee, whether or not the principal is an employer or the worker is an employee excluding the following clauses.

PN750

Do you accept that in terms of the matters listed there, that are excluded, clause 9.2 or consultation is not excluded?‑‑‑No, it’s not.

PN751

So would you agree that, on its face, clause 9.2 applies to outworkers ‑ ‑ ‑

PN752

SENIOR DEPUTY PRESIDENT WATSON: Ms Wiles, these are matters of submission on the record. Ms O’Neil’s confirmation, that is of no help to us, and it doesn’t arise by way of re-examination.

PN753

MS WILES: I take your point, your Honour. It’s just that Mr Mead took Ms O’Neil to these clauses and sought to draw conclusions from her about the meaning of schedule F and whether 9.2 applies.

PN754

SENIOR DEPUTY PRESIDENT WATSON: Yes. I understand that, but we’re simply wasting time having witnesses confirm what or what is not set in the award. That can be put to us by way of submissions.

*** MICHELE O'NEIL XXN MR SCOTT

PN755

MS WILES: Your Honour, if I could just press this point for one more question, because – I’ll withdraw that, your Honour.

PN756

SENIOR DEPUTY PRESIDENT WATSON: Yes. Very well.

PN757

MS WILES: Ms O’Neil, back to your earlier evidence when you were talking about recent examples around disputes around consultation, under clause 9.2, are you aware of any disputes that have been notified to the unions from workers that you would classify of working in sweat shops?‑‑‑Yes.

PN758

Can you outline to the Commission what that dispute was?‑‑‑There was one where the – it was, again, about a change to hours of work, and workers being advised that they would not be required, and not be paid, not be required to attend to work. It had the effect of an illegal stand down, but also had the effect of change to their hours of work and their regular roster, and those workers were advised not to come in and not to come in on a certain day every week, and there was no – they had no understanding of what was being put to them, they just knew something was happening and it was serious, and they contacted the union and asked us to become involved.

PN759

Thank you?‑‑‑They were very confused about what was being put to them.

PN760

In terms of your understanding of clause 9.2, do you understand that clause to mean that if there was a change to – or if an employer sought to require a worker to work overtime, so not ordinary hours, whether the consultation obligations, under 9.2, would arise?‑‑‑No.

PN761

You were asked some questions about the TCFUA website, and the issue of whether the material was translated or not. In your experience can you give evidence about generally the level of formal education of many non-English speaking background workers in our industry?‑‑‑My experience is that the ‑ ‑ ‑

PN762

MR MEAD: Sorry, I might have to object. I don’t know how that arises from the questions I asked about the website. That’s a fairly tenuous link to go from what I was asking, which was largely in relation to translation, to the level of formal education, which I understand is the question that’s being put in re-examination.

PN763

SENIOR DEPUTY PRESIDENT WATSON: In relation to what, sorry?

*** MICHELE O'NEIL XXN MR SCOTT

PN764

MR MEAD: I understand Ms Wiles has just put a question to Ms O’Neil about the level of formal education in the industry.

PN765

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN766

MR MEAD: I didn’t touch on that at all, and indeed all I was directing my question to vis-à-vis the website, was that there was no translation material, and other languages on the website, so I just don’t know how ‑ ‑ ‑

PN767

SENIOR DEPUTY PRESIDENT WATSON: Where did that issue arise, Ms Wiles? Where did that issue arise from?

PN768

MS WILES: Mr Mead asked Ms O’Neil some questions about the website.

PN769

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN770

MS WILES: Then there was, I think, a series of questions about why there wasn’t translated material on there, and Ms O’Neil gave evidence about that, in her experience, it wasn’t the best way to effectively communicate with the union’s members. So the question I’m asking, I guess, follows on from that, her evidence, which arises from Mr Mead’s question around the website.

PN771

SENIOR DEPUTY PRESIDENT WATSON: Sorry, I can’t see how it follows on from that.

PN772

MS WILES: Ms O’Neil gave evidence about why members are less likely to access the website, in terms of accessing information.

PN773

SENIOR DEPUTY PRESIDENT WATSON: Yes. There weren’t any ‑ ‑ ‑

PN774

THE COMMISSIONER: I thought Ms O’Neil gave evidence that they didn’t, not why.

PN775

MS WILES: That's correct. They didn’t. Yes.

PN776

THE COMMISSIONER: Yes.

*** MICHELE O'NEIL XXN MR SCOTT

PN777

MS WILES: I guess I’m asking a question as to why that might be the case.

PN778

SENIOR DEPUTY PRESIDENT WATSON: I’m not sure it arose out of cross-examination, so that’s a gap in your case, in the first instance.

PN779

MS WILES: I’ll withdraw the question, your Honour.

PN780

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN781

MS WILES: Ms O’Neil, you were asked questions about - I think Mr Scott asked you questions about the percentage of non-English speaking background people with – he referred you to the table and he sought to draw some conclusions from you about the table. I think that only 12 percent, was a proposition; that only 12 percent of people of this sample of 25,000 did not speak English or did not speak English well. Do you remember that evidence?‑‑‑I do.

PN782

In your statement, I think, at paragraph 11, you say that between 65 and 75 percent of the union’s membership, I think was the ‑ ‑ ‑ ?‑‑‑It was 65 to 70 percent of workers, based on my review of the TCFUA membership database, and on my own experience.

PN783

Yes. In your opinion, do you believe that figure to be conservative?‑‑‑I do.

PN784

Thank you.

PN785

SENIOR DEPUTY PRESIDENT WATSON: Is there anything – no, I’ll withdraw that. I’ll come back, it’s another question I had. Yes.

PN786

MS WILES: You were asked some questions by Mr Scott about if a Vietnamese employer employed a Vietnamese worker, whether there would be effective verbal communications?‑‑‑Yes.

PN787

I think your evidence was, well, not necessarily, because it depended upon what was being communicated, and the context, and the circumstances, etcetera. In your experience, do you believe that a worker’s formal or lack of formal education, and/or their literacy level would affect their capacity to understand information being communicated to them in their own language?‑‑‑Yes.

PN788

MR SCOTT: Your Honour, that’s ‑ ‑ ‑

*** MICHELE O'NEIL XXN MR SCOTT

PN789

SENIOR DEPUTY PRESIDENT WATSON: I’ll allow the question. I’m not sure of the relevance. I mean, that would apply to any person from any background, in any award.

PN790

MS WILES: Sorry, your Honour?

PN791

SENIOR DEPUTY PRESIDENT WATSON: In any award.

PN792

MS WILES: I didn’t hear the first ‑ ‑ ‑

PN793

SENIOR DEPUTY PRESIDENT WATSON: Those circumstances would apply to any employee of any background in any award.

PN794

MS WILES: Yes, but Mr Scott was asking Ms O’Neil in relation to – well, his example was Vietnamese workers, and Ms O’Neil’s evidence, which is uncontested, is that large majorities ‑ ‑ ‑

PN795

SENIOR DEPUTY PRESIDENT WATSON: Yes. Answer the question, Ms O’Neil.

PN796

THE WITNESS: Yes. I think it would affect, given that there is a correlation also, in our industry, with many workers who don’t have formal education and haven’t necessarily finished secondary school education, or have any formal education beyond that, I, of course, believe they’re highly intelligent and skilled workers, but they’re not necessarily formally educated, so it does affect communication considerably, and it affects communication in all languages, but you’ve got the compounding affect, in our industry, of the combination of English not being a first language combined with many workers who haven’t formal levels of education.

PN797

MS WILES: Thank you?‑‑‑Reached high formal levels of education.

PN798

SENIOR DEPUTY PRESIDENT WATSON: Is that all, Ms Wiles?

PN799

MS WILES: Yes, it is, your Honour.

PN800

SENIOR DEPUTY PRESIDENT WATSON: Thank you. Thank you for your evidence, Ms O’Neil. You’re excused?‑‑‑Thank you.

<THE WITNESS WITHDREW [4.08 PM]

PN801

SENIOR DEPUTY PRESIDENT WATSON: I think we might get to Ms Nguyen, at least to the point of her variations to her statement, but not much beyond that, so that the employers are on notice. Thereafter, we propose the matter will resume on next Thursday, 19 March, 10 o’clock in Melbourne before the Full Bench, or members of the Full Bench delegated by the Bench to hear the further evidence, and then we propose to have final submissions in writing. But we do need to, at least, get from Nguyen today any changes to her statement, so that the employers are aware of if and when they wish to cross-examination in relation to that, and obtain instructions. So we’ll get Ms Nguyen in.

PN802

Ms Wiles, while we’re waiting for Ms Nguyen, can I ask you whether there is any factual information about home work in existence in this country or universe? We do know better than the 1997 Observation Productivity Commission that it’s difficult to measure. The TCFU then, in 1991, estimated 330,000, the tax office 50, and TCFU is grossly extreme, and the tax office was grossly understating, and that’s as good as it gets, and since 1997 nobody’s bothered to make any further attempts to get information. You might take that on notice.

PN803

MS WILES: So, your Honour, are you limiting your question to the numbers of outworkers or the nature?

PN804

SENIOR DEPUTY PRESIDENT WATSON: Yes. Yes.

PN805

MS WILES: The numbers of outworkers?

PN806

SENIOR DEPUTY PRESIDENT WATSON: The extent of the worker in the industry.

PN807

MS WILES: We will take that question on notice. Yes.

PN808

SENIOR DEPUTY PRESIDENT WATSON: Yes. Very well. Ms Nguyen.

<THI CHUK LY NGUYEN, AFFIRMED [4.11 PM]

EXAMINATION-IN-CHIEF BY MS WILES [4.12 PM]

PN809

SENIOR DEPUTY PRESIDENT WATSON: Yes. Go ahead.

PN810

MS WILES: Thank you, Ms Nguyen. If you could just try and keep your voice up. I know it’s difficult for all of us, but it would assist the Bench?‑‑‑Okay.

*** THI CHUK LY NGUYEN XN MS WILES

PN811

Thank you. Could you please state your full name and address for the record, please?‑‑‑Yes. My full name is Thi Chuk Ly Nguyen, (address supplied).

PN812

Thank you. You’re aware that a witness statement has been prepared on your behalf in this matter?‑‑‑Yes.

PN813

Do you have a copy of your witness statement today, in the witness box?‑‑‑Yes, I do have.

PN814

Are there any changes or amendments that you wish to make to your statement?‑‑‑Yes. What are those changes?‑‑‑So in respect to the fifth sentence of the ‑ ‑ ‑

PN815

SENIOR DEPUTY PRESIDENT WATSON: Sorry, which paragraph?‑‑‑To the paragraph 15.

PN816

Fifteen. Yes?‑‑‑Yes, so in respect to the fifth sentence I amend by deleting the words:

PN817

Where there were no team leaders or supervisors who spoke a language of the workers the employer relied on workers to assist in order to understand.

PN818

So that the sentence reads:

PN819

The employer provided no interpreters for those workers.

PN820

SENIOR DEPUTY PRESIDENT WATSON: Sorry, I’ve completely missed that.

PN821

THE COMMISSIONER: Delete the sentence.

PN822

SENIOR DEPUTY PRESIDENT WATSON: It’s deletion of that?

PN823

MS WILES: Do you want me to repeat it?

PN824

THE COMMISSIONER: It’s deletion of that sentence; is that correct?

*** THI CHUK LY NGUYEN XN MS WILES

PN825

SENIOR DEPUTY PRESIDENT WATSON: Deletion of the ‑ ‑ ‑

PN826

MS WILES: Yes. So the amendment, your Honour, is, in paragraph 15, and it’s in the fifth sentence.

PN827

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN828

MS WILES: It’s the deletion of the words:

PN829

Where there were no team leaders or supervisors who spoke a language of the workers the employer relied on workers to assist each other to understand.

PN830

So to delete those words.

PN831

THE COMMISSIONER: So where will the sentence commence then?

PN832

MS WILES: So the sentence would simply read ‑ ‑ ‑

PN833

THE COMMISSIONER: Because you’ve left some words in that sentence.

PN834

MS WILES: Yes, sorry. Sorry, so the sentence should actually read:

PN835

The employer provided no interpreters for those workers.

PN836

THE COMMISSIONER: All right. So that whole sentence comes out. Yes. From:

PN837

Where there were no team leaders or supervisors who spoke a language of the workers the employer relied on workers to assist each other to understand but provided no interpreters for those workers.

PN838

So that all comes out and it’s replaced by?

PN839

MS WILES: A single sentence which is:

*** THI CHUK LY NGUYEN XN MS WILES

PN840

The employer provided no interpreters for those workers.

PN841

THE COMMISSIONER: Okay. So that was the last sentence. Yes, got it.

PN842

SENIOR DEPUTY PRESIDENT WATSON: Okay. Yes. The next ‑ ‑ ‑

PN843

MS WILES: Sorry, your Honour, if I could have one minute, sorry? I apologise, your Honour. So it is, as I indicated, which is:

PN844

If he comes the employer provided no interpreters for those workers.

PN845

THE COMMISSIONER: Yes. Thank you.

PN846

SENIOR DEPUTY PRESIDENT WATSON: Yes. The second change?‑‑‑Yes, now, Commissioner, the second change is in respect to paragraph 16.

PN847

Yes?‑‑‑Of the first statement. The name of the employer was – sorry, that, yes, in respect to paragraph 16 the ‑ ‑ ‑

PN848

No, I’m sorry, if you just raise your voice.

PN849

THE COMMISSIONER: We can’t hear.

PN850

THE WITNESS: Yes. In respect to the fifth sentence, I want to delete the word “supervisor” and replace by the word “manager”.

PN851

SENIOR DEPUTY PRESIDENT WATSON: I see.

PN852

The employer, through a manager.

PN853

?‑‑‑Yes.

PN854

Rather than a supervisor. Yes?‑‑‑So the sentence reads:

*** THI CHUK LY NGUYEN XN MS WILES

PN855

The employer through the manager who did not speak Vietnamese simply informed the workers of the change to their hours and required workers to take time off in lieu of payment for overtime.

PN856

So that’s only changing the one word?‑‑‑Yes.

PN857

Yes. Okay. Yes. Thank you. Any further changes?‑‑‑Yes. So the sixth sentence at that paragraph 16, I mean by deleting the word “supervisor” and replaced by the word “manager”.

PN858

I see. Yes. Thank you?‑‑‑So the sentence reads:

PN859

The workers did not clearly understand the manager.

PN860

Thank you.

PN861

That’s all?‑‑‑Yes.

PN862

MS WILES: Your Honour, arising from this morning, I can indicate some further - arising from this morning’s issue around the paragraph 15, I can advise of some further changes, which I will then put to the witness.

PN863

SENIOR DEPUTY PRESIDENT WATSON: They’re the only changes.

PN864

MS WILES: No, no, no, there’s further changes.

PN865

THE COMMISSIONER: No, no, no, further. To 15.

PN866

MS WILES: Arising from this morning.

PN867

SENIOR DEPUTY PRESIDENT WATSON: To 15, yes.

PN868

MS WILES: Yes.

PN869

SENIOR DEPUTY PRESIDENT WATSON: What are they?

*** THI CHUK LY NGUYEN XN MS WILES

PN870

MS WILES: I’ll go through them, your Honour. Sorry. Then I’ll get the witness to confirm them.

PN871

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN872

MS WILES: Yes.

PN873

SENIOR DEPUTY PRESIDENT WATSON: It might – yes.

PN874

MS WILES: So at the commencement of paragraph 15, it reads:

PN875

I organise at a footwear industry workplace.

PN876

The change is - names Clik Corp, so that’s C-l-i-k C-o-r-p Pty Ltd.

PN877

SENIOR DEPUTY PRESIDENT WATSON: Yes. That regularly relies – sorry, you were going ‑ ‑ ‑

PN878

MS WILES: Sorry, located at 38 to 40 Buckland Street, Clayton in Victoria.

PN879

SENIOR DEPUTY PRESIDENT WATSON: Which street?

PN880

MS WILES: Clayton Street – sorry, Buckland Street, Clayton.

PN881

SENIOR DEPUTY PRESIDENT CALLAGHAN: Buckland.

PN882

SENIOR DEPUTY PRESIDENT WATSON: Buckley Street.

PN883

THE COMMISSIONER: No, Buckland.

PN884

SENIOR DEPUTY PRESIDENT CALLAGHAN: It’s Buckland.

PN885

SENIOR DEPUTY PRESIDENT WATSON: Buckland Street, Clayton, Victoria. Yes. Lovely area. Yes.

*** THI CHUK LY NGUYEN XN MS WILES

PN886

MS WILES: Then after that sentence:

PN887

I understand the name of the team leader is Nhun –

PN888

which is N-h-u-n.

PN889

SENIOR DEPUTY PRESIDENT WATSON: N-h-u-n. Yes.

PN890

MS WILES: “Whom I have met on at least one occasion.”

PN891

SENIOR DEPUTY PRESIDENT WATSON: Very well.

PN892

MS WILES: There’s a bit more. At the end of paragraph 15.

PN893

SENIOR DEPUTY PRESIDENT WATSON: End of paragraph 15?

PN894

MS WILES: Yes. There’s further words as follows:

PN895

In relation to the redundancy dispute at Clik Corp the TCFUA only became aware of the redundancy proposal approximately one week after affected employees ‑ ‑ ‑

PN896

SENIOR DEPUTY PRESIDENT WATSON: Approximately one week after what?

PN897

MS WILES: Affected employees.

PN898

SENIOR DEPUTY PRESIDENT WATSON: After affected employees. Yes.

PN899

MS WILES: “Had been advised by letter by the company on 9 January 2013.” End of sentence. Then there’s a further sentence:

PN900

Through subsequent email correspondence between myself and Clik Corp it was confirmed that Clik Corp had used ‑ ‑ ‑

*** THI CHUK LY NGUYEN XN MS WILES

PN901

SENIOR DEPUTY PRESIDENT WATSON: That Clik Corp had?

PN902

MS WILES: Had used.

PN903

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN904

MS WILES: Sorry.

PN905

a Vietnamese speaking employee to interpret for the Vietnamese production workers about the proposed redundancies.

PN906

Then there’s one further sentence:

PN907

Annexed to this statement and marked LN1 is a copy of the exchange of email correspondence between the TCFUA and Clik Corp, including the template letter to employees dated 9 January 2013.

PN908

End of sentence.

PN909

SENIOR DEPUTY PRESIDENT WATSON: That’s it?

PN910

MS WILES: That’s it. Then there’s the exhibit, your Honour, which ‑ ‑ ‑

PN911

SENIOR DEPUTY PRESIDENT WATSON: Yes. Okay. Look, don’t worry about the exhibit, but you can hand them up. But I’ll also ask you if you have the amended statement ‑ ‑ ‑

PN912

MS WILES: Statement provided.

PN913

SENIOR DEPUTY PRESIDENT WATSON: ‑ ‑ ‑ recorded with the attachment provided and that’ll be placed on the website. But if you could ensure that Mr Mead and Mr Scott has a copy of the attachments before we leave today. Yes. Okay.

PN914

MS WILES: Sorry, very tired, your Honour. Sorry, I should confirm those changes with the witness, your Honour.

*** THI CHUK LY NGUYEN XN MS WILES

PN915

SENIOR DEPUTY PRESIDENT WATSON: Yes. First of all, Ms Nguyen, do you accept that the statement should also be changed in the manner in which Ms Wiles just read to the Bench?‑‑‑Yes, your Honour.

PN916

As part of your statement?‑‑‑Yes.

PN917

Yes. Very well. You can take over from there.

PN918

MS WILES: Ms Nguyen, with those changes, is your statement true and correct in each particular?‑‑‑Yes.

PN919

I seek to tender that statement.

PN920

SENIOR DEPUTY PRESIDENT WATSON: Very well. We’ll mark the amended statement exhibit TCFUA4.

PN921

THE COMMISSIONER: Four.

PN922

SENIOR DEPUTY PRESIDENT WATSON: Four.

EXHIBIT #TCFUA4 AMENDED STATEMENT OF THI CHUK LY NGUYEN

PN923

SENIOR DEPUTY PRESIDENT WATSON: That will be also placed on the website so that everyone’s aware of the amended form. I’m frankly not sure we can take the matter much further this evening. I apologise, Ms Nguyen, you’ll need to return. Was there any additional evidence in opening you were going to seek from Ms Nguyen?

PN924

MS WILES: I did have a small number of questions. Yes.

PN925

SENIOR DEPUTY PRESIDENT WATSON: How long do you think that would take? We can leave it till ‑ ‑ ‑

PN926

MS WILES: That would be our preference, your Honour.

*** THI CHUK LY NGUYEN XN MS WILES

PN927

SENIOR DEPUTY PRESIDENT WATSON: We can leave it till Thursday, in any case.

PN928

MS WILES: Yes.

PN929

SENIOR DEPUTY PRESIDENT WATSON: I don’t want to pressure you, so if you have those matters you can raise them initially Thursday before Mr Scott and Mr Mead cross-examine. So what we were proposing to do was to adjourn now until 10 o’clock here. I would ask the parties to sensibly discuss the arrangements for the other witnesses, and the ABI, having regard to the nature of the industry, if the evidence can be brought without significance inconvenience but in a satisfactory way, that should be explored between the parties, as frankly, it’s very limited in its scope, and I think the parties should apply some common sense to how that evidence is brought, so long as it is brought, and all parties are fairly given an opportunity to attest that evidence.

PN930

Perhaps the parties could advise me, prior to the 19th, of the schedule of the witnesses for that day. I will certainly be here, one or both of my colleagues may be. We’re conscious of the need to keep the matter proceeding, and then provide an opportunity for written submissions and we’ll announce the detail of that on the - or one of us will, at least, on Thursday, on behalf of the Full Bench.

PN931

Now, sorry, Mr Scott?

PN932

MR SCOTT: Sorry, your Honour, in terms of the programming, given that the AIG and ABI will no doubt go away and get some instructions in relation to the new information today, and then quite possibly we might require to recall Ms Nguyen at a later time, once we’ve had those instructions.

PN933

SENIOR DEPUTY PRESIDENT WATSON: Sorry, recall?

PN934

MR SCOTT: Ms Nguyen for cross-examination on that new material that we’ve just heard today. I anticipate that we might not have instructions by next Thursday.

PN935

SENIOR DEPUTY PRESIDENT WATSON: We can deal with that if it arises. I would hope it wouldn’t, again the evidence in respect of those matters is fairly constrained and hopefully should be able to be dealt with.

*** THI CHUK LY NGUYEN XN MS WILES

PN936

MR SCOTT: I suspect it would be constrained and quite short. My only concern is just that we won’t be able to do that in a week, and we may be left in a situation where we have to come back before your Honours a third time. So, I’m in your Honour’s hands, but I thought one approach may be, rather than to come back next Thursday, to come back at a later date where we can deal with everything in one go, but I’m in your Honour’s hands. I just thought I’d raise that just as a practical ‑ ‑ ‑

PN937

SENIOR DEPUTY PRESIDENT WATSON: Finding that late date where the entire Bench is available would be a difficulty.

PN938

MR SCOTT: No. I’m in your Honour’s hands.

PN939

SENIOR DEPUTY PRESIDENT WATSON: Yes. We’ll proceed on the basis I’ve indicated. If there’s a need to accommodate some further evidence we’ll consider that, but again, I would hope there’s regard had, in a common sense way, to the nature of the evidence, the extent of it, and whether that can be reasonably and quickly dealt with. Mr Mead?

PN940

MR MEAD: Just two administrative matters, your Honour. I just want to clarify, I believe I heard your Honour correctly, were you proposing the closing submissions be done in writing as opposed to oral?

PN941

SENIOR DEPUTY PRESIDENT WATSON: I was proposing that. Yes.

PN942

MR MEAD: That’s fine. The only other matter is whether it’s appropriate – and this is really for the purpose of referencing in the final submissions, whether the bundle of materials I tendered or provided to Ms O’Neil, might appropriately be marked.

PN943

SENIOR DEPUTY PRESIDENT WATSON: Yes. I’ll mark it AIG1, the bundle of material.

EXHIBIT #AIG1 BUNDLE OF MATERIAL

PN944

MR MEAD: Thank you, your Honour.

PN945

SENIOR DEPUTY PRESIDENT WATSON: I’m not sure that will make its way on to the website.

*** THI CHUK LY NGUYEN XN MS WILES

PN946

MS WILES: Your Honour, unless I misheard Mr Scott, we do intend to lead some evidence from Ms Nguyen, as part of the examination-in-chief. I think you were assuming we weren’t.

PN947

MR MEAD: I think Mr Scott was saying, and correct me if I’m wrong, we’ll use our best endeavours to get instructions between now and Thursday, but it might not be achievable, and if that were to occur, we might need to come back a further time, I believe is the point that was being made.

PN948

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN949

SENIOR DEPUTY PRESIDENT CALLAGHAN: I think the Bench is expecting that you will use your best endeavours.

PN950

MR MEAD: Indeed, your Honour.

PN951

SENIOR DEPUTY PRESIDENT CALLAGHAN: We were in no doubt about the expectation that we have that you will use your best endeavours.

PN952

MR MEAD: Yes. Thank you, your Honour.

PN953

SENIOR DEPUTY PRESIDENT WATSON: Yes?

PN954

MS WILES: Your Honour, it’s a point of procedure really, but in terms of AIG’s bundle of materials, he took Ms O’Neil to some of those documents, but he certainly didn’t take her to all of them, so there is an issue of whether the documents that he didn’t take her to would constitute new evidence.

PN955

SENIOR DEPUTY PRESIDENT WATSON: They’re existing documents. Is there any dispute as to the authenticity of them?

PN956

MS WILES: Your Honour, I haven’t had an opportunity to go through them all but ‑ ‑ ‑

PN957

SENIOR DEPUTY PRESIDENT WATSON: You do that, and if you’ve got any issues you can raise them next Thursday.

PN958

MS WILES: Okay.

PN959

SENIOR DEPUTY PRESIDENT WATSON: I mean, we seem to be making more out of evidentiary matters than needs to be conceivably made out of them, frankly. Very well. We’ll adjourn until 10 o’clock on Thursday.

<THE WITNESS WITHDREW [4.31 PM]

ADJOURNED UNTIL THURSDAY, 19 MARCH 2015 [4.31 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

MICHELE O'NEIL, AFFIRMED....................................................................... PN326

EXAMINATION-IN-CHIEF BY MS WILES................................................... PN326

EXHIBIT #TCFUA1 WITNESS STATEMENT OF MICHELE O'NEIL DATED 18/12/2014................................................................................................................................. PN335

EXHIBIT #TCFUA2 TCFUA WRITTEN QUOTATION FOR TRANSLATION SERVICES................................................................................................................................. PN351

CROSS-EXAMINATION BY MR MEADS...................................................... PN385

CROSS-EXAMINATION BY MR SCOTT....................................................... PN585

EXHIBIT #TCFUA3 TRANSLATION OF MEMBERSHIP FORMS........... PN714

THE WITNESS WITHDREW............................................................................ PN800

THI CHUK LY NGUYEN, AFFIRMED........................................................... PN808

EXAMINATION-IN-CHIEF BY MS WILES................................................... PN808

EXHIBIT #TCFUA4 AMENDED STATEMENT OF THI CHUK LY NUGYEN PN922

EXHIBIT #AIG1 BUNDLE OF MATERIAL................................................... PN943

THE WITNESS WITHDREW............................................................................ PN959

Fair Work Commission Transcripts

AM2014/91, Transcript of Proceedings [2015] FWCTrans 302 (20 May 2015)