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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1051968
COMMISSIONER CAMBRIDGE
C2014/8249
s.739 - Application to deal with a dispute
Australian Licenced Aircraft Engineers Association, The
and
Virgin Tech Pty Ltd
(C2014/8249)
Virgin Tech Enterprise Agreement 2014
Brisbane
10.21 AM, MONDAY, 1 JUNE 2015
PN1
THE COMMISSIONER: Good morning. We might start with the appearances, please.
PN2
MS C HARTIGAN: May it please the Commission. My name is Hartigan, initial C, counsel, instructed by Maurice Blackburn, solicitors. I have with me MS E. THORNTON of Maurice Blackburn and MR S PURVINAS of the applicant union.
PN3
THE COMMISSIONER: Thank you.
PN4
MS HARTIGAN: Thank you. And for completeness, I should seek permission to appear in accordance with section 596 of the Fair Work Act.
PN5
THE COMMISSIONER: Have I dealt with that before? I think I did.
PN6
MS HARTIGAN: I beg your pardon, Commissioner. I wasn't aware of that.
PN7
THE COMMISSIONER: I might have dealt with that earlier, I think.
PN8
MS HARTIGAN: Thank you.
PN9
THE COMMISSIONER: Yes, thank you.
PN10
MS S. MOODY: Good morning, Commissioner. My name is Moody, M‑o-o-d-y, initial S, of counsel. I appear instructed by Corrs Chamber Westgarth, lawyers for the respondent and with me is Ms Luana PAYNE of Corrs Chambers.
PN11
THE COMMISSIONER: Good. Thank you.
PN12
MS MOODY: Thank you.
PN13
THE COMMISSIONER: Yes, I think we've dealt with the permission before, Ms Hartigan. It s always best to clarify that, though.
PN14
MS HARTIGAN: To err on the side of caution. My instructor confirms that that has been dealt with, so thank you, Commissioner.
PN15
THE COMMISSIONER: All right.
PN16
MS HARTIGAN: Commissioner, in terms of the material before the Commission, I rely on the application that was filed on 16 December 2014, the submissions of the applicant filed 24 April and submissions in reply filed 28 May 2015. I also rely on the statement and statements in reply of Stephen Purvinas, Ross Campbell and Stuart Cryer and the statement of Christian Tamblyn. Commissioner, I'm instructed that the statements that have been filed with the Commission are unsigned. My instructors have signed copies with them today and for the purposes of the file, I hand up a copy of those signed statements.
PN17
THE COMMISSIONER: I not sure whether it s really necessary. If they're identical documents, unless there s some concern about this, the only reason is that I ve sort of tagged the ‑ ‑ ‑
PN18
MS HARTIGAN: Certainly.
PN19
THE COMMISSIONER: ‑ ‑ ‑ and if I get a fresh copy, I'll have to go back and ‑ ‑ ‑
PN20
MS HARTIGAN: Just add to the confusion.
PN21
THE COMMISSIONER: Yes.
PN22
MS HARTIGAN: I can certainly understand, Commissioner.
PN23
THE COMMISSIONER: So unless there was a real problem, I think we can sort of rely upon the unsigned versions.
PN24
MS HARTIGAN: My learned friend indicates she doesn't object.
PN25
THE COMMISSIONER: All right. That's good. But are all the witnesses being called?
PN26
MS HARTIGAN: In fact, I understand my learned friend was going to get back to me in relation to Mr Tamblyn, whether he would be required for cross‑examination, but certainly Mr Purvinas, Mr Cryer and Mr Campbell will be examined. My instructors have also sought to have Mr Campbell interposed tomorrow with the Commission s permission tomorrow morning. He s unavailable today and the respondents have been on notice of that for some time.
PN27
THE COMMISSIONER: All right. So we've got an agreed order of appearance and so forth in all this?
PN28
MS HARTIGAN: In terms of the applicants, Mr Purvinas was to go first with Mr Cryer in Sydney following.
PN29
THE COMMISSIONER: Yes.
PN30
MS HARTIGAN: Then that would be the end of the applicant s witnesses for today and then the respondent s witnesses to follow.
PN31
THE COMMISSIONER: All right. Is that all quite acceptable to everyone?
PN32
MS MOODY: That's acceptable, yes.
PN33
THE COMMISSIONER: It s acceptable to me if it s acceptable to you.
PN34
MS MOODY: Thank you.
PN35
THE COMMISSIONER: All right. Very good.
PN36
MS HARTIGAN: Commissioner, this is an application made pursuant obviously to section 739 of the Act. In accordance with clause 10.5 of the Virgin Tech Enterprise Agreement, the Fair Work Commission may arbitrate the dispute and make a determination that is binding on the parties. Essentially, the subject matter of the dispute is whether the respondent can calculate the overtime worked by part‑time employees by averaging their hours over an eight‑week cycle.
PN37
It s the applicant s case that there s no positive allowance or clear words in the agreement that supports such an interpretation. So, essentially, it comes down to whether part‑timer s overtime hours can be averaged over the roster cycle. I know there s a lot of material, Commissioner, but that s essentially the matter to be determined today and it simply comes down to that particular point.
PN38
There is some background to the matter and whilst I ve already alluded to there being a great deal of material, it is relevant in terms of putting the matter into context and highlighting how the parties have interpreted the relevant provisions previously and how the dispute has arisen. As I ve already noted, the Virgin Tech Enterprise Agreement is the present one, the 2014 agreement, and that was approved by the Commission on 7 April 2014. Mr Purvinas statement at SP2 has a copy of that agreement, if the Commission doesn't have one before you.
PN39
That agreement replaced the Virgin Tech Enterprise Agreement 2010, which is also in Mr Purvinas statement at SP1. It s the applicant s case that prior to July 2014, and indeed from about 2007, the overtime worked by part‑time employees was not averaged out over a roster cycle, but rather determined by reference to the hours worked in a pay cycle. A pay cycle is fortnightly. On 10 July 2014, the respondent wrote to the applicant advising that it had been for some time paying its part‑time employees covered by the agreement incorrectly. They refer to this being an administrative error.
PN40
The respondent did not seek to recover any of the alleged overpayments in respect of this administrative error, but proposed a new way forward. When I say proposed they unilaterally proposed a new way forward and adopted that course almost immediately. That new way forward included averaging hours worked by part‑time employee over a roster cycle and that s not an issue in this matter so that can be put to the side.
PN41
So they determined that ordinary hours could be averaged in relation to part‑time employees and that s a matter that the applicant union doesn't take issue with and so we can put that matter to the side. But the key issue in relation to this matter is that from that point onwards, the respondent determined that it would average sorry, it would calculate overtime hours by averaging the hours worked by a part‑time employee over the whole eight-week roster cycle and it wouldn't be then until the conclusion of that eight-week roster cycle that the respondent would then be in a position to determine whether the trigger for the overtime hours worked would come into play and part‑time employees would be paid overtime.
PN42
That payment then wouldn't occur until the next pay cycle. So in some instances, some 10 weeks before the commencement of that last roster cycle. That was a completely new way of doing it. Prior to that, they d always been paid fortnightly and paid for the overtime worked in that fortnight. The consequences of this obviously is that because it s averaged over a period of time there will be some weeks where part‑time employees work considerable overtime hours and then some weeks when they work their ordinary hours. Because of the way that the averaging system works, those hours where there s been excessive overtime will be reduced overtime and the part‑time employees will not necessarily be compensated adequately or, in some cases, at all for the overtime hours worked.
PN43
It s the applicant s case that the clear words of the agreement do not support the respondent s interpretation and there s a number of clauses that are relevant and moving forward, Commissioner, so that they the Commission is aware of the irrelevant clauses, whilst evidence is occurring. If I could take you to those clauses. As I ve noted, SP2 to Mr Purvinas statement has the relevant copy of the agreement. If you've got that there, Commissioner, I'll start under part 2, terms and conditions of employment, which is at page 15 of the agreement, and the relevant clauses there are 14 and 15.
PN44
THE COMMISSIONER: Yes.
PN45
MS HARTIGAN: It s clear that full‑time employment is defined there by reference to the average 40 hours per week across the roster cycle. So it specifically refers to that process there in determining who is a full‑time employee. The definition for part‑time employment is different. Relevantly, it s someone who is engaged to perform less than an average 40 hours per week. So it uses the terminology, Average of 40 hours per week, and it specifically excludes the use of the words, Across a roster cycle, and instead it says, On a reasonably predictable basis.
PN46
In relation to that, Commissioner, it s submitted that the reasonably predictable basis can only be a reference to the ordinary hours worked by that part‑time employee because they are the only hours that can be reasonably predictable. Obviously, overtime cannot fall into that category. Moving on then to the other relevant clauses: clause 24 at page 20 of the agreement provides for the hours of work. Relevantly, you'll note at 24.4 in the second sentence there it notes that:
PN47
Team members may be required to work reasonable and additional hours as overtime.
PN48
So that makes it clear that in addition to the rostered 40 hours, team members may be required to work reasonable additional hours as overtime. So the work of that clause is to set the hours of work and to identify that by setting the hours of work. There ll be 40 hours a week averaged across a roster cycle for full‑time employees and that in addition to that, overtime may be worked.
PN49
THE COMMISSIONER: It seems to sort of almost be at odds with 27.2 a little further down, doesn't it?
PN50
MS HARTIGAN: Well, yes. In terms of the reasonable refusal.
PN51
THE COMMISSIONER: Which is correct? Are they required to work reasonable hours or do they have the right to refuse additional hours?
PN52
MS HARTIGAN: Actually, I think it s the right to refuse additional hours. In terms of the next relevant clause, clause 36, relates to what a team member s salary covers and this is no expert the annualised salary has been calculated to remunerate the team member and to take into account the matters listed from A through to F. Relevantly, though, Commissioner, you'll note at G it excludes overtime payments in that annualised salary. That is then relevant when one moves to clause 38 in relation to the definition of overtime. In relation to this clause, it s noted that:
PN53
Overtime hours are those worked by a full‑time or part‑time member in addition to the standard 40 hours encompassed by a team member s salary.
PN54
It s accepted in relation to this matter that the trigger for the payment of overtime hours for a part‑time employee is 40 hour. What this means in real terms is that, for instance, if a part‑time employee is rostered and does work 30.45 hours and they're rostered to do then overtime, they will be paid at the ordinary rate between the 30.45 hours and 40 hours. It s not until the trigger point at 40 hours that they ll then be paid at the overtime rates at time and a half.
PN55
That allows the organisation some great degree of flexibility there in relation to the rostering of part‑time employees for overtime work and it means that employees have to, you know, take on that additional work at a single rate prior to getting up to the 40-hour trigger point.
PN56
THE COMMISSIONER: Part-timers would be more attractive to use for overtime than full‑timers. That would be the first thing, wouldn't it?
PN57
MS HARTIGAN: Yes, that's right.
PN58
THE COMMISSIONER: Yes.
PN59
MS HARTIGAN: You could continue to use them, for instance, for 39.9 hours and not have to use them for the overtime. But that s how the system works.
PN60
THE COMMISSIONER: Right.
PN61
MS HARTIGAN: That's accepted by us that that is the trigger.
PN62
THE COMMISSIONER: Yes, right.
PN63
MS HARTIGAN: But it must be noted that that is how the system works, but the respondent already has that degree of flexibility in relation to overtime and that s not a matter that s been in dispute at all between the parties. It s part of the process and it s part of the process that s been in place up until the respondent introduced these changes in July 2014. They're the relevant clauses that I wanted to take you to, Commissioner, in respect of the agreement.
PN64
In terms of the process in terms of negotiating the 2014 agreement, there s quite a deal of evidence dealing with that. It s the applicant s position, though and I think to some large degree it s not contentious that in relation to the negotiation of the 2010 agreement and in relation to the negotiation of the 2014 agreement, the payment of overtime to part‑time employees, and particularly the calculation of how those overtime payments are to be made, was not a matter that was raised. It was certainly not a matter that was considered by the parties when they were negotiating the agreement.
PN65
So we had a situation where prior to the introduction of the 2010 agreement, and you'll hear this in the evidence well, it s in the evidence of Mr Purvinas that there were individual workplace agreements up until 2010 and the practice in terms of overtime during that period of time was that the employees would be paid their overtime in the fortnightly cycle and it would be calculated in that cycle. That was in effect codified for the 2010 agreement and falls very similar in fact the same as the 2014 clause, but for numbering, was adopted.
PN66
So the practice has been the case since prior to the introduction of the agreements. It s been the practice during the life of the whole of the 2010 agreement. It was the practice in place during the negotiations of the 2014 agreement. It was the practice in place until from the approval of the 2014 agreement in March 2014 until the respondent determined to introduce this change in or about July 2014.
PN67
THE COMMISSIONER: I think it was approved in April, wasn't it?
PN68
MS HARTIGAN: I'll have to get my instructor to confirm that. I apologise if it was. I beg your pardon. 7 April 2014. In any event, it was some months intervening between the approval process and the memo from the respondents in July 2014. I don't think I need to take you to any more of the details of those negotiations and, really, it forms the backdrop. It s part of the evidence, certainly, of the witnesses, but it s the applicant s case that in terms of determining or interpreting the agreement, the agreement falls down to the clear and precise meaning of the words.
PN69
It s certainly not the case at first instance that it s the applicant s case that the Commission should have regard to extraneous material at all. It s certainly our case that on a simple reading of the agreement that the interpretation sought by the applicant is supported by the terms of the agreement. If there are no other particular matters, Commissioner, that you wanted me to address in relation to the opening, I'll call the first witness.
PN70
THE COMMISSIONER: All right, thank you.
PN71
MS HARTIGAN: Mr Stephen Purvinas.
PN72
THE ASSOCIATE: Could you state your full name and address?
MR PURVINAS: Stephen Ross Purvinas (address supplied).
<STEPHEN ROSS PURVINAS, AFFIRMED [10.40 AM]
EXAMINATION-IN-CHIEF BY MS HARTIGAN [10.40 AM]
PN74
MS HARTIGAN: Mr Purvinas, you're the federal secretary of the Australian Licensed Aircraft Engineers Association?‑‑‑Yes.
PN75
You've held that position since 1 July 2006?‑‑‑Correct.
PN76
You've prepared two statements in respect of this matter?‑‑‑I have.
PN77
The first statement being the statement of Stephen Ross Purvinas and the subject being the supplementary statement of Stephen Ross Purvinas?‑‑‑Correct.
PN78
Are there any amendments or additions you'd like to make to those statements?‑‑‑No amendments or additions.
PN79
In relation to ‑ ‑ ‑
PN80
THE COMMISSIONER: Do you tender the first statement?
PN81
MS HARTIGAN: Yes, Commissioner, I tender that.
PN82
THE COMMISSIONER: I'll just take them one at a time. Is there any objection to the admission of the first statement, which is dated 22 April 2015?
PN83
MS MOODY: No objection, Commissioner.
*** STEPHEN ROSS PURVINAS XN MS HARTIGAN
THE COMMISSIONER: Thank you. The document is tendered, admitted without objection. It becomes exhibit 1. Exhibit 1 is described as the statement of Stephen Purvinas dated 22 April 2015, exhibit 1.
EXHIBIT #1 STATEMENT OF STEPHEN PURVINAS DATED 22/04/2015
PN85
MS MOODY: Commissioner, it might be appropriate for me to say at this point, whilst I don't have any objection to Mr Purvinas statement and, indeed will not to any of the others, particularly in relation to evidential matters, my learned colleague and I have discussed that we will, rather than addressing objections to evidence, address you at the end in relation to the matters that you should have regard to or the weight that you should have to particular parts of the witnesses evidence and we'll deal with at the very end.
PN86
THE COMMISSIONER: I think it s broadly understood that these proceedings ‑ ‑ ‑
PN87
MS MOODY: Absolutely.
PN88
THE COMMISSIONER: ‑ ‑ ‑ aren t governed by the Rules of Evidence. There s a lot of material in here, which if we were, would be struck out and I think then submissions at the end of the matter about the weight that should attach to particular parts of the evidence is the usual process.
PN89
MS MOODY: Absolutely, Commissioner. Indeed, if you're happy for us to adopt that process. Thank you.
PN90
THE COMMISSIONER: All right, thank you.
PN91
MS HARTIGAN: Then, Commissioner, if I could tender the supplementary statement of Mr Purvinas dated 26 May 2015?
PN92
THE COMMISSIONER: Is there any objection to that admission?
PN93
MS MOODY: No objection.
*** STEPHEN ROSS PURVINAS XN MS HARTIGAN
THE COMMISSIONER: No? Thank you. The document is tendered, admitted without objection, and this will be marked as exhibit 2. Exhibit 2 is described as the supplementary statement of Stephen Purvinas dated 26 May 2015, exhibit 2.
EXHIBIT #2 SUPPLEMENTARY WITNESS STATEMENT OF STEPHEN PURVINAS DATED 26/05/2015
PN95
MS HARTIGAN: Commissioner, with your leave, if I could ask Mr Purvinas some additional questions?
PN96
THE COMMISSIONER: Yes.
PN97
MS HARTIGAN: Mr Purvinas, at paragraph 18 of your first statement, you refer to negotiations which took place in relation to the 2014 agreement. What s your recollection in relation to what, if anything, was discussed in relation to part‑time workers, particularly with regard to overtime?
PN98
MS MOODY: Objection, Commissioner, to this question. The direction was that statements be filed of the witnesses evidence‑in‑chief. This is evidence which goes directly to important conversations and ought to have been in the witness primary statement material. There is no reason why it could not have been in what we now have are two statements, the original and supplementary.
PN99
THE COMMISSIONER: Is there some degree of detail here that s going to be elicited?
PN100
MS HARTIGAN: Commissioner, I don't think it s controversial in relation to what the detail will be, but it s certainly addressing the point that I ve asked the question of, that is, were there anything discussions in relation to the calculation of overtime paid to part‑time workers. It s a ‑ ‑ ‑
PN101
THE COMMISSIONER: I think if it introduces something that takes Ms Moody by absolute surprise, we re going to be in a difficulty. If the answer is fairly innocuous and predictable, perhaps we won t be troubled, but if we do get fresh material about, I said this to Y, and what have you, then we re going to be troubled by that.
PN102
MS HARTIGAN: It s the situation, Commissioner, where the respondent has witnesses who will be giving evidence today who were a party to those discussions as well.
PN103
THE COMMISSIONER: Yes.
*** STEPHEN ROSS PURVINAS XN MS HARTIGAN
PN104
MS HARTIGAN: They're certainly matters that can be canvassed with them. There ll be no denial of procedural fairness of the respondent in that regard. To be frank, it s not an additional matter. It s a matter that goes to the very heart of the matter. It certainly has been discussed in terms of what negotiations there were, that they took place, and it s certainly something that is directly relevant to the Commission in relation to this proceeding.
PN105
THE COMMISSIONER: But Ms Moody s point is that if something fresh emerges, some new position emerges, she won t have been given any indication of that before now. Now, I'm not going to stop your questioning, but I think what should occur here is if there is something that just comes out of left field, as it might be described, then Ms Moody can jump up and say, Look, I need to take instructions on this and it wasn't put in there before.
PN106
MS HARTIGAN: Certainly. One other course would be that prior to Ms Moody calling evidence, that the matter be stood down so she can obtain instructions in relation to that particular point. For instance ‑ ‑ ‑
PN107
THE COMMISSIONER: If we get into that area, but that s very regrettable because obviously if it s an important material fact, it should have been the subject of the witness statement at first instance. But what I'm going to do is allow it to go on, just see how far it travels and if material that really is obviously fresh emerges, well then we'll have to stop it and consider what we do then, I think, Ms Moody.
PN108
MS MOODY: Yes, Commissioner. I'll need to take instructions. One option obviously open to us is to yes, we'll deal with it at that stage, but can I say it is the issue. So in terms of interpreting the certified agreement, if it is ambiguous then one of the key matters to which the Commission can have recourse obviously are discussions that in fact occurred during the agreement negotiations.
PN109
THE COMMISSIONER: Yes.
PN110
MS MOODY: And that is the issue. You have the 40 volumes of statements, 99 per cent of which are irrelevant to that question. This evidence to be adduced now is the issue. It should have been in the statements.
PN111
THE COMMISSIONER: But, of course, the subjective views or intent of the parties aren t necessarily something ‑ ‑ ‑
*** STEPHEN ROSS PURVINAS XN MS HARTIGAN
PN112
MS MOODY: Completely irrelevant, but what I apprehend the evidence to be is what was said and that is directly relevant. So what was said and done objectively, something is objectively verifiable, is something which you may, depending upon how matters unfold, be entitled to take into consideration.
PN113
THE COMMISSIONER: All right. Let s just see how far this travels.
PN114
MS HARTIGAN: Commissioner, I ve had cause to reflect. I'm going to reframe my question.
PN115
THE COMMISSIONER: All right.
PN116
MS HARTIGAN: But I do note just for the record that the respondents do address these matters and they certainly give evidence in relation to what they say were part of the matters of the negotiation process. There may be some feigned surprise by the course of this questioning, but in any event, I'll move on.
PN117
In relation to paragraph 21, Mr Purvinas, you indicated that during and after the negotiations of both the 2010 and 2014 agreement, there appeared to be a common understanding between the parties on how the overtime clauses contained with the agreements applied. When you talk about that common understanding, can you explain what that common understanding was?‑‑‑Well, prior to 2010, which was the first agreement that we negotiated, there were a small number of part‑timers. They knew how they were being paid. They didn't seek any change to the way that their overtime was calculated or paid by Virgin and Virgin neither sought to change or amend the way that the payments were made. And prior to the 2014 negotiations and during those negotiations, it wasn't raised either.
PN118
In terms of those payment arrangements, what was your understanding in relation to how the payments were made during the course of the 2010 agreement?‑‑‑My understanding ‑ ‑ ‑
PN119
MS MOODY: Objection in relation to the formation of the question. The witness understanding is irrelevant insofar as his speculation or opinion is sought to be adduced, if he s being asked if he has knowledge of the facts which are relevant, that s a different matter, but his understanding is not.
PN120
THE COMMISSIONER: It may be marginally relevant. I mean, at the end of the day, he s not actually receiving it. But, in any event, I don't think there s any argument about how it was operating up until July 2014, or is there?
*** STEPHEN ROSS PURVINAS XN MS HARTIGAN
PN121
MS MOODY: No, there is no argument.
PN122
THE COMMISSIONER: Because I couldn't find it.
PN123
MS HARTIGAN: I think that s the point. I'm trying to get the applicant s position in relation to what the applicant s position is.
PN124
THE COMMISSIONER: I think let s continue on.
PN125
MS HARTIGAN: Could you ‑ ‑ ‑?‑‑‑Yes. The 2010 agreement that we negotiated was the first collective agreement for Virgin Tech and the parties, as I say somewhere in my statement we start off with a blank piece of paper and we just tried to put in place what was the practice at the time or how the guys were being paid and then on top of that, there were some claims such as wage increases and so on. So we just tried to reflect what our understanding was and my understanding was that anyone who worked part‑time had letters of appointment explaining that you would get paid. At the time I think it would have been overtime on any hour above the 38th in a week because during the 2010 negotiations, there was some discussion and confusion about what someone s base hours were because everyone was on salary, but rather than be on a 38-hour week, they were on a 40-hour week and we specifically wanted it noted, both parties that is, or maybe I can t speak on behalf of Virgin, but it was agreed that we needed to put in there somewhere that because it was a 40-hour week and not a standard 38-hour week, that two of those hours for a full‑timer were already overtime hours, which reflects your additional two hours from 38 to 40.
PN126
And what happened to that arrangement in respect of the 2014 agreement?‑‑‑There was no further discussion on how calculations for overtime or hours were going to be made.
PN127
In respect of the paragraph under the heading History of the Dispute at 27 and 28 of your statement, you talk there about receiving a letter from the respondent s general manager of workplace relations and you compartmentalised that correspondence into 28A and B. In relation to paragraph 28B do you see that there?‑‑‑Yes.
PN128
How were your members affected by that proposed introduction at 28 subparagraph (b)?‑‑‑Well, some of them contacted me and said, Hey, I'm going to lose a lot of money here, because they were being paid overtime fortnightly in their pay and they d been contacted by Virgin around the same time with similar communications to what I received and, yes, they just weren't happy with it because they didn't that s how it works.
*** STEPHEN ROSS PURVINAS XN MS HARTIGAN
PN129
If I can ask you to turn to your supplementary statement?‑‑‑Yes.
PN130
At paragraph 7 there, you refer to annexure SP5?‑‑‑Yes.
PN131
You refer there to a copy of an email you sent to the executive members?‑‑‑Yes.
PN132
Was that the case?‑‑‑Yes. What had occurred on that particular email and this is how I commonly deal with communications to our members at Virgin. I send an email to either my executive so they know what is going on or some industrial staff to see what I'm doing at Virgin, but I blind courtesy copy in all of the members so that no one can actually see who the other members are to retain confidentiality. So the email, although addressed to the executive, the executive of my union also was distributed amongst all of our membership.
PN133
Then in relation to SP6, which you refer to at paragraph 9, you then say there that you sent to members. Can the Commission take it that the same process was engaged in there?‑‑‑Yes. It s the same - I'll either, again, copy it to myself or my executive, but the members are included in the material as an update for the meetings or in, I think, the case of SP6 for their consideration of an upcoming vote.
PN134
That's the evidence‑in‑chief, Commissioner.
THE COMMISSIONER: Thank you. Cross-examination, Ms Moody?
CROSS-EXAMINATION BY MS MOODY [10.53 AM]
PN136
MS MOODY: Mr Purvinas, your evidence is that prior to 2010 agreement coming into place, Australian workplace agreements were largely in place in the workforce covering LAMEs and AMEs. Is that correct?‑‑‑At Virgin, yes.
PN137
Yes, yes. You make the comment that because you were coming to the negotiations for the 2010 agreement with and you call it largely a blank slate that s why the agreements were so protracted and, indeed, took 12 months. That's correct?‑‑‑Of the negotiations?
*** STEPHEN ROSS PURVINAS XXN MS MOODY
PN138
Yes?‑‑‑Yes. The negotiations were I won t say frustrated, but difficult because we had to start from scratch and we also had quite a bit of contention with the airline not agreeing to some of our claims that led to a situation where we were on the eve of taking protected industrial action and we had some conciliation. So there was some disagreement about some of the claims that we had made and also there was the drafting issues commencing from a piece of paper.
PN139
Your evidence just now was to the effect that there was in place at the time of the negotiations for 2010 agreements individual letters of appointment. I think you used that expression. You've not put those individual letters of appointment into evidence, have you?‑‑‑The individual letters?
PN140
Yes?‑‑‑No.
PN141
So you have not put any objective evidence before this tribunal, though you've had an opportunity to do so, about what the terms and conditions were for effective employees prior to 2010?‑‑‑I haven't attached any of those contracts, no.
PN142
No. You say that during the 2010 agreement there was limited, I think you say, discussions about part‑time employees because there was only a very small number of part‑time employees at that time?‑‑‑That's correct.
PN143
Would you agree the number of employees at that time was around about six?‑‑‑Part-timers?
PN144
Yes?‑‑‑Yes, it was about six, yes.
PN145
Other than to agree to the provisions which now find their way into the agreement which concerned part‑time employees, there were no other discussions about part‑time hours or the payment of overtime for part‑time employees. Correct?‑‑‑During the 2010 discussions?
PN146
During 2010?‑‑‑There was some discussion about it, but it was very limited.
PN147
In relation to the 2014 negotiations, were you present for each and every meeting in those negotiations or some?‑‑‑I can't recall a meeting that I missed, so I think I was present at every meeting.
PN148
Do you know if you were present at every meeting? Do you have a knowledge of whether the question or the answer is true and correct?‑‑‑I'm almost certain that I attended every meeting. I can't recall any that I missed.
PN149
Again, almost certain?‑‑‑Yes.
*** STEPHEN ROSS PURVINAS XXN MS MOODY
PN150
Do you know the answer to the question?‑‑‑Well, I can just tell you that I can t recall missing a meeting, so I think I was present at every meeting.
PN151
You say that there was no discussion about overtime triggers either at the 2014 negotiations correct?‑‑‑Yes.
PN152
It s the case, isn't it, that no issue about the interpretation of clause 38.1 arose in any form until Virgin itself raised the issue in their email in August of 2014. Correct?‑‑‑Sorry, 38.1?
PN153
The clause of the agreement which deals with payment of overtime for part‑time employees?‑‑‑Excuse me. I'm not sure if it was 38.1 in the agreement that was in place at the time. There was ‑ ‑ ‑
PN154
No, the 2014 agreement?‑‑‑The 2014 agreement, 38.1, there was no discussion about that.
PN155
My point was that in relation to the interpretation of clause 38.1 of the 2014 agreement ‑ ‑ ‑?‑‑‑Yes.
PN156
‑ ‑ ‑ no issue has been raised during the lifetime of the 2010 or 2014 agreements about the interpretation of that particular clause or its iteration in a former agreement until raised by Virgin late last year. Correct?‑‑‑I don't recall any other disputes in relation to clause 38.1 in the 2014 agreement and its predecessor.
PN157
It s fairly characterised as a dispute about the proper interpretation of that clause, isn't it? You have interpretation, Virgin has another?‑‑‑Correct.
PN158
And Virgin says that it applied the agreement in error for a period of time. You understand that to be Virgin s position?‑‑‑That's what they ve said, yes.
PN159
You say you don t believe that?‑‑‑No, that s correct.
PN160
You have no evidence to the contrary, though, do you?‑‑‑That?
*** STEPHEN ROSS PURVINAS XXN MS MOODY
PN161
That Virgin are not entirely forthright insofar as they say that they are seeking to adopt these proposals for payments of overtime to rectify what they believe to be an error. You may not believe what they say, but you don t have any evidence to the contrary, do you?‑‑‑I think the EBA or the enterprise agreement is the evidence.
PN162
Mr Purvinas, it comes down to the question, which is for the Commission to determine, about which interpretation is correct?‑‑‑Yes.
PN163
You've said it s the Commission s decision ultimately in that issue?‑‑‑Sorry, I don't understand your question.
PN164
The question of the interpretation of the agreement ‑ ‑ ‑?‑‑‑Yes.
PN165
‑ ‑ ‑ is ultimately a question for the Commission to decide?‑‑‑Yes.
PN166
You say that in relation to the 2014 agreement, there were limited discussions about part‑time employees and you talk about those discussions in your statements, do you not?
PN167
MS HARTIGAN: Perhaps some guidance could be provided in relation to that. It was a very general statement.
PN168
MS MOODY: Your evidence is that there were limited discussions about part‑time employees and you describe those discussions as generally forming part of the negotiations around schedule 2, which is titled Minimum Manning Requirements. Is that correct?‑‑‑Yes, there was discussion about part‑timers in the context of how many part‑timers could be used by the airline.
PN169
You would agree, wouldn't you, that those discussions found their agreement in schedule 2, which we currently have, to the 2014 agreement?‑‑‑Correct.
PN170
So that is what the parties agreed to?‑‑‑Yes, yes.
PN171
You say in your supplementary statement ‑ ‑ ‑?‑‑‑Yes.
PN172
‑ ‑ ‑ that you sent material to members and to your executive committee ‑ ‑ ‑?‑‑‑Yes.
PN173
‑ ‑ ‑ commenting on schedule 2. Do you recall that evidence?‑‑‑Yes.
*** STEPHEN ROSS PURVINAS XXN MS MOODY
PN174
It s your evidence, as I understand it, that you believe that to be a cap on the number of part‑time employees that Virgin can use in its rosters. Is that correct?‑‑‑It s not an absolute cap. It s a cap on how many they could use to calculate the guaranteed minimum manning numbers on day shift at terminals.
PN175
If I can put that differently. You accept, don t you, that there is nothing expressly in the agreement nor was there anything expressly agreed during negotiations with the 2014 agreement which capped the number of part‑time employees that Virgin could use?‑‑‑No. They could use as many as they like.
PN176
Indeed. When we look to schedule 2 of the agreement insofar as it s headed Minimum Manning Requirements ‑ ‑ ‑?‑‑‑Yes.
PN177
‑ ‑ ‑ we know that that is, taken at its highest, the minimum composition that Virgin must have on certain shifts?‑‑‑Yes. The schedule 2 says what the minimum guaranteed number of employees will be on day shift.
PN178
So where you say to your members in the imbedded table, which is in the agreement attached to your statement as exhibit SP6, if you'd like to turn that up?‑‑‑Sorry, which statement is that?
PN179
It s the imbedded comment that is in a table ‑ ‑ ‑?‑‑‑In the supplementary statement?
PN180
‑ ‑ ‑ to schedule 2 in the supplementary statement, yes, exhibit SP6?‑‑‑Yes.
PN181
The third line ‑ ‑ ‑?‑‑‑Yes.
PN182
‑ ‑ ‑ where you say:
PN183
Where the use of part‑time employees was previously unlimited, now only one per crew can be used to make up numbers.
PN184
?‑‑‑Yes.
PN185
Would you agree that that s not strictly correct? Again, you've agreed that in fact Virgin may use unlimited numbers of part‑time employees?‑‑‑Yes. No, I d say that s entirely correct.
*** STEPHEN ROSS PURVINAS XXN MS MOODY
PN186
I put it to you, Mr Purvinas, that it is not correct when one looks at the minimum manning requirements of schedule 2?‑‑‑The numbers I'm referring to are the numbers in the table up there which are the minimum guaranteed numbers. It doesn't say that there s a cap for the number of part‑timers they can use.
PN187
Mr Purvinas, in relation to the current enterprise agreement and the arrangements that were in place previously for payment of overtime for part‑time employees, can I hand you up a table which appears in the evidence in numerous respects?‑‑‑Yes.
PN188
Mr Purvinas, you recognise this memorandum, of course?‑‑‑I do.
PN189
This was the memorandum that was sent by Virgin to affected team members informing them of the error as characterised by Virgin and what was going to be done to again, as characterised by Virgin correct the error?‑‑‑Yes.
PN190
Attached to that memorandum were two tables. Mr Purvinas, you agree that under the 2014 agreement, part‑time employees are expressed to enjoy or be entitled to pro rata entitlements and conditions of employment?‑‑‑They are. Yes.
PN191
If we look at the way in which a typical shift for a full‑time employee works, just to explain for the Commission, your evidence is that there is an eight-week roster cycle for part‑time and full‑time employees?‑‑‑Yes.
PN192
It s typically characterised by a four-day on, four-day off period?‑‑‑It is.
PN193
There may be different roster cycles for full‑time employees, but this is a typical one presented as the first table on the second page of the bundle I ve given you?‑‑‑The first table appears to be the roster cycle for a full‑time employee.
PN194
Yes, we re looking at full‑time employees?‑‑‑Yes.
PN195
That's what I'm asking you about?‑‑‑Yes.
PN196
And you would agree that there are other rosters for full‑time employees, but this is a typical roster for a full‑time employee?‑‑‑Yes, the majority of people work this roster.
*** STEPHEN ROSS PURVINAS XXN MS MOODY
PN197
Yes. And whereas under the agreement, a full‑time employee is expressed to work an average of 40 hours a week over an eight-week roster cycle, this table shows us how in practice those hours are paid and worked. Correct?‑‑‑Yes, it effectively shows how the wage is averaged.
PN198
Yes?‑‑‑It s a wage averaging calculator.
PN199
Correct. Over an eight-week period, a full‑time employee working 40 hours a week, being comprised of 38 ordinary hours and two overtime hours, works a total of 319.2 hours in that eight-week roster cycle?‑‑‑Yes.
PN200
In terms of actual hours worked or let me take a step back. If we average that out over the eight-week cycle, that comes to an average of roughly 40 per week. We have here 39.9, but it s roughly 40 per week?‑‑‑Yes.
PN201
That's the fictionalised position. That's the average 48‑week period and there s never a week on this roster cycle, and indeed on any of the other roster cycles, where the employees are actually rostered to work a 40-hour week. Correct?‑‑‑A full‑timer? No, they can t be rostered to be spot on 40 hours in any given week.
PN202
This diagram gives us an example. So an average full‑time employee working four days on, four days off, will on this roster work four days of 11.4 hours or a total of 45.6 in the first week?‑‑‑Correct.
PN203
And, indeed, he will work, or she will work, 45.6 in weeks 1, 2, 3 and 4?‑‑‑Correct.
PN204
And then 34.2 in the remaining four weeks?‑‑‑Yes.
PN205
In each of those eight weeks, the employee is not paid for the actual number of hours worked, but for the fictionalised average of 40. Correct?‑‑‑I'm sorry, could you ask that again? I ve got to get my head around it.
PN206
Yes. For the weeks that the employee works 45.6 hours, the full‑time employee is not paid for 45.6 ordinary hours is he or she? They are paid for the fictionalised average of 40?‑‑‑Correct.
PN207
Likewise, in the weeks where the person works less than 40 hours, they aren t paid for the lessor number of ordinary hours. They're paid for the fictionalised average of 40?‑‑‑Correct.
*** STEPHEN ROSS PURVINAS XXN MS MOODY
PN208
Because we know that any hour worked in excess of 40 is going to be overtime under the terms of the agreement ‑ ‑ ‑?‑‑‑Yes.
PN209
‑ ‑ ‑ it s, you would agree, an easy calculation to ascertain overtime?‑‑‑For a full‑timer?
PN210
Yes?‑‑‑Yes.
PN211
So if I'm a full‑time employee working this roster and in week 1, I work on Sunday, 12.4 hours, my employer and I will now, and the ALAEA will know from day one on week one that I ve worked an hour of overtime?‑‑‑It s an hour overtime. Yes.
PN212
And I'll be paid that hour of overtime in the first fortnightly pay period?‑‑‑Yes.
PN213
Now, part‑time employees, on the other hand, work again a number of different rosters, but you agree that the roster cycle in the diagram at the bottom of this page is a typical part‑time roster cycle?‑‑‑It may be one cycle that they could be given.
PN214
Yes, and it s a common one that you recognise?‑‑‑Yes. It s something that I would expect, but I ve never actually sat down with each of the part‑timers and worked out how many of them were on what roster, but the full‑time roster is very familiar to me. The part‑time rosters can vary.
PN215
Stephen Cryer, if I'm not mistaken.
PN216
THE COMMISSIONER: Stuart, I think.
PN217
MS MOODY: Yes.
PN218
Stuart Cryer is contracted to work 30.45 hours per week and I believe his roster pattern is similar to this diagram here. Are you aware of that?‑‑‑Yes, that does look correct to me because there was discussion about this roster pattern when we talked about the 2014 agreement in the sense of using that roster pattern.
*** STEPHEN ROSS PURVINAS XXN MS MOODY
PN219
Again, looking at the roster pattern and how - we'll talk about how overtime hours were calculated before the anomaly, if I can call it that and using neutral language, was identified, but first to look at the patterns of overtime and hours worked by a part‑time employee. Again, this particular part‑time employee will be contracted to work an average of 30.45 hours and under the agreement that s an average, you would agree, for hours worked of 30.45 over the eight-week roster cycle?‑‑‑Yes.
PN220
It s the case, isn't it, that some employees might have a contract of employment which averages hours over a different period of time, but again we re not dealing with contracts of employment, we re dealing with rosters under the agreement and we are concerned with circumstances where this average is over that eight-week roster cycle?‑‑‑Yes. There may be some different variations to this, yes.
PN221
And, again, our part‑time employees work four days on, four days off, typically - typically. Now, that, I may say one of your other witnesses ‑ ‑ ‑?‑‑‑Look, I know. I know in Sydney and Melbourne they do.
PN222
Yes?‑‑‑Brisbane International, it might be a different. I'm not sure.
PN223
Indeed, one of your other witnesses, Mr Campbell, his evidence is that he is contracted to work 20 hours per week and he has a different number of days on and a number days off, but using this example here. So we see that in this example we have a part‑time employee working two shifts of six hours. I think in Mr Cryer s case, they're half night shifts for him and then in his case, two day shifts. So this individual at the end of week one, works 34.8 hours?‑‑‑I'm sorry, you've confused me. You're saying he worked day shift after night shift?
PN224
In Mr Cryer s case. What is your question?‑‑‑The roster before me looks like two six-hour day shifts and then two 11.4-hour night shifts.
PN225
Again, let s leave aside calculations of day or night and focus on the numbers. In week one for this roster, the part‑time employee will in truth and in fact work 34.8 hours in the first week?‑‑‑Correct.
PN226
And in weeks two, three and four?‑‑‑Yes.
PN227
In the remaining weeks well, in the next two weeks he'll work 23.4 and then in the final two weeks, 28.8?‑‑‑Yes.
PN228
Whilst none of those weeks in the roster cycle or in none of those weeks will the employee in truth work 30.45 hours. In fact, he will receive a pay representing 30.45 standard hours. Correct?‑‑‑Correct.
*** STEPHEN ROSS PURVINAS XXN MS MOODY
PN229
Prior to the anomaly being discovered, it s the case, isn't it, that if an employee, say in week one of this roster cycle, worked full‑time hours on the Sunday, so going from six to 11.4 hours ‑ ‑ ‑?‑‑‑Yes.
PN230
‑ ‑ ‑ that employee would be paid standard rates for the additional time worked?‑‑‑It depends what cycle it fell in into the fortnight.
PN231
What do you mean by that?‑‑‑Well, I'm under the impression that the wages are calculated and paid per fortnight and if they were taken above 40 hours on average per fortnight, although in the case of one part‑timer, I believe, it s 38 hours, they get paid overtime. So it depends on whether they reach the trigger or not.
PN232
Perhaps we can approach it this way: Mr Cryer gives evidence of how his pattern of hours might be affected or would have been calculated prior to the anomaly being discovered. He would say that if he was required to work in week one, full‑time hours of, say, 45.6, so if he went from working week one as a part‑time employee, 34.8 hours, to in fact working 45.6 hours ‑ ‑ ‑ ?‑‑‑Yes, yes.
PN233
‑ ‑ ‑ being, you know, again equating to the week one shift of a full‑time employee. Whilst he had in fact worked 45.6 hours, the additional hours worked are calculated in relation to the annualised rather the 45.6 and the 34.8, so the additional hours are 10.8?‑‑‑If that s what it says, yes.
PN234
The employee would work, yes? Those additional hours would be added to the fictionalised annual rather, the fictionalised weekly hours of 30.45. So the additional hours are 10.8. So to calculate pay, the process was to add those to the fictionalised weekly number of 30.45. Correct?‑‑‑Are you asking me if his statement is correct or ‑ ‑ ‑
PN235
No, I'm asking you about the process that was in place beforehand?‑‑‑The process that was in place beforehand was confusing and my understanding was that if anyone worked more than 40 hours a week, but that was within a fortnight, they would get paid at the end of that fortnight.
PN236
Mr Purvinas, that s not the evidence of Mr Cryer.
*** STEPHEN ROSS PURVINAS XXN MS MOODY
PN237
MS HARTIGAN: That's unfair to put that to the witness in those terms. It s unfair to say that what one witness says and what one witness doesn't say, particularly when the Commission is yet to hear from that witness. Perhaps that could be reframed, that question.
PN238
MS MOODY: So your understanding is that a part‑time employee who in fact worked more than 40 was paid overtime rates for any hour worked in excess of 40. Is that correct?‑‑‑That was my understanding, yes.
PN239
Is your understanding that that was calculated on a weekly basis or a fortnightly basis?‑‑‑I thought it was calculated on a weekly basis and paid fortnightly at the end of the fortnight.
PN240
Yes. Would you agree, Mr Purvinas, that there appears to be some great deal of confusion about whether overtime was calculated on a weekly basis where it was in fact averaged over the fortnightly pay period. Do you agree that that s the case?‑‑‑My understanding is the trigger for the overtime is calculated on a weekly basis and paid at the end of the fortnight. Is there anything I didn't answer in your question?
PN241
Mr Purvinas, there s other evidence which needn t concern you that the averaging is conducted over a fortnightly period rather than, as you say, a weekly period?‑‑‑Yes.
PN242
But, in any event, you'll agree that what is now proposed is that hours that a part‑time employee in fact works in excess of their rostered hours are paid at standard rates in that fortnightly pay period?‑‑‑A part‑time employee?
PN243
A part‑time employee?‑‑‑Hours in excess of?
PN244
Hours in excess of their rostered numbers?‑‑‑Would be paid at single time?
PN245
Are paid at single time?‑‑‑That's what Virgin are doing now.
PN246
It s the process that s in place now?‑‑‑Yes.
PN247
And has been in place since the anomaly was identified. So excess hours are paid in that pay period and they are paid at standard time and the trigger, if I can call it that, which is reaching 319.2 hours, that is the trigger used to identify the payment or the calculation of overtime. Correct?‑‑‑Yes. They're using the full‑timers trigger to calculate when the part‑timer would get paid overtime.
*** STEPHEN ROSS PURVINAS XXN MS MOODY
PN248
It s your characterisation of it that it is a full‑timers trigger, but it s a trigger, is it not, calculated on the basis of 40 hours averaged over an eight-week roster period?‑‑‑Yes, it s a trigger for someone working 48 hours averaged over a roster period.
PN249
It s the case, isn't it, that Virgin have identified that if an employee should reach the trigger of 319.2 hours during an eight-week roster cycle then overtime will be calculated from that time onwards?‑‑‑That's what Virgin is saying, yes.
PN250
Yes. So you say that in the main, or indeed in every case, an employee will not receive pay for 10 weeks, but in truth, Mr Purvinas, you would agree that it s a case‑by‑case situation where each employee s wages would be looked at individually?‑‑‑Yes, at the end of 10 weeks.
PN251
I just put it to you, Mr Purvinas, that an individual employee might reach the trigger of 319.2 during that eight‑week roster cycle, in which case the calculation of overtime would occur immediately and they would be paid the overtime in the next fortnightly pay period. You understand that to be the case, don t you?‑‑‑My understanding was someone could reach the trigger, but the review wouldn't occur until the end of the 10-week period or eight-week period, because the cycle is eight weeks, but the payment could be made two weeks later.
PN252
Mr Purvinas, returning to your evidence about the 2014 negotiations ‑ ‑ ‑?‑‑‑Yes.
PN253
‑ ‑ ‑ you say in paragraph 21 of your statement that there appeared to be a common understanding between the parties. Can I put it to you that insofar as you say there appeared to be a common understanding ‑ ‑ ‑?‑‑‑Yes.
PN254
‑ ‑ ‑ that is your subjective view of matters?‑‑‑When you say subjective view , that is my opinion. Are you asking whether that s my opinion?
PN255
That's your opinion, yes?‑‑‑My opinion or subjective view was that the part‑time employees knew when they were being paid overtime and there was no call from them to renegotiate how that was done.
PN256
I put it to you, Mr Purvinas, and in fact your evidence‑in‑chief at the commencement of your evidence today was to the effect that prior to 2012, employees knew how they were being paid. Virgin didn't seek to amend and nothing was raised. So I'm putting it to you that your evidence that there appeared to be a common understanding was based on the absence of anything expressly discussed about the calculation of overtime and part‑time employees?‑‑‑Yes.
*** STEPHEN ROSS PURVINAS XXN MS MOODY
PN257
Rather than there being, in truth, an understanding being spoken of and agreed to?‑‑‑That the understanding between the parties was built during the 2010 negotiations when we attempted to reflect the current practices at that time. So as far as I am aware, there was an understanding between the parties on how it would work.
PN258
Mr Purvinas, I put it to you that your evidence thus far is to the effect that there was a complete absence of discussion about the issue and that there was no common understanding, save and except in your mind?‑‑‑Well, you can put that to me, but I did say that the 2014 negotiations, there was no discussion about how the calculations were made and there was some discussion prior to the 2010 agreement about it.
PN259
Mr Purvinas, you say in paragraph 23 of your first statement ‑ ‑ ‑?‑‑‑Yes.
PN260
‑ ‑ ‑ that to your knowledge, part‑time LAMEs employed by Virgin Tech have always been paid overtime at the time of time and a half once they had worked in excess of 40 hours in any given week. That's not strictly correct, is it? Virgin identified an error, did they not, whereby some part‑time employees had been paid overtime after 38 hours per week. Is that correct?‑‑‑Yes. Look, I understand that there was some instances that Virgin identified where some part‑timers were paid that at the 38-hour point.
PN261
It s the union s position that it was appropriate for Virgin to correct that error. The union hasn't taken objection to the correction of that matter?‑‑‑No, the union hasn't taken objection to the correction.
PN262
The union hasn't taken objection because it recognises that the agreement correctly applied does not entitle a part‑time employee to overtime after 38 hours a week?‑‑‑Sorry, you've confused me a little bit.
PN263
You accept, do you not it s not the case that the union is being beneficiate in any way. The union accepts that under the agreement, part‑time employees are not entitled to overtime after 38 hours per week?‑‑‑My understanding was that it s the 40th hour of the week where someone attracts overtime penalty rates.
PN264
So that s a yes to my question?‑‑‑I guess so.
*** STEPHEN ROSS PURVINAS XXN MS MOODY
PN265
Again, you accept that there s an error. Coming back to your understanding that you say you reached or was in existence between the parties arising out of either the 2010 or the 2014 agreements, you'll agree that what you described as your common understanding included that common error of paying employees overtime after 38 weeks. Correct?‑‑‑Sorry?
PN266
THE COMMISSIONER: After 38 weeks?
PN267
MS MOODY: After 38 hours. My apologies.
PN268
So, again, insofar as you talk about a common understanding between the parties as to how the overtime clauses contained in the agreements were to be applied, it s the case, isn't it, that what you describe as a common understanding also meant in practice a common error about paying overtime to some part‑time employees after 38 weeks(sic)?‑‑‑I don't know how many part‑time employees the 38-hour a week thing applied to, but I'm assuming it was just a payroll department error that was triggering the payment at 38 hours.
PN269
But, again, you say that your common understanding was reached about a number of things, including what happened in practice, and you refer to your members knowledge of how they were being paid and some of them were being paid in error. Correct?‑‑‑Yes. Well, no members came to me and said, Hey, I'm getting paid overtime at 38 hours a week. I should get paid at 40. Can you chase it up with Virgin for me to get it corrected? So I had no one approach me and explain to me that there was an issue.
PN270
Your evidence in that case is that what you describe as a common understanding based on a number of factors, in fact included, at least on your part, a lack of knowledge about some employees were in truth being paid?‑‑‑I think if Virgin were erroneously paying someone at the wrong point in time, they never told me about that. My understanding was people were getting paid overtime when they hit the 40th hour in a week and that s when they were getting paid.
PN271
Mr Purvinas, I put it to you that what you describe as an understanding about the manner of payment of overtime was based upon, in part, a lack of knowledge on your part as to the payment arrangements and also based on what has since been discovered to be, and accepted by the ALAEA to be, an error?‑‑‑But at what point in time are you saying I didn't have an understanding?
PN272
You say you did not know about the error at the time of the 2014 negotiations. Correct?‑‑‑I didn't know that they were paying one or two people differently, because they didn't approach me and ask me to look into it for them.
*** STEPHEN ROSS PURVINAS XXN MS MOODY
PN273
Very good, Mr Purvinas. You say in paragraph 24 of your agreement that the trigger for being eligible for overtime rates was always 40 hours a week for both full‑time and part‑time employees?‑‑‑Yes.
PN274
Mr Purvinas, I put it to you that that s not correct?‑‑‑Okay.
PN275
The table that I gave you before that had the roster or the typical roster for a full‑time employee ‑ ‑ ‑?‑‑‑Yes.
PN276
‑ ‑ ‑ at the top shows that the trigger for payment of overtime for a full‑time is not 40 hours per week in any of those eight-week, 48-week roster cycle?‑‑‑Yes. They re wage averaged so the hours in any given week are different.
PN277
So as I apprehend matters, you're talking about pay, on the one hand, and we need to isolate and separate from that hours, on the other hand, by which overtime is calculated. Do you agree?‑‑‑If you can put it in context for me, I didn't understand the question.
PN278
Insofar as you say that full‑time and part‑time employees have always ‑ ‑ ‑?‑‑‑Yes.
PN279
‑ ‑ ‑ used 40 hours a week as a trigger for payment of overtime ‑ ‑ ‑?‑‑‑Yes.
PN280
‑ ‑ ‑ I'm putting to you that that s not correct because if we look at the roster for a typical full‑time employee, in week one, the trigger will be 45.6 hours?‑‑‑Yes.
PN281
And in week five it will be 34.2?‑‑‑Yes.
PN282
So in none of those eight weeks is the trigger for a full‑time employee 40 hours?‑‑‑Look, no given week is exactly 40 hours. No.
PN283
Correct. So the relevance of the 40 hours is, as we've previously discussed, it s merely a fictionalised average over eight weeks which is used to calculate fortnightly pay?‑‑‑It s a wage averaging number for full‑time employees.
*** STEPHEN ROSS PURVINAS XXN MS MOODY
PN284
55 of your first statement, Mr Purvinas, and again this appears to be a repeat of the previous concept we've just discussed, you say both part‑time employees and full‑time employees do not accrue overtime until they work more than 40 hours. And, again, it s certainly not true in relation to full‑time employees and in relation to part‑time employees, the question for the Commission was whether those 40 hours are averaged over an eight-week pay period or per week. Correct?‑‑‑Averaged over an yes.
PN285
THE COMMISSIONER: Sorry, if I could interrupt, just to clarify the position for me?
PN286
MS MOODY: Yes.
PN287
THE COMMISSIONER: If you look at those two tables, it seems that the overtime will apply after any of the hours that are part of the roster because the roster is going to generate at the end of it an average of 39.9 or 40.
PN288
MS MOODY: That's correct. In the case of a full‑time employee, correct.
PN289
THE COMMISSIONER: Yes. So that gives us the predictability of all of this which means for a full‑time employee, as soon as they work an hour over what they're rostered to work in their roster, they know full well that s going to generate an outcome at the end of the eight‑week period of greater than 319.20. So they will get paid it.
PN290
MS MOODY: Correct.
PN291
THE COMMISSIONER: The difficulty with the part‑timers is that s not the case because there is this period of hours between whatever it is if it s a 30.45 average, there s this period of ordinary hours before you could get to 40 and that s the sort of twilight zone where you're still getting ordinary time for what might have in another set of circumstances been overtime.
PN292
MS MOODY: Yes, that's correct, Commissioner.
PN293
Again, Mr Purvinas, you can comment on this as well, so whereas, as the Commissioner pointed out, a full-time employee works an average of 319.2 hours, anything over that is overtime. A part‑time employee, on the other hand, on the payment proposed by Virgin ‑ ‑ ‑?‑‑‑Yes.
PN294
‑ ‑ ‑ will need to work hours at ordinary time between 243.6 and 319.2 and then it s once the employee in that roster cycle reaches 319.2 that the hours are considered overtime. Correct?‑‑‑That's what Virgin are considering overtime, yes.
*** STEPHEN ROSS PURVINAS XXN MS MOODY
PN295
Yes.
PN296
THE COMMISSIONER: Yes.
PN297
MS MOODY: Yes, just clarifying for the Commission?‑‑‑Yes.
PN298
The difference in your interpretation, Mr Purvinas, you would say, would you not, that in this example of a part‑time employee, if the employee worked in week one, 40 hours ‑ ‑ ‑?‑‑‑Yes.
PN299
‑ ‑ ‑ then he would be paid, I say he , I'm sure there are she s he would be paid 5.2 ordinary hours to take him up to 40 and then over that, on your interpretation, every hour after that is overtime?‑‑‑That's my understanding of how it should work, yes.
PN300
Then it s purely a matter of statutory or interpretation, rather, of the certified agreement, Commissioner, as to who is correct.
PN301
Mr Purvinas, one final question. In relation to paragraph 5 of your statement, in the second sentence you say:
PN302
I recalled an agreement was reached that the use of part‑time employees by Virgin Tech would be limited.
PN303
Is that, I take it, a reference to the minimum manning requirements in schedule 2 of the 2014 agreement?‑‑‑Sorry, did you say what paragraph number?
PN304
Paragraph 5 of your supplementary statement?‑‑‑Yes. Supplementary? Sorry. Yes.
PN305
Where you use the word limited ‑ ‑ ‑?‑‑‑Yes.
PN306
‑ ‑ ‑ you are referring to the composition of a crew representing the minimum manning requirements?‑‑‑Yes. On that day shift, minimum numbers, in schedule 2 of the agreement, when that s on, how they can count the use of part‑time employees.
*** STEPHEN ROSS PURVINAS XXN MS MOODY
PN307
But provided the minimum manning requirements were reached, then the actual number of part‑timers was unlimited, as I think you've previously agreed. Correct?‑‑‑Yes, they can employ 200 on day shift if they're above the minimum number.
PN308
Correct. Nothing further for this witness, Commissioner.
PN309
THE COMMISSIONER: Re-examination?
PN310
MS HARTIGAN: No re‑examination, Commissioner.
PN311
THE COMMISSIONER: No re‑examination?
PN312
Could I just clarify, if you could help me, Mr Purvinas, just looking at some of the events, the 10 July 2014 letter that you received, there seems to be three components to that. There s the first dot point under point 1. Have you got the letter there?‑‑‑I haven't got the ‑ ‑ ‑
PN313
It s SP3 to your first statement. Have you got your first witness statement?‑‑‑The first statement? Yes.
PN314
So it s up towards the back of all of this and it s marked SP3. This is the sort of thing that starts the whole ball rolling, I think, this letter?‑‑‑Yes, Commissioner, I ve got that.
PN315
So if we look at this, there seems to be that Virgin have found if you look at the dot points, in one and then in two, there are two dot points. So the first one, this seems to be the case that and correct me if I'm wrong about this, but you actually agree that this was a mistake that the hours over and above part‑timers rostered hours up to 40 in a week are ordinary time not overtime?‑‑‑That was my understanding.
PN316
Yes?‑‑‑Yes.
PN317
So what they ve identified in the first dot point under number 1 ‑ ‑ ‑?‑‑‑Yes.
PN318
‑ ‑ ‑ you concede that if they d been doing that, then that was in error?‑‑‑If I can just have a read of it, Commissioner?
*** STEPHEN ROSS PURVINAS XXN MS MOODY
PN319
Yes, certainly?‑‑‑Yes, Commissioner. Look, just here I'm always very careful when I receive a letter from a company and they put some words down and in, I think the second‑last sentence of that first dot point:
PN320
This is contrary to the notion that the hours are
PN321
sorry, no, the one before
PN322
in the weeks where a part‑time team member is rostered to work more than 30.45 hours, however, they are currently being paid for each hour they worked.
PN323
When they wrote a sentence like that, I was unsure at the time whether they're paid single time or whether they ve been paid at overtime rates.
PN324
Yes, yes?‑‑‑So that led to a meeting with Virgin to sort of clarify some of these matters.
PN325
But in any event, there seems to be common ground here that this sort of twilight area, as I describe it, that is these hours from whatever they're part‑time rostered hours are up to 40 ordinary time, not overtime?‑‑‑Well, that s as a negotiator who has a handful of part‑time members who didn't come to me with any complaints about how things ‑ ‑ ‑
PN326
I'm not suggesting that it s bad or good or whatever?‑‑‑Yes. It s my understanding and, to be honest, that s how it s calculated with their major competitor so ‑ ‑ ‑
PN327
Anyway, then if we look under two, there are two dot points, and the first of those is apparently there d been a trigger of 76 hours per fortnight used ‑ ‑ ‑?‑‑‑Yes.
PN328
‑ ‑ ‑ representing the 38-hour week concept?‑‑‑Yes.
PN329
I think you've said, you know, in reality, if people are getting that benefit, why would they complain about it, but if it s been identified ‑ ‑ ‑?‑‑‑Yes.
PN330
‑ ‑ ‑ you accepted that, No, we d always said 40 ?‑‑‑Yes.
*** STEPHEN ROSS PURVINAS XXN MS MOODY
PN331
But then the next dot point is the really critical one and this is the averaging period over which this is all then, if you like, reconciled ‑ ‑ ‑?‑‑‑Yes, yes.
PN332
‑ ‑ ‑ and that s the bit that we re still grappling with her?‑‑‑Yes.
PN333
If you look at your response to that, if you go a few pages further on, on the same day this is SP4. I think it s dated the same day, 10 July?‑‑‑Yes.
PN334
I think this is your fairly quick response. It seems it s come in about 3 o'clock in the afternoon and by 6 o'clock that night you've sent this back, which says:
PN335
More than 40 hours in one given week, not averaged over the eight-week cycle.
PN336
So that s the heart of the dilemma here?‑‑‑Well, it s the understanding. It s as if they're trying to pro rata down the hours that a part‑timer works, but not pro rata the trigger for where overtime comes into it by ‑ ‑ ‑
PN337
Yes. Anyway, that seems to me to encapsulate the actual problem here. That was identified at a very early stage in respect of this point?‑‑‑That was my understanding all the way through negotiations how it worked.
PN338
You said earlier on that you thought there were about six part‑time employees in total back when you negotiated the first agreement in around 2010?‑‑‑Yes, I knew there was two in Melbourne and scattered maybe a couple in Coolangatta and two or three, but of course it changes month to month as people come and go, two or three at international in Brisbane. That was my understanding of where they were around that time.
PN339
Do you have any idea what you might estimate the number to be now?‑‑‑Yes, there s still the two in Melbourne. There s a couple maybe in Sydney. There s three at Brisbane International. There s two at Coolangatta. There s two in Cairns and that s to the best of my knowledge the composition of part‑timers at the moments. There may be others around, but not every person who is a licensed engineer at Virgin is a member of ours either.
PN340
Yes, I understand that. So you'd still think your estimation is there might be less than a dozen?‑‑‑There might be about a dozen, I think, yes.
*** STEPHEN ROSS PURVINAS XXN MS MOODY
PN341
MS MOODY: Commissioner, if I can assist, one of our witnesses gives evidence about that. The number is 36, as I understand it.
PN342
THE COMMISSIONER: Yes. What we don t, I think, have evidence of is when they commenced. All right.
PN343
The change that was proposed on 10 July to be implemented on 20 July was actually implemented from 20 July?‑‑‑I'm not sure the day it was implemented, but it s certainly been implemented.
PN344
All right, thank you for answering those questions. Anything arising from my questions at all?
PN345
MS HARTIGAN: Nothing arising.
PN346
THE COMMISSIONER: No?
PN347
MS MOODY: Nothing, thank you.
THE COMMISSIONER: All right, thanks. You're released and discharged. Thank you for giving your evidence.
<THE WITNESS WITHDREW [11.45 AM]
PN349
MS HARTIGAN: Commissioner, the next witness is Mr Cryer, who will be appearing via video‑link in Sydney.
PN350
THE COMMISSIONER: I think this is the point we were going to have a short break to try and get the technology to work.
PN351
MS HARTIGAN: Thank you, Commissioner.
PN352
THE COMMISSIONER: So if we could get that organised, we might just take a short adjournment to get a video‑link properly established and so forth. We'll adjourn briefly.
SHORT ADJOURNMENT [11.46 AM]
RESUMED [11.56 AM]
*** STEPHEN ROSS PURVINAS XXN MS MOODY
PN353
THE COMMISSIONER: Ms Hartigan?
PN354
MS HARTIGAN: The next witness is Mr Cryer, Commissioner.
PN355
THE COMMISSIONER: Via video‑link. Good, thank you very much.
PN356
Mr Cryer, if you could just look down the screen at the camera and just state your full name and your address, please?
MR CRYER: Yes. My name is Stuart Hunter Cryer (address supplied).
<STUART HUNTER CRYER, AFFIRMED [11.56 AM]
EXAMINATION-IN-CHIEF BY MS CRYER [11.57 AM]
PN358
MS HARTIGAN: Thank you, Commissioner.
PN359
Mr Cryer, you've given your full name and address. Are you currently employed as a part‑time licensed aircraft maintenance engineer at Virgin Tech Pty Ltd?‑‑‑That's correct.
PN360
You've prepared two statements in relation to the proceeding before the Commission?‑‑‑Yes, that's correct.
PN361
The first statement being one entitled Statement of Stuart Cryer dated 24 April 2015?‑‑‑Yes.
PN362
Have you had an opportunity to peruse that statement?‑‑‑Yes, I have.
PN363
Are there any additions or amendments you'd like to make in respect of that statement?‑‑‑Yes, there is.
PN364
What paragraph are you referring to?‑‑‑Paragraph 19 where it states:
PN365
I usually work two day shifts at 11.4 hours each and two half nights of six hours each
*** STUART HUNTER CRYER XN MS CRYER
PN366
it should actually just be the other way around. It s a miscommunication between myself and the person I was referring to, but it should state:
PN367
I work two half day shifts of six hours each and two full night shifts of 11.4 hours.
PN368
Are there any additional changes you'd like to make to that statement?‑‑‑Not to that particular yes, sorry, to the original statement, yes, paragraph 31. Sorry, the second statement was the only other one that I was going to ‑ ‑ ‑
PN369
I might deal with that in a moment, Mr Cryer?‑‑‑Yes, that s fine.
PN370
I'll certainly take you to that in a moment. Commissioner, I tender that statement of 24 April 2015.
PN371
THE COMMISSIONER: Is there any objection to its admission?
PN372
MS MOODY: No, Commissioner.
THE COMMISSIONER: Very good. The document is tendered, admitted without objection, and this becomes exhibit 3. Exhibit 3 is described as the statement of Stuart Cryer, spelt C-r-y-e-r, dated 24 April 2015, exhibit 3.
EXHIBIT #3 THE STATEMENT OF STUART CRYER DATED 24/04/2015
PN374
MS HARTIGAN: Then, Mr Cryer, you have a supplementary statement before you?‑‑‑Yes.
PN375
And that s a statement dated 29 May 2015?‑‑‑Yes.
PN376
I think you indicated you would like to make an amendment in respect of this statement?‑‑‑Yes. Referring to the table, I think that was paragraph 31.
PN377
Right?‑‑‑There was just a small correction to be made under the fifth column, at the bottom of the fifth column, where it says 75.8 .
*** STUART HUNTER CRYER XN MS CRYER
PN378
Yes?‑‑‑The hours should actually say 75.6 .
PN379
Right?‑‑‑That's it.
PN380
So no other additions or amendments to that statement?‑‑‑No.
PN381
I tender that statement dated 29 May 2015, Commissioner.
PN382
THE COMMISSIONER: Is there any objection to its admission?
PN383
MS MOODY: No objection, Commissioner.
THE COMMISSIONER: Thank you. The document is tendered and admitted without objection and will be marked as exhibit 4. Exhibit 4 is described as the supplementary statement of Stuart Cryer dated 29 May 2015, exhibit 4.
EXHIBIT #4 SUPPLEMENTARY STATEMENT OF STUART CRYER DATED 29/05/2015
PN385
THE COMMISSIONER: Further evidence‑in‑chief?
PN386
MS HARTIGAN: Yes. If I could have leave to just ask some additional clarity questions, Commissioner.
PN387
Mr Cryer, in respect of paragraph 30 of your first affidavit, you refer to receiving correspondence from Virgin in July 2014?‑‑‑Yes.
PN388
In relation to the impact on you of those changes, how did those changes affect how overtime was calculated in respect of the performance of your work?‑‑‑It s affected essentially, it s affected my overtime in a way that I don t see the correct - I believe the correct overtime hours that I'm achieving as I would have achieved in my as a part‑time role prior to July. It s been since then that it s been diluted and adjusted quite a considerable amount down under the hours.
*** STUART HUNTER CRYER XN MS CRYER
PN389
You referred to prior to the change . Could you tell the Commission how your overtime was calculated and how you were paid for that overtime prior to the change in July 2014?‑‑‑Prior to the change, it was paid on the basis where every additional hour performed over 40 hours a week was accumulated in just the fortnightly pay period and paid accordingly. Once you had performed those overtime hours over 40 hours a week or 80 hours a fortnight, it was you were compensated immediately for that overtime.
PN390
You made the note there that it was in relation to 40 hours a week, so is it the case it was determined on a weekly basis in respect of the overtime you worked?‑‑‑Yes. The overtime is calculated on a weekly basis or a pay period basis, a fortnightly pay period basis. Yes.
PN391
You have gone some way to providing an explanation in respect of how the changes would impact you with for instance, you were performing full‑time work. In that regard, could I take you to and it s the table you've already taken the Commission to this morning at paragraph 31 of your supplementary statement, the table there?‑‑‑Yes.
PN392
You've provided some detailed evidence in your affidavit in respect of responding to what you say were incorrect details contained in Mr O Shea s affidavit, but if we could leave that to the side just for a moment and if you could explain to the Commission what role you see this table does. What s the purpose of this table and why you prepared it?‑‑‑Certainly. The table in this in the second statement was really just to highlight the fact that there is actually no difference in total hours worked between a full‑time and a part‑time, if a part‑time is to work in a full‑time capacity. As you can see on the bottom of the second column under Full-Time Standard Hours, the accumulated hours is 319.2, and under the total hours worked paid to part‑time employees or for the hours are also 319.2. They're both the same hours, but ‑ ‑ ‑
PN393
Could I take you to the fourth column that you've got there, the annualised salary for a part‑time employee? Does that annualisation of the salary play a part in that calculation, does it?‑‑‑Well, essentially, that s the figure that is in my contract that I'm paid on a weekly basis. It s my standard annualised weekly rate of pay, that 30.45. That doesn't change. What does change is the additional hours that I work on top of that.
PN394
So, for instance, you've got there the part‑time standard hours are 34.8. That's the rostered hours not the amount you'd be paid obviously?‑‑‑34. That's right. I wouldn't get paid 34.8 hours. I would get paid 30.45 hours. That 34.8 is just indicating a higher week due to the nature of shift work.
PN395
So then in order to get to the 40-hour trigger, you'd have to be taken is it your evidence that it has to be taken from the 30.45 hours that you get paid for?‑‑‑Yes, that's correct. I can t understand any other way of achieving it.
*** STUART HUNTER CRYER XN MS CRYER
PN396
That's the evidence‑in‑chief. Thank you, Commissioner.
THE COMMISSIONER: Thank you. Cross‑examination?
CROSS-EXAMINATION BY MS MOODY [12.06 PM]
PN398
MS MOODY: Mr Cryer, you say in your first statement that you understood all employees were paid overtime rates when the trigger of 40 hours a week was worked. Do you recall that evidence?‑‑‑Sorry, say the question again? When was this referring to? What time?
PN399
You say that at the time the Virgin Tech Enterprise Agreement, the 2014 agreement applied, that all employees were paid overtime rates when the trigger of 40 hours a week was worked?‑‑‑Correct.
PN400
That's not, I put it to you, strictly correct, Mr Cryer, in the case of full‑time employees. A full‑time employee does not in truth work 40 hours per week. Do you agree with that?‑‑‑In truth, that s correct, actual hours, they don t work 40 hours a week.
PN401
In fact, if we look at the table in your supplementary statement at paragraph 31, it gives an example in the second column of a typical eight-week roster for a full‑time employee?‑‑‑Yes.
PN402
We see there that in no one week of that eight-week roster cycle does a full‑time employee work 40 hours a week?‑‑‑That's correct.
PN403
In reality, however, a full‑time employee is paid for 40 hours a week. Correct?‑‑‑That's correct.
PN404
You understand that that 40 hours is achieved by averaging the number of hours worked by the full‑time employee over the eight-week roster cycle, so a total of 319.2 averaged over the eight weeks gives us a fictional average number of hours of 40 a week?‑‑‑Well, it doesn't come to 40.
PN405
39.9?‑‑‑Yes.
*** STUART HUNTER CRYER XXN MS MOODY
PN406
Mr Cryer, you give a number of scenarios in your material about roster cycles and about how you would be paid if you worked overtime in certain scenarios. The thread in much of the evidence you give about those matters is that you would be disadvantaged in relation to a full‑time employee working the same number of hours. Is that correct?‑‑‑Correct.
PN407
Mr Cryer, I put it to you that taking an example, if I may, say for the case where you as a part‑time employee, line 1 of your table at 31 is a good example. You as a part‑time employee have standards hours in that first week of a roster cycle of 34.8. Do you see that column?‑‑‑I do.
PN408
A full‑time employee by comparison would work in fact 45.6 hours?‑‑‑That's correct, yes.
PN409
The full‑time employee is paid for 40, you're paid for 30.45. Correct?‑‑‑Yes, correct.
PN410
If you were to in that situation work 45.6 hours, now it s so you would be working in that week - week 1 of the same roster cycle you would be working the same number of hours as a full‑time employee, you'd agree that and indeed, you say in the first line you are working 10.8 additional hours above your roster. Correct?‑‑‑That's correct.
PN411
You say that once you get to 40 hours in a given week, your position is you are being treated fairly and all other things being equal, you ought to get paid overtime as soon as you hit the 40-hour a week mark in each and every week of the roster cycle. That's your position?‑‑‑Correct. As does a full‑timer.
PN412
We'll leave aside that comment, Mr Cryer?‑‑‑Right.
PN413
But your position is in your table you ought to be paid 1.25 hours in that first week for working up into a full‑time role of 45.6 hours a week?‑‑‑Yes, that's correct.
PN414
Mr Cryer, I put it to you that in fact for the same week in which you would be working full‑time hours, you would in fact be paid your standard hours of 30.45?‑‑‑Yes.
PN415
You would be paid your additional hours of 10.8?‑‑‑Yes.
*** STUART HUNTER CRYER XXN MS MOODY
PN416
But in calculating on your scenario the amount of overtime that you would be paid, you would say, wouldn't you, that your overtime ought to be calculated on the basis of the hours worked that week over 45? So your case, as I understand it, is that you ought to be paid overtime of 5.6 hours. That's the number that you're working that week in excess of 40. Correct?‑‑‑That's incorrect.
PN417
Mr Cryer, that is, I put to you, the effect of what you or your union is putting, that any hour that you work in excess of 40 in a given week ought to be paid at overtime rates. In a week where you work 45.6 hours, that s 5.6 hours in excess of 40, do you not say then that that would translate to 5.6 overtime hours?‑‑‑Only if you were basing that on actual hours worked, which we re not basing it on actual hours worked. We re basing it on an annualised salary of 30.45 hours a week plus additional hours. That's how I ve been told to accumulate my time.
PN418
Mr Cryer, for the purposes of your calculation and your table, you are maintaining the annualised I apologise - you're maintaining an average figure of 30.45 hours over the eight-week roster cycle?‑‑‑Yes. I don't understand why I wouldn't.
PN419
Very good, Mr Cryer. Mr Cryer, I think there s some confusion, certainly insofar as understanding what you say ought to be the method of calculation. You appear to be saying, and correct me if I'm wrong, I'm really at this time just trying to understand the basis of your method. Your method appears to be based on the method of payment rather than the number of hours worked. Is that correct?‑‑‑Correct.
PN420
So you do not say and correct me if this is not a matter in respect of which you can give evidence, but it is not a part of your union s case that you ought to be paid for actual hours worked in a given week. You are not saying you work ‑ ‑ ‑?‑‑‑No.
PN421
‑ ‑ ‑ 60 hours in one week that you ought to be paid 20 hours of overtime?‑‑‑No. Yes, that s not correct. It s based on the - I'm basing, sorry, the calculations on my annualised salary for part‑time employees, which is on the contract that I signed at the start of my employment as a part‑time engineer of 30.45 plus additional hours and those additional hours, in example of week one, the 10.8, is just made up of the additional two days that I may be working in a full‑time capacity, doing the 5.4 hours, times that by two, if there s two days in that - you've been working a week for us as the roster pattern goes which comes to 10.8. So 30.45 plus 10.8 comes to 41.25.
*** STUART HUNTER CRYER XXN MS MOODY
PN422
Where you say you're basing that on your contract, I confess I was you mentioned that you have calculated the table at paragraph 31 of your supplementary statement based on your contract of employment. You say in your supplementary statement in paragraph 3 that you were contracted to work 30.4 hours a week and then in paragraph 4 you say you're contracted to work an average of 30.4 hours a week. What do you say you are contracted to perform? The two are different and can t stand together?‑‑‑Yes. No, I do yes, I do acknowledge that. It is to be an average of 30.45.
PN423
Can I show you, Mr Cryer it s a document which I believe is exhibited to your affidavit, it s the first document it s a document titled Changes to Payment of Overtime for Part-Time Team Members. It s a document ‑ ‑ ‑ ?‑‑‑Yes.
PN424
The document was dated 10 July 2014 and contained a number of tables. Can I ask you to refer to the first page of tables?‑‑‑Yes.
PN425
Table 1 is a full‑time employee. The table underneath is a typical roster for a part‑time employee?‑‑‑Yes.
PN426
This probably represents the roster that you work, would you say?‑‑‑That's correct.
PN427
THE COMMISSIONER: It s slightly different in terms of the number of hours in the short weeks, isn't it?
PN428
MS MOODY: Mr Cryer, what do you say to that? You work ‑ ‑ ‑?‑‑‑In a short week there s two yes, there s two sets of low weeks. There s 23.4 and there s two of them and then there s two 28.8s.
PN429
Yes, they're weeks 7 and 8. The rest of 34.8, there are four of those?‑‑‑That's right.
PN430
Is this diagram the same as the roster you currently work?‑‑‑Yes.
PN431
THE COMMISSIONER: Which diagram?
PN432
MS MOODY: The second diagram that we were looking at in relation to a typical part‑time employee in Virgin s document dated 10 July 2014.
PN433
Mr Cryer, again, just so we re on the same page in relation to our understanding of matters?‑‑‑Yes.
PN434
Looking at this sample eight-week roster, your roster ‑ ‑ ‑?‑‑‑Yes.
*** STUART HUNTER CRYER XXN MS MOODY
PN435
‑ ‑ ‑ you might actually work in a given week, 34.8 hours or 23.4 hours, but you'll agree that you're paid the average of 30.45 hours for each and every one of those weeks. It s averaged out?‑‑‑Yes, correct, to achieve a consistent pay a consistent pay that you know what to expect, I suppose. Yes.
PN436
You would agree, wouldn't you, that these represent or this roster represents your contracted entitlement of minimum hours. It s the predictable part of your job, if I can put it that way. You know to expect this roster each and every week?‑‑‑Yes, that's correct. Yes.
PN437
But you also accept and acknowledge that there is an expectation that you will work reasonable additional overtime?‑‑‑Yes, of course. Yes.
PN438
THE COMMISSIONER: But it s not paid as overtime and ‑ ‑ ‑
PN439
MS MOODY: Can I put it differently then?
PN440
You accept, Mr Cryer, if I can put it differently, that you have an obligation to work and the agreement uses this language, Reasonable additional hours ?‑‑‑Reasonable additional hours, yes, that s correct. Yes.
PN441
Because you might, in any one of these roster weeks, work a measure of additional hours, that is hours in excess of your roster, which won t, even on your view, count as overtime. Correct?‑‑‑Sorry, could you repeat that?
PN442
You might work, whether one applies Virgin s interpretation of the agreement or the union s interpretation of the agreement, you might in any one of those weeks work additional hours which will be paid as single time?‑‑‑Correct.
PN443
It s only when you get to the trigger number or the trigger method of calculation that overtime is in fact triggered?‑‑‑That's currently in place. Yes.
PN444
Yes?‑‑‑Sorry, was that question just confirming that that is happening or is that ‑ ‑ ‑
PN445
Just confirming that, yes, that is happening and that s your understanding?‑‑‑Right.
*** STUART HUNTER CRYER XXN MS MOODY
PN446
Mr Cryer, this may not be a matter in respect of which you can comment, but are you aware that on Virgin s interpretation I withdraw that question. One moment, Mr Cryer?‑‑‑Yes, sure.
PN447
You mention in your affidavit how you adjust your life on the basis of the roster that you have, and as you put it, the reasonable expectation of hours that you work. Given your acknowledgment that you are expected to work reasonable additional hours in excess of rostered hours, that s also a matter that you factor into your life and commitments, of course, isn't it, Mr Cryer?‑‑‑Well, yes, it is. Yes.
PN448
Mr Cryer, coming back to your table ‑ ‑ ‑?‑‑‑Yes.
PN449
‑ ‑ ‑ I must say, I continue to be confused by it, and returning to what you explain or say that it represents, you say in paragraph 31:
PN450
In fact, if the former method of calculating overtime over 40 hours was used, when I was working full‑time hours, I would only earn 1.25 hours a week at overtime rates.
PN451
?‑‑‑Correct.
PN452
The table below represents how I would earn overtime if I was filling in at full‑time hours using the previous method of calculation.
PN453
?‑‑‑Yes.
PN454
I put it to you, Mr Cryer, that in fact your coming to what the table said, the table is clearly your opinion about how overtime would be calculated under the previous payment method that applied at Virgin before the most recent changes. Correct?‑‑‑Correct.
PN455
But I put it to you that you are mistaken in your calculations insofar as you are using annualised hours to calculate pay rather than hours worked. Do you understand the difference? You may disagree or not with me, but ‑ ‑ ‑?‑‑‑I understand the difference.
PN456
Yes?‑‑‑That I'm using annualised hours that I actually get paid per week.
*** STUART HUNTER CRYER XXN MS MOODY
PN457
Mr Cryer, what I put to you is that in truth, in one of the scenarios that you refer to, and again week 1, if you worked 45.6 hours as a full‑time employee did, you would be paid for 30.45 hours. You would also be paid for 5.6 overtime hours and the remaining 5.2 hours would be paid at ordinary time. Do you understand that calculation?‑‑‑No. Sorry.
PN458
I put it to you that on the basis of the union s position that you would be paid in a week in which you worked 45.6 hours, being a week in which you were rostered to work 34.8, that on the union s interpretation of the agreement, you would be paid for 5.6 overtime hours. Is that something that you can comment on? You can disagree with me or not?‑‑‑Yes, it is. That's not taking into account the average 40 hours or not the average, the annualised salary at full‑time is 40 hours and anything over that is paid as overtime, so I'm basing it on my also, my annualised average wage of 30.45 hours. I think I mentioned before, I don't understand why it would be paid any different. I ve been filling out my time sheets since all this amendment to the changes of pay in this way. I get paid an average of 30.45 hours and anything additional to that. That's how I there s nothing else in my contract that says otherwise nothing referring to actual hours.
PN459
No, I think we might be at cross-purposes, Mr Cryer, and we might have to agree to disagree on that point. I would put to you finally then that on the basis of the union s interpretation of the agreement, for a week in which a full‑time employee worked 45.6 hours, that person would be paid for 40 hours. You agree that s the case, don t you?‑‑‑Yes, that's correct.
PN460
And they wouldn't receive an overtime payment at all. You agree with that, don t you? They're simply working their ‑ ‑ ‑?‑‑‑A full‑timer or a part‑timer?
PN461
A full‑timer?‑‑‑A full‑timer? That's correct. They wouldn't receive any overtime, no. Yes.
PN462
Yet you working the same hours in that week, working a full‑timer s hours, would receive an overtime payment of 5.6 hours?‑‑‑No. I'm a bit lost as to what you were wanting me to provide with that statement.
PN463
No, Mr Cryer. I think we re at cross-purposes and I'm happy to leave the matter there. Mr Cryer, one small matter, in paragraph 66 of your supplementary statement, can I ask you to turn that up?‑‑‑Yes, certainly. Just give me one moment. 66, was it?
PN464
Yes, 66?‑‑‑Yes.
*** STUART HUNTER CRYER XXN MS MOODY
PN465
You refer to a time and a half rate, being an hourly rate of 94.80?‑‑‑Yes.
PN466
In paragraph 36, you previously referred to a rate of 95.40 and in one of those there s an error in calculation. Are you able to say which is the correct rate?‑‑‑Okay. Sorry. So back to 66, it says which is in dispute, sorry, 22.6?
PN467
66 you give an hourly rate of 94.80. I go to 36 of your statement ‑ ‑ ‑?‑‑‑Of the same statement? Yes. 34?
PN468
I might have the paragraph number wrong. You give a different hourly rate of 95.40.
PN469
THE COMMISSIONER: 43.
PN470
MS MOODY: 43, yes?‑‑‑40? Okay. Just one moment. 43? Sorry, paragraph 43?
PN471
One moment, Mr Cryer?‑‑‑Sure. I can explain there is a discrepancy. From my original statement to the supplementary there may have been a monetary discrepancy only due to the fact that I didn't know the exact cent amount of my hourly rate, which is why I rounded down. I think that might be what you might be referring to.
PN472
I'm not sure, but it is I was correct the first time. It is paragraph 36, the last line, you talk about ‑ ‑ ‑?‑‑‑36? Okay.
PN473
‑ ‑ ‑ an hourly rate of 95.43?‑‑‑36? Eight weeks, 95 and then 66. I believe could I just make a calculation for one second?
PN474
Yes?‑‑‑Is that all right?
PN475
Yes?‑‑‑I believe it s the 95.43. I think the explanation to the other hourly rate may have just been a rounding down figure. Have I done 63? Yes, 66, 62. Look, it might have just been a slightly incorrect rounding of a figure, but it was only because I wasn't fully aware of the actual cents value of the hourly rate.
PN476
So there is no difference other than rounding? One is not an error and the other is not correct? They're both correct, are they?‑‑‑Well, I did earlier say that I believe it to be the 95.43.
*** STUART HUNTER CRYER XXN MS MOODY
PN477
95.43? Very good?‑‑‑Yes.
PN478
I have nothing further for this witness, Commissioner.
THE COMMISSIONER: Re-examination?
RE-EXAMINATION BY MS HARTIGAN [12.31 PM]
PN480
MS HARTIGAN: Just very briefly, Commissioner.
PN481
Mr Cryer, you were asked questions in relation to your hours of work and whether they were averaged or what the case was in relation to them. Could I just ask you to turn to your contract of employment, which is attached to your statement at SC1?‑‑‑Yes.
PN482
You'll note under the heading there Your New Role and the final sentence there to that first paragraph?‑‑‑Yes.
PN483
It states that:
PN484
Your part‑time hours of work are 30.45 per week.
PN485
Is that your understanding as to what the ‑ ‑ ‑
PN486
MS MOODY: Objection to the leading question, your Honour. It didn't fairly arise out of cross‑examination, but it s also terribly leading.
PN487
MS HARTIGAN: I didn't lead. I just read the passage to him and I was just about to ask him is that consistent with his understanding of what his hours of work were.
PN488
THE COMMISSIONER: I don't think there s any dispute what his hours are.
PN489
MS HARTIGAN: There is an issue as to whether it was averaged or whether it was actual ‑ ‑ ‑
*** STUART HUNTER CRYER RXN MS HARTIGAN
PN490
THE COMMISSIONER: That's another question; how you deal with that.
PN491
MS HARTIGAN: Yes.
PN492
THE COMMISSIONER: Yes.
PN493
MS HARTIGAN: I'm just asking him to clarify in terms of his contract of employment whether he understood that to be the case in terms of whether it was an actual average.
PN494
THE COMMISSIONER: That's not leading.
PN495
MS HARTIGAN: No.
PN496
THE COMMISSIONER: All right.
PN497
MS HARTIGAN: No, I didn't think - yes.
PN498
So, Mr Cryer, in respect of that final sentence that I took you to there, it says:
PN499
Your part‑time hours of work are 30.45 per week.
PN500
Is it your understanding that that was the case or whether it was an average of 30.4 hours per week?‑‑‑I believe it s just an annualised average salary of 30.45 hours a week.
PN501
Nothing further. Thank you, Commissioner.
PN502
THE COMMISSIONER: I'm sorry, but I'm troubled by this because I don t follow it.
PN503
Mr Cryer, if we go back ‑ ‑ ‑?‑‑‑Yes.
PN504
‑ ‑ ‑ to your table ‑ ‑ ‑?‑‑‑Yes.
*** STUART HUNTER CRYER RXN MS HARTIGAN
PN505
Go back to your table that s in your supplementary statement at paragraph 31?‑‑‑Yes.
PN506
It s on page 4?‑‑‑Yes.
PN507
Let s just full‑time people completely to one side for a moment and just ‑ ‑ ‑?‑‑‑Sure.
PN508
‑ ‑ ‑ contemplate on some very simple propositions?‑‑‑Sure.
PN509
Your roster has you in a particular week and this is week one scheduled to work for 34.8 hours?‑‑‑Yes.
PN510
If you worked those 34.8 hours, even though it s more than 30.45, you will only get 30.45 hours pay?‑‑‑Correct.
PN511
But in this particular week you work more than 34.8, so you work hours ‑ ‑ ‑?‑‑‑Yes.
PN512
You work hours that are in addition to your rostered hours and that s the key component?‑‑‑Yes, yes.
PN513
Notionally, if you work 10.8 additional hours, 10.8 hours in addition to what you are rostered ‑ ‑ ‑?‑‑‑Yes.
PN514
‑ ‑ ‑ and forget for a moment actually how much this generates in your pocket as money, but just follow the simple prospect?‑‑‑Sure, sure.
PN515
So you were scheduled to work 34.8. You worked 10.8 in addition to that, so that means that your total hours actually worked in that week is 45.60. Do you agree with that?‑‑‑My actual hours? Yes.
PN516
Yes. If overtime for part‑time employees is to be paid for any hours in addition to 40 worked in any given work, given week ‑ ‑ ‑?‑‑‑Yes.
*** STUART HUNTER CRYER RXN MS HARTIGAN
PN517
‑ ‑ ‑ not averaged over anything just in any given week, if you get past the magic figure of 40, that means that you will get - in that week you'll get 5.6 hours paid at overtime rates not 1.2?‑‑‑If we are to change everything that we talk about here and say that we re now calculating our hours based on actual hours then, yes, that s correct. I'm sorry, I don't understand why I changed to start getting paid actual hours.
PN518
You would get ‑ ‑ ‑?‑‑‑I'm paid as a base salary of 30.45 and anything over that is additional.
PN519
Exactly. But for those hours above that figure up to 40, it s paid at ordinary time?‑‑‑Correct.
PN520
And when it goes passed 40, it gets paid as overtime. That's the position that everyone broadly agrees with, but it s a question of when you reach the 40 hours if you reach it in a week then in that week you would get 5.6 hours paid as overtime. If you average it and you go back to the average, depending upon whether you average it over a fortnight or you average it over eight weeks, it changes. Do you follow that?‑‑‑Of course it would change because there s low weeks and high weeks.
PN521
Yes. So if it s averaged over a week and whether it s a low week or a high week, if you get passed 40 in that week you then start being paid overtime. Do you follow what I'm saying?‑‑‑Yes.
PN522
So in a short week it takes you a lot longer - hours in addition to rostered hours, there s got to be a lot more of them before you get to the 40 figure, but even if you get to them then you would get paid overtime. Of course, if you average it out over eight weeks, the equation changes significantly?‑‑‑Yes, of course it does. Yes, that's right.
PN523
Yes. That's at the heart of the contest here?‑‑‑Yes.
PN524
As I understand the position that the union is advancing here, the position is that the calculation is done on the basis that when 40 hours in a week is past, it is then overtime and attracts time and a half. Do you follow what I'm saying?‑‑‑Okay. When 40 hours have passed in addition to your annualised salary hours, that s correct.
PN525
No, not your annualised salary hours, your scheduled hours, the short week, long week, whatever it might be. Once you actually get past 40 worked in a week ‑ ‑ ‑?‑‑‑But yes.
*** STUART HUNTER CRYER RXN MS HARTIGAN
PN526
‑ ‑ ‑ then overtime is paid?‑‑‑Okay.
PN527
You don't agree with that?‑‑‑No.
PN528
No?‑‑‑Because I'm not if my contract said, You will be paid actual hours of work based on whatever you are on your roster, then I would understand that, but as my contract I would understand that, but it doesn't. It says 30.45 hours, which is clearly they ve derived that figure from an averaging over eight weeks and that s a matter of fact what I get paid every week. I don t get paid 34.8 hours. I don t get paid like under the third column where in the first weeks my actual hours are actually 34.8, I don t get 34.8 hours paid. Likewise on a low week, I don t get paid 28.8 hours on a low week or 23.4, I get paid 30.45. That was look, I think that was great when they actually did figure that part of the contract out three months after I started that they were going to do that because they d been doing it for full‑timers and they d been it provides, as someone said earlier, a predictable means of pay. That's why they do it. I don't know how this has any bearing just because that s what they're doing to base your hours on an annualised annual salary, therefore, they only accumulate over an eight‑week period your overtime hours, which then dilutes in my low weeks and I don t see any of the overtime worked in a high week, for example, and I'm not talking about like the 45.6. I'm still basing it on using my average and the 40‑hour a week.
PN529
I don't understand how you only get 1.25 hours of overtime in circumstances where you actually worked in that week 45.6 hours. That's the difficulty I'm having?‑‑‑Well, for the same reason, a full‑timer doesn't get paid 45.6 hours.
PN530
Forget about the full‑timer because anything they do in addition to their scheduled hours must generate something greater than 40 in an average over the eight weeks. The same doesn't apply for a part‑timer, but anyway I think I just have to live with that dilemma?‑‑‑Sorry.
PN531
I think I just have to live with that dilemma?‑‑‑Right.
PN532
I think if the union is successful, you're going to get more than what you're calculating, put it that way?‑‑‑Okay. Well, that s not quite what I'm trying to make the point about and, to be honest, I don't see how that can work to be honest. Can I please try a further explanation as to how it so you can understand where I'm coming from with this? If you add my 30.45 to 10.8 because those 10.8, they are actual additional hours. So if I am to stay back in a full‑time capacity, to stay back because like I normally knock off at 12. If I'm to stay back to 1724 in the afternoon, I'm going to accumulate 5.4 hours in that one day. You can only ever do two days or two stay backs, should I say, in a one-week period. Those two sums that comes to 10.8 hours, 5.4 plus 5.4. If I'm to add my additional hours to my annualised salary in terms of fortnightly pay, 60.9, which is what I ve been doing for the last year, that s what I would get paid, 41.25.
*** STUART HUNTER CRYER RXN MS HARTIGAN
PN533
I just don't know why you'd go back to the 30.45 for those purposes?‑‑‑Well, because that s what they d pay me every week.
PN534
But that s an averaged figure over the eight weeks and supports the Virgin proposition?‑‑‑Well, it s based on the but the hourly rate is based on the like pro rata d, as it says in my contract, that your agreement will be pro rata d based on a full‑time equivalent and calculated on your approved work hours of work. So we re looking at that. If I'm based on an hourly rate, the same as a full‑timer, their hourly rate is made up of 2080 hours divided by 52, that comes to 40 hours, not 39.9 like they come to.
PN535
Yes, thank you. Anything arising from my questions?
PN536
MS HARTIGAN: No, I'll just note, Commissioner, these matters in submissions, obviously in greater detail.
PN537
THE COMMISSIONER: Anything from you, Ms Moody? I should have asked you first. No?
PN538
Thank you, Mr Cryer. Thank you for giving your evidence. You're released and discharged?‑‑‑Okay.
Thank you?‑‑‑Thank you.
<THE WITNESS WITHDREW [12.44 PM]
PN540
MS HARTIGAN: Commissioner, the applicant still does have one witness, Mr Campbell, but as indicated earlier, he s not available until tomorrow morning. So until he s interposed, that s the witnesses for the applicant.
PN541
THE COMMISSIONER: Mr Tamblyn?
PN542
MS HARTIGAN: He s not required for cross‑examination, I understand. In the circumstances, Commissioner, in terms of housekeeping, if I could tender his affidavit.
PN543
THE COMMISSIONER: His evidence is uncontested.
*** STUART HUNTER CRYER RXN MS HARTIGAN
PN544
MS HARTIGAN: I'll let my friend respond to you.
PN545
THE COMMISSIONER: Ms Moody, you've had a change to look at Mr Tamblyn. He might seem to have been quite down the pecking order in all of this, but at paragraph 32 he has a very interesting proposition.
PN546
MS MOODY: Commissioner, are your referring to the statement that he would find it hard to put any extra effort?
PN547
THE COMMISSIONER: No. Not that bit, but the rest of that sentence.
PN548
MS MOODY: It s likely that the company would reduce my hours until the end of the pay cycle to prevent paying overtime.
PN549
THE COMMISSIONER: Yes. So this is the concept that I was going to explore with this witness. Unfortunately, I won t get a chance, but the rosters that we re seeing in here might be manipulated if there s overtime worked in the first part of it - you know, if there s additional hours sorry, I shouldn't say overtime, that s the wrong word entirely. If there are hours in addition to the rostered hours worked in the first part of it ‑ ‑ ‑
PN550
MS MOODY: Yes.
PN551
THE COMMISSIONER: ‑ ‑ ‑ and then Virgin said, Hang on. We can see what s going to occur here, so now for the rest of this, instead of being rostered for these shifts of 11.4 or six, or whatever they are, in the latter part of the eight-week period, we re changing that and you'll only come in for just six or just four - I think five is the minimum, whatever it might be get you back down under again.
PN552
MS MOODY: Commissioner, to that I d say paragraphs 31 and 35, I d highlighted in Mr Tamblyn s statement as opinion and irrelevant and just being inadmissible and he proposes a hypothetic situation in respect of which there is no evidence. The union certainly doesn't put forward any evidence to suggest that that might occur. It s not a fact which is before you, nor would I submit is a matter which ought to weigh at all in relation to the interpretation of the certified agreement.
PN553
THE COMMISSIONER: This has all become submissions, I suppose. So what are we going to do with Mr Tamblyn? You don t object or you do object to this going in without the requirement to cross‑examine Mr Tamblyn?
PN554
MS MOODY: On the basis that we had discussed, Commissioner, which is that submissions would be made at the end about weight, there is, we would submit, nothing useful at all that Mr Tamblyn says and where he does make those opinion statements at 31 to 35, they are not matters in respect of which the Commission can take note in relation to the issue that s before you, but as I say, he s posing a hypothetical. It can be taken nowhere.
PN555
THE COMMISSIONER: There s a lot of evidence about the impact of this financially. Whether that s a consideration that ought to be properly part of the interpretation question is another matter, I suppose. That might have been more a question to look at the consultation clause in the agreement and make some observations perhaps about how it didn't appear to be followed.
PN556
MS MOODY: That's a matter for the union to raise. That hasn't been raised here, except insofar as the evidence is, of course, Virgin Tech sent the relevant memorandum and then applied the new payment method, but in respect of my duty to cross‑examine, I don t really want to touch these things. I don't see that I have a duty to. I don't see that it would benefit me or my client to do so. If the union may have wished to produce further evidence of those matters to put them before you, but they don t represent evidence. It s opinion and it s speculation and it s not evidence. I realise the Rules of Evidence don t apply, but strictly speaking that is in the Act, nevertheless, it is the practice of this tribunal to do so, particularly in matters of this kind.
PN557
If I need to do so before you admit this statement, then I would submit that paragraphs 31 to 35 ought to be struck out because they are irrelevant and inadmissible.
PN558
THE COMMISSIONER: What do you say about that, Ms Hartigan?
PN559
MS HARTIGAN: I ve had obviously no notice in respect of that, but the evidence is certainly opinion evidence, but that isn't a matter that is a basis for removal in this forum. He is in a position where he is a full‑time LAME. He has the experience and can give evidence in relation to the rostering and the impact it has on him. If objection is taken to the particular part of the sentence that the Commission has taken us to, that is:
PN560
It was likely that the company would reduce my hours until the end of the pay cycle to prevent paying overtime.
PN561
That's something that goes to the very heart of this matter and on some views, a logical step as to why the respondent employer would want to introduce such a change. In terms of how we proceed ‑ ‑ ‑
PN562
THE COMMISSIONER: See, I don't know ‑ ‑ ‑
PN563
MS HARTIGAN: In terms of how we proceed ‑ ‑ ‑
PN564
THE COMMISSIONER: Sorry to interrupt you, but you see if you then look at the provisions of the agreement, and depending upon when you were employed prior to the 2014 agreement or not, it seems that your rosters can only be changed where is it, rosters, yes, here we are, clause 27, you see:
PN565
The default roster pattern cannot be changed unless
PN566
and I'm assuming that these are default roster patterns established in this way and that this proposition that was going this is what I was going to ask this witness, how can that actually happen? I think you're locked into your roster, aren t you? I don't know. Strangely enough, if you do an individual shift swap then under a shift swap:
PN567
Except where overtime would normally apply to any additional hours worked beyond the hours swapped.
PN568
That's another curious concept.
PN569
MS HARTIGAN: Yes. Look, Commissioner, it might be a matter which I can address you in submissions, but I understand that the pattern stays the same, but it s the hours that can change as a consequence of that proposal. But, Commissioner, Mr Tamblyn was made available. My instructing solicitor asked my learned friend s instructing solicitors as to whether he would be required for cross‑examination. We were advised that he wouldn't be required for cross‑examination.
PN570
We certainly had him available to be cross‑examined in respect of these matters, if need be. Because of that indication, no arrangements have been made for today, but perhaps in the break my instructing solicitors could see if he is available.
PN571
THE COMMISSIONER: What is the position in respect of that? Ms Moody, you didn't want him for cross‑examination, was apparently the case.
PN572
MS MOODY: Commissioner, his views on the application of the agreement, particularly clause 27 rosters, can be of no assistance to the Commission. He is a part‑time employee who ‑ ‑ ‑
PN573
THE COMMISSIONER: No, I think he s a full‑time ‑ ‑ ‑
PN574
MS MOODY: Full-time. My apologies. He is not in a position to comment about whether at law, whether his fear could bear fruition. It s a matter for the union as to whether they wish to cross‑examine any of the company representatives about that point. I expect that they will, but certainly I would submit that it s the company representatives to whom that question is more appropriately addressed.
PN575
My position in relation to the probative value of Mr Tamblyn s statement remains unchanged and I do submit, given that it has become extremely contentious, that paragraphs 31 to 35 ought to be struck out. Again, it is the practice of this Commission to apply the Rules of Evidence. 31, 32, 33 and 34 are opinion evidence. 35 is irrelevant. I certainly can t address you further on those points, Commissioner, except to say that that remains our point. It s not for me to cross‑examine to make a witness available so that these issues can be explored in depth.
THE COMMISSIONER: Yes, all right. I think maybe the best thing to do in the circumstances might be to deal with it in this way: I think that the statement of Christian Tamblyn should be admitted unaltered, but obviously the extent to which weight would be attributed to various aspects, in particular those paragraphs that were mentioned, paragraphs 31 to 35, the question of the weight that the Commission ultimately applies to that material but nevertheless, I don't see why the material shouldn't be admitted in the circumstances. So this document will become exhibit 5. Exhibit 5 is described as the statement of Christian Tamblyn, dated 24 April 2015, exhibit 5.
EXHIBIT #5 STATEMENT OF CHRISTIAN TAMBLYN DATED 24/04/2015
PN577
THE COMMISSIONER: Ms Hartigan, you have one more witness that s arranged for tomorrow.
PN578
MS HARTIGAN: That's correct.
PN579
THE COMMISSIONER: Yes. That's Mr Campbell?
PN580
MS HARTIGAN: That's Mr Campbell.
PN581
THE COMMISSIONER: So I think there was a broad understanding that what we d do probably now after lunch is start with the respondent s witnesses and see how much progress we can make there. Is that the idea?
PN582
MS HARTIGAN: That's the understanding, Commissioner.
PN583
THE COMMISSIONER: All right. That seems to have fitted nicely within the time frame. Is there anything else we need to do before that?
PN584
MS MOODY: No. I would simply propose the order for my witnesses, particularly for my learned friend s purposes.
PN585
THE COMMISSIONER: Yes.
PN586
MS MOODY: Mr O Shea would be first. Ms Glynn next and Mr Ghea will be our third witness.
PN587
THE COMMISSIONER: All right. O Shea then Glynn and finally Ghea. That's the order of pick, as it s described in the maritime industry. All right. So we'll resume again at 2 o'clock.
SHORT ADJOURNMENT [12.56 PM]
RESUMED [2.11 PM]
PN588
THE COMMISSIONER: Ms Moody?
PN589
MS MOODY: Commissioner, given the need to hopefully deal with the respondent s three witnesses this afternoon, if it is amenable to you, I don t propose to give an opening. We'll be doing our closing submissions tomorrow. The submissions have been in for some time. Commissioner, we rely upon the submissions of the respondent filed on 22 May 2015 and upon three witness statements filed on the same date. They are of Joanna Marie Glynn, Sean O Shea and Christopher Sean Ghea. Before the witnesses come in, it is my intention to seek leave to adduce evidence‑in‑chief of Mr O Shea and Mr Ghea.
PN590
In relation to Mr O Shea, I propose to ask him the question which your Honour raised before in relation to whether the organisation has any current plans to change the rosters of part‑time employees so as to avoid a trigger for overtime. The next question I would seek to ask Mr O Shea is in relation to the supplementary statement of Mr Cryer, which we received very late last week, and that would primarily focus upon his views of the table at paragraph 31, so we can have Mr O Shea s view about that.
PN591
THE COMMISSIONER: A contentious table. Yes.
PN592
MS MOODY: Yes. And, hopefully, an explanation as to the way in which pay was calculated before the most recent changes. Likewise, I would also ask Mr O Shea to comment on Mr Cryer s latest affidavit. I'll take you him to a couple of paragraphs, including paragraph 31.
PN593
THE COMMISSIONER: All right. I don't seem to have much trouble with that and obviously, I suppose, if we do get into something that s completely new or fresh, Ms Hartigan can jump and say, What s all this about?
PN594
MS MOODY: There ought not be anything new or fresh.
PN595
THE COMMISSIONER: All right.
PN596
MS MOODY: Commissioner, that being said, I would call Mr O Shea.
PN597
THE COMMISSIONER: Mr O Shea?
PN598
THE ASSOCIATE: Please state your full name and address?
MR O'SHEA: Sean Joseph O Shea (address supplied).
<SEAN JOSEPH O'SHEA, AFFIRMED [2.13 PM]
EXAMINATION-IN-CHIEF BY MS MOODY [2.14 PM]
PN600
MS MOODY: Mr O Shea, can I ask you to give your full name for the Commission, please?‑‑‑Sean Joseph O Shea.
PN601
You currently occupy the position of general manager of the respondent Virgin Tech Pty Ltd?‑‑‑I am.
PN602
You have provided a statement in these proceedings?‑‑‑I have.
PN603
It s unsigned by you, Mr O Shea. Do you have a copy of your statement there?‑‑‑I do.
*** SEAN JOSEPH O'SHEA XN MS MOODY
PN604
Can I ask you to confirm that the document you have in front of you is in length of the statement, excluding exhibits, 14 pages long and 67 paragraphs?‑‑‑That's correct.
PN605
There are two exhibits, SO1 and SO2?‑‑‑I don't have those with me.
PN606
Have you had an opportunity to read your statement recently, Mr O Shea?‑‑‑I have.
PN607
Are there any corrections or amendments that you would like to add?‑‑‑No corrections.
PN608
Mr O Shea, you have read the supplementary statement of Stuart Cryer, have you not?‑‑‑I have.
PN609
Can I show you a copy of that statement?
PN610
THE COMMISSIONER: Before we move on to that, were you planning on tendering the ‑ ‑ ‑
PN611
MS MOODY: Yes, Commissioner.
PN612
THE COMMISSIONER: Yes.
PN613
MS MOODY: If I may ask that the statement be tendered?
PN614
THE COMMISSIONER: Is there any objection to its admission?
PN615
MS HARTIGAN: No.
THE COMMISSIONER: Thank you. The document is tendered, admitted without objection. This will be marked as exhibit 6 and exhibit 6 is described as the witness statement of Sean O Shea dated 22 May 2015, exhibit 6.
EXHIBIT #6 WITNESS STATEMENT OF SEAN O'SHEA DATED 22/05/2015
*** SEAN JOSEPH O'SHEA XN MS MOODY
PN617
MS MOODY: Mr O Shea, before I take you to the supplementary statement, I note that Mr Cryer describes in his first affidavit become an LAME on a part‑time basis on 24 April 2014?‑‑‑Yes.
PN618
He was employed before that by the respondent, wasn't he?‑‑‑Correct.
PN619
On what basis was he employed, full‑time or part‑time?‑‑‑As a full‑time employee.
PN620
Turning to Mr Cryer s supplementary statement, can I ask you please to have a look at paragraph 31 on page 3? Paragraph 31, before you go to the table, has in the text a statement that the table shows how Mr Cryer s overtime would have been calculated under the arrangements which Virgin applied before the recent changes, the recent payroll changes, if we can call them that? Can I ask you to read paragraph 31, satisfy yourself that that is what it says and then turn to the table?‑‑‑Okay.
PN621
Mr O Shea, you'll see that this table seeks to compare in the second column and the third column full‑time standard hours of work and one roster or one version of standard part‑time hours of work. Do you see that?‑‑‑I do.
PN622
You'd agree with me, wouldn't you, that the hours in column 3 for a part‑time employee, they form one of the typical roster patterns for a part‑time employee within Virgin Tech?‑‑‑That is correct, yes.
PN623
Indeed, SO2, which you don t have, but which I can happily provide, was a document dated 10 July 2014 from Virgin to team members which set out a number of tables and it includes on the first page of tables the second table is in fact a representation of the hours of work we can see in the third column of Mr Cryer s table?‑‑‑That is correct.
*** SEAN JOSEPH O'SHEA XN MS MOODY
PN624
Looking at this table, can I just direct your attention to how Mr Cryer says his pay would have been calculated? So he observes that he would have worked on this roster cycle in the first week, using that as an example, 34.8 hours. He observes that his annualised salary would be based on 30.45 hours. He observes that the additional hours that he would work, if he was required to work 45.6 hours, would be 10.8. Obviously, that s the difference between 45.6 and 34.8, rather, but then we come to the final two columns which represent what he says he would have been paid prior to the payroll changes. Mr Cryer says he would have been paid 41.25 hours, of which 1.25 would have been overtime. Are you able to comment on Mr Cryer s assessment of what he would have been paid and how much of that would have been overtime?‑‑‑I am in the fact that the 30.45 average impairment was introduced in August at the same time as the change in the actual calculations were made. So I'm not certain that column actually applies to the calculation. That, in fact, my understanding is prior to that there were the calculation was based on actual hours or guaranteed hours, but wasn't standardised as 30.45 across that cycle.
PN625
When you say your understanding is that pay was based on actual hours, do you mean actual hours worked?‑‑‑Actual hours worked, yes.
PN626
So to give this example in line 1, if the employee actually worked 34.8 hours, he would have been paid 34.8 hours?‑‑‑That is my understanding, yes, prior to ‑ ‑ ‑
PN627
What about the situation in lines 6 and 7 where the employee would, under that roster cycle, have worked 28.8 hours, and I'll take this in stages? Do you have knowledge of how the payroll system worked at that time? Do you have knowledge of what this part‑time employee would have been paid in weeks where he worked 28.8 hours?‑‑‑I don't have specific knowledge of this employee s pay the method of payment for that employee, but I do believe that anybody who worked less than the number of hours was actually paid the 30.45 that they were actually guaranteed in their contract of employment.
PN628
So you say the 30.45 applied, but has weekly guaranteed hours?‑‑‑Correct. Because it was up to us to use them or not to use those cover those hours.
PN629
If the employee worked more than that contracted minimum, he was paid for the greater hours?‑‑‑That is my understanding, yes.
PN630
But if he worked less than the contracted minimum, he was paid still the contracted minimum?‑‑‑Up to those contracted hours. That's correct.
PN631
Can you comment on the final two columns where Mr Cryer says that he would have been paid on the basis of 41.25? Do you consider that column to be correct and do you consider the last column to be correct?‑‑‑Only on the basis that the 30.45 across the eight-week cycle didn't really apply at the time; that the calculation itself is incorrect.
*** SEAN JOSEPH O'SHEA XN MS MOODY
PN632
Mr O Shea, an issue arose before lunch or a question arose before lunch as to the intention of the respondent to alter part‑time employees rosters so that the trigger for overtime could be avoided. Do you understand what I mean when I talk about moving or changing a roster to that effect to avoid the payment of a trigger for overtime?‑‑‑Yes. There s ‑ ‑ ‑
PN633
Do you understand what I mean when I ‑ ‑ ‑?‑‑‑I do understand, yes.
PN634
I just want to make sure that you understand the question?‑‑‑Yes.
PN635
To your knowledge, is there any plan within the organisation to alter the rosters of part‑time employees going forward to seek to avoid payment of overtime not to seek to avoid, but to avoid the legal obligation to pay overtime?‑‑‑There is no plan to my knowledge at foot and I'm the general manager, so I would be aware of that.
PN636
You would be aware of that what role would you play in any decision to that effect?‑‑‑Well, as general manager I would be required to approve any such changes and prior to any other commitments or obligations we had in this matter.
PN637
Thank you, Commissioner. I have no further questions in evidence‑in‑chief.
THE COMMISSIONER: Thank you. Cross-examination, Ms Hartigan?
CROSS-EXAMINATION BY MS HARTIGAN [2.24 PM]
PN639
MS HARTIGAN: Yes, thank you, Commissioner.
PN640
Mr O Shea, in relation to that last point, you gave evidence there in relation to roster changes and your evidence was that there was going to be no changes to the roster or that you didn't foreshadow any changes to the roster. That decision preclude you, though, or the organisation from reducing the amount of hours that are offered by way of overtime, does it?‑‑‑No, ma'am, it doesn't.
PN641
No. So your response in relation to the roster was - in relation to the scheduled roster that we've been speaking about, you accept that in addition to that roster there are additional hours that are worked. You accept that?‑‑‑I do accept that.
PN642
And those additional hours can include overtime hours, can t they?‑‑‑Yes, they can.
PN643
Once they reach that trigger point of 40 hours?‑‑‑Yes.
PN644
Your evidence there and you were taken to the table that Mr Cryer had produced, and do you still have that there in front of you?‑‑‑I do.
*** SEAN JOSEPH O'SHEA XXN MS HARTIGAN
PN645
Your evidence was that prior to the change, and that s prior to the announcement in July 2014, the procedure was that overtime was not calculated by averaging the hours worked over the eight-week cycle. You accept that that s the case?‑‑‑I do accept that. Yes.
PN646
In that regard, do you accept that in relation to the calculation of overtime that it was done in respect to the number of hours worked per week, that is if an employee had worked in addition to 40 hours per week when I say an employee I'm referring to a part‑time employee then they were entitled to be paid overtime for any hours worked over that 40-hour threshold in that week?‑‑‑Yes. My knowledge, I suppose, was that if they were paid fortnightly and the pays were calculated fortnightly, but in terms of whether they were calculated weekly or not, I'm not really able to give you any confirmation of that on a personal experience.
PN647
So it s not a matter that you're saying that wasn't the case. It s just you don t have that direct knowledge?‑‑‑Correct.
PN648
But you certainly have accepted there that they were paid on a fortnightly basis?‑‑‑Correct.
PN649
But you're not in a position to give any evidence in relation to whether that was done in accordance with the hours they worked per week?‑‑‑No, I'm not.
PN650
But it s certainly something you don t reject. It s just something you don't know?‑‑‑No, that s right. I'm just not able to confirm that.
PN651
It was the case, wasn't it, that in terms of that process, that is, that there was no averaging over the eight-week roster cycle, that was the process that was in place not only prior to the introduction in July 2014 during the life of the 2014 agreement, but it was also the process that was in place during the life of the 2010 agreement, wasn't it?‑‑‑That's correct.
PN652
You were someone who was a negotiator as part of the 2010 agreement, weren't you?‑‑‑That's correct.
PN653
So you're familiar with that and you were familiar with that process at that point in time, that is, that overtime wasn't being averaged out during that period of time?‑‑‑The matter never arose really for any discussion during the 2010 and 2014 agreements. So it wasn't really something that anybody discussed.
*** SEAN JOSEPH O'SHEA XXN MS HARTIGAN
PN654
Certainly, it wasn't part of the negotiations, but what I'm asking you is that at that point in time, you've accepted that the process that was in place was that overtime was not averaged over an eight-week cycle, was it, during that period of time?‑‑‑I do accept that as a fact now. Yes.
PN655
In relation to the table that you were taken to, you were taken specifically in relation to week one and it was identified there, for instance and I think it s your evidence and this is what Mr Cryer was rebutting that under the old system had an employee, who was a part‑time employee, worked 45.6 hours in a week during that period of time if they d reached that 40-hour threshold, they would have been entitled to the 5.6 hours?‑‑‑I'm not sure that s what s in my statement, but again I go back to my previous statement that in a matter of week by week, I'm not able to give you any specific response in relation to that, but I do understand that it was calculated fortnightly by our rostering staff.
PN656
I think your evidence before was that it was paid fortnightly?‑‑‑Yes.
PN657
That's right?‑‑‑And calculated fortnightly is my understanding, but I acknowledge ‑ ‑ ‑
PN658
So you're changing your evidence now?‑‑‑No, I'm not sure I am, but ‑ ‑ ‑
PN659
Before you said that you couldn't give that evidence?‑‑‑Yes.
PN660
Are you now changing your evidence?‑‑‑No, but in terms of payment, if it was paid fortnightly, it was so I'm not changing my evidence. I'm simply saying that it was so paid fortnightly is probably the correct term.
PN661
In any event, your evidence is to the extent that if a part‑time and I'm referring to paragraph 55 of your affidavit?‑‑‑Sure.
PN662
That if a part‑time employee was asked to cover these shifts of a full‑time employee, under the incorrect method of calculating overtime rates, the employee would work 40 hours at normal rates and then be paid overtime for the additional 5.6 hours?‑‑‑Yes.
PN663
So you accept that that s your evidence?‑‑‑Yes.
*** SEAN JOSEPH O'SHEA XXN MS HARTIGAN
PN664
Week one that I just took you to, that s an example really in numerical form of the evidence that you ve just given. Do you accept ‑ ‑ ‑?‑‑‑Yes.
PN665
‑ ‑ ‑ that the difference between 34.8 plus 10.8 hours is 5.6, so that s the additional sorry, I'll withdraw that. Do you accept that 5.6 hours is the additional overtime payment that would have been made in relation to a part‑time employee that had worked the full‑time standard hours in that week one example?‑‑‑Sorry, can I just refer back to my statement, if that s all right?
PN666
Of course you can. Yes?‑‑‑I do accept that that s the evidence I ve given. Yes.
PN667
And, similarly, in relation to for instance, if I can take you then down to week four, you'll see that the part‑time standard hours there are 23.4?‑‑‑Correct.
PN668
The full‑time hours there are 34.2. Do you accept
PN669
that?‑‑‑I do.
PN670
So if the part‑time employee was asked to work an additional 10.8 hours on top of their 23.4, do you accept that they wouldn't be entitled to any overtime payment because the 40-hour mark hadn t been triggered?‑‑‑Which line are you on, please?
PN671
I was referring to you could either look at week four or week five?‑‑‑Five? This table they're doing at 23.4 hours?
PN672
The part‑time employees?‑‑‑Yes.
PN673
And if they d been asked to work an additional 10.8 hours ‑ ‑ ‑?‑‑‑10.8.
PN674
‑ ‑ ‑ to take them up to the full‑time standard ‑ ‑ ‑?‑‑‑Yes.
PN675
‑ ‑ ‑ you'll accept there that the 40-hour threshold hasn't been reached?‑‑‑I will accept that that is not the case, yes.
PN676
So it s the case, isn't it, that whilst the example in week one results in the employee, the part‑time employee, earning 5.6 hours overtime, it s the case in respect of at least weeks four and five that they're not earning any overtime. You accept that?‑‑‑Yes, I do.
*** SEAN JOSEPH O'SHEA XXN MS HARTIGAN
PN677
And that s despite the fact that they ve worked an additional 10.8 hours?‑‑‑Yes. Correct.
PN678
THE COMMISSIONER: Do I assume from that questioning that the union s position isn't necessarily endorsing the calculations made by Mr Cryer in that table?
PN679
MS HARTIGAN: I was just going to take Mr O Shea to that. It s Mr Cryer s evidence and I'll just be circumspect about what I say in front of the witness.
PN680
THE COMMISSIONER: Yes.
PN681
MS HARTIGAN: But it was Mr Cryer s evidence that that s how he was treated in respect of the calculations of the actualised pay, so he was saying in respect of him.
PN682
THE COMMISSIONER: Okay.
PN683
MS HARTIGAN: I note, Commissioner, your response in relation to that and I was going to take Mr O Shea to it, but if he was dealt in that I might reserve the rest for submissions.
PN684
THE COMMISSIONER: Leave that for submissions.
PN685
MS HARTIGAN: Yes.
PN686
MS MOODY: Yes. I would object to a characterisation of Mr Cryer s evidence in that fashion because that s now how I read 31. I read 31 as speculation. He s not saying, This is what happened to me.
PN687
THE COMMISSIONER: It s a hypothetical.
PN688
MS MOODY: It s a hypothetical and as this witness has said, he was full‑time before he became a part‑time LAME on 24 April 2014. So he became a part‑time LAME right around the time this agreement started to operate.
*** SEAN JOSEPH O'SHEA XXN MS HARTIGAN
PN689
MS HARTIGAN: I certainly don t want to get into a disagreement, but I think his evidence was when he was giving his evidence orally that that s how it worked for him and he didn't understand how it could have worked any other way. So he was certainly giving his own subjective view in relation to it.
PN690
But that was a matter that, Mr O Shea, I was going to take you to and that was in relation to the fourth column in relation to annualised salary for part‑time employees. Is it the case that in relation to the process that s been adopted since the introduction of the annualised salary and I note that it s your evidence today that the annualised salary only came into play in August 2014?‑‑‑Yes, that s my understanding.
PN691
That's your evidence, isn't it?‑‑‑Yes.
PN692
Is it the case that in relation to an employee such as Mr Cryer, who s a part‑time employee and who gets paid 30.45 hours a week sorry, his annualised salary represents 30.45 hours that when calculating overtime that that calculation will and I'm asking for your view in relation to this whether it will start at the 30.45‑hour trigger mark or the actual hours worked trigger mark?‑‑‑In relation to the new model?
PN693
How it works from now on, yes?‑‑‑So the 30.45 really was to set a benchmark, if you like, for people. So then that is the point at which, if you exceed that then the calculation starts, but where the actual overtime so additional hours certainly starts from that point, but where the overtime kicks in is, I suppose, the matter under dispute at the moment. So that is, in our view, where 40 hours is averaged over the eight weeks.
PN694
If I could break that down, your evidence is that Virgin s view in respect of how the clause operates is that by annualising the annual salary for a part‑time employee to 30.5, that that s the point upon which additional hours, and then subsequently overtime hours, is calculated from?‑‑‑That's correct.
PN695
In relation to that, you say that it s the case that that averaging takes place over an eight-week cycle?‑‑‑Correct.
PN696
Do you accept that in instances, for instance if we could look, going back to Mr Cryer s table here do you accept that, for instance, in week one if we could go to week one again there was an opportunity to earn 10.8 hours, that would be calculated from the 30.45? Do you accept that?‑‑‑Yes, I do.
*** SEAN JOSEPH O'SHEA XXN MS HARTIGAN
PN697
So that would result in him earning 41.25 hours that week?‑‑‑That week, yes.
PN698
And that s a total of 1.25 overtime sorry. If the 40 hours has been triggered?‑‑‑If we accept that the 40 hours is the trigger. If we were to accept that the 40 hours is the trigger, that would be the case.
PN699
Then if you go down to week six, for instance, you'll note there that it doesn't result in the 40 hours being triggered at all. It s below the 40 hours. It s 35.85. Do you see that?‑‑‑I do.
PN700
So do you accept that over a roster cycle, there are weeks where part‑time employees will earn a greater number of hours and sorry, will work a greater number of hours? Do you accept that?‑‑‑I do accept that.
PN701
Do you also accept that there are weeks where they will work significantly less hours?‑‑‑I do accept that as well.
PN702
If you average the hours worked for the purposes of calculating overtime, if you're doing it over an eight-week cycle, the hours become reduced by way of the averaging?‑‑‑Yes. Well, it depends on the hours worked, but if it s averaging and there s highs and there s low then it averages out over the eight weeks.
PN703
Certainly. And the longer period of time that you're averaging, the proposition I'm putting to you, an eight‑week cycle is a fairly long period of time then that takes into account many highs and many lows, doesn't it? There s a number of roster weeks that are included in there?‑‑‑Yes, there is.
PN704
Just by way of clarification, at paragraph 52 of your statement, Mr O Shea, you talk about - I'm sorry, I'll let you turn to it?‑‑‑Okay.
PN705
You talk about there that overtime hours are those hours worked by a full‑time or part‑time employee in addition to the standard 40 hours per week over an eight-week cycle encompassed by the employee s salary. I just wanted to clarify with you there, you're not suggesting, are you, that a part‑time employee will have a standard 40-hour week that s encompassed by their salary? That's not the case, is it?‑‑‑Sorry, just give me one second to read the statement.
PN706
Certainly?‑‑‑So my intention there is to state that the 40 hours per week are standard hours for full‑time or part‑time employees.
*** SEAN JOSEPH O'SHEA XXN MS HARTIGAN
PN707
You're putting there that 40 hours per week is standard for a part‑time employee?‑‑‑That anything up to so part‑time is anything less than, but if they go up to the 40 hours, that, yes, they're still standard hours.
PN708
So your view is that a part‑time employee can have standard hours at 40 hours per week?‑‑‑On top of what they're contracted to employ.
PN709
Mr O Shea, do you accept that the definition of a part‑time employee is someone who works less than 40 hours a week?‑‑‑Correct, yes.
PN710
So would that paragraph be more correct if you deleted the reference to part‑time employee there?‑‑‑The statement is to yes, as stated to the Commission, my understanding is the 40 hours averaged is the trigger for both full‑time and part‑time employees.
PN711
Is that Virgin s position in respect of that? That's your understanding as the general?‑‑‑Is that the average over the cycle of 40 hours is the trigger for overtime.
PN712
You give evidence in relation to the calculation method and the new method that was introduced in respect of how overtime was to be calculated. You also refer to there being discussions with the union in respect of that. Is it the case, though, that throughout this process it s always been Virgin s position that it would only maintain that overtime could be calculated by the process of averaging? Do you accept that, that is, any alternative calculated method that s been put along the way, has always incorporated this process of averaging hours over a period of time?‑‑‑Yes.
PN713
The proposals put forward by Virgin have just merely differed in terms of lengths of time?‑‑‑I think we were consistent in terms of the eight weeks, but there s certainly a second proposal put where if the threshold was crossed the a payment could be made earlier.
PN714
That was just a proposal that was put to try and resolve the dispute obviously?‑‑‑Correct.
PN715
One moment, please, Commissioner.
*** SEAN JOSEPH O'SHEA XXN MS HARTIGAN
PN716
Just one other thing, Mr O Shea. It s going back to the process that was in place in relation to the payment of overtime before the change and I asked you in relation to how it was done during the life of the 2010 agreement prior to the 2010 agreement, though, it was the case that there were individual workplace agreements. That's the case, isn't it?‑‑‑Correct.
PN717
Do you accept that the process in respect of how it was calculated during that period of time was similar to the manner in which you've already given evidence in relation to the process during the 2010 agreement?‑‑‑I'm not able to give you specifics, but my understanding is that we didn't have part‑time employees under those arrangements. I'm unable to give you a yes or no answer on that.
PN718
So it s your evidence that you just aren t able to give any evidence in relation to that?‑‑‑Yes, correct.
PN719
But you certainly are able to give evidence from 2010 onwards?‑‑‑Correct.
PN720
Nothing further. Thank you, Commissioner.
THE COMMISSIONER: Re-examination, Ms Moody?
RE-EXAMINATION BY MS MOODY [2.45 PM]
PN722
MS MOODY: Mr O Shea, you were asked questions about under the new proposals following from the August 2014 changes?‑‑‑Yes.
PN723
What happens when an employee, a part‑time employee, exceeds their guaranteed minimum hours of 30.45 per week. Do you recall the question?‑‑‑Yes, I do.
PN724
You said 30.45 was the benchmark. If you exceed that then the calculation starts. In terms of you referring to this is when the calculation starts, is that what you refer to elsewhere as the time goes into the bank?‑‑‑I am, yes.
PN725
Is that time still paid as single time?‑‑‑It is.
PN726
But your evidence is that it goes into the bank, nevertheless, and if and when the 319.2 trigger was reached, then overtime is paid?‑‑‑Correct.
PN727
If the 319.2 trigger is reached is it possible for that trigger to be reached within the eight-week cycle so that the employee can be paid for overtime within that eight‑week roster?‑‑‑It is possible, yes.
*** SEAN JOSEPH O'SHEA RXN MS MOODY
PN728
Thank you. Nothing further, Commissioner.
PN729
THE COMMISSIONER: I ve got some ‑ ‑ ‑
MS HARTIGAN: Just one matter arising because that was a fresh point there in respect of when it arises.
FURTHER CROSS-EXAMINATION BY MS HARTIGAN [2.46 PM]
PN731
MS HARTIGAN: You gave evidence then that it s possible. From what point in time is it possible from?‑‑‑In terms of the hours, I would suggest it s not possible in terms of, yes, just the sheer number of hours before six weeks; so probably after the six weeks rather than the eight weeks. It s possible.
PN732
At the conclusion of six weeks?‑‑‑Correct.
PN733
THE COMMISSIONER: Mr O Shea, I think you were handed up a copy of your letter of 10 July, weren't you, with the tables in it?‑‑‑Yes.
PN734
Have you got that page there? It s page 2 with the two sets of tables?‑‑‑I do, Commissioner. Yes.
PN735
You were asked some questions about this, but I just want to clarify something. Let s just look at a part‑time roster example, which is figure 2. It s at the bottom of the page?‑‑‑Yes.
PN736
In terms of the alteration to that roster with those hours worked on it, are you saying that well, firstly, tell me this: if I'm a part‑time employee and I'm given that roster, which is an average of 30.45 over eight weeks, there are a number of long weeks and a number of short weeks?‑‑‑Correct.
PN737
And they average out?‑‑‑Yes.
PN738
If I am working that roster, is there any capacity that as I go through that, if I get to week five or six, that Virgin says it could change the number of rostered hours for the remaining weeks?‑‑‑No. Our obligation is to publish the roster two weeks in advance. We publish it further out than that, but there is no plan to do that with part‑time employees. So their published roster is the roster they're required to work and any additional hours, they have an option to ‑ ‑ ‑
*** SEAN JOSEPH O'SHEA FXXN MS HARTIGAN
PN739
The additional hours are something else. I'm just looking at the base figure here?‑‑‑Sure.
PN740
So, in effect, the commitment in terms of the contractual arrangement for a part‑time employee is 30.45 ‑ ‑ ‑?‑‑‑Correct.
PN741
‑ ‑ ‑ really is locked in for the eight-week period?‑‑‑Well, it s our obligation under the agreement is to have two weeks in advance, but the roster itself is published so the roster is locked in for the employees. So there is no arrangement where we just tell people, next week or the week after, Don t show up for work because you're actually - you know, you're going to exceed the number of hours. We have not and do not do that.
PN742
So, in effect, you honour your commitment to stick to that pattern of employment ‑ ‑ ‑?‑‑‑Correct.
PN743
‑ ‑ ‑ for the duration of the roster cycle, as it s described in the agreement, I think?‑‑‑Well, and further out. So we don t stand down part‑time employees at any stage.
PN744
But that s a roster cycle?‑‑‑Yes, it is.
PN745
And an employee, if they don t do any additional time whatsoever, that s not going to change and even if they did some additional time part way through it, that minimum number of hours in that pattern isn't going to change?‑‑‑Correct. Correct.
PN746
Can I ask you then something about because you've been involved in negotiating both agreements, the 2010 and the 2014?‑‑‑Correct.
PN747
I appreciate perhaps the 2010 one was a difficult process because you were coming off a blank page, as it was described earlier this morning?‑‑‑Yes.
PN748
But if we just go to the primary provisions, which are clause 38 have you got the agreement with you?‑‑‑I do not, Commissioner.
PN749
Do you want a copy of it? Someone has got a spare copy. Here, try this one?‑‑‑Thank you.
*** SEAN JOSEPH O'SHEA FXXN MS HARTIGAN
PN750
I ve had a look back at the 2010 version of this clause. It s a different number. It s got some slight words changed about - team member and employee seems to have been interchanged on a couple of occasions. But in terms of the actual words, they haven't changed at all between 2010 and 2014 and this is the clause which primarily is directed at overtime. Of course, what we've got here is a dilemma about just what happens with part‑time employees. There isn't a dilemma with the full‑time employees because as soon as they work additional hours, it s going to by dint of the fact that they've got a 40-hour average, it s going to mean that it comes out above that?‑‑‑Correct.
PN751
But for part‑timers we re in this argument about, Well just how does it work for part‑timers? That's the whole basis for this dispute. But I'm just interested in looking at clause 38.2 for a minute which deals with casual employees. Here casual employees have got a different arrangement which actually mentions two different triggers ‑ ‑ ‑?‑‑‑Correct.
PN752
‑ ‑ ‑ for overtime for a casual: 12 hours in a shift and 48 hours in a roster cycle?‑‑‑Yes.
PN753
So if a casual employee comes in at any part way through this roster cycle over eight weeks, once they ve clocked up 48 hours, they're into overtime?‑‑‑Correct. And because they're employed on each engagement, if you like. So the casual employee does not have unless they ve accepted an engagement that includes a set roster of pattern for a period of time, but a casual employee in the main would be just engaged for a certain period of time and then, yes, the engagement finishes so but, yes.
PN754
What s the purpose of a roster cycle for them then?‑‑‑In some cases, casual employees will fill in for employees that are absent or they will fill in because it also aligns with our supervision of the other teams as well.
PN755
So I'm a casual and I fill in on one of these rosters. Shortly after the first week, I'm going to be on overtime?‑‑‑It s essentially built around the four on, four off four on, four off, so that basically a casual employee is within that roster cycle. If they're doing more than 48 they would be ‑ ‑ ‑
PN756
They're on overtime?‑‑‑Yes.
PN757
I don't think you've got the attachments. Could I have my copy of the agreement back? I don't think you've got the attachments to your statement with you. You've just got your statement. Is that right?‑‑‑Correct. Correct, Commissioner.
*** SEAN JOSEPH O'SHEA FXXN MS HARTIGAN
PN758
Someone might need to help us here because you've attached the documentation which was the application for the approval of this particular agreement, including, quite importantly, the material which is set out in a table and my photocopy and I haven't been able to get a microscope to look at this I can t read it, but it s your document?‑‑‑Yes.
PN759
It s your evidence?‑‑‑Yes.
PN760
And I d like to be able to read it?‑‑‑Sure.
PN761
This is page 30 and this is where in the material at reference point H we get to overtime rates. Have you got a clearer copy than mine? I hope you have?‑‑‑I'm able to see it, Commissioner.
PN762
You can read this?‑‑‑Yes.
PN763
See we ve got H here, overtime rates, and this is doing a comparison with the reference instrument, which is the Airline Operations Ground Staff Award?‑‑‑Yes.
PN764
Can you read out for me what in H the first part of the paragraph? It s after overtime . In the second column because I can t read it. It s something ordinary hours . I can t read the first ‑ ‑ ‑?‑‑‑Yes:
PN765
Work outside ordinary hours on any day or shift, 1.5 times for two hours and two times thereafter, continuous shift work double time worked at double time.
PN766
So the question of overtime is that each day stands alone?‑‑‑That's under the Airline Operations Ground Staff Award heading.
PN767
So that s the comparison we re looking at. So let s go over now to the next column. Now, I can t hardly read this:
PN768
Any hours worked ‑ ‑ ‑
PN769
?‑‑‑ Outside of the 40 hours will be paid at time and a half.
*** SEAN JOSEPH O'SHEA FXXN MS HARTIGAN
PN770
Yes.
PN771
?‑‑‑The hourly rate for determining overtime is 1.38th of the team member s weekly salary, as set out in the relevant classification for the employee, plus where appropriate senior engineer s allowance permanent night shift, PCT and additional aircraft type payments.
PN772
In paragraph 19 of your statement, you say that you note:
PN773
The better off overall test which was submitted to the FWC in table form in respect of overtime said, Payable when employee works excess of 40 hours in a roster cycle.
PN774
Where can I find that?‑‑‑Okay.
PN775
MS MOODY: Commissioner, could I assist?
PN776
THE COMMISSIONER: Yes.
PN777
MS MOODY: It s annexed ‑ ‑ ‑?‑‑‑E, alpha, India.
PN778
THE COMMISSIONER: Sorry?
PN779
MS MOODY: It s finding something in a written document. The evidence of the witness is not his ability to find something?‑‑‑Page 31 I ve got of the ‑ ‑ ‑
PN780
THE COMMISSIONER: Page 31? Whereabouts is it? It s so hard for him. I'm sorry. It s so hard?‑‑‑It says overtime provisions , Commissioner, alpha AI, halfway down the page.
PN781
Does that say overtime ? All right. What does it say in the next column?‑‑‑So under Airline Operations Ground Staff Award 2010:
PN782
Paid for work done outside of ordinary hours in computing overtime, each day s work stands alone.
PN783
Right, yes?‑‑‑And under Virgin Tech Agreement 2010:
*** SEAN JOSEPH O'SHEA FXXN MS HARTIGAN
PN784
Payable when employee works excess of 40 hours in a roster cycle.
PN785
That's where those words are found? All right.
PN786
MS MOODY: Commissioner, I ve just spoken to my instructing solicitor. We could have that blown up to A3. I think there s three or four pages of revoltingly small type. Would it assist if we had the entire document provided in a larger format?
PN787
THE COMMISSIONER: Yes, I suppose it would.
PN788
MS MOODY: You can have that ‑ ‑ ‑
PN789
THE COMMISSIONER: We don t need it immediately, but at some point.
PN790
MS MOODY: No.
PN791
THE COMMISSIONER: Yes.
PN792
MS MOODY: We'll try and get it done tomorrow, but it may be that we have to provide it to your associate within the next few days.
PN793
THE COMMISSIONER: Yes, all right. It would help because I ve had trouble, as you can gather, from looking through it. That's what I ve got, this tiny print, and it s very badly photocopied. All right. Anyway, we've found that now. So there s two references to overtime, one is under the overtime rates provision and the other one is under the overtime provisions, under hours of work?‑‑‑Yes, under hours of work. Correct.
PN794
All right, thanks for that. Thank you. Is there anything arising from ‑ ‑ ‑
PN795
MS HARTIGAN: No, thank you, Commissioner. No.
PN796
THE COMMISSIONER: Ms Moody, anything?
PN797
MS MOODY: No, thank you, Commissioner.
*** SEAN JOSEPH O'SHEA FXXN MS HARTIGAN
PN798
THE COMMISSIONER: No.
Thank you. You're released and discharged. Thank you for giving your evidence?‑‑‑Thank you, Commissioner.
<THE WITNESS WITHDREW [3.00 PM]
PN800
MS MOODY: Commissioner, I didn't tell you before lunch that I intended to call Ms Glynn next. It might be of greater benefit to you, if it wouldn't disadvantage my learned opened, to call Mr Ghea next. Mr Ghea can give more precise evidence than Mr O Shea about the manner in which employees were calculated prior to the August 2014 changes. If you felt it of assistance to have that evidence coming directly next, I'm more than happy to call him.
PN801
MS HARTIGAN: I don't have an issue with that at all, Commissioner.
PN802
THE COMMISSIONER: All right.
PN803
MS MOODY: Thank you. I call Mr Ghea.
PN804
THE COMMISSIONER: Okay.
PN805
THE ASSOCIATE: Can you state your full name and address?
MR GHEA: Christopher Sean Ghea (address supplied).
<CHRISTOPHER SHAWN GHEA, SWORN [3.02 PM]
EXAMINATION-IN-CHIEF BY MS MOODY [3.02 PM]
PN807
MS MOODY: Mr Ghea, could I ask you to state your full name for the Commission, please?‑‑‑Christopher Shawn Ghea.
PN808
What is your current address?‑‑‑(Address supplied).
PN809
Mr Ghea, you currently occupy the position of maintenance aircraft manager, Northern Queensland and Northern Territory at Virgin Tech?‑‑‑That's correct.
*** CHRISTOPHER SHAWN GHEA XN MS MOODY
PN810
You have provided a statement in these proceedings, have you not?‑‑‑That's correct.
PN811
Do you have a copy of that with you?‑‑‑I do, yes.
PN812
Can I ask you to have a look and confirm that the document you have with you is 10 pages long and 45 paragraphs?‑‑‑That's correct.
PN813
That statement is not signed, is it?‑‑‑No, it s not.
PN814
Do you have any corrections or amendments that you would like to make to your statement?‑‑‑No, I don t.
PN815
Commissioner, if I ask that Mr Ghea s statement be made an exhibit?
PN816
THE COMMISSIONER: The document is tendered. Is there any objection to it?
PN817
MS HARTIGAN: No objection, Commissioner.
THE COMMISSIONER: Thank you. It s tendered and admitted without objection. This will become exhibit 7. Exhibit 7 is described as the statement of Christopher Shawn Ghea, dated 22 May 2015, exhibit 7.
EXHIBIT #7 STATEMENT OF CHRISTOPHER SHAWN GHEA DATED 22/05/2015
PN819
MS MOODY: Mr Ghea, do you have the former witness had a copy of a supplementary statement of Stuart Cryer. I'm wondering if it s still on the table in front of you or if it s been taken back?‑‑‑No, I ve only got my statement.
PN820
Commissioner, I'm showing the witness the supplementary statement of Stuart Cryer.
PN821
Mr Ghea, have you had an opportunity to read that statement recently?‑‑‑I have, yes.
*** CHRISTOPHER SHAWN GHEA XN MS MOODY
PN822
I understand that there are a number of paragraphs that you would like to take the Commission to and make comment?‑‑‑That's correct, yes.
PN823
I understand the first paragraph that you would like to take the Commission to is paragraph 31 of Mr Cryer s statement. Is that correct?‑‑‑That's correct.
PN824
In this paragraph, to paraphrase, Mr Cryer says that the following table represents how his pay would have been calculated prior to the payroll changes in August 2014. Do you agree?‑‑‑That's correct, yes.
PN825
Looking at the table we can see that it attempts to compare in columns 1 and 2 in column 2 we have the standard hours that a full‑time employee might work on one of a number of rostered cycles. That certainly represents at least one of Virgin Tech s rostered cycles for a full‑time employee?‑‑‑That's correct, yes.
PN826
The third column represents one of the rostered cycles a part‑time employee may work?‑‑‑That's correct, yes.
PN827
Again, we re looking at the pre-August 2014 payroll changes. In this example in line 1, if the part‑time employee who had a contracted minimum of 30.45 hours per week, but rostered to work 34.8 hours, if that part‑time employee actually worked 45.6 hours, what would he be paid for in that week? I'll just ask you in your answer, could you please identify whether the pay will be calculated on a weekly basis or at the end of a fortnightly basis. So I d ask you to address calculation and then payment?‑‑‑Okay. So under the previous method, the team member would have been paid for 45.6 hours. That would have consisted of 38 hours at ordinary time and 7.6 hours at overtime rates for the first week and the same calculation for the second week, 38 hours for ordinary time and 7.6 hours for overtime.
PN828
When you refer to the employee being paid for 38 ordinary hours, is that a reference to the second anomaly identified by Virgin Tech in the payroll review conducted late last year?‑‑‑That's correct. We were incorrectly calculating overtime threshold of 38 hours.
PN829
So if we were applying the correct threshold of 40 hours and not 38, can I ask you to reconsider that question then? So using the 40 hours as the threshold, what would an employee in line one who worked 45.6 hours for that week be paid and would it matter what the employee worked in a fortnight?‑‑‑So the team member would be paid 40 hours ordinary time and 5.6 hours of overtime rates for the first week and the same again, 40 hours ordinary time and 5.6 hours overtime for the second week.
*** CHRISTOPHER SHAWN GHEA XN MS MOODY
PN830
So if one were to compare a part‑time employee and a full‑time employee working the same hours in week one, how many hours would the full‑time employee have been paid for?‑‑‑The full‑time employee would have been paid for in week one, 40 hours.
PN831
The part‑time employee working the same hours would have been paid for 45.6, of which 5.6 was overtime?‑‑‑That's correct.
PN832
If I take you down the table then, what about line six? In this example and, again, these are the arrangements applying before the payroll changes line six, week six, this part‑time employee worked 28.8 hours, what would this employee have been paid in this week?‑‑‑So the team member would have been paid 30.45 hours because his contracted rate or his contract is 30.45 hours. Because he didn't work on time sheet or actually work in the week 30.45 hours, he would have been topped up to 30.45 hours.
PN833
Can you describe what the anomaly was that payroll or Virgin Tech identified with respect to the system of payment that you've just described?‑‑‑So my understanding of the payroll system is the hours contracted are set in the system and because it s on time sheet, the system has to pay 30.45 hours. If the time sheet was less than 30.45 hours, the system would pay would make up the gap to 30.45 hours because that s what we've contracted.
PN834
Yes, but again coming to what I d call the anomaly that was discovered by Virgin Tech when it conducted its payroll review so we've discussed the payment arrangements that applied before August 2014 last year and we've discussed one of those anomalies, being the use of 38 hours as a trigger?‑‑‑Yes.
PN835
In what you've just described, what was the second anomaly? If you could explain that to the Commission?‑‑‑Well, the second anomaly was that the team member would actually be paid more hours than what they worked for.
PN836
The next paragraph that you wish to comment on in Mr Cryer s statement, I understand, is paragraph 41, particularly the second sentence. Can I ask you to read that second sentence and what do you have to say to that?‑‑‑In paragraph 42?
PN837
Paragraph 40?‑‑‑Sorry, paragraph 40?
*** CHRISTOPHER SHAWN GHEA XN MS MOODY
PN838
Paragraph 40?‑‑‑Yes, sorry. So Mr Cryer says that we wanted to remove the potential for part‑time employees to earn more than full‑time employees when part‑time employees are working more than full‑time hours. That's incorrect. We want to remove the potential for part‑time employees to earn more than full‑time employees when the part‑time employee is working the same as the full‑time hours.
PN839
The next paragraphs I understand you'd like to comment on are 41 and 42, if we can consider them together. Can I ask you to read those paragraphs and then make comment on them as you see fit?‑‑‑Yes. Mr Cryer says that my statement at paragraph 34 is incorrect and then in paragraph 42 he says that:
PN840
I inadvertently said I worked those hours, but I intended to refer to the hours that I was paid.
PN841
I can only go on what his original statement was, the hours that he worked, and the time sheets that he provided as part of his statement. So I can t see how I was incorrect.
PN842
The next paragraph I d like to take you to is paragraph 55, specifically the last two lines. Can I ask you to read the whole of paragraph 55 and comment:
PN843
In response to paragraph 35 of Mr Ghea s statement where he says the new method of calculation ensures that overtime payments are provided to part‑time team members within a roster cycle, I can confirm that I ve never received payment for overtime I have worked during an eight-week cycle.
PN844
That would be incorrect by the new calculator because the new calculator calculates the trigger point within the eight-week cycle, at which point the team member works 319.2 hours and then from that point onwards in the eight‑week cycle, every additional hour after that is paid at overtime rates. So even if Mr Cryer triggered that overtime payment in week seven, it would be paid within the last week of the eight-week cycle.
PN845
The calculator that you've spoken of, which is, as I understand it, all hours worked over 30.45 paid at standard time go into the bank and when that number comes or exceeds the 319.2 that s the trigger or calculator that you've described. Is that correct?‑‑‑That's correct.
PN846
Is this method of applying the calculator in that fashion so as to pay overtime when the trigger is reached, is that in effect now within Virgin Tech?‑‑‑That's correct, yes.
*** CHRISTOPHER SHAWN GHEA XN MS MOODY
PN847
I have nothing further in-chief of this witness.
THE COMMISSIONER: Thank you. Cross-examination?
CROSS-EXAMINATION BY MS HARTIGAN [3.13 PM]
PN849
MS HARTIGAN: Commissioner, I just note in relation to those points, those matters weren't put to Mr Cryer, so I'm not in a position to cross‑examine that witness in relation to his rebuttal of Mr Cryer s evidence so I can t cross‑examine him in relation to that.
PN850
Mr Ghea, in relation to the table you were taken to, do you still have that there in front of you?‑‑‑Yes.
PN851
You were taken to the first week there. Can I take you, for instance, to the fifth week? You'll note there that full‑time standard hours are 34.2, part‑time standard hours are 23.4 and that if the part‑time employee was to work an addition 10.8 hours, you accept that for instance in that week that wouldn't make the 40-hour threshold or trigger in order to earn overtime?‑‑‑Correct. They wouldn't have reached the 40-hour trigger.
PN852
The reason I took you to that is because you were specifically asked in relation to this matter that your view is that part‑time employees shouldn't be or shouldn't receive overtime payments in instances where full‑time employees don t. Is that your evidence?‑‑‑Could you repeat that question?
PN853
Yes. Is it your evidence that part‑time employees should not receive overtime payments in circumstances where a full‑time employee working the same hours would not?‑‑‑On a given week, no. Over the course of a roster cycle, they should be paid the same.
PN854
You accept, though, that there are fundamental differences between the hours worked between a full‑time employee and a part‑time employee?‑‑‑Yes, that's correct.
PN855
You accept those differences?‑‑‑Yes.
PN856
You accept that they re a different classes of employee and as a result they earn pro rata d sorry, they earn the same entitlements and the same conditions, but they're pro rata d, aren t they?‑‑‑That's correct, yes.
*** CHRISTOPHER SHAWN GHEA XXN MS HARTIGAN
PN857
So you can t treat those two different classes of employee as being the same, can you?‑‑‑That's our aim is to treat them the same and ‑ ‑ ‑
PN858
That's your aim?‑‑‑ ‑ ‑ ‑ remunerate them the same.
PN859
Is that your aim in respect of overtime as well, is it?‑‑‑Yes.
PN860
While treating them the same, though, you obviously recognise and this can be evidenced by the two separate tables you've got at paragraph 11, 11A and 11B that they are different. They do work different hours. You accept that, don t you?‑‑‑Yes, they do work different hours.
PN861
For instance, in relation to the part‑time employees, it s the case, isn't it, that their roster and I know that this is an example of the roster but if we can accept that this is a fairly well accepted example of the part‑time employee roster, that part‑time employees can organise their life on the basis that the hours provided here are predictable, that is, they note, for instance, in week one they ll have to work 34.8 hours, but they know in this roster cycle in week four, they ll be working 23.4. Do you accept that?‑‑‑Yes, I do.
PN862
That gives them that predictability to organise their life in respect of it and in respect of the hours that they're required to work. You accept that?‑‑‑Yes.
PN863
That has some difference to the fact that they are actually part‑time employees and they work hours that are less than 40 hours, but there s some certainty given to them by providing a roster which has predictable hours. You accept that?‑‑‑That's correct, yes.
PN864
And it certainly appears to be your evidence that in relation to the procedure before the introduction of the change in July 2014 that anything worked in addition to those predictable hours were considered to be additional hours up to the 40-hour trigger point. Do you accept that?‑‑‑It was actually 38 because we had used the incorrect ‑ ‑ ‑
PN865
Right, yes?‑‑‑Yes.
PN866
But in terms of and I don't think it s in dispute the agreement, it refer to a 40-hour trigger, doesn't it?‑‑‑It does, yes.
*** CHRISTOPHER SHAWN GHEA XXN MS HARTIGAN
PN867
In that regard it was only until they d worked those additional hours on top of their regular predictable hours that overtime could then be earned?‑‑‑That's correct, yes.
PN868
Your evidence was before, and once you'd adjusted it to take into account that two-hour anomaly provided by the 38 hours your evidence before was, for instance, in relation to the week one example that Ms Moody took you to, that there was an amount of 5.6 hours overtime calculated for a part‑time employee who worked 45.6 hours in a week?‑‑‑That's correct, yes.
PN869
That's how it was assessed prior to the change?‑‑‑That's correct, yes.
PN870
I think you said it was done accordingly in relation to each week and your evidence was that they were then paid on a fortnightly basis. Is that correct?‑‑‑They were paid on a fortnightly basis, yes.
PN871
Nothing further. Thank you, Commissioner.
PN872
THE COMMISSIONER: Yes, thank you. Any re‑examination?
PN873
MS MOODY: Nothing in re‑examination, your Honour.
PN874
MS HARTIGAN: Commissioner, can I please take a moment for instructions in relation to whether we in fact will need to call Ms Glynn, given that there s been some developments in relation to the matter? Could I just take some instruction very quickly?
PN875
THE COMMISSIONER: Would it be all right if I ask this witness a question first?
PN876
MS HARTIGAN: I beg your pardon. Sorry, Commissioner.
PN877
THE COMMISSIONER: Can we go back to this table that s been troubling us most of the day? It s in the supplementary statement of Stuart Cryer?‑‑‑Yes.
PN878
You've got that there? You gave some evidence a moment ago, and it puzzled me a bit. I think you were taken to the example of week six where this is scheduled hours, the rostered hours are 28.8. Are you with me?‑‑‑Yes.
*** CHRISTOPHER SHAWN GHEA XXN MS HARTIGAN
PN879
Forget about the 30.45 for a minute?‑‑‑Yes.
PN880
But this person then works 5.4 on top of those 28.8. So that means that in that week they worked 34.2 hours?‑‑‑That's correct, yes.
PN881
They wouldn't have not got paid for the number of hours above 30.45, would they?‑‑‑Under the old cycle? Under the old calculation they would have been paid for the exact hours that they worked. So it would have been 34.2.
PN882
So, yes, they would have got 34.2 hours and that is the additional hours over and above the 30.45 aren t paid at time and a half, they're paid at ordinary time?‑‑‑That's correct, yes.
PN883
So this would have amounted to just an additional payment of 3.75 hours for that person?‑‑‑On their averaged hours, but at that stage we weren't using averaged hours as their base pay. They were just paid for the hours that they worked in the week. So they were just paid 34.2 hours.
PN884
This calculation here added 5.4 on top of the 30.45, not the 28.8. That would have never occurred, would it?‑‑‑No. The additional hours worked from the part‑time standard hours to the full‑time standard hours, the 5.4?
PN885
Yes?‑‑‑Would have been added to the 28.8.
PN886
Yes, not the 30.45?‑‑‑No, not the 30.45.
PN887
Yes, that's what I thought. All right. Anything arising from that question?
PN888
MS HARTIGAN: No, thank you, Commissioner.
PN889
MS MOODY: No, Commissioner.
PN890
THE COMMISSIONER: No? All right.
Thank you very much. You're released and discharged. Thank you for giving your evidence.
*** CHRISTOPHER SHAWN GHEA XXN MS HARTIGAN
<THE WITNESS WITHDREW [3.22 PM]
PN892
THE COMMISSIONER: Do I apprehend you want a short adjournment or something?
PN893
MS HARTIGAN: Commissioner, I ve actually received instructions. I don t require Ms Glynn for cross‑examination.
PN894
THE COMMISSIONER: Right. So, presumably, we shall just have ‑ ‑ ‑
PN895
MS MOODY: In that event, your Honour, we have only the statement of Mr Campbell to be cross‑examined and that is for tomorrow. He ll be, I think, scheduled at 10 - I think?
PN896
MS HARTIGAN: Yes.
PN897
MS MOODY: And then closing submissions, if that suits the ‑ ‑ ‑
PN898
THE COMMISSIONER: But, surely, you want the evidence of Ms Glynn in, don t you?
PN899
MS MOODY: Of course, your Honour. Yes. No, I was going to deal with that. Ms Glynn s statement filed on 22 May 2014 ‑ ‑ ‑
PN900
THE COMMISSIONER: Yes.
PN901
MS MOODY: Now, that has not been sworn. Do we need to call Ms Glynn to the stand to adopt her statement?
PN902
THE COMMISSIONER: No. I'm treating it in the same way as we treated Mr Tamblyn and that is that although there had been a there is now a commitment from the other side, and in case Mr Tamblyn was for your side, that you didn't need to cross‑examine.
PN903
MS MOODY: Correct.
*** CHRISTOPHER SHAWN GHEA XXN MS HARTIGAN
PN904
THE COMMISSIONER: So if it s not disputed, I'm just taking it and accepting it as evidence that I can have a look at, depending upon the usual criteria as to what weight I attach to certain aspects of it and so forth.
PN905
MS MOODY: Of course, Commissioner.
THE COMMISSIONER: Yes, all right. So this document is tendered, admitted without objection, and is marked as exhibit 8. Exhibit 8 is described at the statement of Joanna Glynn, dated 22 May 2015. That's exhibit 8.
EXHIBIT #8 STATEMENT OF JOANNA GLYNN DATED 22/05/2015
PN907
THE COMMISSIONER: That would presumably then be the evidence in its entirety for the respondent.
PN908
MS MOODY: That completes the respondent s evidence.
PN909
THE COMMISSIONER: And we've still got one witness for the applicant tomorrow, that s Mr Campbell.
PN910
MS HARTIGAN: That's correct.
PN911
THE COMMISSIONER: Is he appearing by remote control or ‑ ‑ ‑
PN912
MS HARTIGAN: No, he s appearing in person.
PN913
THE COMMISSIONER: Does he want to come earlier?
PN914
MS HARTIGAN: I think he would be available to come earlier, yes.
PN915
THE COMMISSIONER: Do the parties want to come earlier or have you got other commitments? I mean, it s just that if you want to start sooner in the morning than 10, I can do that if you want, but ‑ ‑ ‑
PN916
MS HARTIGAN: He is travelling from the Sunshine Coast, I understand, so perhaps ‑ ‑ ‑
PN917
THE COMMISSIONER: So we'll leave it at 10 o'clock? Yes, all right.
PN918
MS HARTIGAN: ‑ ‑ ‑ with the traffic. Thank you, Commissioner.
PN919
THE COMMISSIONER: I just like to try and be flexible if we have to. So that s the position. We've just got Mr Campbell at 10 o'clock tomorrow morning and then after that the submissions from each side and then I'll make a snap decision - I don't think so, no. All right.
PN920
MS HARTIGAN: We d be most impressed, Commissioner.
PN921
THE COMMISSIONER: Yes. All right. So we'll resume again at 10 in the morning.
ADJOURNED UNTIL TUESDAY, 2 JUNE 2015 [3.25 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
STEPHEN ROSS PURVINAS, AFFIRMED....................................................... PN73
EXAMINATION-IN-CHIEF BY MS HARTIGAN............................................ PN73
EXHIBIT #1 STATEMENT OF STEPHEN PURVINAS DATED 22/04/2015 PN84
EXHIBIT #2 SUPPLEMENTARY WITNESS STATEMENT OF STEPHEN PURVINAS DATED 26/05/2015................................................................................................................. PN94
CROSS-EXAMINATION BY MS MOODY...................................................... PN135
THE WITNESS WITHDREW............................................................................ PN348
STUART HUNTER CRYER, AFFIRMED...................................................... PN357
EXAMINATION-IN-CHIEF BY MS CRYER.................................................. PN357
EXHIBIT #3 THE STATEMENT OF STUART CRYER DATED 24/04/2015 PN373
EXHIBIT #4 SUPPLEMENTARY STATEMENT OF STUART CRYER DATED 29/05/2015................................................................................................................................. PN384
CROSS-EXAMINATION BY MS MOODY...................................................... PN397
RE-EXAMINATION BY MS HARTIGAN....................................................... PN479
THE WITNESS WITHDREW............................................................................ PN539
EXHIBIT #5 STATEMENT OF CHRISTIAN TAMBLYN DATED 24/04/2015 PN576
SEAN JOSEPH O'SHEA, AFFIRMED.............................................................. PN599
EXAMINATION-IN-CHIEF BY MS MOODY................................................. PN599
EXHIBIT #6 WITNESS STATEMENT OF SEAN O'SHEA DATED 22/05/2015 PN616
CROSS-EXAMINATION BY MS HARTIGAN............................................... PN638
RE-EXAMINATION BY MS MOODY.............................................................. PN721
FURTHER CROSS-EXAMINATION BY MS HARTIGAN.......................... PN730
THE WITNESS WITHDREW............................................................................ PN799
CHRISTOPHER SHAWN GHEA, SWORN..................................................... PN806
EXAMINATION-IN-CHIEF BY MS MOODY................................................. PN806
EXHIBIT #7 STATEMENT OF CHRISTOPHER SHAWN GHEA DATED 22/05/2015 PN818
CROSS-EXAMINATION BY MS HARTIGAN............................................... PN848
THE WITNESS WITHDREW............................................................................ PN891
EXHIBIT #8 STATEMENT OF JOANNA GLYNN DATED 22/05/2015..... PN906
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