B2015/448, Transcript of Proceedings [2015] FWCTrans 354 (16 June 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1051930

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DEPUTY PRESIDENT GOSTENCNIK

B2015/448

s.236 - Application for a majority support determination

National Union of Workers

and

Administration & Marketing Solutions T/A Chemist Warehouse
(B2015/448)

Melbourne

10.02 AM, MONDAY, 25 MAY 2015

PN1

THE DEPUTY PRESIDENT: Yes. Good morning, Ms Barrett. You're appearing for the NUW?

PN2

MS E BARRETT: Yes, Deputy President.

PN3

THE DEPUTY PRESIDENT: And Mr Tindley you're seeking permission to appear for the respondent?

PN4

MR TINDLEY: Yes, your Honour.

PN5

THE DEPUTY PRESIDENT: Is there any objection, Ms Barrett?

PN6

MS BARRETT: No, there's not.

PN7

THE DEPUTY PRESIDENT: All right. Well, I'm satisfied, having regard to the complexity of the matter; the matter will be dealt with more efficiently if I were to grant you permission, Mr Tindley. So permission is granted.

PN8

MR TINDLEY: Thank you, Deputy President.

PN9

THE DEPUTY PRESIDENT: How do parties wish to proceed this morning?

PN10

MS BARRETT: We are happy to call Mr Robertson, but there's a few housekeeping matters to attend to first.

PN11

THE DEPUTY PRESIDENT: Well, we will deal with those then, shall we?

PN12

MS BARRETT: Thank you. So firstly, as previously foreshadowed, the NUW is seeking to vary its application to refer to ePharmacy Pty Ltd, not Administration and Marketing Solutions Pty Ltd.

PN13

THE DEPUTY PRESIDENT: Yes.

PN14

MS BARRETT: The NUW is seeking that the Commission allows this amendment pursuant to section 586(a) of the Act.

PN15

THE DEPUTY PRESIDENT: Yes.

PN16

MS BARRETT: The second thing from the NUW's outline of submissions filed on Friday, you will see that there is a number of documents that the NUW intends to rely upon. These are attachments 1 to 7 of the submissions and we'd seek to tender those documents.

PN17

THE DEPUTY PRESIDENT: All right. We'll deal with that in the course of the NUW's evidentiary case. Mr Tindley, is there any objection to the amendment?

PN18

MR TINDLEY: As previously foreshadowed, your Honour, we don't have an objection to that amendment.

PN19

THE DEPUTY PRESIDENT: Well, in those circumstances, I will amend the application so that the respondent is ePharmacy Pty Ltd. Now, are there any other preliminary matters, Ms Barrett?

PN20

MS BARRETT: No, there's not, Deputy President.

PN21

THE DEPUTY PRESIDENT: Now, the documents that are attached to the submissions, are you able to tell me how these were obtained?

PN22

MS BARRETT: So Deputy President, perhaps the best approach is for Mr Robertson to identify the documents when he is giving his evidence.

PN23

THE DEPUTY PRESIDENT: That's fine, I am happy for that to occur.

PN24

MS BARRETT: Thank you.

PN25

THE DEPUTY PRESIDENT: Well, as there are no other preliminary matters, Ms Barrett, perhaps call Mr Robertson.

PN26

MS BARRETT: Thank you, your Honour.

PN27

THE ASSOCIATE: Please state your full name and address.

PN28

MR ROBERTSON: George Alexander Raphael Robertson (address supplied)

<GEORGE ALEXANDER RAPHAEL ROBERTSON, AFFIRMED [10.05 AM]

EXAMINATION-IN-CHIEF BY MS BARRETT [10.05 AM]

PN29

THE DEPUTY PRESIDENT: Yes, Ms Barrett.

PN30

MS BARRETT: George, have you submitted a witness statement in these proceedings?‑‑‑Yes, I have.

PN31

Does it consist of four pages, plus attachments marked 1 to 3?‑‑‑Yes.

PN32

Is it true and correct?‑‑‑Yes.

PN33

I'd like to tender that witness statement, your Honour.

PN34

THE DEPUTY PRESIDENT: Yes. Mr Tindley, any objection?

PN35

MR TINDLEY: Yes, your Honour, there are a number of components of the statement that we would object to. They all fall into the same category, your Honour; perhaps if I identify what they are and then run through the basis for it. The last sentence of paragraph 11.

PN36

THE DEPUTY PRESIDENT: "All workers express disbelief," yes.

PN37

MR TINDLEY: That's correct, and then the entirety of paragraph 13 and the entirety of paragraph 15 and we would also say paragraph 16. The basis for that, your Honour, is that the witness is giving or attempting to give evidence about what people have told him for the purpose of establishing the truth of those matters. So he's not saying, "People told me this, and I don't believe that that is simply what they've told me." The purposes of this evidence, clearly in our submission, is to establish a set of facts and the witness just isn't in a position to do that, that's hearsay evidence and should be excluded, your Honour.

PN38

THE DEPUTY PRESIDENT: Ms Barrett.

PN39

MS BARRETT: Firstly, the Fair Work Commission has discretion to admit this evidence, because as the Fair Work Commission is not bound by the Rules Of Evidence under section 591 of the Act and may inform itself of matters as it sees feet under section 590 and, for example, this has been applied in many cases, for example, CEPU and CFMEU v Abigroup Contractors Pty Ltd. The NUW submits that it should admit this evidence.

*** GEORGE ALEXANDER RAPHAEL ROBERTSON XN MS BARRETT

PN40

Section 577 of the Act requires the Fair Work Commission to exercise its powers in a manner that it quick, informal and avoids unnecessary technicalities. We say that this evidence should be admitted, especially given the probative value of the evidence substantially outweighs the danger that the admission of such evidence might be unfairly prejudicial to the company.

PN41

The hearsay evidence that we are providing is supported by documentary evidence and is firsthand hearsay evidence. It is not prejudicial to the company at all, because the company is clearly in a position to provide evidence, if it did exist, to rebut the hearsay evidence and what Mr Robertson's - what evidence would be put to Ms Lipsey today. There is a very satisfactory explanation as to why the NUW could not call direct evidence from one or more employees and that is because workers were concerned about giving evidence in a case against their employer and this is very reasonable position in our view for workers to take, given that their involvement with the union is recent and workers are unsure of their rights and unsure about exercising those rights.

PN42

We also note that the company is also relying upon evidence of equally low probative value. Ms Lipsey is making very broad assertions in her witness statement that are not backed up by any specifics.

PN43

THE DEPUTY PRESIDENT: You can take objection to those when the statement is sought to be admitted. Mr Tindley, is there anything else you want to say about the objection?

PN44

MR TINDLEY: Simply, your Honour, the mask or the purported protection of the Fair Work Commission not being bound by the Rules of Evidence does not set aside the obligation of the Fair Work Commission to operate in a fair and just way under 577 and the view that the Rules Of Evidence should be simply ignored is unsustainable. I would also say that this suggestion that an employee could not have come forward to give that evidence, again we would say is not a factor that the Commission should consider.

PN45

THE DEPUTY PRESIDENT: Thank you. What I propose to do is not allow the final sentence of paragraph 11, because putting aside its form in any event, even if true, it doesn't carry any particular weight and is not probative of the issue that is thought to be agitated and that is as a matter of proper construction, the performing work within the rules of the NUW. As to the other matters, I will allow the evidence; ultimately it's a question of weight to be assigned to each of the matters that are set out there and the fact that it's in a hearsay form goes to the question of weight. Presumably Ms Barrett can seek to cross-examine the respondent's witnesses about these matters.

*** GEORGE ALEXANDER RAPHAEL ROBERTSON XN MS BARRETT

PN46

MS BARRETT: That's correct.

PN47

THE DEPUTY PRESIDENT: All right, yes. Subject to the removal of the last sentence in paragraph 11, I propose to mark the witness statement of Mr George Robertson comprising 16 paragraphs and three attachments as exhibit NUW1.

EXHIBIT #NUW1 STATEMENT OF MR GEORGE ROBERTSON

PN48

MS BARRETT: Thank you, your Honour.

PN49

George, do you also have a copy of the NUW's outline of submissions?‑‑‑Yes, I do.

PN50

Do you recognise attachment 1?‑‑‑Yes.

PN51

Can you explain to me why you recognise it?‑‑‑Yes, so attachment 1 is a notice that's posted on the wall of the lunch room at the Preston warehouse and what's on the poster are a set of designated targets - - -

PN52

THE DEPUTY PRESIDENT: Mr Robertson, you personally saw this on the noticeboard?‑‑‑Yes, I did.

PN53

When did you see that?‑‑‑On 19 May.

PN54

Did you remove it from the noticeboard?‑‑‑No.

PN55

Well, did you copy it?‑‑‑Yes, I took a photograph of it.

PN56

You have a photograph of it. So this is a photograph of something that was on the noticeboard at the workplace on - sorry, which date was it?‑‑‑19 May.

PN57

19 May. With your Smartphone, presumably, is that right?‑‑‑Yes.

PN58

Yes, Ms Barrett.

*** GEORGE ALEXANDER RAPHAEL ROBERTSON XN MS BARRETT

PN59

MS BARRETT: Do you recognise attachment 2?‑‑‑Yes, attachment 2 is a list of employees that work at the Preston warehouse. They are designated as store workers in the warehouse and this is from the company's Intranet that's available to each of the workers who work at the warehouse. It's something that can be accessed by a computer or a Smartphone. So this was something that was shown to me by some of the workers on a number of occasions, but this particular copy on 19 May.

PN60

Do you recognise attachment 3?‑‑‑Yes. Attachment 3 is also a photograph of a poster on the wall of the Preston warehouse. You'll note that it says "Preston" in the top left-hand corner and refers to the warehouse down the bottom. It says, "Our journey so far. New warehouse check," and so this is a poster for nominations for the health and safety committee in the warehouse.

PN61

Thank you. Do you recognise attachment 4?‑‑‑Yes. Attachment 4 is a company - a document that is also attached to the noticeboard in the Preston warehouse that refers to the dress code for the distribution centres, one of which is ePharmacy, which is listed in the heading on the poster.

PN62

THE DEPUTY PRESIDENT: And all of these were taken on 19 May?‑‑‑Yes, that's correct.

PN63

Thank you.

PN64

MS BARRETT: Do you recognise attachment 5?‑‑‑Yes. Attachment 5 is a photograph that I took of the sign on the front of the warehouse from the footpath. That designates the facility as the ePharmacy distribution centre.

PN65

Do you recognise attachment 6?‑‑‑Yes. Attachment 6 is a copy of an email from the ePharmacy Preston warehouse manager, Linda Cong, that was sent to me on 19 May.

PN66

Do you recognise attachment 7?‑‑‑Yes. Attachment 7 is two pay slips that were given to me by workers who work at the Preston warehouse. You will note that they're designated -their classification is designated as being a DC store worker and their position is a store worker level 1. So obviously they're information has been redacted because of their concerns about being identified, but these are two payslips that are provided to me by two warehouse workers.

PN67

Thank you. I have no further questions.

*** GEORGE ALEXANDER RAPHAEL ROBERTSON XN MS BARRETT

PN68

THE DEPUTY PRESIDENT: Would you like those documents tendered?

PN69

MS BARRETT: Yes, your Honour.

PN70

THE DEPUTY PRESIDENT: Any objection, Mr Tindley?

PN71

MR TINDLEY: No, your Honour.

PN72

THE DEPUTY PRESIDENT: I think I'll mark them individually. So the attachment 1 which is a Christmas hours targets notice as NUW2.

EXHIBIT #NUW2 ATTACHMENT 1 CHRISTMAS HOURS TARGETS NOTICE

PN73

THE DEPUTY PRESIDENT: The list of employees in attachment 2 is NUW3.

EXHIBIT #NUW3 ATTACHMENT 2 LIST OF EMPLOYEES

PN74

THE DEPUTY PRESIDENT: The occupational health and safety committee notice which is attachment 3 is NUW4.

EXHIBIT #NUW4 ATTACHMENT 3 OCCUPATIONAL HEALTH AND SAFETY COMMITTEE NOTICE

PN75

THE DEPUTY PRESIDENT: The dress code for distribution centres which is attachment 4 is NUW5.

EXHIBIT #NUW5 ATTACHMENT 4 DRESS CODE FOR DISTRIBUTION CENTRES

PN76

THE DEPUTY PRESIDENT: The photograph of the ePharmacy Distribution Centre at 44 Raglan Street, Preston is NUW6.

EXHIBIT #NUW6 ATTACHMENT 5 PHOTOGRAPH OF THE ePHARMACY DISTRIBUTION CENTRE AT 44 RAGLAN STREET PRESTON

PN77

THE DEPUTY PRESIDENT: The email chain, the most recent of which is from Linda Cong to Mr George Robertson dated 19 May 2015 is NUW7.

*** GEORGE ALEXANDER RAPHAEL ROBERTSON XN MS BARRETT

EXHIBIT #NUW7 ATTACHMENT 6 EMAIL FROM LINDA CONG TO MR GEORGE ROBERTSON DATED 19/05/2015

PN78

THE DEPUTY PRESIDENT: The two pay slips that are redacted as NUW8.

EXHIBIT #NUW8 ATTACHMENT 7 TWO REDACTED PAY SLIPS

PN79

THE DEPUTY PRESIDENT: Does that conclude evidence-in-chief, Ms Barrett?

PN80

MS BARRETT: Yes, thank you.

PN81

THE DEPUTY PRESIDENT: Thank you. Yes, Mr Tindley.

CROSS-EXAMINATION BY MR TINDLEY [10.18 AM]

PN82

MR TINDLEY: Thank you, your Honour.

PN83

Mr Robertson, how long have you been responsible for the site at Preston?‑‑‑Since my initial visit there on 20 February.

PN84

20th?‑‑‑Of February.

PN85

How did you come to take on that site?‑‑‑We routinely visit different warehouses and I'm part of the team that goes out and speaks to workers who work in warehouses. And so this was one of the facilities on my list.

PN86

How often do you visit locations, on average?‑‑‑Which locations?

PN87

Locations generally. Is there a general schedule of site visits that you engage in?‑‑‑No, there's not.

PN88

You visited this site on 10 occasions?‑‑‑Yes.

PN89

And you had three other off-sit meetings?‑‑‑Yes.

PN90

An unusual number of visits?‑‑‑No.

*** GEORGE ALEXANDER RAPHAEL ROBERTSON XXN MR TINDLEY

PN91

No? So with other sites that you're responsible for, you will visit them 13 times in a 13-week period. So once a week?‑‑‑Yes, in situations where workers are - it's a new facility where the workers, you know, have not had the opportunity to speak with the union and there's interest in the union and in enterprise bargaining. It would be routine for me to visit the site regularly, yes.

PN92

So you're saying that it's not that this is the usual number of times that you visit a location, it's the usual number of times when you're getting started at a location, is that correct?‑‑‑I would say that where there's interest in the union and in collective bargaining, yes.

PN93

So what happened in the meeting on 20 February 2015 or even in a visit on 20 February 2015?‑‑‑So myself and another organiser visited the site. We discussed the role of the union in the workplace. We gave workers an opportunity to join the union, to ask us questions. We explained that we had visited other work sites that formed part of the same company and workers were interested, and we discussed those matters.

PN94

Did you talk about bargaining?‑‑‑Yes, I explained what enterprise bargaining was and on that particular visit and on numerous visits had discussions with workers about what enterprise bargaining was.

PN95

So why didn't you cover that in your statement?‑‑‑What do you mean?

PN96

Why didn't you refer to the discussions about enterprise bargaining on 20 February in your statement?‑‑‑Because they were general conversations about the role of the union, about what enterprise bargaining was generally. Obviously, this was the first time we'd ever spoken to the workers. So obviously as those discussion progressed and it was clear that workers were interested in exercising their rights to join the union and engage in workplace activity, then we explained more specifically what enterprise bargaining was.

PN97

You raised the issue of enterprise bargaining with the workers?‑‑‑What do you mean? Did I?

PN98

You raised the issue with them?‑‑‑Yes, I explained what it was, yes.

PN99

Because you wanted them to get involved in an enterprise bargaining agreement?‑‑‑I explained that it was their right to engage in enterprise bargaining if they chose to. It was also their right to join the union. It was also their right not to join the union or not engage in enterprise bargaining if they didn't want to.

*** GEORGE ALEXANDER RAPHAEL ROBERTSON XXN MR TINDLEY

PN100

You mentioned that to them, did you?‑‑‑I did.

PN101

Did you talk to them about what outcomes they'd get in enterprise bargaining?‑‑‑What I did was explain that in m experience enterprise bargaining can lead to better outcomes for workers. So in that sense, yes.

PN102

Where do you talk in your statement about explaining to workers about the better outcomes that they might get from enterprise bargaining?‑‑‑What do you mean?

PN103

Where is that in your statement?‑‑‑So I referred to the information provided to workers, attachment 1, "What is enterprise bargaining," which is, obviously, general information about the enterprise bargaining process and explaining to workers that workers can make claims about things that they'd like to bargain for, including wages and other conditions and, obviously, that was part of the discussions that I had with workers.

PN104

Did you tell them they'd get better outcomes?‑‑‑I said in my experience when workers collectively bargain with their employer they get better outcomes and they also have an opportunity to participate and have their voice heard about what issues were important to them.

PN105

This attachment 1, was that the only document you provided to them?‑‑‑In regards to enterprise bargaining, yes.

PN106

You didn't provide them anything that compared their conditions to other employers who you'd been involved in bargaining for?‑‑‑So there's - we discussed a number of employers where the union and the employer have negotiated for many years and discussed some of the outcomes of those bargaining agreements, yes.

PN107

Did you provide them with anything in writing in relation to that? Did you provide them with a document in relation to that?‑‑‑No.

PN108

Did you leave a document at the site in relation to that?‑‑‑No. The only document that workers may have seen is a document that had been circulated at another AM Solutions warehouse, which is comparing the wages of workers at that warehouse, which is the Somerton facility with Sigma workers who perform the same warehouse functions at the Sigma warehouse.

*** GEORGE ALEXANDER RAPHAEL ROBERTSON XXN MR TINDLEY

PN109

Is that one of the companies that you said you discussed outcomes with at the Preston warehouse?‑‑‑Yes.

PN110

Why did you use Sigma as an example?‑‑‑So Chemist Warehouse is the sixteenth largest retailer in Australia, the largest online retailer and one of the largest sellers of pharmaceutical products in Australia with an annual turnover of 2.7 billion dollars. Sigma is the largest wholesaler of pharmaceutical, generic pharmaceuticals in Australia with a turnover of 2.6 billion dollars, so we felt that it would be a very good comparison in terms of the kind of outcomes that are possible - possible if workers are able to collectively bargain with their employer.

PN111

How would there be any alignment between Sigma and ePharmacy?‑‑‑Because Sigma has a warehouse where workers perform warehousing functions and ePharmacy Preston has a warehouse, which is the warehouse we're discussing, where workers perform similar functions and so that's why the comparison is a valid one.

PN112

But one is a retailer and one is a manufacturer?‑‑‑No.

PN113

Are you saying ePharmacy is not a retailer?‑‑‑No, I'm saying that they both - that they both operate in the pharmaceutical industry and they're both warehouses and so therefore the comparison is appropriate. Of course, we discussed other retailers as well. So we discussed how workers at the Coles Somerton distribution centre, Coles being another large retailer where workers are engaged in collective bargaining with the employer have also been able to negotiate good outcomes. So that was another warehouse that we discussed as was the Toll Nike warehouse where workers also have negotiated good outcomes. So there are a number of other retailers and other companies engaged in the pharmaceutical industry where we discussed what is possible when workers in the company engage in collective bargaining.

PN114

You made it clear to them that that was in the context of warehouse activities?‑‑‑Yes.

PN115

So it being warehouse workers, "These are some of the comparable outcomes that we've achieved"?‑‑‑All right. So the Preston facility being a warehouse and the work that the workers are engaged in at the facility being warehouse work, yes.

PN116

Sorry?‑‑‑So in the sense that the Preston facility is a warehouse and that the work that's being engaged in by the workers - - -

*** GEORGE ALEXANDER RAPHAEL ROBERTSON XXN MR TINDLEY

PN117

Is that your opinion?‑‑‑No, that's the - that's absolutely true. That's what is manifestly obviously to everyone, including the workers and all of the advice that we provided - - -

PN118

So you're trying to give evidence on behalf of the workers?‑‑‑I'm telling you what workers have told me and what I've observed, and all of the documents that we've provided obviously show that the workers are engaged in warehousing - - -

PN119

Are you aware of the concept of a dark store?‑‑‑What's that?

PN120

Are you aware of the concept of a dark store?‑‑‑No, the first time I've heard of a dark store is when you guys raised it as a response to our application.

PN121

You're not aware that that's a common reference in the retail industry?‑‑‑No.

PN122

What did you discuss during the meeting - the visit on 17 March 2015?‑‑‑I can't recall specifically, but I imagine it was - by this point I was visiting the site routinely, so I would have had discussions with workers about bargaining and about signing the petition.

PN123

You're spending a fair bit of time trying to get people to sign the petition?‑‑‑No. I mean, obviously, every time I visit the site, it's not ordinarily possible to speak to all of the workers, and so I speak to some of the workers at some - on some visits and others on other visits.

PN124

During these meetings, not one worker asked you a single question?‑‑‑Of course workers ask me lots of questions.

PN125

Well, where have you put in your statement the questions that have been asked of you?‑‑‑Well, I'm not sure how that's relevant.

PN126

Your Honour - - -

PN127

THE DEPUTY PRESIDENT: Yes. Mr Robertson, just answer the question if you can?‑‑‑So why did I not put in the statement the questions that workers asked? Well, because that would be pages of, you know - if I put every single specific thing that I discussed with workers, every single thing that I told them and every single question they asked, well, it would be a 35-page submission.

*** GEORGE ALEXANDER RAPHAEL ROBERTSON XXN MR TINDLEY

PN128

So you've selected the evidence that you've provided to the Commission?‑‑‑No, I generally explained the kind of conversations that I had with workers in order to provide a sense that - of what I - you know, of what I said to workers and their interest in bargaining, which is obvious.

PN129

And not one worker questioned you or raised any issues that was negative towards enterprise bargaining?‑‑‑So obviously 11 of the 15 workers who work at the warehouse signed the petition. So not everyone who I spoke to was interested in either signing the petition, joining the union, so obviously not everyone has chosen to exercise that right.

PN130

So you chose to leave those parts out?‑‑‑Which parts out?

PN131

The parts about where employees raised their view not to join the union; that they didn't wish to bargain?‑‑‑Well, it's pretty obvious that if they didn't sign the petition, they're not interested in enterprise bargaining.

PN132

Can you please answer the question? You chose to leave those parts out?‑‑‑No, I didn't chose to leave them out. I don't see - I was making a statement about people's interest in enterprise bargaining, so that's was what the focus of my statement was about.

PN133

Your focus - the focus of your statement was on what would support the NUW's case in this majority support determination application ?‑‑‑Well, it's pretty obviously that 11 of the 15 workers have signed the petition. So obviously the workers at the site would like to engage in enterprise bargaining and so that's what - - -

PN134

Can I interrupt? I've asked you a question. It is a question that requires a yes or no answer?‑‑‑Can you repeat the question?

PN135

The evidence that you've provided in your statement - or the content of your statement has been constructed to - with the view to support the NUW's application for a majority support determination, hasn't it?‑‑‑Because workers at the site would like to engage in enterprise bargaining, yes.

PN136

Yes?‑‑‑Yes.

*** GEORGE ALEXANDER RAPHAEL ROBERTSON XXN MR TINDLEY

PN137

What was the circumstances of the petition that was provided to employees - who retained - was that left at site?‑‑‑No, that was the petition that I would take with me to the site and take with me when I left.

PN138

THE DEPUTY PRESIDENT: Mr Robertson, there are two petitions, one which has signatories firstly dated 4 March through to 26 March and the other all signed on 19 May, and the difference in the petitions is the name of the employer. Do I take it from that that you obtained these signatures throughout the course of March and then went back with ePharmacy as the employer and had the same employees re-sign the petition?‑‑‑That's correct, Commissioner. The only difference as I noted is that one of the employees left the company during the time; they obviously didn't sign the second petition and one additional worker who did not sign the first petition signed the second petition.

PN139

Yes, all right. Yes, Mr Tindley.

PN140

MR TINDLEY: Thanks, your Honour.

PN141

And you retained that first petition, the one signed through March or February at all time?‑‑‑That's correct. I retained both petitions.

PN142

Is there a reason why there are some dates of 4 February on the first petition and some dated 4 March?‑‑‑Yes, there are. That's an error - the workers - obviously the first four workers signed the petition on 4 March - - -

PN143

Sorry?‑‑‑The first four workers on the first petition signed the petition on 4 March - - -

PN144

THE DEPUTY PRESIDENT: I count six?‑‑‑Sorry, six - my apologies. The first six signed the petition on 4 March and four of them put the date wrong; two of them changed it and two of them didn't.

PN145

MR TINDLEY: How did you come to have offsite meetings?‑‑‑I spoke to workers on the phone and set up meetings away from work.

PN146

The purpose of those meetings was to get people to sign the petition?‑‑‑Not specifically. The purpose of those - some of those meetings was to - the purpose of all of the meetings was to discuss issues at the workplace; enterprise bargaining, as well as people who hadn't had the opportunity to sign the petition to sign the petition. Obviously, when you're in the lunchroom at the workplace you can't always have a long conversation, and so the purpose of those meetings - - -

PN147

Why not?‑‑‑Because workers only have half an hour for their lunchbreak.

*** GEORGE ALEXANDER RAPHAEL ROBERTSON XXN MR TINDLEY

PN148

And you need more than half an hour to talk to them about their agreement?‑‑‑Also this is what - like I said, this wasn't specifically about the agreement, this about all of the issues that the workers were facing at the workplace. The other thing is that the break structure is such that it's not possible to have all of the workers together at one specific time and so some workers wanted an opportunity to meet up and discuss with me and other co-workers issues that they are not able to discuss because they don't have the same break time.

PN149

What were the other issues at the workplace that you were discussing?‑‑‑So health and safety issues; issues to do with representation in terms of workers' right to be represented if they have discussions with management about discipline and things like that, but the most - obviously, the primary focus was on discussing enterprise bargaining.

PN150

Where did these offsite meetings occur?‑‑‑Some of them occurred at worker's houses and one occurred at the pub.

PN151

Certainly one of those meetings resulted in a signature being placed on the petition, 26 March?‑‑‑Yes.

PN152

And then am I correct in assuming that the offsite meeting on 19 May resulted in signatures on this petition, the second petition?‑‑‑Yes.

PN153

What did you tell employees about the purpose of that petition, the second petition?‑‑‑So the purpose of the petition is to demonstrate their support for enterprise bargaining. We reminded them that the Commission hearing would be on the 25th and that we would be changing the name listed on the petition to ePharmacy, so that any workers who were interested in demonstrating their support for bargaining could sign the petition.

PN154

Nothing further.

PN155

THE DEPUTY PRESIDENT: Yes, thank you. Any re-examination, Ms Barrett?

PN156

MS BARRETT: No, your Honour.

PN157

THE DEPUTY PRESIDENT: Mr Robertson, thank you for your evidence. You're excused?‑‑‑Thank you.

*** GEORGE ALEXANDER RAPHAEL ROBERTSON XXN MR TINDLEY

<THE WITNESS WITHDREW [10.38 AM]

PN158

MS BARRETT: Your Honour, could we have a very brief adjournment, please?

PN159

THE DEPUTY PRESIDENT: Yes. Was that going to be the conclusion of your evidentiary case?

PN160

MS BARRETT: Yes, it is.

PN161

THE DEPUTY PRESIDENT: And Mr Tindley, I understand that your witness isn't here yet?

PN162

MR TINDLEY: My witness is here. He's waiting next door.

PN163

THE DEPUTY PRESIDENT: He is here. How long would you like, Ms Barrett?

PN164

MS BARRETT: 10 minutes, please.

PN165

THE DEPUTY PRESIDENT: All right. Ms Barrett, can I ask this, would you be able to provide me with an un-redacted copy of the first petition?

PN166

MS BARRETT: Yes, your Honour.

PN167

THE DEPUTY PRESIDENT: Thank you. I will adjourn for 15 minutes, Ms Barrett, because in my experience 10 minutes often turns into 15.

SHORT ADJOURNMENT [10.39 AM]

RESUMED [10.59 AM]

PN168

THE DEPUTY PRESIDENT: Before you do Mr Tindley, I was shown to directions provided a copy by the respondent, a list of ePharmacy employees consisting of 16 employees. I just propose to mark those for identification. I ll mark the ePharmacy Preston employee list as MFI1.

EXHIBIT #MFI1 EPHARMACY PRESTON EMPLOYEE LIST

PN169

THE DEPUTY PRESIDENT: I was also provided with- - -

*** GEORGE ALEXANDER RAPHAEL ROBERTSON XXN MR TINDLEY

PN170

MR TINDLEY: Sorry, your Honour, can I just get the marking?

PN171

THE DEPUTY PRESIDENT: Sorry?

PN172

MR TINDLEY: You were marking that as?

PN173

THE DEPUTY PRESIDENT: MFI1, marked for identification.

PN174

I was also provided with a petition from enterprise agreement signed by 11 persons said to be employed at ePharmacy Pty Ltd at 44 Raglan Street, Preston. These are the petitions that are all signed on 19 May 2015. I ll mark that document as MFI2.

EXHIBIT #MFI2 PETITION FROM ENTERPRISE AGREEMENT SIGNED BY WORKERS AT EPHARMACY DATED 19/05/2015

PN175

THE DEPUTY PRESIDENT: Ms Barrett you ve handed up to me, or left with my associate the earlier petition which was signed by workers at Administration and Marketing Solutions Pty Ltd, variously during the month of March, noting the evidence of Mr Robertson about the incorrect dates for some of the signatures. I ll mark that document MFI3.

EXHIBIT #MFI3 PETITION SIGNED BY WORKERS AT ADMINISTRATION AND MARKETING SOLUTIONS PTY LTD

PN176

THE DEPUTY PRESIDENT: Ms Barrett, that concludes your evidentiary case?

PN177

MS BARRETT: Yes it does, your Honour.

PN178

THE DEPUTY PRESIDENT: Yes, thank you. Yes Mr Tindley.

PN179

MR TINDLEY: Thanks, your Honour. We call Joanne Lipsey.

<JOANNE LIPSEY, AFFIRMED [11.02 AM]

EXAMINATION-IN-CHIEF BY MR TINDLEY [11.02 AM]

PN180

THE DEPUTY PRESIDENT: Take a seat. Yes, Mr Tindley.

*** JOANNE LIPSEY XN MR TINDLEY

PN181

MR TINDLEY: Thank you, your Honour.

PN182

Ms Lipsey, can I ask you to repeat your name and address for the transcript?‑‑‑Joanne Lipsey, (address supplied), I m also based at (address supplied) I apologise.

PN183

THE DEPUTY PRESIDENT: It s all right. I only saw the street address and thought it might be your home address. I was going to cross that out, but if it s another business address, that s fine?‑‑‑Correct.

PN184

MR TINDLEY: Ms Lipsey, you prepared a statement in this matter?‑‑‑Yes.

PN185

Is that a document of 27 numbered paragraphs?‑‑‑Yes.

PN186

Are there any changes that you d seek to make to that statement?‑‑‑Just purely paragraph 16.

PN187

Paragraph 16. What are the changes?‑‑‑The deletion of, where it should read at the Preston site there was capping gone on the gondolas where excess stock is retained . So deletion of ends of the aisles .

PN188

THE DEPUTY PRESIDENT: There is capping you said on the gondolas ?‑‑‑Yes.

PN189

So change that to on ?‑‑‑ on gondolas where excess stock is retained .

PN190

Okay so delete end of the aisles ?‑‑‑ end of the aisles .

PN191

Should gondola be singular or plural?‑‑‑Plural.

PN192

MR TINDLEY: Is that the only change?‑‑‑Yes.

PN193

Is that statement true and correct to the best of your knowledge?‑‑‑Yes.

PN194

I tender that.

*** JOANNE LIPSEY XN MR TINDLEY

PN195

THE DEPUTY PRESIDENT: Ms Barrett, any objection?

PN196

MS BARRETT: No, your Honour.

PN197

THE DEPUTY PRESIDENT: All right. I ll mark the witness statement of Joanne Lipsey, comprising 27 paragraphs, noting the amendments recorded in transcript to paragraph 16 of the statement as exhibit ePharmacy1.

EXHIBIT #EPHARMACY1 WITNESS STATEMENT OF JOANNE LIPSEY

PN198

MR TINDLEY: I just have some questions for the witness. Ms Lipsey, you re aware that a witness statement has been filed in this matter by George Robertson?‑‑‑Yes.

PN199

Are you aware that in that statement, there s some commentary about some of the evidence that you ve provided?‑‑‑Yes.

PN200

What I intend to do is just ask you some questions and get your responses to those matters. I m going to read from some statements and then ask you to comment on them.

PN201

THE DEPUTY PRESIDENT: Might be easier if the witness had a copy of Mr Robertson s statement in front of her?‑‑‑I do.

PN202

You do have one? Okay.

PN203

MR TINDLEY: If I can take you to paragraph 13(a) of that statement and ask you to comment on the proposition that the Preston warehouse is not configured the same way as a retail store et cetera?‑‑‑The Preston facility is set up as a retail store. The aisles are all set up and planogrammed exactly as how we set up our retail stores. The only variation to our retail stores is that we have some areas that are what we call palletised positions where we actually pick off the floor, and that s purely because of the volume that s going through the facility. There s too much stock to actually sit on a shelf location. So, the products are exactly the same as set up as the aisles in our stores. There are more facings of the product and that s purely once again, because of volume.

*** JOANNE LIPSEY XN MR TINDLEY

PN204

Can you just explain what facings mean?‑‑‑Facings mean number of products across on a shelf. So, for example, depending on the size of the store, depends on the number of facings that we can fit on the shelf. If I was to use the example of a recent Chadstone store that we opened at Chadstone Shopping Centre, the facings on that particular store would be greater than a store that s much smaller in its size.

PN205

THE DEPUTY PRESIDENT: I m sorry, does that mean that there were a greater range of products, or a greater number of each product?‑‑‑Greater number of each product.

PN206

But the same range?‑‑‑Same range, same range.

PN207

MR TINDLEY: You would agree, given the change to your statement with subparagraph (b), in relation to gondola lanes?‑‑‑Yes.

PN208

In relation to subparagraph (c), can you provide some comment on that?‑‑‑It is the responsibility of the full time staff and team leaders to identify a trend where we do have multiple orders per customers and/or that they are purchasing in bulk. At that point in time they may escalate it to the manager of the facility and effectively they will then go back and either cancel or choose to fulfill that order. But it is the responsibility of the full timers and the team leaders to check if they see some sort of trend.

PN209

In relation to subparagraph (d), in relation to items being out of stock?‑‑‑There is two options, one is an automated email that gets sent out to customers depending on the timing. There is also the option for the actual staff in our dark store to effectively send an email or produce an email to a customer as well. It is the responsibility of the staff in the dark store to actually respond to those emails and basically process those emails and make decisions based on the response from the customer, not customer service. There s a group of staff within the dark store team that effectively manage that.

PN210

In relation to (e), the proposition around workers do not deal with customer issues about delivery time frames or missing stock?‑‑‑As the staff are effectively processing orders, if for whatever reason we were, let s say, running behind in processing our orders, then staff could take the decision, and contact the customer and choose to send it express post, not standard delivery. That s the responsibility of the dark store team, not necessarily customer service. So basically, there is interaction between our customers and consumers effectively, because it is obviously a consumer based environment.

*** JOANNE LIPSEY XN MR TINDLEY

PN211

In relation to subparagraph (f), where it is suggested there is very little interaction between warehouse workers and customers and some reference to template emails to China, those customers?‑‑‑So, there are a team of people, there is only one PC that is used. However, as it s a split shift, there are multiple people that actually access that PC and on that basis, staff take decisions whether to contact customers if the address details are correct as we would know in advance whether we can ship or the address is incomplete. So, it is actually performed by the dark store workers, not customer service.

PN212

In relation to subparagraph (g), and the processing of payments or refunds?‑‑‑The team in the dark store, effectively make the decision to refund, but they don t actually process the refund. They make the decision based on the information that comes back from our customer directly to the team that does a waiting (indistinct) stock.

PN213

In relation to subparagraph (h), about not required to deal with customer complaints when it goes directly to a customer, when orders are not available?‑‑‑Probably the best example I can give was with Mother s Day. With Mother s Day our promotion is obviously a cut off time for deliveries and there was a team of - - -

PN214

MS BARRETT: I object to this, this evidence wasn t in her original statement and it s hard for us to respond to that on the basis that we had a chance to put in her statement, it s not in there.

PN215

THE DEPUTY PRESIDENT: I had understood that it was responsive to part of the statement of Mr Robertson. Is that right?

PN216

MR TINDLEY: It clearly arises from the statement provided by Mr Robertson.

PN217

THE DEPUTY PRESIDENT: Sorry, which paragraph again?

PN218

MR TINDLEY: This is (h), where it s suggested that they are not required to deal directly with the customers.

PN219

THE DEPUTY PRESIDENT: I m going to allow it Ms Barrett, given that, as we discussed last time, the filing (indistinct) on Friday, didn t give the respondent an opportunity to file material in reply, so I ll allow it. If there s any particular prejudice, or you need particular instructions about that, then I ll hear you on it.

PN220

MS BARRETT: Thank you.

*** JOANNE LIPSEY XN MR TINDLEY

PN221

THE DEPUTY PRESIDENT: Yes Mr Tindley. Sorry, Ms Lipsey?‑‑‑So for a recent Mother s Day promotion there was a team of staff from our dark store who contacted customers to confirm if there was going to be any issue with their delivery times in terms of cut-off for Mother s Day and requesting decision - - -

PN222

That will teach them for leaving it so late?‑‑‑Pardon?

PN223

That will teach them for leaving it so late?‑‑‑Doesn t always work that way.

PN224

Mothers of the nation would outraged that more time and planning wasn t put into?‑‑‑Well, it s all about the service. So, the team contacted our customers directly and asked them whether they wanted to wait for their order, or choose to cancel, and then actioned accordingly.

PN225

MR TINDLEY: Thank you. So, nothing further, thanks your Honour.

PN226

THE DEPUTY PRESIDENT: Yes, all right, than you. Ms Barrett, before you do. You mentioned a dark store during your evidence. Are you able to tell me what you understand dark store is?‑‑‑My understanding of a dark store and how we set this up, very quickly, is a facility that effectively fulfils online orders.

PN227

I ll put to you the following definition, a retail outlet or distribution centre that caters exclusively for online shopping?‑‑‑Correct.

PN228

Do you agree with that?‑‑‑It is a retail facility the way we have set this up, yes.

PN229

What I m putting to you is that a definition that is a retail outlet or distribution centre that caters exclusively for online shopping?‑‑‑In my experience, within our business, we have not set this up as a distribution centre and the reason for that is, is that normally in a distribution centre, it is set up for by velocity, by product for picking, for efficient picking. This facility has been set up exactly the same way we would set up a shop, so it s actually planogrammed and the categories in the locations are all set up in the same way as we would have one of our retail stores.

PN230

For present purposes, I m not asking you what you do, I m asking whether the definition that I have just indicated to you is a correct definition for a dark store per se? I understand that you say that yours is a retail outlet that caters for, but is it an accepted definition of dark store that it is a retail outlet, or distribution centre that caters exclusively for online shopping?‑‑‑I think there s multiple definitions from what I understand.

*** JOANNE LIPSEY XN MR TINDLEY

PN231

Well, there s two in that one definition?‑‑‑Yes.

PN232

Yes, thank you. Yes, Ms Barrett.

PN233

MS BARRETT: Thank you.

PN234

THE DEPUTY PRESIDENT: Sorry, before you do, Mr Tindley, anything arising out of that?

PN235

MR TINDLEY: No.

PN236

THE DEPUTY PRESIDENT: Yes, thank you.

CROSS-EXAMINATION BY MS BARRETT [11.16 AM]

PN237

MS BARRETT: So you d agree Ms Lipsey that aisles A to I of this warehouse are palletised?‑‑‑Correct.

PN238

That s hardly like a usual shopping experience, is it? Like you going down to a local supermarket?‑‑‑I would consider that if you were going down to the local supermarket, there are often sort of dump bins et cetera in different locations to pick stock.

PN239

And half the store being in pallets, is that usual?

PN240

THE DEPUTY PRESIDENT: What if I go to Bunnings?

PN241

MS BARRETT: There s facings there Deputy President, they re not in pallets, having just been there on the weekend.

PN242

THE DEPUTY PRESIDENT: I ve certainly seen palletised stock at Bunnings.

PN243

MS BARRETT: You referred to paragraph 13(c) of Mr Robertson s witness statement. Now, it s true, isn t it, that workers don t make contact with customers to check whether the orders are for personal use?‑‑‑That s incorrect.

*** JOANNE LIPSEY XXN MS BARRETT

PN244

So they contact customers directly?‑‑‑Yes, they do.

PN245

How do they contact them directly?‑‑‑By phone.

PN246

Which phones do they use?‑‑‑They will potentially, if necessary, go up to the manager s office and use the phone.

PN247

I suggest to you that the only person who s contacting the customers is Linda Cong?‑‑‑My understanding is not correct as that, it is also the team leaders as well, and various others.

PN248

The team leaders and Linda Cong?‑‑‑Yes, correct.

PN249

I also suggest to you that once workers have sent the generic template email if an item is out of stock, it s set up so that the customer has various options?‑‑‑Correct.

PN250

Once they tick those options, it s actioned by customer service?‑‑‑That s incorrect.

PN251

It doesn t go to customer service?‑‑‑No, they don t see that email.

PN252

I suggest to you that once the customer sends a response, it goes directly to customer service and they refund the product?‑‑‑That s incorrect, it goes directly to the staff who manage the awaiting stock and make a decision as to what they re doing with the order.

PN253

I suggest to you that there s only one email account run by one person Ms Megan Jacobs that receives incoming domestic emails?‑‑‑That s not correct. There are other email accounts across the team.

PN254

Who else has an email account that allows for incoming email orders?‑‑‑There s obviously there s email accounts for the manager, there s email accounts for the team leader.

PN255

Sorry, the manager?‑‑‑Yes.

PN256

That s Ms Cong?‑‑‑Linda Cong. There s both the team leaders.

*** JOANNE LIPSEY XXN MS BARRETT

PN257

What are their names?‑‑‑Aaron Fennick and Andrea Barclay. There s also a receiving email address as well for our inbound deliveries.

PN258

That s Ms Jacobs, the one that Ms Jacobs manages?‑‑‑That s a generic one, it s actually not Ms Jacobs that manages it. There s multiple people within that team.

PN259

There s only one email account, isn t there, apart from - - -?‑‑‑It s not a named email account.

PN260

But it s for domestic and it s just the one incoming?‑‑‑Not just one incoming.

PN261

There s one computer that has it, is that correct?‑‑‑It can be logged in from multiple computers.

PN262

There s one computer that uses it on a day to day basis?‑‑‑Mostly, yes.

PN263

Thank you. I also suggest to you that when customers have missing stock they contact customer service about those issues?‑‑‑Yes.

PN264

So they re not contacting the warehouse? Can I also suggest to you that again, there s only one computer that receives international responses to questions about international delivery addresses?‑‑‑Once again, whether it s one computer, there are multiple people who access those computers.

PN265

You ve mentioned Mother s Day as an example when workers are required to deal with customers. Can you give me any other examples?‑‑‑Christmas, Mother s Day et cetera. Where there is - - -

PN266

What do you mean by et cetera? So you ve said Mother s Day, Christmas Day, can you mention any others?‑‑‑Typically what would happen is where there s a defined date for delivery - - -

PN267

I m just asking her days that you can remember, when workers are contacting customers directly?‑‑‑Probably those three are the main ones. Valentine s Day.

PN268

So three days out of the whole year?‑‑‑

*** JOANNE LIPSEY XXN MS BARRETT

PN269

Are you aware that workers have suggested that it s not appropriate for them to contact those people because they re on a warehouse floor and it s very noisy and very hard to hear?‑‑‑No, I m not aware.

PN270

I m going to take you to paragraph 13(i) of Mr Robertson s witness statement. I want to suggest there are only 15 directly engaged workers in the Preston warehouse, including the team bound leader and the AM PM supervisor and there s also the warehouse manager?‑‑‑That s most likely correct now.

PN271

So why did you change between, why did you put different numbers in your previous witness statement?‑‑‑Because at the time we ve actually moved some of that staff to a different location.

PN272

I want to take you to paragraph 14 of Mr Robertson s witness statement which sets out their names and functions of the workers. Some of them we ve already discussed. So Ali Arichi does packing, is that correct?‑‑‑My understanding is the majority of staff are rotated around different areas, so that s not necessarily defined role.

PN273

I m going to suggest to you that that is his defined role?‑‑‑I can t comment.

PN274

Why can t you comment?‑‑‑Because I m not sure what he would be doing today and what he s assigned to be doing today.

PN275

So you don t know?‑‑‑I m saying there are a number of different functions within the warehouse and we use our staff depending on what is required and at the time.

PN276

So you don t have any direct knowledge about his functions.

PN277

MR TINDLEY: I ve got to object to this. The question s been asked and it s been answered.

PN278

THE DEPUTY PRESIDENT: Ms Lipsey, are you able to say what the scope of Mr Arichi s duties are?‑‑‑I would not have any knowledge as of today, exactly what activities he would be performing today. There are a number of activities that occur, but I couldn t say today he s actually packing or picking.

PN279

Forget about today. In the normal course of his work, what is he required to do?‑‑‑He could be required to actually pick stock. He could be required to what we call, ship stock, or actually pack stock.

*** JOANNE LIPSEY XXN MS BARRETT

PN280

All right?‑‑‑And he could be required to actually fill the shelves as well.

PN281

Yes Ms Barrett.

PN282

MS BARRETT: Ms Barclay, is it correct that she s the AM supervisor?‑‑‑Correct.

PN283

Mr Barrides, in the normal course of things, is he doing the packing or shipping?‑‑‑Once again, he would be like any other employee doing a multitude of tasks.

PN284

Can you please specify which tasks during his normal day to day work?‑‑‑I can t define specifically, no.

PN285

What would he have done last week?‑‑‑I can t tell you last week, I m not managing the site.

PN286

I put to you that this is correct and you re not in a position to rebut that?‑‑‑Correct.

PN287

Thank you. I also want to suggest to you that the three main tasks are picking, shipping and packing?‑‑‑Honestly, tasks, putting stock away on the shelves.

PN288

That s what you would refer to as replenishment, isn t it?‑‑‑Correct.

PN289

That s performed by labour hire workers, isn t it?‑‑‑No, not specifically.

PN290

No? I put it to you that that s performed by labour hire workers?‑‑‑Not specifically, no.

PN291

With picking, do you agree that it s when they work as pick the products listed on the invoice?‑‑‑It s not an invoice as such, it s a combination, but they do actually pick as if they are going around a store.

PN292

But they re picking products on a list?‑‑‑Yes, they are.

PN293

Including from pallets?‑‑‑Correct, yes.

*** JOANNE LIPSEY XXN MS BARRETT

PN294

Shipping, workers scan the, whatever word you want to use for invoice, order, and put the products in a box for shipping, is that correct?‑‑‑Correct.

PN295

Packing, the workers check the invoice matches the products in the box for shipping?‑‑‑No, that s incorrect.

PN296

What they do?‑‑‑Packers just purely pack the box.

PN297

Do they put the fragile stuff in bubble wrap, for example?‑‑‑Yes they do, but they don t check the order.

PN298

I suggest to you that these are typical functions of warehouse workers, picking, packing and shipping?‑‑‑In my opinion, it s basically the fulfillment of the sales order process that we have direct to our consumers.

PN299

But in terms of answering my question, picking, packing and shipping, I noticed you previously worked at Sigma, are all functions of warehouse workers?‑‑‑In my opinion, again, it s very different, no.

PN300

Picking, packing and shipping aren t typical functions of warehouse workers?‑‑‑Not the performance of what we re doing now.

PN301

I m just asking about those three specific tasks?‑‑‑We don t do shipping, we never did shipping at Sigma.

PN302

Okay, but the picking and the packing?‑‑‑We never pack the way we packed at Sigma.

PN303

You put stuff in a box and you shipped it out of Sigma, is that correct?‑‑‑With technology, yes.

PN304

Yes, okay.

PN305

No further questions.

*** JOANNE LIPSEY XXN MS BARRETT

PN306

THE DEPUTY PRESIDENT: It s a matter for how you run your case Ms Barrett, I m just alerting you to the fact that none of the exhibits NUW2 through to NUW7 have been put to the witness.

PN307

MS BARRETT: Thank you, your Honour.

PN308

Do you have a copy of (indistinct) outline of submissions, Ms Lipsey?‑‑‑Yes, I do.

PN309

I suggest to you that attachment 1 highlighted Xmas hourly targets was in the noticeboard in the lunch room as recently as last week?‑‑‑I haven t seen it myself.

PN310

Did you look at the noticeboard - you don t know either way?‑‑‑I haven t looked at the noticeboard in the lunchroom.

PN311

That sets out shipping, packing, picking, replenishing and receiving as the things that the workers are going to be assessed on over the November to December period, is that correct?‑‑‑As far as I m concerned, I haven t seen it myself, so from what I ve seen, yes.

PN312

So those were the main functions they were being assessed on during that period?‑‑‑As far as I m aware, yes.

PN313

Can I take you to attachment 2 Ms Lipsey. This was obtained from the company s intranet. It refers to workers as e-Pharm Preston store workers warehouse. Have you seen this before?‑‑‑No.

PN314

Do you have access to the intranet?‑‑‑Yes, I do.

PN315

Have you looked at what these workers are under? So you re not sure whether it s true, it could be on there?‑‑‑It could be on there, I couldn t confirm.

PN316

It refers to workers as warehouse workers, doesn t it?‑‑‑It refers - we set this store up very very very quickly, within a period of about four to six weeks, post the set up of our Somerton warehouse and effectively in order to do that, we ve set and got names et cetera. We re still catching up. It s really legacy from everything else that we ve done everywhere else and effectively we haven t, and I ll make the same comments further on, we re still catching up in the terms of the right titles and the right descriptions.

*** JOANNE LIPSEY XXN MS BARRETT

PN317

But this is what workers would see as their titles on the intranet?‑‑‑At the moment, yes.

PN318

This was as recent as last week?‑‑‑Yes.

PN319

The next attachment, attachment 3 was on the staff notice board?‑‑‑Again, I have not seen this prior to these attachments.

PN320

It says new warehouse tick, can you see that?‑‑‑Yes, I can see that.

PN321

Again warehouse workers would think that they were working in a warehouse?‑‑‑Potentially, however, they do know that they re picking as if it was a store environment, so it s not a warehouse.

PN322

Attachment 4 is headed dress code distribution centres and amongst other things has a logo for ePharmacy on it, doesn t it?‑‑‑All our documentation have all our logos on them.

PN323

This was in the lunch room. On your understanding of what occurs in the warehouse, do you agree that everyone has to wear high vis and safety boots?‑‑‑Yes.

PN324

Is that what happens in your retail store, high vis and safety boots?‑‑‑They have different requirements.

PN325

The next picture is attachment 5 EP distribution centre. EP refers to ePharmacy, doesn t it?‑‑‑Yes.

PN326

So that s a new sign, is it?‑‑‑Yes.

PN327

That says EP Distribution Centre?‑‑‑Yes. However, if I can just make the comment, we struggled with this name terribly. And the reason we struggled with the name was because we didn't want the name "Pharmacy" or "Chemist Warehouse" on the outside signage of the building and basically we needed to come up with someone to direct either staff or deliveries to and this was the best abbreviation we could find without alerting anyone to the type of stock that we've actually got within the facility itself.

*** JOANNE LIPSEY XXN MS BARRETT

PN328

So, you just said that the alternative for EP Distribution Centre was warehouse?‑‑‑No. Chemist Warehouse is our brand and that's one of our online brands that is supported out of this facility.

PN329

Now, Attachment 6 is a very recent email, isn't it?‑‑‑Yes.

PN330

It's dated 19 May?‑‑‑Yes.

PN331

And that's an email from Linda Cong with her title, can you see "ePharmacy Preston Warehouse Manager"?‑‑‑Yes.

PN332

So again, she's referring to it being working in a warehouse?‑‑‑As I said before, we are still catching up. There is actually a review of all titles, et cetera, that's being performed by HR and we haven't - we got set up so quickly, ala the pay slips as well, that effectively we just put whatever was on the payroll system or existing.

PN333

So last September, that's quite a considerable amount of time, isn't it?‑‑‑Correct.

PN334

Yes, and changing an email signature is pretty easy to do, isn't it?‑‑‑But, it's not just an email signature, it's actually a global review by HR of everybody's titles and our structure and organisational structure as well.

PN335

So at the moment she is still the warehouse manager, is that what you're saying?‑‑‑No, she is operating the dark store. The manager of our dark store.

PN336

Her title is still warehouse manager?‑‑‑At the moment it is.

PN337

You already referred to Attachment 7 of the outline of submissions?‑‑‑Mm.

PN338

They're payslips, aren't they?‑‑‑Yes.

PN339

Now, they refer to the position of store worker, the first one refers to store worker level 1, doesn't it?‑‑‑Yes.

PN340

Are you aware that that's a classification from the storage services award?‑‑‑I'm aware that - effectively that these need to be changed and we've actually put them into the payroll system, as we created this facility, with existing infrastructure.

*** JOANNE LIPSEY XXN MS BARRETT

PN341

It also refers to DC store worker, is that acronym for distribution centre store worker?‑‑‑As I said - - -

PN342

Just answer the question?‑‑‑It's existing infrastructure that we have.

PN343

Yes. So, the second payslip is again store worker level 1, you agree?‑‑‑Mm.

PN344

And it refers to DC store worker. So again, the acronym for distribution centre store worker?‑‑‑As I said, we needed to get these staff onto the system very quickly with our existing infrastructure.

PN345

I don't have any further questions. Thank you.

PN346

THE DEPUTY PRESIDENT: Ms Lipsey, the rates of pay, are they rates of pay derived from the modern award?‑‑‑No.

PN347

They're not. How are workers paid then?‑‑‑They're as per our previous agreement with our staff.

PN348

Enterprise agreement?‑‑‑No, it's not an enterprise agreement. It's an arrangement, actually, that we had.

PN349

Are you able to tell me about that?‑‑‑In terms of?

PN350

The arrangement?‑‑‑Well, depending on - it's no different really from our stores, depending on their position they'll get paid a rate of pay, how they're classified.

PN351

You're aware that if - well, is there a modern award that covers the workplace?‑‑‑There is a modern award. Well there's - obviously we've got retail and also storage award as well which covers our warehouses.

PN352

So for the purposes of compliance, which one do you apply to ensure that you at least pay in accordance with the relevant modern award?‑‑‑We are currently using the storage award.

PN353

Thank you. Anything arising, Ms Barrett?

*** JOANNE LIPSEY XXN MS BARRETT

PN354

MS BARRETT: No, thank you.

PN355

THE DEPUTY PRESIDENT: Mr Tindley, any re-examination?

PN356

MR TINDLEY: No, Your Honour.

PN357

THE DEPUTY PRESIDENT: Ms Lipsey, thank you for your evidence. You're excused?‑‑‑Thank you.

<THE WITNESS WITHDREW [11.34 AM]

PN358

THE DEPUTY PRESIDENT: Mr Tindley, is that your evidentiary case?

PN359

MR TINDLEY: Yes, that's the evidence of the respondent.

PN360

THE DEPUTY PRESIDENT: Ms Barrett, are you ready to make your submissions?

PN361

MS BARRETT: Yes, thank you. Deputy President, we rely upon the submissions in our outline of submissions filed last week. So whilst - - -

PN362

THE DEPUTY PRESIDENT: Ms Barrett, do you have a copy of the NUW's rules?

PN363

MS BARRETT: No, I've only extracted the relevant section in our - but I can - - -

PN364

THE DEPUTY PRESIDENT: The eligibility rule?

PN365

MS BARRETT: I've extracted the relevant section in paragraph 6 of the outline of submissions.

PN366

THE DEPUTY PRESIDENT: Just bear with me. Does the NUW have an industry rule?

*** JOANNE LIPSEY XXN MS BARRETT

PN367

MS BARRETT: So, this rule has been held to be - both cover the occupation and the industry of warehouse workers and I've referred to case, NUW v PDS Logistics & Ors which is DPIs - - -

PN368

THE DEPUTY PRESIDENT: So there's no separate industry rule as such?

PN369

MS BARRETT: There is both a - yes, there is a separate industry rule as well.

PN370

THE DEPUTY PRESIDENT: Is it in the same terms?

PN371

MS BARRETT: I would need to - - -

PN372

THE DEPUTY PRESIDENT: Mr Tindley, do you have a copy of the rules there?

PN373

MS BARRETT: Mr Tindley has been very helpful. There is a description of industry rule which is 4(b)(1) which refers to:

PN374

Storing and packing goods and merchandise (but not so as to limit the generality of the expression "storing and packing"). The reception, handling, storing, preparing, bottling, packing, and delivery of goods and merchandise, so far as such reception and/or handling, and/or preparing, and/or delivery of such goods and merchandise is in any way incidental or ancillary to their storage and packing as above described, including the pulping, testing, and/or processing of eggs.

PN375

THE DEPUTY PRESIDENT: Yes, all right. I understand. Yes, thank you, Ms Barrett.

PN376

MS BARRETT: So, in the case of ResMed Limited v Australian Manufacturing Workers' Union, the Federal Court upheld a decision that the Fair Work Commission need only be satisfied that the NUW is entitled to be a bargaining representative for one of the employees in the group specified in the application. In our view we're entitled to cover all of these workers, but in any event, there's clearly workers performing the task of picking, packing, and shipping, which fall within the scope of Rule 5(b)(a) of the rules.

PN377

Whilst the company may run this warehouse differently from its other warehouses, it's still a warehouse. It's a distribution centre for items sold - - -

PN378

THE DEPUTY PRESIDENT: Ms Barrett, can I just test a couple of propositions with you.

PN379

MS BARRETT: Yes.

PN380

THE DEPUTY PRESIDENT: At my local Safeway there are people who replenish shelves, they might pick goods from the back and replenish shelves, they'd engage in work that might be described as picking. But there's no issue that those employees are not your traditional workers for whom NUW has coverage, is there?

PN381

MS BARRETT: I guess in response to that, firstly in terms of the DCs, the Coles and the Woolworths DCs - - -

PN382

THE DEPUTY PRESIDENT: I understand. Put those aside, I'm familiar with those.

PN383

MS BARRETT: Secondly, the difference that we see it is that those particular workers you're referring to are working in a retail environment and having interaction with customers. Here they are working in a distribution centre with very limited interaction with customers. They send a generic template email out, there's only two emails - two email addresses that come back in, one is for domestic and one is for international. And the only contact that Ms Lipsey could refer to was in relation to Mother's Day and Christmas Day where the workers had contact with customers. So it's entirely different environment from your local Woolworths.

PN384

THE DEPUTY PRESIDENT: Look, you may not be able to answer this question but I'll ask it anyway. So when I sit at my computer at home and I order Coles Online or Safeway Online, does that come from the store or distribution centre when I put in my order?

PN385

MS BARRETT: I'm sorry, I can't answer that question.

PN386

THE DEPUTY PRESIDENT: That's fine. Okay. But there's a similar function that those organisations have. That is, one can order online, presumably someone picks and packs, loads the truck and it's delivered.

PN387

MS BARRETT: Yes, but we would say that picking and packing function is not done in a retail environment, it's done in a warehouse.

PN388

THE DEPUTY PRESIDENT: Yes, that's why I asked whether it comes from the store or it comes from the distribution centre, the warehouse. You don't know the answer to that. All right. Yes, sorry.

PN389

MS BARRETT: We say it is a warehouse, it's a distribution centre for items sold online and the employees working in it are still warehousing employees.

PN390

THE DEPUTY PRESIDENT: Again can I just - so that we're clear about what it is that we're talking about. If I walk down Chapel Street, on the right hand side just before High Street, there's a place called Chemist Warehouse.

PN391

MS BARRETT: Yes.

PN392

THE DEPUTY PRESIDENT: I know that because I pop in there occasionally. But the fact that it's described as a warehouse or called a warehouse doesn't, in of itself, make it a warehouse as such, it's clearly a retail outlet.

PN393

MS BARRETT: Yes, but you can see that from the functions that the workers are performing inside.

PN394

THE DEPUTY PRESIDENT: I understand. So we're not concerned about what it's called, but what happens inside.

PN395

MS BARRETT: I think there's two different things at play here, Deputy President. In terms of what it's called, that is important because the respondent's submissions are to the effect that the application misstates what workers and the petition. So in that sense it is important what workers refer to themselves and what the company refers to them as. But in terms of what functions they perform for the purposes of our eligibility to represent at least one worker, I agree that it's whether they perform warehousing functions in the warehouse.

PN396

THE DEPUTY PRESIDENT: In a warehouse traditionally described, rather than a retail outlet calling itself a warehouse.

PN397

MS BARRETT: Yes. Yes.

PN398

THE DEPUTY PRESIDENT: Like Bunnings Warehouse or Chemist Warehouse.

PN399

MS BARRETT: Yes. Yes. So as I've said, the workers do not interact with customers like they would in a retail environment so they are not retail workers. They send generic template emails to customers informing them that an item is out of stock or to provide a different mailing address. There's two computers set up for incoming traffic and they have very, very limited contact. Even on the respondent's evidence, with customers, with the calling on Mother's Day and Christmas Day. So the three - - -

PN400

THE DEPUTY PRESIDENT: I notice for the record that no one seems to be worried about Father's Day.

PN401

MS BARRETT: So the three main functions were picking, packing and shipping which are clearly warehousing functions and even referred to in the NUW's rules in terms of the packing, reception, handling, storage, preparation, bottling, packing, and delivery of goods and merchandise. This is also evidenced by the poster on the noticeboard in the lunch room of the warehouse which shows that their performance is rated on how fast they perform these roles, so warehousing roles.

PN402

The company also regards them as store workers and their place of work as a warehouse or distribution centre. They are paid according to the storage services award, which I don't think anyone would pay - - -

PN403

THE DEPUTY PRESIDENT: Excuse me. Yes, Ms Barrett.

PN404

MS BARRETT: So they're paid according to the storage services award which I can say that employers wouldn't pay people according to the storage services award as opposed to the retail award if they had a choice. And there's various signs in the lunch room of the warehouse, including for the nominations for the OH&S committee for the new warehouse. There's the dress code for the distribution centre, which is complied with, and which is different to the dress code for the retail stores in that warehouse workers wear high vis and safety shoes. The employee list on the company's intranet also refers to the workers as "Store worker - warehouse." The sign on the front of the Preston warehouse again refers to a distribution centre and the email signature for Linda Cong, the manager of the warehouse, is ePharmacy Preston, Warehouse Manager.

PN405

We say that you can accept the petition as evidence that the majority of workers wish to bargain for an enterprise agreement. Mr Robertson's evidence shows that there was no coercion or undue influence by the National Union of Workers. Moreover, as was tested by Mr Tindley, the positions were, at all times, under his custody and control. Mr Robertson has detailed the efforts made to ensure that employees were properly informed prior to completing the petition, and this included a flier which was Attachment 1 to his witness statement, a double-sided flier that set out what is enterprising bargaining, what kind of things can you bargain for, how does bargaining start, how can we show the majority of employees want to bargain with the employer, steps to negotiating agreement and your rights.

PN406

There is no evidence to suggest that employees have changed their mind, and there are no circumstances which might lead to such an inference or apprehension, in fact the opposite. Workers have signed two petitions, one as recently as last week, indicating they wish to bargain for an enterprise agreement.

PN407

So, based on the outlines of submissions already provided to you we submit that the Commission should make an order that the majority of workers (indistinct) that enterprise agreement.

PN408

THE DEPUTY PRESIDENT: Yes. Thank you, Ms Barrett. Mr Tindley.

PN409

MR TINDLEY: Thank you, your Honour. There is some significant structural change going on in the retail industry that is driven substantially by the rise of online retailing. That rise of online retailing, in our submission, occurred after the making of modern awards. And it has changed the way that retailers operate.

PN410

Now, your Honour asked a question of Ms Barrett about the way that Coles fulfils its online orders, and perhaps - I appreciate this is, to a certain extent, giving evidence from the Bar table, but from my understanding within the retail industry is that Coles fulfils those orders in a variety of ways, including from its retail stores, and that that is consistent with the way that retailers are operating. But there is - and ePharmacy is an examples of this - a move towards dedicated - what we've described as "dark stores" and what is traditionally accepted in the retail industry as a definition of a dark store. It's a terminology that the major retailers use to describe their online facilities.

PN411

There is evidence before this Commission about the activities undertaken by the workers at 44 Raglan Street, Preston. And that is solely the evidence of Ms Lipsey. The evidence of Mr Robertson about what some unidentified people might have told him about their tasks cannot have any probative weight, and certainly cannot override the evidence of Ms Lipsey. And that evidence is - - -

PN412

THE DEPUTY PRESIDENT: The evidence was that the employees engage in picking, packing, and shipping, and some re-stocking. And the question then is, in what environment do they do that, isn't it?

PN413

MR TINDLEY: That's correct. And yet - - -

PN414

THE DEPUTY PRESIDENT: So picking, shipping, packing in a warehouse, in a distribution centre, there's no dispute that that would be work that falls within the eligibility rules of the NUW. Your point here is that to the extent that picking, shipping, packing, amongst other things, happens, it happens in the retail environment.

PN415

MR TINDLEY: That's correct. Those are the submissions.

PN416

THE DEPUTY PRESIDENT: So there's no real dispute about the work that they do, it's the environment in which they do it form.

PN417

MR TINDLEY: There's a very clear dispute about whether there is customer interface.

PN418

THE DEPUTY PRESIDENT: Yes.

PN419

MR TINDLEY: And the evidence of Ms Lipsey is very clear on that. And it was, in our submission, quite incorrectly characterised by Ms Barrett in her submissions in that it was suggested that it was only Mother's Day and a couple of other days where customer interaction occurs, and that certainly wasn't the evidence given by Ms Lipsey in this matter.

PN420

There is no doubt - and we - Ms Lipsey has confirmed that there are terminologies used within the dark store that are reflective of terminology used in other facets of the broader Chemist Warehouse - what I'll describe as Chemist Warehouse business that relate to true distribution centres. And Ms Lipsey's evidence about the basis for that was quite clear. This was an area of the business that was set up quickly and that there was effectively legacy issues in terms of the way that matters were referred to. But the reality is we can't call something something if the other factors, the real factors, determine it to be something else.

PN421

I think the example of a Bunnings Warehouse is quite an interesting one. So it's suggested that, you know, you're picking off pallets, you're working in a true warehouse. Well anyone who works in a Bunnings store is picking things off a pallet and those workers who are picking from those pallets to service online orders are working within a retail environment. Those workers who are replenishing those sales are working in a retail environment. Costco is another example.

PN422

In our submission, and naturally we rely on our initial submissions in this regard, but the problem here is that in our submission the workers - and we would accept that the respondent holds some of the blame for this - but those workers are in error as to the nature of the work they perform, and therefore are in error in relation to their understanding of the basis of enterprise bargaining for them with the NUW.

PN423

Mr Robertson's evidence is effectively being used by him to promote the granting of this order. He's accepted that, and that evidence is coloured by that approach. He made it clear that he left parts out, he made it clear that he didn't include any questions put to him by workers. He made it clear that he chose what evidence to put in and what evidence not to put in. And on that basis it is our submission that the Commission cannot be satisfied that the workers who have signed the petition, or petitions, have done so with a full appreciation of the circumstances in which they've done so.

PN424

In our submission the - - -

PN425

THE DEPUTY PRESIDENT: Do you say that Mr Robertson should have told the workers that this dispute about whether or not they work in a warehouse, as we traditionally know it, and therefore there might be a dispute about whether or not the NUW should cover them?

PN426

MR TINDLEY: I'm not saying that he should have said that, your Honour, and we understand that these processes are about selling to employees the benefits of entering into an enterprise agreement. But what we're saying is that what Mr Robertson has done is he's given, in his statement, a two paragraph assessment of what he spoke to workers about across 13 meetings, with no questions being asked, with no alternative concerns raised referred to. So what the Commission needs to be satisfied is that there's been no coercion or undue influence placed on employees.

PN427

Mr Robertson has coloured his statement, in his own evidence, he's put in his statement what he thought was relevant and it was relevant to the granting of the order sought, and therefore there has to be some reservation about the - - -

PN428

THE DEPUTY PRESIDENT: That might be right, Mr Tindley, but can I put this to you, that firstly the employer hasn't brought any evidence to suggest that the employees were coerced or misled. No evidence is given by Ms Lipsey to that effect and the proposition that any member was coerced or misled was not put to Mr Robertson by you. All that I'm left with is his evidence.

PN429

MR TINDLEY: In relation to the first point, your Honour, there is a real question of how. How would the employer bring that evidence.

PN430

THE DEPUTY PRESIDENT: Well you could call the employees.

PN431

MR TINDLEY: Well we don't know which employees - - -

PN432

THE DEPUTY PRESIDENT: Well you've got a list of 16, you could have called them all.

PN433

MR TINDLEY: The Commission would welcome a situation where everyone employee of that employer is brought through the Commission.

PN434

THE DEPUTY PRESIDENT: Well, that's one option. I discussed with the parties originally whether I should go out and talk to the employees myself as I did in the Queensland matter and I was told that that wasn't necessary in this case.

PN435

MR TINDLEY: That was a position put to you by the NUW.

PN436

THE DEPUTY PRESIDENT: It wasn't - you didn't suggest that I should. I'm happy to. I'm happy to do it now if you think that will assist.

PN437

MR TINDLEY: Can I take instructions.

PN438

THE DEPUTY PRESIDENT: Sure. I'll perhaps - I'll stand the matter down for five minutes.

PN439

MR TINDLEY: Thanks, your Honour.

SHORT ADJOURNMENT [11.56 AM]

RESUMED [12.09 PM]

PN440

THE DEPUTY PRESIDENT: Yes, Mr Tindley.

PN441

MR TINDLEY: Thanks, your Honour. In the break I turned my mind to the circumstances of the direction - mentioned directions, and I think our recollection of that was that you did put the option of a visit to the site. The NUW very firmly rejected that as a possibility and I understand - I don't wish to incorrectly quote you - but I think you said words to the effect, your Honour, of "You'll take your chances" the NUW sought to rely solely on the petitions signed.

PN442

In our view adopting a similar approach to the approach adopted in Banyo provided - or on the basis - if the Commission is satisfied in relation to the other elements of the application, would be a sensible approach and would provide clarity in terms of the views of the group of employees.

PN443

THE DEPUTY PRESIDENT: Yes. All right. Ms Barrett, do you want to say anything about that?

PN444

MS BARRETT: We'd object to that approach, Deputy President. Firstly, there is no evidence of coercion. The company has had the opportunity to put evidence of coercion to George, or provide evidence to that effect, they haven't. We don't think it's the correct approach for them now to be able to go on a fishing expedition looking for reasons for not granting the order. We have provided two petitions which we say indicate majority support, and the company has not provided any reasons for not accepting those petitions. They haven't provided any evidence of coercion or anyone being misled.

PN445

The company has acknowledged that the workers are doing picking, packing, and replenishment functions, and that they're applying the storage services award. And our position is that the case has been met for granting the order.

PN446

THE DEPUTY PRESIDENT: Apart from the benefit of speaking to the workers, it would give me an opportunity to actually have a look at the work in context.

PN447

MS BARRETT: Deputy President, we don't see it's necessary for you to see it. What you'll see is a warehouse where people - as acknowledged by Ms Lipsey - are picking, packing, and replenishing stock.

PN448

THE DEPUTY PRESIDENT: Yes, all right. Mr Tindley, what do you say about that?

PN449

MR TINDLEY: Your Honour, there's a clear question here about what functions are being performed. I mean, in our submission if the Commission is going to better informed as to the nature of the work and the views of the employees by a visit to the site then that's an appropriate step to take.

PN450

THE DEPUTY PRESIDENT: What I'm going to do is this, Mr Tindley, I'll hear the remainder of your submissions, I'll reserve my decision, and if in the course of considering my decision I think that it might be necessary for me to visit the site I'll communicate that with the parties.

PN451

MR TINDLEY: I think that's an appropriate approach, your Honour.

PN452

THE DEPUTY PRESIDENT: Yes.

PN453

MR TINDLEY: I just wish to make a comment in relation to the issue of evidence of coercion. Our submission on that is that it is not the responsibility of the respondent to satisfy the Commission as to those matters. It is the responsibility of the party seeking the order to satisfy the condition that there's been no coercion. Now, what the evidence has shown is that the evidence of Mr Robertson is a fraction, it would appear, of the evidence in relation to the signing of the petition. I think Mr Robertson's evidence is that his statement would have gone for - I can't recall the number, I thought it was somewhere in the 30s of pages if he'd included that information. If the NUW wants the order made, it has to satisfy the Commission, in our submission, that there's been an absence of coercion or undue influence. And in our submission the Commission, at this point, can't be satisfied as to that.

PN454

I think the only thing we'll say in closing is that this is, in our submission, there are retail functions being carried out in a retail environment. The fact that the NUW has a traditional view of retailing, or appears to have a traditional view of retailing, can't detract from the fact that these employees are performing work that is fulfilling the needs of retail customers.

PN455

One of the matters that the NUW has raised in support of its position is the matter of - and it's contained in NUW-2, these Christmas hourly targets. And I'd pose this question for the Commission. This refers to - if you pull this all together this refers to targets-based on sales made to consumers because this is part of a sales process. This is no different to targets placed within a retail store for the sale of retail products. There is no difference between them. They are both a function of the sales process. And that's the central consideration here, in our submission. These are sales processes. And the employees working at 44 Raglan Street are involved in a sales process, are involved in all aspects of a sales process. Those are our submissions, your Honour.

PN456

THE DEPUTY PRESIDENT: Yes, thank you. Ms Barrett.

PN457

MS BARRETT: As I've already stated, the respondents had an opportunity to put evidence that Mr Robertson engaged in any coercion or misleading of employees, to him, or provide any evidence of that. They have not done that. Mr Robertson has provided in evidence, in his witness statement, of a very transparent lengthy process he went through in order to get the petition, which included providing a pamphlet to workers on what was required. Our submission is that the petition shows - can be accepted that the majority of employees wish to bargain.

PN458

In relation to the concept that this is a retail environment. Taking Mr Tindley's arguments to a logical conclusion that it's in a retail environment because it's fulfilling the need of retail customers. Well, every DC is

PN459

Fulfilling the need of retail customers if you look at it that way because they're picking orders that ultimately end up with a customer. Every retail warehouse is in the same boat.

PN460

These targets set in the attachment to the outline of submissions are not retail targets, they're not based on how many sales you get, they're based on how many orders you ship and how many boxes you pack, how many picks you make for the other workers, how many would you put away. There's nothing related to interactions with customers which we submit is what distinguishes this from a retail environment.

PN461

Mr Tindley also referred to Coles and Woolworths providing - if someone shopped online the orders may be selected from an actual store. We say that's the critical difference between what is occurring here, which is in a warehouse environment, and a store. If Chemist Warehouse workers in - say for example the store you mentioned on High Street, were picking the online orders for customers, then yes, they might not be warehouse workers because they're operating in a store picking those orders. But here they're in a retail - and they're doing other interfacing with customers. But here their three main tasks are picking, packing, and shipping, which are warehouse tasks. They're done in a warehouse environment, not in a shop environment.

PN462

THE DEPUTY PRESIDENT: Yes. All right. Thank you, Ms Barrett. As I indicated earlier I'll reserve my decision. In the event that I see a need to speak to the workers concerned and visit the premises at Preston I'll advise the parties. Otherwise I'll publish a decision as soon as practicable.

PN463

MR TINDLEY: Just one thing, your Honour, apologies.

PN464

THE DEPUTY PRESIDENT: Yes.

PN465

MR TINDLEY: In - and I know I'm probably pre-empting that possibility, but what I will do is provide your Honour with some information about timing, if you were to visit the site, the time and where - - -

PN466

THE DEPUTY PRESIDENT: If you do that sooner rather than later and provide a copy to Ms Barrett as well.

PN467

MR TINDLEY: Thank you. There's three shifts of work at the site.

PN468

THE DEPUTY PRESIDENT: Yes.

PN469

MR TINDLEY: Thanks.

ADJOURNED INDEFINITELY [12.19 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

GEORGE ALEXANDER RAPHAEL ROBERTSON, AFFIRMED............... PN28

EXAMINATION-IN-CHIEF BY MS BARRETT............................................... PN28

EXHIBIT #NUW1 STATEMENT OF MR GEORGE ROBERTSON............. PN47

EXHIBIT #NUW2 ATTACHMENT 1 CHRISTMAS HOURS TARGETS NOTICE PN72

EXHIBIT #NUW3 ATTACHMENT 2 LIST OF EMPLOYEES...................... PN73

EXHIBIT #NUW4 ATTACHMENT 3 OCCUPATIONAL HEALTH AND SAFETY COMMITTEE NOTICE................................................................................................................... PN74

EXHIBIT #NUW5 ATTACHMENT 4 DRESS CODE FOR DISTRIBUTION CENTRES PN75

EXHIBIT #NUW6 ATTACHMENT 5 PHOTOGRAPH OF THE EPHARMACY DISTRIBUTION CENTRE AT 44 RAGLAN STREET PRESTON.............................................. PN76

EXHIBIT #NUW7 ATTACHMENT 6 EMAIL FROM LINDA CONG TO MR GEORGE ROBERTSON DATED 19/05/2015....................................................................... PN77

EXHIBIT #NUW8 ATTACHMENT 7 TWO REDACTED PAY SLIPS........ PN78

CROSS-EXAMINATION BY MR TINDLEY.................................................... PN81

THE WITNESS WITHDREW............................................................................ PN157

EXHIBIT #MFI1 EPHARMACY PRESTON EMPLOYEE LIST................. PN168

EXHIBIT #MFI2 PETITION FROM ENTERPRISE AGREEMENT SIGNED BY WORKERS AT EPHARMACY DATED 19/05/2015.................................................................... PN174

EXHIBIT #MFI3 PETITION SIGNED BY WORKERS AT ADMINISTRATION AND MARKETING SOLUTIONS PTY LTD............................................................ PN175

JOANNE LIPSEY, AFFIRMED......................................................................... PN179

EXAMINATION-IN-CHIEF BY MR TINDLEY............................................. PN179

EXHIBIT #EPHARMACY1 WITNESS STATEMENT OF JOANNE LIPSEY PN197

CROSS-EXAMINATION BY MS BARRETT.................................................. PN236

THE WITNESS WITHDREW............................................................................ PN357