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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1051958
COMMISSIONER CAMBRIDGE
C2015/4068
s.418 - Application for an order that industrial action by employees or employers stop etc.
Patrick Stevedores Holdings Pty Ltd
and
Maritime Union of Australia, The
(C2015/4068)
Patrick Terminals Enterprise Agreement 2012
Sydney
2.07 PM, THURSDAY, 28 MAY 2015
PN1
THE COMMISSIONER: Yes, Mr Perry?
PN2
MR D PERRY: Yes. Thank you, Commissioner. Perhaps if I could start, I have two witnesses to call on our case, and I ll call the first of those in a moment. If I could perhaps start by just indicating by way of an update what has happened since the matter was before the Commission, given this is a somewhat dynamic situation. I don t know whether my friend proposes to call witnesses today, but if she does, for reasons that will become apparent, it would be appropriate if they leave the courtroom, before I indicate to your Honour what has happened overnight by way of an update.
PN3
MS L DOUST: Well, I think it s extremely odd to suggest that any witness should leave the courtroom while there s simply someone making an opening address. I would have thought that s only appropriate where there s a witness in the box, in relation to whom there s a conflict of, for example, evidence about a particular conversation.
PN4
THE COMMISSIONER: Let s just take this step at a time. Do you propose to call some evidence today in the matter?
PN5
MS DOUST: Yes.
PN6
THE COMMISSIONER: From?
PN7
MS DOUST: Mr Stewart.
PN8
THE COMMISSIONER: Right.
PN9
MS DOUST: S-t-e-w-a-r-t.
PN10
THE COMMISSIONER: Yes.
PN11
MS DOUST: Yes.
PN12
THE COMMISSIONER: Do we have any witness statements?
PN13
MS DOUST: I don t. I only had an opportunity to speak with him today at around about half past 12 because of his work commitments.
PN14
THE COMMISSIONER: And Mr Stewart is in the Court, is he?
PN15
MS DOUST: Yes.
PN16
THE COMMISSIONER: Yes. And that s the extent of the evidence you re going to lead or is there ‑ ‑ ‑
PN17
MS DOUST: That s as currently apprehended. Yes.
PN18
THE COMMISSIONER: Mr Perry, we were clarifying things piece by piece here.
PN19
MR PERRY: Well, I can do the clarification when I call Mr O Leary. If that s the way my friend wishes to proceed, and I can do that, and I wasn t proposing to call Mr O Leary first, but it might be appropriate that I call him first and I can deal with the matters.
PN20
THE COMMISSIONER: All right.
PN21
MR PERRY: So I call Michael O Leary.
PN22
THE COMMISSIONER: Thank you.
PN23
THE ASSOCIATE: Please state your full name and address.
MR O'LEARY: Michael O Leary, (address supplied).
<MICHAEL O'LEARY, AFFIRMED [2.09 PM]
EXAMINATION-IN-CHIEF BY MR PERRY [2.10 PM]
PN25
MR PERRY: Can I indicate just before I ask Mr O Leary a couple of brief questions in chief, Commissioner, that we do not read the final sentence of paragraph 26 of the statement.
PN26
THE COMMISSIONER: Paragraph 26, the final sentence. It s only got one sentence, hasn t it?
*** MICHAEL O'LEARY XN MR PERRY
PN27
MR PERRY: It s at the top of page 8, Commissioner. It s the sentence that starts:
PN28
As a result.
PN29
THE COMMISSIONER: As a result ?
PN30
MR PERRY: Yes.
PN31
THE COMMISSIONER: I see, right. That s removed.
PN32
MR PERRY: Can you please state your full name for the record?‑‑‑Michael O Leary.
PN33
And, Mr O Leary, what is your position of employment?‑‑‑I m the general manager of industrial relations for Patrick Terminals and Logistics.
PN34
Mr O Leary, have you caused to have prepared a witness statement for the purpose of these proceedings?‑‑‑I have that.
PN35
Is that statement dated yesterday?‑‑‑Yes.
PN36
If I could ask you to go to paragraph 15 of your statement?‑‑‑Yes.
PN37
And in the third line there you refer to 18 employees who were dismissed. Is there any way in which you would like to clarify that statement?‑‑‑Yes. The 18 employees alleged they were dismissed and the company is disputing that allegation.
PN38
Thank you. Can I ask you to go to paragraph 26. Do you have that, Mr O Leary?‑‑‑Yes, I do.
PN39
You were talking there about PIRs for the year ended 30 June 2013?‑‑‑That's correct. Yes.
*** MICHAEL O'LEARY XN MR PERRY
PN40
Is there anything further that you would like to supplement your evidence with?‑‑‑Yes. With the deletion of the last sentence, there were actually 11 PIRs in that short period broke their hours, and of the 11 who broke their hours, nine worked overtime; one broke their hours on the 28th of the 6th, and one broke their hours while they were on annual leave at the end of that financial year.
PN41
And were there any PIRs in that year who had refused to work overtime?‑‑‑No.
PN42
And if I could ask you to go now to the next paragraph, Mr O Leary, paragraph 27?‑‑‑That's correct.
PN43
You refer there to 76 PIRs. Do you wish to clarify that statement in any way?‑‑‑Yes. There were 76 PIRs that we actually asked a preference of leading up to the conclusion of that financial year, and so the 76 I referred to were the ones that we actually sought a preference from. Of that 76, 59 actually broke their hours, and then the rest of the clause are ‑ ‑ ‑
PN44
Why was it that you asked the 76, Mr O Leary?‑‑‑Well, again, as per normal in our preparation for that final part of the year we look at where the PIR hours sit and make an estimate of who s actually going to be breaking hours, and we make the inquiry at an early stage to ensure we have an absolute understanding of who s going to volunteer and who s not going to volunteer.
PN45
Yes. So 59 of the 76 ultimately did break their hours?‑‑‑That's correct. Yes.
PN46
Now, in paragraph 30 of your statement, Mr O Leary, in paragraph (b) there, you say that as of 27 May zero are willing to work overtime. Are you able to update the Commission on what the position is in that regard?‑‑‑Yes, Commissioner, overnight we made contact with 14 last night, and the balance we couldn t contact. The 14 we asked, we indicated to them that there was an interim order of the Commission, and that, as such, they were able to volunteer for overtime. Of those 14 people that we called last night, we got no further volunteers. During the course of those discussions with individuals there seemed to be some confusion about the ‑ ‑ ‑
PN47
If I could just perhaps stop you there, Mr O Leary. It s at this point that I would ask that the respondent s witnesses leave the courtroom as there may be some issues arising out of what the witness is about to say concerning their evidence.
PN48
THE COMMISSIONER: Ms Doust?
PN49
MS DOUST: Well, it s ‑ ‑ ‑
*** MICHAEL O'LEARY XN MR PERRY
PN50
THE COMMISSIONER: Mr Stewart is one of those contacted, I suppose.
PN51
MS DOUST: Commissioner, I was going to raise this issue: it wasn t clear from what Mr O Leary was saying that the evidence that he was giving was evidence of his own conversations with anyone. So my objection to any evidence that he was going to give about that was based on the issue of hearsay. It might be more appropriate to deal first with the question whether or not this is actually firsthand information about any conversation that s alleged.
PN52
THE COMMISSIONER: Well, we can sort that out first of all. We ll take it step by step.
PN53
MR PERRY: Yes. That doesn t change the application I did make a moment ago, Commissioner, that whether the evidence is ‑ ‑ ‑
PN54
THE COMMISSIONER: No. I ll get back to that in a minute, but we ll take it step by step.
PN55
MR PERRY: Yes. Well, perhaps, Mr O Leary, if you could answer my question again by reference to indicating who those conversations were with, and when they occurred?‑‑‑Mr Commissioner, the labour manager at Port Botany, Mr Shane, under my instructions, rang as many of the individuals as he could last night, and I asked him to report back to me last night as to the outcome of those discussions.
PN56
THE COMMISSIONER: All right. Well, we ve clarified that. Right. Ms Doust, the application is that Mr Stewart should leave whilst evidence is given about this.
PN57
MS DOUST: Yes. Well, it s not going to be direct evidence from Mr O Leary of anything that he said to Mr Stewart. Ultimately I d be entitled to convey the content of whatever Mr O Leary alleges was said to Mr Stewart to him to get his instructions about that, so, in my submission, there s no purpose in asking the witness to leave the room.
PN58
THE COMMISSIONER: Of course, if you say you want the witness to remain, that will be observed and recorded, and when your witness, if it becomes the case that any evidence that he might give, which touches upon any of the subject matter from this witness, it s going to be clear that, of course, he s had the benefit of hearing all of that.
*** MICHAEL O'LEARY XN MR PERRY
PN59
MS DOUST: Yes. Well, so far as it ‑ ‑ ‑
PN60
THE COMMISSIONER: But if that doesn t trouble you, I m not in the process of kicking people out of the proceedings. The more people in the proceedings the better, in my view.
PN61
MS DOUST: Look, I m content to leave him out, Commissioner, if you view is there s a risk that, in some way, Mr Stewart s evidence is going to be affected, but I will, of course, take some instructions about the evidence as it falls, and I may need to ask for some time to do that.
PN62
THE COMMISSIONER: Do you want a short adjournment to deal with this?
PN63
MS DOUST: It may need to occur at some point.
PN64
THE COMMISSIONER: So what s happening with Mr Stewart now?
PN65
MS DOUST: I m content for him to remain out of the room, if it s a matter that would trouble the Commission in terms of the voracity of his evidence.
PN66
THE COMMISSIONER: Okay. Well, his evidence will be pristine if he s out of the room. It won t be if he remains in.
PN67
MS DOUST: Sure.
PN68
THE COMMISSIONER: I think that s the easiest way to express it.
PN69
MS DOUST: Thank you, Commissioner.
PN70
THE COMMISSIONER: For the record, Mr Stewart - I m assuming it s Mr Stewart, has left.
*** MICHAEL O'LEARY XN MR PERRY
PN71
MR PERRY: Mr O Leary, the conversation you referred to, with Mr Shane, who reported back to you, are you able to indicate to the Commission what Mr Shane did say to you?‑‑‑Mr Commissioner, the I never spoke to Mr Shane about individual conversations. He gave me a collective number of who he had spoken to. In that conversation with him he indicated to me that there seemed to be some confusion with the number of the people that he spoke to about whether or not the scope of the interim order was, and he came back to me and said, Maybe we should call them all again this morning, once we clarify that. So ‑ ‑ ‑
PN72
THE COMMISSIONER: Who said that to you? Mr Shane?‑‑‑Mr Shane. Mr Shane. Yes.
PN73
Right?‑‑‑As I said, I have no I don t have it in front of me. I don t have or never spoke to Mr Shane about the individuals he spoke to, but effectively and, so, the upshot of that was we made phone calls again this morning, and we got another 13 calls this morning, some of who were spoken to last night, some of the ones we couldn t get last night, we spoke to them. But the ultimate outcome of all that was we still don t have a volunteer. So we don t have a volunteer. So, in the conversation this morning that Mr Shane had with people he again went to the point was, We have an interim order. Do you understand that the interim order applies to all employees? , and, Are you available for overtime? And we still don t have a volunteer. So effectively, from last night to this morning, it was about clarifying the issue, that was all.
PN74
MR PERRY: And, Mr Shane, I think your evidence was, Mr O Leary, mentioned some confusion. Did he say anything more about that?‑‑‑Well, he just indicated that people had said to him that they were unsure whether or not the order applied to PIRs.
PN75
Nothing further about that?‑‑‑No.
PN76
No. No further questions. I won t be pursuing that.
THE COMMISSIONER: Nothing further? Cross-examination, Ms Doust?
CROSS-EXAMINATION BY MS DOUST [2.22 PM]
PN78
MS DOUST: Yes. Thank you. Mr O Leary, sorry wrong folder?‑‑‑That s okay.
PN79
Now, can I just ask you, Mr O Leary, in relation to I m sorry, where are you located, in terms of your work? Are you located at the North Sydney office, or the Port Botany terminal?‑‑‑My office is North Sydney.
PN80
All right?‑‑‑But I m physically placed at the Port Botany terminal, and I have been there for about three years.
*** MICHAEL O'LEARY XXN MS DOUST
PN81
All right. In terms of day-to-day allocation responsibilities, do you undertake any direct contact with employees about allocating them to particular shifts or discussing their rosters?‑‑‑Employees? EA employees or management employees?
PN82
Yes. Sorry, EA employees only?‑‑‑No.
PN83
Okay. Now, as to the 2014 year, so that s the year ended 30 June 2014?‑‑‑Yes.
PN84
I m just a bit confused about the total numbers that you refer to there, and this is at paragraph 27 of your statement?‑‑‑Yes.
PN85
Can I suggest this to you: in 2014 I think the number of PIRs, as at about June, was something like 88; does that sound correct to you?‑‑‑I would have thought it was closer to 100.
PN86
All right. Just going to take you to some transcript from some other proceedings in relation to the PIRs before the same Commissioner, actually, last year, Mr O Leary. Might I hand the witness I ve just taken some extracts from that transcript. If you ll just go to the second page. Sorry, first of all, in terms of the extract of the transcript, Mr O Leary, do you remember giving some evidence in proceedings before the Commission, constituted by Cambridge C, in about 3 June last year?‑‑‑Obviously. Yes. I have the transcript in front of me. Yes.
PN87
All right. Don t dispute that you gave some evidence at that time?‑‑‑Again, I m looking at the date, looking at the transcript and confirming that that s the date. Yes.
PN88
Yes. And if the transcripts records you indicating that the number of PIRs was 88 plus or minus five you wouldn t have any reason to think that incorrectly recorded your evidence, at that time?‑‑‑No. No.
PN89
Thank you. So, in relation to the 76 employees you say in and I ll come back to that transcript briefly and ask that to be marked, Commissioner. Did you get a copy of that?
PN90
THE COMMISSIONER: No.
PN91
MS DOUST: I might hand one up to you, Commissioner.
*** MICHAEL O'LEARY XXN MS DOUST
PN92
THE COMMISSIONER: Was there any objection to this being admitted?
PN93
MR PERRY: No, Commissioner.
PN94
THE COMMISSIONER: We ll call this, then ‑ ‑ ‑
PN95
MS DOUST: It s just some extracts, Commissioner.
THE COMMISSIONER: ‑ ‑ ‑ exhibit 2. Exhibit 2 will be described as extracts from a transcript of proceedings in matter number C2013/6390. Exhibit 2.
EXHIBIT #2 EXTRACTS OF TRANSCRIPT OF PROCEEDINGS IN MATTER NUMBER C2013/6390
PN97
MS DOUST: Thank you. Now, just taking you, Mr O Leary, to paragraph 27 of your statement in respect of the PIR employees in 2014. What s the cohort of 76 employees there that you refer to? How did you select out that number?‑‑‑They would have been the people who were actually moving closer to their 1820 hours.
PN98
All right. So, at what time of the year do you refer to?‑‑‑We normally do that maybe six to eight weeks out from the end of the year.
PN99
Yes. Now, were you involved in any communications with employees directly, at that stage, about their interest or availability for overtime?‑‑‑No, not directly with employees per se.
PN100
Was that carried out by Mr Shane again in that year?‑‑‑Yes.
PN101
I want to suggest this to you: it wasn t actually until about 17 June in that year that the first employee hit that 1820 hour mark; does that sound right to you?‑‑‑Look, I have nothing to dispute your comment.
PN102
Well, for example, for the purpose of preparing your statement for these proceedings did you have access to any documentation that showed you the numbers of employees when they hit that 1820 target?‑‑‑No.
PN103
Are you involved in meetings of the employee review committee on site; the ERC?‑‑‑ERC committee, yes.
*** MICHAEL O'LEARY XXN MS DOUST
PN104
All right?‑‑‑I attend every meeting.
PN105
That s a committee that discusses issues such as labour demands?‑‑‑Yes.
PN106
And in the course of that meeting the company will publish to people at the meeting copies of a document that shows the position in relation to PIRs meeting their targets and the like, won t it?‑‑‑We generally do that, not at every meeting, but certainly leading towards the end of the year we would have. Yes.
PN107
Yes. And do you provide information in respect of all of the PIRs in that process, or do you provide information in respect of just some of the PIRs?‑‑‑No, the spreadsheet has all PIRs.
PN108
It shows all of them?‑‑‑Yes.
PN109
All right. And is that a spreadsheet that s set out, and it s got employee number on the side, name, their current hours as at a particular date, the last time they worked and so on?‑‑‑Yes.
PN110
Yes?‑‑‑We provide for the ERC a document that has names on it.
PN111
Yes?‑‑‑But we collect them all usually after the meeting. What we do circulate, to the broader group, is just the number, the payroll number so that there s some privacy about that, but certainly to the ERC we provide all of the we have a there s a column that says the average hours or the expected hours, at that point in time.
PN112
Yes?‑‑‑A column that says the actual hours, and a column that says, I think, the last day worked.
PN113
Are there are any employees that are left out of those documents?‑‑‑No. We generally provide all employees.
PN114
Sorry, all PIRs?‑‑‑All PIRs. Yes. Sorry, yes.
*** MICHAEL O'LEARY XXN MS DOUST
PN115
Okay. Would it be the case that employees on workers compensation would be left off that list or would they be included as well, if there was ‑ ‑ ‑ ?‑‑‑They re included, but they obviously sit at the top because they don t they re obvious. If you re looking at the list they re pretty obvious because they stand out, in terms of the lack of worked hours and most of the things, so ‑ ‑ ‑
PN116
All right. I ll show you a document, if I might. Have a look at this document, please. Now, is that a document you re familiar with, Mr O Leary?‑‑‑I m disappointed it s got names on it.
PN117
Yes?‑‑‑Because it means it s been taken out of the committee room.
PN118
So you re familiar with the document?‑‑‑I m familiar with the document. Yes.
PN119
It s a document that shows the respective hours performed by the PIR employees as at 17 June 2014?‑‑‑Yes. That's correct.
PN120
And you ll see there that there s some 75 employees on the list?‑‑‑Do you want me to count them, or did you already count them?
PN121
Can I point you to something at the top of the list?‑‑‑Yes.
PN122
Just to the right of the words PIR counted hours, repo?‑‑‑Yes. Okay. Sorry, yes.
PN123
There s 75 there?‑‑‑Yes.
PN124
But is that something you re familiar with, that at around about that time of the year you saw a report along these lines, and you had a report for some 75 employees?‑‑‑I must say that s the first time I ve noticed the 75.
PN125
Yes?‑‑‑I would have. So, yes, if the report is prepared in that manner, I would expect that that number would be there. Yes.
PN126
And you recognise this, don t you, as a document that s prepared by Patrick in relation to the hours that are performed by the PIRs during the course of the year?‑‑‑Yes. Yes.
PN127
I tender that document.
PN128
THE COMMISSIONER: Any objection to its admission?
*** MICHAEL O'LEARY XXN MS DOUST
PN129
MR PERRY: No, Commissioner.
PN130
THE COMMISSIONER: No. The document is tendered and admitted without objection, and becomes exhibit 3.
PN131
MS DOUST: Yes.
THE COMMISSIONER: Exhibit 3 will be described as employee hours list at 17 June 2014. Exhibit 3.
EXHIBIT #3 EMPLOYEES HOURS LIST DATED 17/06/2014
PN133
MS DOUST: Thank you. And do you accept, looking at that document, Mr O Leary, that the position last year was that, by 17 June, only one PIR employee had completed their annual counted hours; the 1820 hours?‑‑‑17 June. Yes.
PN134
Yes. And so does that now sorry, I withdraw that. It was the case, wasn t it, that last year, so far as the PIRs were concerned, PIRs were really only completing I ll withdraw that. The bulk of the PIRs, if they completed their counted hours, they were doing so within a matter of a few days of the finish line; that s right, isn t it?‑‑‑To be perfectly blunt we were very happy last year that we got people close to their hours.
PN135
Ideally you d like them completing their very last shift to hit the 1820 on 29 or 30 June, wouldn t you?‑‑‑Look, not necessarily.
PN136
Yes?‑‑‑Not necessarily because some PIRs do pursue their hours vigorously. Okay. Make themselves available a lot more than others in order to get into overtime early.
PN137
Yes?‑‑‑Okay. And we tend to accommodate that. Colloquially on site they call it Christmas in June because they can work a bit of overtime to further enhance their earnings.
PN138
Yes?‑‑‑But, yes, in general terms, the concept would be, the best outcome would be 1820 at 30 June.
PN139
Yes. The state of play last year was a very different situation to this year, wasn t it, Mr O Leary?‑‑‑Yes.
*** MICHAEL O'LEARY XXN MS DOUST
PN140
That people were hitting their target with only a couple of days left in the year, weren t they?‑‑‑Yes. Yes.
PN141
The approach that was determined upon last year was one of saying, If you don t want to be considered for overtime after 1820, please tell us, and we ll take you of the allocation process when you hit 1820. If you want to be considered for overtime, we ll put you in the order of pick ; that s correct, isn t it?‑‑‑Well, they re already the order of pick. Overtime is clearly in the order of pick.
PN142
Yes?‑‑‑In real terms they don t if they physically don t take themselves off, we continue to allocate them in accordance with the order of pick.
PN143
So it s not the case that people are asked on a shift by shift basis, Look, we ve got a shift we need to fill this Tuesday or tomorrow or, We ve got three shifts next week. It s nothing like that?‑‑‑If they re going into overtime?
PN144
Yes?‑‑‑Well, it s generally because it s a day-to-day allocation, we generally get contacted by the individual and they you know, if they ve said, Look, I m up for overtime , okay, but I don t want to work Tuesday , we tend to, again, within the scope of the order of pick, we will try and accommodate that.
PN145
Well, let s just be clear, you weren t the person that was having those conversations directly with the employees, were you?‑‑‑No, not with the employees, no.
PN146
It was Mr Shane who was having those conversations with employees?‑‑‑Yes. Yes.
PN147
And making it clear to the employees how the system would operate?‑‑‑Reporting directly to me. Yes.
PN148
But the approach that was taken was a, you either make yourself available and you ll be allocated or you make yourself unavailable entirely. It wasn t on a shift by shift basis, was it?‑‑‑Well, that s the initial, but then within the scope of the allocation, people would make a determination on a day-to-day basis as well. So that someone might say, I m available for overtime , but then come along and say, Look, I m available for overtime, but I don t want to work Saturday.
*** MICHAEL O'LEARY XXN MS DOUST
PN149
All right?‑‑‑Or, I m available for overtime, I don t want to work, you know, afternoon shift.
PN150
Sorry, I don t wish to labour the point, Mr O Leary, but you re not the person that deals with any of those situations, are you?‑‑‑No. No.
PN151
You wouldn t know if it was the case that employees were, in fact, being told that they have to make yourselves generally available or generally not available?‑‑‑Yes. We make that decision collectively before we actually inform employees of our of what we require from them. So Mr Shane would have been dealing with these things under direct instructions from myself.
PN152
And the instructions last year were, to this effect, weren t they: If you don t want to be considered for overtime after 1820, please tell us and we ll take you out. If you want to be considered, we ll put you in the order of pick where overtime sits. ?‑‑‑Yes, something along I m not necessarily agreeing with the you know, word for word, but certainly something along that.
PN153
Well, I m quoting you, Mr O Leary. If you just go to that extract before from the transcript?‑‑‑Yes.
PN154
You ll see PN329 of the transcript?‑‑‑Yes.
PN155
Just at the bottom of the page, you ve indicated there that you advised the union about a week ago, so it was the end of May, this time in 2014, that you were proposing to send out a message to PIRs to that effect?‑‑‑Yes. That s what I said then. Yes.
PN156
Yes. So you accept, don t you, employees were confronted with the prospect of having only a few days left in the year with a very different question to what they re being confronted with now, where there s many weeks to go before the end of the year?‑‑‑The question is the same though.
PN157
The question is whether or not they are available for overtime or not available. That s the choice they re being given?‑‑‑The question is the same. Yes.
PN158
Thank you. That s become an exhibit, I think.
PN159
THE COMMISSIONER: The transcript we marked as exhibit 2.
PN160
MS DOUST: Yes. Thank you. Yes. Now, Mr O Leary, just in relation to your paragraph 27, on page 8 of your statement?‑‑‑Yes.
*** MICHAEL O'LEARY XXN MS DOUST
PN161
So the group of employees that you re referring to here, it s the case, isn t it, that so a limited number of those were employees who had completed their 1820 hours in the year? Are you able to break those numbers up further and indicate which had complete their hours and which hadn t?‑‑‑Well as I think I said in the additional information I provided today, of the 76 59 actually hit their hours.
PN162
Yes?‑‑‑How do you want me to break that up? Do you want me to break that up further, do you?
PN163
Of each of these groups. So, for example, in relation to group C, it was the approach of the company last year, was it, that if you didn t make a specific request to be removed from the roster, the company would regard you as available and would allocate you if it wished to?‑‑‑Yes.
PN164
But you don t indicate there whether or not those employees actually performed any shifts?‑‑‑I don t have knowledge in front of me.
PN165
Nothing about the number of shifts that were required to be performed by employees as overtime at the completion of their 1820 hours last year?‑‑‑No.
PN166
Thank you. This year has been a much busier year for Patrick, hasn t it?‑‑‑Yes, it has.
PN167
And this being a large number of extension shifts worked; do you agree with that?‑‑‑In what period? Prior to cutover or post-cutover?
PN168
Well, if we deal with each period at a time?‑‑‑Yes.
PN169
Prior to cutover?‑‑‑No.
PN170
No. Post-cutover, do you agree there s been a number of extension shifts?‑‑‑There s been marginally higher use of extension. Yes.
PN171
Yes. Those are shifts that won t be counted towards the 1820 hours?‑‑‑No. And the employee, PIR and permanent ops employee gets paid that overtime rate in the week that they work the extension.
PN172
Yes?‑‑‑So only eight hours applies to their annual hours.
*** MICHAEL O'LEARY XXN MS DOUST
PN173
Now, so far as you give any evidence as to the question that has been asked of employees I ll withdraw that. I ll take you to paragraph 30 of your statement, Mr O Leary?‑‑‑Yes.
PN174
You give some evidence there as to employees who have already completed their 1820 hours?‑‑‑Yes.
PN175
And whether or not they were willing to work overtime shifts?‑‑‑Yes.
PN176
And so far as there was any communication with employees about their attitude to the working of overtime, it s the case, isn t it, that those are communications that have been carried out by Mr Shane?‑‑‑In general. Yes.
PN177
You haven t been privy to the conversations that have been had with employees?‑‑‑No, I haven t. No. Not directly with the employee.
PN178
Now, it s been reported to you, though, hasn t it, that Mr Shane has communicated to employees along the lines of you either have to make yourself generally available or generally unavailable. There s no halfway?‑‑‑Yes. That's correct.
PN179
That s been communicated to you?‑‑‑Yes.
PN180
And so is that the instruction that you ve given Mr Shane to give to employees about the question of overtime?‑‑‑On the basis that our initial approach to the employees, the general comment back was, Oh, we re not ready to make up our mind yet.
PN181
Yes?‑‑‑And so as we re trying to plan our labour resources, we got to a point where we couldn t plan our future use of labour, based on someone saying, I can t make up my mind yet. So we had to make a decision, and our decision was, well, anyone who says they can t make up their mind, we ll have to count them out.
PN182
I see?‑‑‑That s purely from a planning perspective.
PN183
So your instruction to Mr Shane was, you either have to put your hand and commit to availability or we ll count you. ?‑‑‑That's correct.
*** MICHAEL O'LEARY XXN MS DOUST
PN184
All right. Have you received some feedback from members of the workforce as to their attitude to that approach?‑‑‑I m not sure you really want me to answer that, do you?
PN185
Well, you ve heard back ‑ ‑ ‑ ?‑‑‑Yes, of course.
PN186
‑ ‑ ‑ from employees that they want to be able to be available for some shifts but not available for others? They want to exercise their discretion to choose whether or not to perform a particular overtime shift?‑‑‑I think it s more couched along the lines of, If we were allowed to volunteer for overtime shifts, we would be able to, you know, pick and choose a little bit in terms of the availability.
PN187
So you re under no confusion that an issue for employees at the site is that they want to be able to choose which overtime shifts they perform?‑‑‑But it s they want to be able to choose when to work, but it s not because of the question we re asking them, it s because of the situation that we re here for. They re being stopped from volunteering.
PN188
Well, we ll move in to that area eventually, Mr O Leary?‑‑‑But you re trying to sorry, I won t argue with you. No, sorry.
PN189
Best not?‑‑‑No.
PN190
We ll deal with that question about your views about MUA later?‑‑‑Yes. Sorry. Sorry.
PN191
So far as the employees are concerned you re aware that some employees have been annoyed about the idea that they would like to be able to pick and choose which shifts they perform and don t want to be regarded as available for allocation generally?‑‑‑But that s just a normal part of the day-to-day operation at Botany. People seek to vary their working arrangements every day, and so it s not an unusual thing to have that sort of feedback.
PN192
Yes?‑‑‑But we can t run a business unless we have some guarantee of the labour that s available.
*** MICHAEL O'LEARY XXN MS DOUST
PN193
And you don t disagree at all, do you, that the enterprise agreement leaves the performance of overtime hours by anyone who s acquitted their 1820 annual counted hours in a year, as a matter which is completely at their discretion and completely voluntary?‑‑‑It s voluntary. Yes.
PN194
Yes. Now, so far as the MUA is concerned you don t give any evidence, do you, about there having been any instruction by any officer or delegate of the MUA to anyone in relation to the question of this work?‑‑‑I work to, in my evidence, to my conversation with Mr Keating.
PN195
Yes?‑‑‑And Mr Freestone.
PN196
Well, see what I want to ‑ ‑ ‑ ?‑‑‑I think that s a fairly ‑ ‑ ‑
PN197
‑ ‑ ‑ suggest to you about that is that what was being put to you there was simply a statement of the terms of the enterprise agreement; that's correct, isn t it?
PN198
MR PERRY: Perhaps if my friend could be a bit more specific about it.
PN199
MS DOUST: I ll break it up. I withdraw that. I ll break it up. I ll take you to the first thing you attribute to Mr Keating, Mr O Leary?‑‑‑This is paragraph?
PN200
I m sorry, paragraph 41?‑‑‑Forty-one. Forty-one, yes.
PN201
Now, you say there that Mr Keating said words to the effect of, When they get to 1820 it s voluntary. ?‑‑‑That's correct.
PN202
Don t disagree with that, do you?‑‑‑No.
PN203
Agree that that is a correct statement ‑ ‑ ‑ ?‑‑‑Sorry. I don t disagree that that should be said.
PN204
I m sorry?‑‑‑Yes, sorry.
PN205
You don t disagree that that is a correct statement of the terms of the enterprise agreement so far as it concerns the obligations of PIRs once they ve hit their 1820 hours?‑‑‑Again, he s selectively quoting the enterprise agreement. I haven t got the enterprise agreement. Yes, I have got it in front of me.
PN206
It s annexed?‑‑‑I m sorry. I m sorry, it s in the ‑ ‑ ‑
*** MICHAEL O'LEARY XXN MS DOUST
PN207
It s the first annexure?‑‑‑Yes, sorry. I mean, if you go to the 10.14.
PN208
Yes. I ll just help you, if you go to page 109 on the bottom right-hand of that document?‑‑‑Yes. Yes. Sorry, I should know this off by heart. Yes. So he s quoted he s what do you call it he s put it in to a very brief statement, a larger paragraph.
PN209
Is it your view, is it, that there is another part of the enterprise agreement which contradicts the terms of clause 10.14?‑‑‑Not in respect of PIR overtime specifically.
PN210
Yes?‑‑‑There s a clause in the agreement about extensions and the way that operates, and so I wouldn t put it in that category, but certainly all of the PIR arrangements are contained in part D, which is the Port Botany - because PIRs don t so there was no other reference, if you like, to PIR in the part A of the agreement.
PN211
All right. Well, then can we come back to this proposition, what Mr Keating is saying there about the employees obligations is absolutely correct, having regard to the terms of the enterprise agreement?‑‑‑Yes. That's correct.
PN212
All right. I ll got to the second thing that you attribute to Mr Keating in that paragraph. You say Mr Keating says:
PN213
Well, I m right, everything after 1820 is voluntary and that s what I ve told the guys.
PN214
Now, again, so far as the proposition about everything after 1820 is voluntary, you don t disagree I m sorry I ll try and eliminate the double negatives. You agree, don t you, the statement, everything after 1820 is voluntary, is an absolutely correct statement, having regard to the terms of the enterprise agreement?‑‑‑I have no issue with that concept.
PN215
And so far as employees have been told, any hours after 1820 is voluntary, you could have no disagreement with that being told to an employee, could you; a PIR?‑‑‑As a statement of fact. No.
PN216
Yes. Now, I ll just take you back for a moment, if you don t mind, to paragraph 39 on the previous page?‑‑‑Thirty-nine?
*** MICHAEL O'LEARY XXN MS DOUST
PN217
Yes?‑‑‑Yes.
PN218
You refer there to delays in certain vessels?‑‑‑Yes.
PN219
My understanding, or how I read paragraph 39 of your statement, is that you re saying there that these delays have occurred as a consequence of the disruption following the completion of the automation process?‑‑‑That s one aspect of it. Yes.
PN220
All right. You don t attribute this to any decision on the part of any PIR to either make themselves available or not make themselves available for overtime, do you?‑‑‑Well, at the point of making this statement, we were only just moving into the point of lack of numbers because of VPIR refusal to work overtime, so the majority of these delays are only going to get exacerbated moving forward.
PN221
And one step that you haven t taken, in all of this process, in terms of communication with employees, is to say, for example, in the week commencing 31 May I m not sure, do you commence Mondays or Sundays?‑‑‑Monday.
PN222
In the week commencing 1 July, we have this many shifts available for overtime. Do I have any volunteers? That is not an approach that s been canvassed?‑‑‑Well, it s not possible in the way the operation works.
PN223
It s the case, isn t it, that you have means to communicate with the employees by text messages and the like?‑‑‑Yes.
PN224
And you, on a day-to-day basis, make an assessment as to who s required for the coming shifts and so on?‑‑‑The following shifts.
PN225
You have a range of options available to you in the way in which you might communicate with employees about meeting labour requirements?‑‑‑Yes.
PN226
I ll give you an example?‑‑‑Yes.
PN227
One thing you might do is use your text message system to inquire about volunteers during the course of a given week?‑‑‑We have done that. Yes.
*** MICHAEL O'LEARY XXN MS DOUST
PN228
Or you could inquire about volunteers for any particular period of time, be it a day, a week, a fortnight or a month?‑‑‑I m not sure we ve gone into that detail previously, but it s available. Yes.
PN229
It is logistically possible for the company to do that, but it chooses, for its own convenience, effectively, or efficiency, not to undertake that sort of process?‑‑‑But I mean that s the nature of shipping. I mean, that s the I mean, we ve just had a massive storm hit Sydney recently, and we shut down for four days.
PN230
Yes?‑‑‑So it was no good seeking people to work overtime while we re shut down for four days. But we didn t know that was going to happen until the day of the storm. So, I mean, it s it changes daily. I mean, in terms of labour requirements, so someone could come along and say, Look, I can only work Monday or Friday , whatever. It just it doesn t work that way. And the employees take have ample opportunity to seek variations to their daily roster, and which they do through the use of the PeopleSoft Kiosk where they can make applications for debit and credit hours or scratch days or rostered days off, day in lieu. It s a daily mish mash of, sort of, a number of options.
PN231
Do you accept this, Mr O Leary, were you involved in negotiating the enterprise agreement?‑‑‑Yes.
PN232
And had it been the case that you wished to institute a rule or practice that employees could only be, either generally available for overtime, or generally not, that s something that should perhaps have been reflected in the agreement; do you agree with that proposition?‑‑‑No, I think that s a management prerogative I would have thought.
PN233
I want to suggest to you this: it s inconsistent with the notion of overtime being entirely voluntary to take that approach; that you either volunteer for everything or you re not allocated at all?‑‑‑But, I mean, the only reason we ve got to that point, is because we re very clearly not getting volunteers. I mean, that s the process that we ve found ourselves in. When we started to communicate with our employees about the options available coming forward, there s very much in the waterfront, a general expectation that people actually like to work overtime to a degree, and when we started to find that we were getting a sort of a brick wall on these things, we started to look at what options we had, so, I mean, I don t see any difficulty in that approach that we ve taken.
*** MICHAEL O'LEARY XXN MS DOUST
PN234
Well, I ll just take you back to a couple of parts of that answer, Mr O Leary. I think I asked you about that approach being inconsistent with the terms of the agreement which talks about an employee volunteering and overtime being voluntary, but that s inconsistent with this approach of needing to be completely free for allocation or not at all, taken off the list?‑‑‑But, I mean, there s ways of determining whether you re a volunteer or not. I mean, you can say no, or you can say I mean, there are different it s not a black and white answer. It just can t be.
PN235
Just in terms of the no, I withdraw that. Would your Honour just excuse me for a moment? Can I ask you just a couple more things? I won t hold you up much longer, Mr O Leary?‑‑‑No.
PN236
Have you had a conversation recently with Mr Stewart about his circumstance in relation to availability for overtime?‑‑‑I m unsure what me, specifically, about whether or not he would work overtime?
PN237
Yes. Yes. Have you been involved in any discussions with him about his situation once he completed his 1820 hours?‑‑‑I ve spoken to Mr Stewart about a range of things?‑‑‑Yes.
PN238
I mean, he s indicated to me that he wasn t putting himself up for overtime? One of the things, I d suggest, Mr Stewart I withdraw that. Did Mr Stewart have a discussion with you where he said that, after completing his 1820 hours he d been allocated on a Saturday and Sunday, did you become aware of that?‑‑‑Yes. Yes.
PN239
And he said he wasn t interested in working the Saturday or Sunday?‑‑‑I think he actually said to me he would work the Sunday and see where next week I think he worked the Sunday actually.
PN240
All right?‑‑‑Yes.
PN241
So far as he was concerned he had an objection to some of the allocation but otherwise had some willingness to work overtime?‑‑‑Because he d been allocated he indicated to me he was going to work it.
PN242
And, in fact, you were aware, weren t you, that he had, in fact, worked what s considered as overtime by attending at the workplace on several days after the completion of his 1820 hours to attend meetings of the ERC on site? You re aware of that?‑‑‑When we allocate ERC meetings, the ERC has a number of people, and they have a number of alternates.
PN243
Yes?‑‑‑Okay. People who are rostered off are not generally expected to attend ERC meetings. If they do attend they attend on their own time.
*** MICHAEL O'LEARY XXN MS DOUST
PN244
Yes?‑‑‑If they re on roster, and they are allocated to attend the ERC meeting, we cover the cost of that.
PN245
Yes. Were you aware of this: Mr Stewart s position was he d passed his 1820 hours and he hadn t given any indication to the company about whether he was willing or not to work any overtime shift, or available generally. He was allocated to work thereafter. Were you aware of that?‑‑‑Allocated to the meeting, are you talking about, or ‑ ‑ ‑
PN246
He was allocated to shifts after completing is 1820 hours?‑‑‑Yes, that s the weekend we were talking about. Yes.
PN247
And there was no communication by the company, prior to that point, to ascertain his willingness, was there?‑‑‑I m not I don t have the answer to that.
PN248
You were aware, weren t you, that Mr Stewart had been in contact with Mr Mio and said, when he found out he d been allocated to Saturday and Sunday, I haven t volunteered. You ve put me on without volunteering. Were you aware that he d made that complaint?‑‑‑To Mr Shane?
PN249
Yes. I m sorry?‑‑‑Yes. That s all right. Mio Shane, yes.
PN250
Mr Mio Shane?‑‑‑Yes.
PN251
I m sorry. Yes?‑‑‑I m not aware that he actually complained to Mio himself. He did say to me that he d been allocated but he was going to work anyway. He didn t want to be allocated, he d been allocated, and he was going to work.
PN252
But you re aware, aren t you, that he d attended on the Saturday so that he wouldn t be regarded as failing to report, and said, Look, I ll get the shift started, and then I ll go off, and the supervisor told him, Oh, well, no, I ll have to treat that as sick leave if you re not performing the shift. ?‑‑‑No, I wasn t aware of that.
PN253
Not aware of that?‑‑‑No.
PN254
And that would be the approach that supervisors would take if someone was allocated to a shift and then didn t attend?‑‑‑And couldn t complete the shift?
*** MICHAEL O'LEARY XXN MS DOUST
PN255
Yes?‑‑‑Yes. That's right. Yes. They d be ‑ ‑ ‑
PN256
Yes, didn t ‑ ‑ ‑ ?‑‑‑Yes, people would be booked in for sick leave for the balance of the shift.
PN257
So, they d be allocated a shift, and if they didn t attend, they d be regarded as failing to report? If they left early, that would be regarded as sick leave?‑‑‑Well, failed to report would normally trigger an application for personal leave anyway.
PN258
Yes?‑‑‑Yes. So a personal leave day would be, sort of, pursued in either in both circumstances you talk about.
PN259
Yes?‑‑‑Yes.
PN260
Now, and you re aware, aren t you, that Mr Stewart or as Mr Stewart told you, that Mr Mio Shane has made it clear to people, you re either on the roster or not? It s either all in or not in at all?‑‑‑And that s yes, you ve asked that question a number of times, I think.
PN261
So that s made been made clear to you that that s what s been communicated to employees?‑‑‑Yes. That's correct. That's correct.
PN262
And has Mr Stewart told you about his personal circumstances at the moment?‑‑‑Again, I m no. I m not sure what you re referring to. Do I know his personal life?
PN263
Were you aware, for example, that Mr Stewart had a week s leave and a week s rostered days off scheduled?‑‑‑Yes.
PN264
And that he was taking advantage of the time that would be available to him before the end of the year to spend some additional time with his children?‑‑‑I m not quite sure that that s the reason why the annual leave was booked in.
PN265
He hadn t expressed that to you about the period between now and the end of the year?‑‑‑No.
*** MICHAEL O'LEARY XXN MS DOUST
PN266
But he s expressed the position to you that, given the choice between either being regarded as available for everything or bowing out of the roster, he d take the bowing out of the roster?‑‑‑Again, he s indicated to me, on various occasions, that he would work some overtime.
PN267
Yes?‑‑‑But at the moment he s one of those people who have indicated no.
PN268
So no basis to think that Mr Stewart is someone who is just implementing some sort of rule that he s opposed to working overtime on any terms?‑‑‑Well, at the moment he s saying no, as with ‑ ‑ ‑
PN269
Well, he s indicated, hasn t he, that he ‑ ‑ ‑ ?‑‑‑ ‑ ‑ ‑100 per cent of his fellow workers.
PN270
Well, Mr O Leary, what you ve just indicated to me is that he s indicated no. By that you mean he s said, I m not available to be allocated for absolutely everything you give me, but I m willing to work some overtime. ?‑‑‑Yes. But he applied for annual leave.
PN271
Yes?‑‑‑Yes. And I m not sure you understand.
PN272
Annual leave is one week, isn t it?‑‑‑No. But do you understand the impact of annual leave, when you break 1820?
PN273
You get double time for that period, don t you?‑‑‑In addition to your annual leave payment.
PN274
Yes. Yes?‑‑‑So we don t put any we don t let anyone take annual leave that takes them into a plus 1820 basis, because it s double dipping.
PN275
It s the situation, isn t it, Mr O Leary, that Mr Stewart s annual leave, was approved some time ago, wasn t it?‑‑‑It would have been. Yes.
PN276
You re not privy to that process?‑‑‑I don t have that date. No.
Thank you. Could you just excuse me for a moment, Commissioner? Thank you. Nothing further, Commissioner.
RE-EXAMINATION BY MR PERRY [3.06 PM]
*** MICHAEL O'LEARY RXN MR PERRY
PN278
MR PERRY: You were just asked about your conversation with Mr Stewart, Mr O Leary, and could you tell the Commission well, and I think you gave some evidence that he advised you he had not put up for overtime, were your words. Did he say why was that was the case?‑‑‑Yes. He d been instructed by the union not to apply.
PN279
And those were his words?‑‑‑Yes. That's right.
PN280
Yes. And you re certain of that?‑‑‑Absolutely.
PN281
Yes. Can I ask you to have a look, Mr O Leary, at the document which is exhibit 3, which is the list of employee notes. Yes?‑‑‑Yes.
PN282
I think you mentioned that you were concerned there were names of employees on that list. Why do you say that?‑‑‑I m sorry?
PN283
You were concerned there were names of employees on this list. What concerned you about that?‑‑‑Because we make it very clear at the ERC committee meetings that, in providing the information that we provide, that there s a privacy issue about people s names being published, and we generally take all of these back at the end of an ERC committee meeting. And this document actually gets put on to the notice boards. It s part of the enterprise agreement requirement, and when we put it on the notice board we take the names off for privacy reasons.
PN284
Now, in that document, Mr O Leary, and you can just see the fourth column, which says target hours 1760 ?‑‑‑Yes.
PN285
Are you able to explain to the Commission that number?‑‑‑It s basically a calculation of dividing the 52 weeks up by and divide it by hours it s 52 into 1820. There s I think it comes out to 40.
PN286
Okay?‑‑‑Something but I m not quite sure off the top of my head. Look, the 1820 is made up of 47 weeks of 35 hours, which is 1645, 175 hours of annual leave, which is your 1820. And, so, effectively, if you divide 1645 sorry, if you divide 1820 by 47 and take the annual leave out, you actually get an average sort of weekly arrangement. And so, effectively, it s about 38.6 hours a week it works out to, is the, sort of, the running total.
PN287
Yes?‑‑‑I mean, I can go into more detail about that if you like, but it s a running total.
*** MICHAEL O'LEARY RXN MR PERRY
PN288
No, no. But, what I was ‑ ‑ ‑ ?‑‑‑It s an estimate.
PN289
‑ ‑ ‑ going to ask you is this, Mr O Leary: is in your statement you talk about an annual target of 1820?‑‑‑Yes.
PN290
And this document refers to 1760?‑‑‑Yes.
PN291
Are we to compare the actual hours in this document to the 1760 or to the 1820?‑‑‑To the 1760.
PN292
Yes?‑‑‑Yes.
PN293
So that an employee, in this document, who has actual hours of 1760 or more, has completed their annual hours?‑‑‑That s correct.
PN294
Yes?‑‑‑That's correct.
PN295
And how many hours does an employee work in a shift?‑‑‑Eight.
PN296
Eight. So, if I could ask you just to, for example, on the document towards about four-fifths of the way down there s a Christian Mifsud?‑‑‑Yes.
PN297
1788 hours. Can you see that?‑‑‑Yes.
PN298
How many more shifts would he need to work to hit his annual target?‑‑‑Four.
PN299
Just a little bit below halfway down the page, there is a Mr Benjamin Bartello, who has got about 1780 hours. How many more shifts would he need to work?‑‑‑Five.
PN300
It was about two weeks of the year left when this document was created?‑‑‑That's correct.
PN301
In the case of Mr Bartello, he would need to work another five shifts?‑‑‑That's correct.
*** MICHAEL O'LEARY RXN MR PERRY
PN302
In the case of Mr Mifsud, another four shifts. The other employees, around them - - -?‑‑‑In the remaining 13 days of the year, yes.
PN303
For the year that that document relates to that is the year ended 30 June 2014 you were asked some questions about whether you had information about the amount of overtime worked by people within the 76?‑‑‑Yes.
PN304
I think your evidence was you didn't have that specific information. Are you able to indicate anything additional to the Commission about the extent to which overtime was worked?‑‑‑Look, in general terms, in that year I think the maximum amount of overtime was about 40 hours per person for an individual person.
PN305
Yes, for an individual. Your evidence is that for an individual on the list, which is exhibit 3, who worked overtime, the average was about 40 hours?‑‑‑Yes.
PN306
MS DOUST: No, the maximum.
PN307
MR PERRY: I withdraw that then. My friend is right. He did say maximum?‑‑‑Yes.
PN308
The maximum was about 40 hours?‑‑‑Yes, that's correct. Sorry, I misheard you.
PN309
Did more or less employees on that list work some overtime?‑‑‑More.
PN310
More worked overtime than not?‑‑‑Yes.
PN311
A little bit more or substantially more?‑‑‑Well, again, what was available. Again, what was available, so - - -
PN312
Yes?‑‑‑There was no difficulty in getting people to apply for overtime.
PN313
You were asked a lot of questions by my friend about employees being generally available to work overtime. Can I ask you this: when an employee indicates that they do or they do not wish to work overtime, is that a final and binding indication?‑‑‑It has to be. It has to be, because we can't obviously make an assessment on the day prior about who is available or not and then find that people decide to pull out at the last moment.
*** MICHAEL O'LEARY RXN MR PERRY
PN314
But for a future period, could that indication be changed?‑‑‑It still depends very much on shipping and all of that, but, yes, I mean, we're certainly capable of taking the application in that manner.
PN315
So if an employee were to come forward and say, "I do not wish to volunteer to work overtime," what would the company do?‑‑‑Again, we'd make an assessment of our labour requirements and all those. If we had enough labour, we'd most probably accept it. If we didn't have enough labour, we would work with the individual to get access to their availability.
PN316
My friend asked you some other questions and your answer was it was not possible to ask employees each week, for example. Why is that?‑‑‑Again, it's just the nature of shipping. You know, we have daily changes in requirements for various aspects of the operation. People can you know, we can find ourselves with a large export requirement and, therefore, we build up the resources within our delivery processes. We can have a more difficult vessel in terms of lashing and unlashing, and so more people are required to perform a similar function. There is just a daily estimation of these things. It's an estimation daily. I suppose that's what the issue is.
PN317
My friend asked you some questions about the comments you attribute to Mr Keating in paragraph 41 of your statement?‑‑‑Yes.
PN318
What was it that concerned you about what Mr Keating said there?‑‑‑From my experience, a union official standing in front of a group of people talking about specific facts usually is a very clear directive about what needs to be undertaken. I made the point to Mr Keating that he could have delivered the same message about it being involuntary after 1820, but certainly with an addendum to that to say that, you know, "You are aware that the company you personally are aware that the company is struggling with labour resources and therefore whilst it is voluntary, people should give some consideration to volunteering." That's a different message completely.
PN319
Mr O'Leary, you gave some evidence a moment ago about what Mr Stewart told you about the instruction he had received from the union. Have you had any other conversations with other employees about that matter?‑‑‑Yes.
PN320
How many employees?‑‑‑About three.
*** MICHAEL O'LEARY RXN MR PERRY
PN321
What sort of comments did they make to you?‑‑‑They made the point that whilst they were happy to work and make themselves available off overtime, it wasn't worth the hassle of being seen to be outside the collective.
PN322
By the collective, you mean - - -?‑‑‑The union instructions.
PN323
MS DOUST: Can I just indicate a general objection about form. This all being addressed in a style of generality, I think that is unhelpful to the Commission if there's no identification of the source and it's not put in precise words, I think it's rather likely to - - -
PN324
THE COMMISSIONER: It's probably also venturing into new territory for which you hadn't had the opportunity to cross‑examine, as well.
PN325
MS DOUST: Yes.
PN326
MR PERRY: Well, with respect, my friend went there, Commissioner. She asked the witness some questions about the conversation with Mr Stewart and - - -
PN327
THE COMMISSIONER: Not with others.
PN328
MS DOUST: No, I did ask some questions about the others, Commissioner, and that was to the effect that Mr O'Leary wasn't the person who had those sorts of dealings. That's how I addressed it.
PN329
THE COMMISSIONER: We didn't get any evidence about that during cross.
PN330
MR PERRY: I'm loathe to press on, given I'd prefer not to identify employees, Commissioner. We have the evidence as to what Mr Stewart said and I needn't pursue the matter further. There is nothing further.
PN331
THE COMMISSIONER: Nothing further?
PN332
MR PERRY: Might the witness be excused.
THE COMMISSIONER: You're released and discharged. Thank you for giving your evidence?‑‑‑Thanks, Commissioner.
*** MICHAEL O'LEARY RXN MR PERRY
<THE WITNESS WITHDREW [3.19 PM]
PN334
MR PERRY: I call Trevor Woodward, if it please the Commission.
PN335
THE ASSOCIATE: State your full name and address.
MR WOODWARD: Trevor John Woodward, (address supplied).
<TREVOR JOHN WOODWARD, SWORN [3.21 PM]
EXAMINATION-IN-CHIEF BY MR PERRY [3.21 PM]
PN337
MR PERRY: Could you please state your full name for the record?‑‑‑Trevor John Woodward.
PN338
Thank you, Mr Woodward. What is your position of employment?‑‑‑Allocations supervisor.
PN339
Who do you work for?‑‑‑Patrick Stevedores.
PN340
Mr Woodward, have you had a statement prepared for the purpose of these proceedings?‑‑‑Yes, I have.
PN341
Is it a statement which is three pages long?‑‑‑That's correct.
PN342
Do you have that statement with you?‑‑‑I do.
PN343
Are the contents of that statement true and correct to the best of your knowledge and belief?‑‑‑To the best of my knowledge, yes.
PN344
Nothing further, Commissioner.
PN345
THE COMMISSIONER: Is there any objection to the admission of the statement?
PN346
MS DOUST: Excuse me for a moment, Commissioner. No.
*** TREVOR JOHN WOODWARD XN MR PERRY
THE COMMISSIONER: No? Thank you. The document is tendered and admitted without objection. This becomes exhibit 4. Exhibit 4 is described as the witness statement of Trevor Woodward, dated 27 May 2015.
EXHIBIT #4 WITNESS STATEMENT OF TREVOR WOODWARD DATED 27/05/2015
CROSS-EXAMINATION BY MS DOUST [3.22 PM]
PN348
MS DOUST: Mr Woodward, you refer to Mr Gilefsky in your statement, about him achieving his annual hours in the first week of May?‑‑‑That's correct.
PN349
That was substantially earlier than when the first employees achieved their annual counted hours in 2014, wasn't it?‑‑‑Yes, it was.
PN350
In 2014, the first employee didn't hit their annual counted hours until about 17 June. Is that correct?‑‑‑I'm not sure of the correct date, no.
PN351
But you're familiar, are you, generally, that it certainly wasn't until June?‑‑‑Yes, that would be correct.
PN352
Much later than what it was this year?‑‑‑Yes.
PN353
So in this year on the whole, PIRs have been rostered at a greater rate than last year; so more average hours per month?‑‑‑Yes, that would be correct.
PN354
In addition to that, would you agree with this: there has been a large number of extension shifts been carried out during the course of this financial year?‑‑‑Look, I'm not sure. I do the allocations. I don't do the payroll side of it, so I don't have access to that information.
PN355
Have you been involved in communications directly with employees about inquiring as to their availability for overtime?‑‑‑Yes. I have in some cases, yes.
PN356
Is that generally something that's handled by Mr Mio Shane?‑‑‑We share that role.
PN357
Yes, all right. Were you involved in the rostering of Mr Stewart after he met his 1820 hours this year?‑‑‑Yes, I was.
*** TREVOR JOHN WOODWARD XXN MS DOUST
PN358
I think he ticked off his hours on about 22 May. Does that sound familiar to you?‑‑‑I'm not a hundred per cent sure of that date.
PN359
Are you able to say this: there had been no communication with him prior to meeting those 1820 hours? He was allocated for some shifts after the completion of the 1820?‑‑‑I didn't talk to Mr Stewart about his availability after completing his 1820 hours, no.
PN360
All right. So far as you know, had Mr Shane spoken with him about his availability or willingness after he had completed 1820 hours?‑‑‑Not to my knowledge. I don't know.
PN361
Is it your practice that you will simply proceed to allocate people to shifts unless they mark themselves out as unavailable?‑‑‑Yes. That was the practice I was undertaking, yes.
PN362
Do you recall this: Mr Stewart was allocated to work a Saturday and a Sunday shift?‑‑‑Which Saturday, Sunday shift, sorry?
PN363
He completed his hours in about the week commencing around about 18 or 20 May?‑‑‑Yes.
PN364
On the weekend of the 23rd and 24th, he was allocated, wasn't he?‑‑‑Yes, I think that's correct.
PN365
You refer in your statement to 24 May?‑‑‑Yes. What we do there, if one of the employees' PIRs comes to us and he has completed his hours, we would lock him out of the system so the system didn't pick him up pick that person up.
PN366
That would only happen where the person has said, "Take me out altogether"?‑‑‑That's correct.
PN367
So otherwise you would just proceed to simply roster that person without any consultation?‑‑‑There was a period where we did ring some employees to see if they wanted - - -
PN368
Yes?‑‑‑We spoke to some employees to see if they wanted to continue on. Most of that response was, "We'll see what happens," or, "We'll get back to you." That sort of feedback we got.
*** TREVOR JOHN WOODWARD XXN MS DOUST
PN369
What was that period?‑‑‑Look, we would have commenced that approximately three weeks ago.
PN370
So early in May?‑‑‑Yes. Roughly, yes.
PN371
Early in May, you were asking employees, "Are you going to be on the roster after you did your 1820 hours?" and the responses you were getting were along the lines of, "I'll decide when I hit it"?‑‑‑That was part of the responses, yes.
PN372
You refer to a conversation with Mr Lang regarding Mr Stewart?‑‑‑Yes.
PN373
You understood that Mr Stewart was unhappy about having been allocated to a Saturday and Sunday overtime shift without him having volunteered or having been asked?‑‑‑That's correct, yes.
PN374
The view that you communicated back was this: if he objected, he would have to be taken off the roster altogether?‑‑‑If he objected?
PN375
Yes?‑‑‑Basically what I'm saying is what I've said with everyone. Michael would have to let me know, as I said before, if he wanted to be left off the roster. Otherwise, if he exceeded his hours and hadn't let me know, I would pick him up.
PN376
You're saying he needs to be taken out of the allocation process altogether or be, I guess, available without qualification?‑‑‑I don't really understand what you're saying there.
PN377
I appreciate that. I'm sorry, I'll try and be clearer. What you were saying there was when you became aware of this concern about the Saturday and Sunday shift, you were saying, "Michael would need to let me know if he wanted to be left off the roster." That's your words that you have in your statement?‑‑‑When Jason Lang asked me that question, all he said was Michael said words to the effect that he was a bit upset or a bit cranky or whatever, that he was picked up after he reached his 1820. My reply, as in the statement, is, "Look, it's up to Michael to come and let me know if he wants to drop off the roster."
PN378
Yes. Now, by "drop off the roster", you mean be taken altogether out of the group of employees to be allocated?‑‑‑Yes. Un‑volunteer, yes. That's correct.
*** TREVOR JOHN WOODWARD XXN MS DOUST
PN379
Do you know what became of those Saturday and Sunday shifts that Mr Stewart performed?‑‑‑What became of them? He would have got hours for them and if they were over his 1820, which I believe they were, he would be paid overtime accordingly.
PN380
All right. But in terms of what actually happened in relation to those shifts, are you aware that he turned up on the Saturday having attempted to communicate with Mr Mio Shane on the Friday night and not being able to get through to him and tell him, "No, I didn't want to be allocated to the Saturday?" Are you aware of that having happened?‑‑‑No, I'm not aware of that.
PN381
Are you aware of him turning up at the shift on that day and saying, "Look, I'm just here because my name is on the list, but I didn't want to do it," and then saying, "I'll get you started, but I'm not going to hang around for the whole shift," and then being docked sick pay in respect of that day?‑‑‑I'm not aware of that.
PN382
You would agree with me, wouldn't you, the practice that would occur if you didn't turn up to a shift that you were allocated to is you would be regarded as failing to report?‑‑‑That's correct.
PN383
That would be something that would have disciplinary consequences?‑‑‑Well, yes. We'd investigate that obviously afterwards, yes.
Thank you. Nothing further.
RE-EXAMINATION BY MR PERRY [3.31 PM]
PN385
MR PERRY: Just the final question you answered there, Mr Woodward, when you said you would investigate that, what did you mean by that?‑‑‑Look, what would happen if an employee doesn't ring up and say, "I'm not coming to work," for whatever reason, that's marked down on our allocation sheets that the shift managers possess and they would write "FTR" which means, you know, they've failed to report; we haven't heard from that person. Obviously we would get in touch with that person or, on their next shift, we would sit down and ask them what happened. Basically, "Where were you? Why didn't you contact us? Is everything okay?" That sort of thing.
PN386
If the employee were to say, "I didn't wish to volunteer to work the shift," what would your reaction to that be?‑‑‑If the sorry, can you repeat that?
*** TREVOR JOHN WOODWARD RXN MR PERRY
PN387
If in that situation the employee said, "I didn't want to volunteer because I've done my hours. I didn't want to volunteer," what would your attitude to the FTR be in that circumstance?‑‑‑Look, it probably really hasn't been tested out, but I would have thought that, you know, "The decency would be to let us know that you wanted to drop off the roster."
PN388
There's nothing further, Commissioner.
THE COMMISSIONER: Thank you for giving your evidence. You're released and discharged. You can leave?‑‑‑Thank you.
<THE WITNESS WITHDREW [3.33 PM]
PN390
MR PERRY: That is the evidentiary case for the applicant, Commissioner.
PN391
THE COMMISSIONER: Thank you. Ms Doust, did you want a short break so that you could discuss something or should we take a short break of five or 10 minutes maximum?
PN392
MS DOUST: Five minutes, Commissioner.
PN393
THE COMMISSIONER: Five minutes. We'll take a short break.
SHORT ADJOURNMENT [3.33 PM]
RESUMED [4.06 PM]
PN394
THE COMMISSIONER: Ms Doust?
PN395
MS DOUST: Yes, I call Mr Stewart.
PN396
THE ASSOCIATE: Please state your full name and address.
MR STEWART: Michael Scott Stewart, (address supplied).
<MICHAEL SCOTT STEWART, SWORN [4.06 PM]
EXAMINATION-IN-CHIEF BY MS DOUST [4.06 PM]
PN398
MS DOUST: Is your name Michael Stewart?‑‑‑Yes.
*** MICHAEL SCOTT STEWART XN MS DOUST
PN399
Do you live at (address supplied)?‑‑‑Yes.
PN400
Are you a stevedore?‑‑‑Yes.
PN401
Employed by Patrick Stevedores at Port Botany?‑‑‑Yes.
PN402
You're a workplace delegate there?‑‑‑Yes.
PN403
And a member of the employment review committee? Is that the right name?‑‑‑"Representative". Employee representative committee.
PN404
I'm sorry, employee representative committee?‑‑‑Yes.
PN405
How long have you been employed most recently at Port Botany by Patrick Stevedores?‑‑‑I'm pretty confident it's just under five years. I think it was the end of 2010, I started back there.
PN406
You're currently a PIR? That is a permanent irregular employee?‑‑‑Yes.
PN407
How long have you been a permanent irregular employee?‑‑‑Since the implementation of the roster.
PN408
You agree that that's sometime in 2013?‑‑‑Yes.
PN409
I will take you back to 2014. Do you remember whether or not in that year you met your annual counted hours target of 1820 hours?‑‑‑I'm pretty confident I met my hours, but it was only by I'm pretty sure it was by less than a week.
PN410
Yes?‑‑‑Nothing like it is now at the moment.
PN411
When you say you met the hours by less than a week, do you mean that it was within a week of 30 June 2014 when you hit that target of 1820 hours?‑‑‑Yes.
*** MICHAEL SCOTT STEWART XN MS DOUST
PN412
After achieving those hours, did you work any overtime shift?‑‑‑Once again, I'm pretty sure I could have done a couple of shifts, but considering it was a week or more of there wasn't a feeling at the time of going volunteer or un‑volunteer, whatever the process was. It was such a short period of time, no-one really bothered about it. It was to see the end of the week out, you what I mean, so - - -
PN413
Yes. Was there any communication between yourself and the employer about whether or not you wished to volunteer to perform some hours that year or otherwise?‑‑‑No, but I didn't personally volunteer. It was just at the time we left ourselves on and if you got picked up, you got picked up, but, as I said, it was only that week period of time, which is a lot easier to handle than five weeks.
PN414
This year, can you tell me, have you met your 1820 hours?‑‑‑Yes.
PN415
When did you meet your 1820 hours?‑‑‑It was last Monday or Tuesday.
PN416
When you say last Monday or Tuesday - - -?‑‑‑The 13th, roughly, I think the date might - - -
PN417
Well, if I tell you that the Monday just passed was the 25th - - -?‑‑‑Yes.
PN418
- - - does that sound correct or might it be the Monday before, which was 18 May?‑‑‑Yes, the 18th. Monday prior, yes.
PN419
Do you know precisely which day you met your target?‑‑‑Precisely, no, but it was definitely the Monday or the Tuesday.
PN420
How did you know that you were going to meet the target on those days?‑‑‑Well, on our pay slip you have the hours printed every fortnight, so I counted back from the pay period and worked out the shifts I worked since, and knew when I was coming to my hours.
PN421
Had you given any thought, prior to meeting those hours, as to what you would do once you'd met those hours?‑‑‑Not really. I didn't give it much thought, no, because it's a five‑week period. At the moment, I'm on annual leave. I've got a rostered week off.
PN422
Yes?‑‑‑You know, I thought I'd reassess come the time. Like, to give a judgment on a five-week period is just a little bit - - -
*** MICHAEL SCOTT STEWART XN MS DOUST
PN423
At the time you met your annual counted hours, the 1820 hours mark, was there any communication to you from the employer about whether you wished to volunteer for overtime after that time?‑‑‑Not at that time. Not at that exact time, no.
PN424
Did you in fact perform some overtime following meeting your annual counted hours?‑‑‑Yes, I performed overtime. Three of the days were meetings regarding the ERC and the Part B negotiations. They were compulsory, you know, but the Saturday and Sunday of that week, yes, I was rostered on and I hadn't spoken to anyone about volunteering or un‑volunteering.
PN425
When did you find out you were rostered on?‑‑‑During the Friday of the ERC meeting.
PN426
What was your attitude as to whether or not you wanted to perform those overtime shifts?‑‑‑Well, I was just on the belief it was voluntary, so I didn't you know.
PN427
Were they shifts that you wanted to volunteer to perform?‑‑‑A hundred per cent yes, it's - you know, voluntary, yes.
PN428
No, I'm sorry. I think we might be at cross‑purposes?‑‑‑Sorry, yes.
PN429
In relation to the Saturday and Sunday shifts - - -?‑‑‑Yes.
PN430
- - - were they shifts that you wanted to volunteer to perform?‑‑‑No. Sorry, no, I hadn't volunteered. No, not at all.
PN431
Just in relation to those shifts, what was your thinking about the reasons why you didn't want to perform those shifts?‑‑‑Well, I knew I had finished my hours.
PN432
Yes?‑‑‑And I had my annual leave booked in for the following week, so obviously you know, I'd completed my hours for the year. I'd done 12 months' work in an 11‑month period, so I thought I didn't see it to be a necessity to put myself on for overtime for two days. As I said, I hadn't been contacted.
PN433
Did you take any step in relation to being allocated to the shifts on that day, to communicate your wishes to Patrick?‑‑‑Yes, I rang up Mio Shane on the Friday. I couldn't speak to him personally, so I left a message. I stated that I had been put on a roster un‑voluntarily; that I came in on the Saturday morning, I stayed until 8 o'clock so they could start the day and not cancel any gangs - - -
*** MICHAEL SCOTT STEWART XN MS DOUST
PN434
I'll just stop you there, if I might. Sorry, I'll let you finish in a second. When you say stayed until 8 o'clock, stayed from what commencing time?‑‑‑Commencing shift; 6 am in the morning.
PN435
Commenced at 6 am?‑‑‑Stayed until 8 pm. I told the supervisor when I logged in that, "I'm here. I'm allocating incorrectly."
PN436
Yes?‑‑‑I said, "But I will stay to prevent the cancellation of a gang."
PN437
I'm sorry, I'll just pull you up. You said, "Stayed until 8 pm"?‑‑‑Sorry.
PN438
You meant 8 am, didn't you?‑‑‑I told him what time. I said, "I'll stay until 8.00 or 8.30 - - -"
PN439
It's a rather long Saturday otherwise?‑‑‑ - - - "so you can not cancel a gang." I had come in at 8.30 and told them I'm leaving, like I already pre‑told them, and they said, "No worries. You'll be put down as sick day."
PN440
Yes?‑‑‑So I went home for the Saturday. I came in and completed the Sunday, and that's it, yes.
PN441
Why did you complete the Sunday shift?‑‑‑Well, it was allocated and I didn't want to go down for more sick leave, because I've already I'm already on an unofficial warning about the sick leaves and I didn't want to go any further down that path.
PN442
In relation to the question of availability for sick leave generally for the coming, say, five weeks until the end of the year - - -?‑‑‑Yes.
PN443
- - - what are the matters that are relevant to you in considering whether you'd wish to perform work over that period?
PN444
THE COMMISSIONER: Sorry, Ms Doust. I think you talked about availability of sick leave.
PN445
MS DOUST: I'm sorry.
PN446
THE COMMISSIONER: I think you might have misstated some of that.
*** MICHAEL SCOTT STEWART XN MS DOUST
PN447
MS DOUST: I'm sorry, I withdraw that question and I'll start again, Mr Stewart. There is another five weeks or so until the end of the PIR year on 30 June?‑‑‑Yes.
PN448
As you understand it, the company wants you to indicate whether or not you're available completely for that period or otherwise taken off the roster?‑‑‑Yes.
PN449
What is your attitude as to whether or not you'd be willing to perform some overtime work over that period?‑‑‑Yes, voluntary overtime, as - you know, as you said before, if you could nominate a couple of shifts or certain days during the week. Like, we've squeezed 12 months of work into an 11‑month period. We're physically, mentally, exhausted. You've got blokes on antidepressants, marriages falling apart. It has taken its toll. To know that you have this time coming up and where you've told your wife and your kids, "Look, I'm going to be home for a couple of weeks," and then to have the question put on you, "Do you want to come back to work?" and remove all that time totally, you know, you've got to weigh it up, especially when the original offer in the contract is voluntary overtime. The way it has been presented to us, you either make yourself available or you don't. There's no voluntary overtime. You're either back on the roster full‑time or you're off it. So to make yourself available voluntarily, is pretty much impossible at the moment.
PN450
Now, so far as the question of employees responding to those sorts of inquiries of them about whether or not they answer that question from the company, "Yes, I'm available," or, "No, I'm not available," have you given any instructions on behalf of the union to other employees about how they should answer that question?‑‑‑No, definitely not.
PN451
Have you seen any other person in the union give instructions to people about how they should answer that question?‑‑‑There have been no instructions. The only advice is to answer it on your own personal circumstance.
PN452
Is one of the things that has been discussed amongst employees - - -
PN453
MR PERRY: Don't lead.
PN454
MS DOUST: I'm sorry.
PN455
In terms of the enterprise agreement, has there been any discussion about the terms of that so far as employees have any obligation in respect of overtime?‑‑‑Has there been any conversation?
*** MICHAEL SCOTT STEWART XN MS DOUST
PN456
Yes, discussion amongst employees about - - -?‑‑‑Everyone knows their rights. Everyone knows what the EBA states.
PN457
Yes?‑‑‑It clearly states that it's voluntary. It doesn't state anything about un‑volunteering or removing yourself off the roster. It clearly states to volunteer for overtime and that's where it's a bit of a grey area, because we're not given the option to volunteer. It's either leave yourself on full‑time or leave yourself off.
PN458
Thank you. Nothing further.
PN459
THE COMMISSIONER: Any cross‑examination, Mr Perry?
PN460
MR PERRY: Commissioner, I had no notice of the evidence this witness was going to give. No witness statement, no indication he was even going to be called until I raised the matter at the beginning, so I would seek a brief adjournment to take some instructions before I cross‑examine.
PN461
THE COMMISSIONER: Five minutes? The last five minutes turned into a bit longer, so - - -
PN462
MR PERRY: If it's the five minutes like we just had before, that would be convenient, but if I could I'm conscious of the time of the day and I don't want this matter to drag on unduly. If we could perhaps adjourn for 10 minutes and I'm confident that I can do what I need to do in that period, but - - -
PN463
THE COMMISSIONER: All right. We'll be back in seven and a half minutes, and we'll see how you're going then.
PN464
MR PERRY: Yes.
PN465
THE COMMISSIONER: When I say we'll be back, my associate will come in just before 10 minutes.
PN466
MR PERRY: Yes.
THE COMMISSIONER: We tend to be pretty flexible with our time down here. We don't try to be too rigid. We'll adjourn briefly.
*** MICHAEL SCOTT STEWART XN MS DOUST
SHORT ADJOURNMENT [4.19 PM]
RESUMED [4.29 PM]
CROSS-EXAMINATION BY MR PERRY [4.29 PM]
PN468
MR PERRY: Mr Stewart, you're aware from time to time that the company needs to allocate employees to work overtime in order to meet operational needs?‑‑‑Yes.
PN469
And it asks for cooperation from employees; for them to make themselves available?‑‑‑Yes.
PN470
That enables the company to meet its operational requirements?‑‑‑Yes.
PN471
There are attractive penalty rates paid for overtime. They can be as much as three and a half times, and the employees quite regularly like to work overtime because they can earn some extra money?‑‑‑Yes. Certainly, yes.
PN472
The terminal in early April cut over to the new automated environment?‑‑‑Yes.
PN473
Since that time, productivity bonuses have been down for employees?‑‑‑Across the whole terminal it slowed right down, yes.
PN474
Maybe three to five hundred dollars a shift?‑‑‑I have no idea what that I was never part of the bonus. I've got no idea what they earn each shift. It would only be a guess if I - - -
PN475
But if I could ask you to accept that productivity bonuses are down, then it would be logical to conclude, wouldn't it, that people would be trying to find ways to make up that lost money?‑‑‑Yes. Some people, yes, maybe are chasing the money, yes, depending on their circumstance.
PN476
One way to do that would be to make yourself available to pick up some overtime?‑‑‑Yes, if that's what you're chasing, the dollar. If you put it that way, yes. It's the only way you're going to get it.
*** MICHAEL SCOTT STEWART XXN MR PERRY
PN477
The practice at the terminal in relation to overtime, I think, is you said that you are considered to be available unless you say you're not available to work overtime?‑‑‑Well, in regard to this current circumstance in PIRs with the 1820, the way it has been if you haven't gone and actually said, "I do not want to be on the roster," like what happened to me last week, you're getting left on.
PN478
That has always been the practice of the company for PIRs at 1820, hasn't it?‑‑‑Not really, because this is only the second time this circumstance has arisen and last time it was a lot shorter period, so there wasn't all this procedural process with management going on.
PN479
But, nonetheless, with the history that you have at the terminal since 2013 when a PIR has reached 1820 hours, the company has left them as being available unless they've said otherwise. That's right, isn't it?‑‑‑I suppose it has been a practice, yes, but it's not you know, it wasn't an agreed practice. It's just people didn't get a phone call and didn't make a phone call, so they were left on the roster.
PN480
But it has been the practice?‑‑‑Well - - -
PN481
You might not agree with it, Mr Stewart?‑‑‑Yes, I'm not saying I agree, but - - -
PN482
But it has been the practice?‑‑‑That is what happened last year, yes. I was - people were left on, yes.
PN483
Last year there were people who met their hours? PIRs who met their 1820 hours?‑‑‑Yes.
PN484
They met them at varying times?‑‑‑Obviously, yes.
PN485
So the practice in terms of the company considering those employees to be available for overtime unless they said otherwise, existed then in the same way it exists now?‑‑‑No, not really, because overtime is voluntary. You get asked every day whether it's an extension shift, whether it's - - -
PN486
I'm not asking you about whether overtime - - -?‑‑‑Yes, but you're mentioning past practice and they do ask for overtime. It's just this particular overtime, you know what I mean, they're going different ways about it. I can't agree to the past practice because every type of overtime seems to be approached differently.
PN487
I am asking you about where overtime where a PIR has hit their annual hours target?‑‑‑Yes.
*** MICHAEL SCOTT STEWART XXN MR PERRY
PN488
That's what I'm asking you about?‑‑‑Well, the company has ignored the EBA, yes, and left us on the roster, yes.
PN489
I'd prefer if you just answered my questions. I didn't ask you about the EBA?‑‑‑No, that's what I'm just that's my answer, that yes.
PN490
What I asked you about and I thought you accepted, was that - - -?‑‑‑No, I wouldn't accept it. I'd say the company goes against the EBA and leaves it on.
PN491
You disagreed with me, but you didn't listen to what I was about to say?‑‑‑I'm answering the question. You're asking me if the past practice is that we get left on. It is what the company they ignore our EBA. We know we've got to volunteer. That is what we believe. That is what we follow, but getting left on the roster, yes, was the practice of last year.
PN492
Yes, that's what I was asking you about?‑‑‑Yes, I'm just giving you a side answer. I just want to make sure it's understood.
PN493
Well, you're giving me your industrial argument, aren't you?‑‑‑No, I'm giving you the truth about what happened. I'm just making sure you get the whole answer.
PN494
We will be a lot quicker this afternoon, Ms Stewart, if you just focus on answering my questions, please?‑‑‑I am, but I'm giving you a full answer.
PN495
You have very capable counsel who can make submissions on your behalf. Whether you agree that the company is complying with the EBA or otherwise, you accept that the practice last year is the same as this year?‑‑‑No, I won't accept it, because we never got phone calls last year. We never got told that we have to volunteer, so, no, I'm not saying - - -
PN496
Perhaps I need to have another go at asking you this question then. A PIR employee who reaches 1820 hours is considered available for overtime unless they indicate otherwise to the company. That is the company's practice, isn't it?‑‑‑That is the company's view, yes.
PN497
That is its practice. That's what it does?‑‑‑It's the view of the company. You're not putting words in my mouth. It's the view of the company.
PN498
Well, I'm asking you about the company's practice?‑‑‑Yes.
*** MICHAEL SCOTT STEWART XXN MR PERRY
PN499
And that is its practice, is it not?‑‑‑What is a practice? An agreement or their whole what do you define as a practice?
PN500
Let's make it a bit easier. For the 2014 year, the year ended 30 June 2014 - - -?‑‑‑Yes.
PN501
- - - when a PIR hit 1820 hours, the company considered them available for overtime unless the employee said they weren't?‑‑‑Yes.
PN502
That is in fact the same position this year. That is, unless this year you are to advise the company you are not available for overtime, the company will consider that you are?‑‑‑That's their position on it, but our position going by our EBA is - - -
PN503
I'm not asking you about your position?‑‑‑Well, that's their position. That's my answer.
PN504
And that's what the company did last year. It's what they're doing at the moment?‑‑‑They're trying to do the same thing, yes.
PN505
You were asked some questions about automation a moment ago. The union didn't agree with the decision to automate the terminal, did it?‑‑‑As far as I know, the union didn't know about the decision to automate.
PN506
The union did not agree with the implementation of automation at the Port Botany terminal, did it?‑‑‑Well, you know what, I wasn't on the committee at the time, so I can't answer that. I was an employee - - -
PN507
I see?‑‑‑ - - - not on a committee, so I can't answer for the union. No, I won't answer and I can't, because I wasn't part of the committee.
PN508
When did you join the committee, Mr Stewart?‑‑‑In the last six months.
PN509
In that period, the company has implemented automation?‑‑‑Yes.
PN510
One position the union has taken is that the company does not have enough employees on the permanent operations roster?‑‑‑It has been a discussion, yes.
*** MICHAEL SCOTT STEWART XXN MR PERRY
PN511
That is a position which the union has put forcefully, isn't it?‑‑‑I couldn't say we haven't done nothing about it, no. It has been a discussion. I've been at the table when it has been discussed from both sides and both sides seem to realise that they're short‑numbered even though a target hasn't been reached. But, no, I can't say forcefully because, no, we haven't - - -
PN512
One of the claims the union has for Part B at Port Botany is that there be a single roster of only permanent operations employees?‑‑‑That's a claim. You've probably got the paperwork in front of you. Yes, that's - - -
PN513
The union last year sought arbitration from the Commission in relation to the company's labour model, didn't it?‑‑‑In regards to the - - -
PN514
The number of people on it?‑‑‑Yes, sorry. For the automated terminal?
PN515
Yes?‑‑‑Yes.
PN516
So there remains a dispute about the appropriate composition of the workforce at the terminal, doesn't there?‑‑‑Hence the current position.
PN517
Yes. One of the things that the union has done in the past because of that is it has taken industrial action, hasn't it?‑‑‑I've never been a part of industrial action, so I can't answer that.
PN518
You'd accept that in 2013, a full bench of this Commission found that the union organised covert industrial action at Port Botany in relation to automation?‑‑‑In regard what type of action was taken? I wasn't part of this committee - - -
PN519
MS DOUST: Can I just rise to perhaps cut off this line of questioning. I'm not sure really that it assists the Commission to put that proposition. It either arises from the decision or not. I really don't think it assists the Commission to put it to someone at the - - -?‑‑‑I've never participated in industrial action, so I'm not - - -
PN520
THE COMMISSIONER: Just answer the questions when you get an opportunity?‑‑‑Yes.
PN521
Don't just offer evidence un‑prompted?‑‑‑Okay.
*** MICHAEL SCOTT STEWART XXN MR PERRY
PN522
Mr Perry, I'm not sure of usefulness of all of this. I mean, I think you'd be aware that the Commission has a reasonable understanding of the industrial history of this site.
PN523
MR PERRY: There are submissions I wish to put in due course as to the history, Commissioner, and the full bench has indicated in the matter I referred to that it's a relevant matter for the Commission to take into account in an application - - -
PN524
THE COMMISSIONER: I'm not necessarily stopping your questioning, but I'm just indicating to you I think perhaps interrogating this witness about his knowledge of some of those events might be of marginal assistance.
PN525
MR PERRY: Yes, well, as long as no point is taken by my friend about my failure to pursue that matter with the witness, then I can move on.
PN526
Now, the current situation at Port Botany is that there are no PIR employees who are making themselves available to work overtime?‑‑‑Yes. Apparently, yes. So I've been told.
PN527
Following automation, there were some employees who have made themselves available, but there are now none?‑‑‑Sorry, following - - -
PN528
There were some employees who in fact had met their 1820 hours who did work some overtime, but there are now none who are prepared to do so?‑‑‑You mean blokes that had gone past their target hours?
PN529
Yes?‑‑‑Like myself that was involuntary rostered on?
PN530
Yes?‑‑‑Yes, there was a couple. They were involuntary and when they realised that they had passed their hours, well - - -
PN531
You're a delegate?‑‑‑Yes.
PN532
You're one of the two delegates, I think, who look after the PIR?‑‑‑Yes. For the last couple of months I have been, yes.
*** MICHAEL SCOTT STEWART XXN MR PERRY
PN533
So you've been quite involved in discussions about PIRs working overtime?‑‑‑No, not really. I've been part of three meetings. The last three meetings we discussed overtime, but I don't talk to people about their personal things, you know. Everyone has got a different set‑up in life, so I don't - - -
PN534
You're one of the two delegates responsible for the PIRs and you haven't even discussed that matter with them?‑‑‑Mate, I don't sorry, I shouldn't say "mate". No, I don't - overtime is a personal matter. It's not something for me to make a group discussion about.
PN535
So you have had no discussions at all?‑‑‑No, I don't no, I haven't asked anyone what they do in regard to overtime. It's a personal choice.
PN536
You're aware there was a hearing in this Commission yesterday?‑‑‑Yes.
PN537
And, after that hearing, you spoke to Mr Jacka, didn't you?‑‑‑Adam Jacka?
PN538
Yes?‑‑‑Yes. He phoned me, yes.
PN539
Yes, he phoned you?‑‑‑Yes.
PN540
You had a discussion about the fact an order had been made by the Commission?‑‑‑An order?
PN541
An order; that this Commission had made an interim order.
PN542
MS DOUST: I object to that, Commissioner, because it appears to me - - -?‑‑‑I know where he's going.
PN543
Might the witness be instructed not to answer while - - -
PN544
THE COMMISSIONER: I tried once.
PN545
MS DOUST: Yes. Commissioner, it appears to me that the territory my friend might be about to traverse has the potential to lead to some sort of allegation on the part of the company that there may have been some sort of breach of an interim order, or the interim order yesterday that was issued by this Commission.
*** MICHAEL SCOTT STEWART XXN MR PERRY
PN546
Of course any person who is caught by the order, affected by the order - and it may be alleged that they've been in breach of the order or something along those lines would be entitled to rely upon the privilege against answering those sorts of questions. So that's my reason for objecting to any compulsion of this witness to answer questions of that nature.
PN547
THE COMMISSIONER: Is that where this is heading at all, Mr Perry?
PN548
MS DOUST: Can I indicate I'm sorry to interrupt, Commissioner it seems to me it's not just where that is the intention of the questioner, but where it might leave the witness in a situation where any answer they may give might expose them in some way. Any admission about receipt or knowledge of the order, discussion about any advice as to the meaning of the order and the effect of the order, steps taken in response to the order; all that might leave this witness open to an allegation of that nature, so the privilege applies, in my submission.
PN549
THE COMMISSIONER: Mr Perry?
PN550
MR PERRY: Perhaps my friend was being a bit ahead of herself there, Commissioner. The fact she felt she needed to rise to her feet was interesting in itself.
PN551
You had a conversation with Mr Jacka - - -?‑‑‑I actually spoke with - - -
PN552
MS DOUST: I object. I do object to this line of questioning. If I didn't make my position clear before, I do object to the witness being asked anything along these lines, for the reasons that I just set out.
PN553
THE COMMISSIONER: Well, we don't know whether it's actually going to that point. That's what I said a moment ago, are we going down that pathway, and I assume we're not. Is that the case, Mr Perry? It's very difficult, because I know but I think we have to be very careful here that you're not going to be asking questions which might have the prospect for the witness self‑incriminating.
PN554
MR PERRY: The conventional approach with a question of that kind of course is that the witness pleads privilege when the question is asked.
*** MICHAEL SCOTT STEWART XXN MR PERRY
PN555
THE COMMISSIONER: But there are problems with doing that, because this isn't a court. In any event, if we're not going down that pathway of exploring that concept, but you're asking broader questions, then that I think is something that won't trouble anyone.
PN556
MR PERRY: I'm not seeking to have the witness incriminate himself, Commissioner. I'm seeking to and I don't wish to say too much in his presence, but there is an element of these proceedings that relate to the union's role in all of this. That's a highly relevant matter. For my friend, under the blanket objection of some as yet unarticulated risk of answering a yet unasked question which may incriminate a witness - it's a little premature to shut me down from going down this path, with respect.
PN557
THE COMMISSIONER: Let's just take it very slowly, one step at a time. I'm sure that if we get into the territory which might trouble us, we'll stop it.
PN558
MR PERRY: That's the appropriate course, I think, Commissioner.
PN559
MS DOUST: Might I suggest this course, Commissioner. The difficulty that arises is this: this witness, as I understand it, hasn't received any advice about the nature of the privilege, the capacity to make an objection or the sorts of matters that might give rise to a proper claim. The real risk, if my friend proceeds in a conversational style asking questions and opening up the discussion, is that the witness strays into that territory and, once the witness has, then - - -
PN560
THE COMMISSIONER: The witness is listening to all of this. I'm sure he's going to be very cautious in his answers and he's going to pause before he commences to answer, just in case you jump up.
PN561
MS DOUST: I agree that one would probably form that conclusion having seen the witness, but it just concerns me that he really is entitled, in my submission, to have the benefit of at least some quick legal advice about the nature of what is being discussed now before any process of questioning unfolds.
PN562
THE COMMISSIONER: I think to some extent I'll try and protect him myself, so let's just take this very slowly.
PN563
MS DOUST: If the Commission pleases.
PN564
THE COMMISSIONER: One step at a time.
PN565
MR PERRY: You had a conversation with Mr Jacka last night?‑‑‑After I spoke to Mr Michael O'Leary, yes.
*** MICHAEL SCOTT STEWART XXN MR PERRY
PN566
Well, you had a conversation with Mr O'Leary first. Is that right?‑‑‑Yes.
PN567
He advised you that an order had been made?
PN568
MS DOUST: I object.
PN569
THE COMMISSIONER: What is troubling about that?
PN570
MS DOUST: It's perhaps something that I should address in the absence of the witness, Commissioner.
THE COMMISSIONER: Mr Stewart, would you step outside briefly.
<THE WITNESS WITHDREW [4.50 PM]
PN572
MS DOUST: Commissioner, in the context of penalty proceedings that might be brought in another jurisdiction down the track, a number of matters would necessarily need to be pleaded. One of the matters that would need to be pleaded would be, for example, first of all, effective service of the order upon you, knowledge of the order. Those things will all be relevant to the question of any contravention of the order.
PN573
So, to the extent Mr Perry wants this witness to give answers to the effect of making any admission of, "I received the order. I was aware of it. I was given some advice about it. I had some understanding about it," those are matters in relation to which in penalty proceedings he'd be entitled to say, "I rely upon the penalty privilege and I say nothing," and to put the prosecuting party to proof of the prosecution case.
PN574
What my friend is seeking to do is to have him give answers that tend to undermine that privilege, if you like, to the extent that it traverses in any way the events following the issue of the order. Can I make this submission: it's not immediately apparent to me how anything that happened yesterday, which I don't think was addressed in the evidence of Mr O'Leary - - -
PN575
MR PERRY: You cross‑examined about it.
PN576
MS DOUST: Yesterday?
*** MICHAEL SCOTT STEWART XXN MR PERRY
PN577
MR PERRY: No, about the conversation I was discussing.
PN578
MS DOUST: Yesterday? I'm not sure anything was addressed with Mr O'Leary about anything that occurred yesterday.
PN579
THE COMMISSIONER: It was yesterday and again this morning. I'm assuming that these questions are going to this issue of, well, perhaps Mr Stewart I don't know, maybe he was one of the people contacted by Mr Shane either last night or again this morning.
PN580
MS DOUST: Yes.
PN581
THE COMMISSIONER: Mr O'Leary gave evidence about what was reported - - -
PN582
MS DOUST: I'm sorry, yes. That's correct, yes.
PN583
THE COMMISSIONER: - - - to him about that.
PN584
MS DOUST: Yes.
PN585
THE COMMISSIONER: I am a little concerned that if it emerges and we haven't gone that far yet.
PN586
MS DOUST: Yes.
PN587
THE COMMISSIONER: I assume that's where we were getting to.
PN588
MS DOUST: Yes.
PN589
THE COMMISSIONER: That then we might get into the area of asking to what extent this person had received advice to continue to assuming he is one of the people who maintains a desire to un‑volunteer, if that's the correct word - and that's where we get into the dangerous territory.
PN590
If, up to that point, we are just simply looking at that material - was he one of these people contacted and so forth, and was he asked again, what did he say, yes, and all the rest of it - well, yes, it probably links into what Mr O'Leary is giving evidence about in terms of the factual position about there being no‑one, no PIR, who has indicated a preparedness to make themselves available for overtime.
PN591
MS DOUST: Yes.
PN592
THE COMMISSIONER: We've also had the evidence about, well, just what are the parameters or attachments or caveats that go with that question, but I think that's all we're really doing. I certainly want to stray away from the concept that we would get into indicating that this person would be giving some evidence which might touch upon the prospect that they consciously disobeyed the interim order.
PN593
MS DOUST: I can't recall precisely what was suggested by Mr O'Leary about the content of the conversation. My recollection is that it was in rather general terms. It seems to me if either my friend is proceeding on instructions that Mr Shane was doing the ring around and advising people about the existence of orders or if there is some prospect that that may have occurred so that the question of orders was raised in any of these conversations, then that would be evidence that I would object - or I would wish this witness to have an opportunity to object by reference to the penalty privilege.
PN594
THE COMMISSIONER: Mr Perry?
PN595
MR PERRY: I just say a few things in relation to that. The first is the conversation I was commencing to ask the witness about with Mr O'Leary was a conversation that Mr O'Leary was cross‑examined at some length about. You'll recall my friend said, "Didn't Mr Stewart say this," and, "Didn't Mr Stewart say that." There were five or six propositions that she put to Mr O'Leary about that. She has called him to give evidence. She has cross‑examined my witness on the conversation. That's fair game. She can't run away from that.
PN596
THE COMMISSIONER: That's not a conversation that occurred last night though, from my understanding of it.
PN597
MR PERRY: Yes, it was.
PN598
THE COMMISSIONER: It is?
PN599
MR PERRY: Yes, it was.
PN600
THE COMMISSIONER: I must have misunderstood then.
PN601
MR PERRY: My friend took the Commission there and I'm entitled to deal with that evidence through and in fact if I didn't with this witness, chances are I'd be criticised for not having afforded him the fairness of rebutting certain evidence that Mr O'Leary gave. The Commission will recall what Mr O'Leary's evidence was in re‑examination about the conversation, which was a piece of evidence, in my respectful submission, of significance to the case.
PN602
THE COMMISSIONER: What was that?
PN603
MR PERRY: Mr O'Leary's evidence was that this witness advised him that the union had told him not to volunteer for overtime. The transcript will show it, Commissioner - - -
PN604
THE COMMISSIONER: No, I don't - - -
PN605
MR PERRY: - - - but that's my clear recollection of what was said. Yes, his words were, "Mr Stewart said he had been instructed by the union not to apply for overtime."
PN606
THE COMMISSIONER: Was that a conversation that occurred last night?
PN607
MR PERRY: To be fair, I'm not sure if that was clearly established in my learned friend's cross‑examination, but, nonetheless - - -
PN608
THE COMMISSIONER: It takes on a different characteristic if it's a conversation that occurs before last night. Sorry, Mr Perry, did you want to add anything further?
PN609
MR PERRY: The only other matter is I apprehend this is not a difficulty that won't arise just in relation to this question I have a case to prove. I need to demonstrate that industrial action is happening and is being organised. I'm entitled to pursue that matter and that is the matter I'm seeking to pursue. I do propose to pursue that matter with this witness.
PN610
THE COMMISSIONER: That's the point, I think. I'm much more concerned about a conversation that occurs in the context of there being - the interim orders having been issued and then what emerges from that. I must say I might have misunderstood this. I thought the conversation was historical in nature and it occurred at some point in time before certainly there was the issuing of the interim order. I might have misunderstood that.
PN611
MR PERRY: The issue I wish to pursue immediately, now I'm instructed, was in a conversation that preceded yesterday, so I can deal with that matter. My friend, I don't think, has any objection in this line of country, anyway, with me pursuing that. She may have others.
PN612
MS DOUST: If he's saying "preceded yesterday" rather than "proceeded yesterday", that's true. If it's a historical conversation - - -
PN613
THE COMMISSIONER: Let's try and confine it to that at this stage, because I'm much more comfortable with that.
PN614
MR PERRY: Yes.
THE COMMISSIONER: Let's get the witness back in, shall we?
<MICHAEL SCOTT STEWART, RECALLED ON FORMER OATH [5.01 PM]
CROSS-EXAMINATION BY MR PERRY, CONTINUING [5.01 PM]
PN616
MR PERRY: Mr Stewart, you gave some evidence about a I think it may have been the weekend before last when you were rostered to work the Saturday and the Sunday. You recall that?‑‑‑Yes.
PN617
Following that happening, you had a conversation with Mr O'Leary, did you not?‑‑‑Following me getting rostered on?
PN618
Yes?‑‑‑I've had a couple of conversations, to tell you the truth, with Mick.
PN619
One of those conversations was about you having been rostered to work that Saturday and Sunday?‑‑‑No.
PN620
It wasn't. Well, I'm putting to you that in fact in the context of a conversation with Mr O'Leary, you advised him that you'd been instructed by the union to not volunteer for overtime?‑‑‑Not at all.
PN621
Not at all? Are you sure about that?‑‑‑I swear on my children's life.
*** MICHAEL SCOTT STEWART XXN MR PERRY
PN622
Would you? I see. You would be aware that currently at the terminal there are no employees making themselves to work overtime?‑‑‑So I have been told, yes.
PN623
And you would accept that historically a large number of employees volunteer to work overtime at the terminal?‑‑‑I'm not sure how many PIRs volunteered last year. I couldn't answer that.
PN624
What you're asking the Commissioner to accept is that every one of those employees all on their own have decided that they don't want to volunteer to work overtime. Is that your evidence?‑‑‑Well, to me, yes, because I have not spoken to any person in that terminal of what their situation is regarding overtime.
PN625
You're a delegate?‑‑‑Yes.
PN626
I think you're standing for an elected position of the union. Is that right?‑‑‑Yes.
PN627
Assumedly that's why you're here today?‑‑‑Assumedly. I ran for this position 12 months ago. I got knocked out of it by politics, so to speak. That person has now been terminated from the company, so I've stepped back in for the last couple of months, yes.
PN628
So you're running for election?‑‑‑Yes.
PN629
You think it's a good thing for your prospects of getting elected if you come along to the Commission today and say the right things, don't you?‑‑‑Is that a question or a silly statement?
PN630
Yes, I'm asking you. Do you think it's a good thing for you to come along to the Commission today?‑‑‑Do I have to answer that, your Honour?
PN631
THE COMMISSIONER: I don't know why you wouldn't?‑‑‑Because I find it absurd. No, I don't think it is and I wouldn't put myself in a position to be questioned by someone for anything. That's all. I find that an absurd statement.
PN632
MR PERRY: And, if you didn't, your mates at the terminal might think you've wimped out. Is that right?‑‑‑If you want to go by election you know, if you're trying to run it by that way, but that doesn't bother me, mate, because, as I said, I wouldn't put myself to be questioned. I'm not a big fan of courtrooms. No, I don't enjoy this. I didn't volunteer for this.
*** MICHAEL SCOTT STEWART XXN MR PERRY
PN633
You didn't volunteer for this. Who volunteered you?‑‑‑I got asked - - -
PN634
Who asked you?‑‑‑ - - - if I was willing to speak on behalf and I said, "Yes, I'll speak." I didn't put my hand up and ask to come.
PN635
Who asked you?‑‑‑To come in here? Officially, one of our delos asked me if I could arrange some people and I didn't ring anyone, because I didn't think it was my position to come in and do this, so I've taken it up.
PN636
You haven't answered my question. Who asked you to come along to the Commission today?‑‑‑Well, originally it was one of the delos and I have spoken to Adam Jacka, obviously, the legal team. I spoke to him this morning.
PN637
Did you speak to Mr Keating?‑‑‑No. Me and Paul don't speak.
PN638
You don't speak to Mr Keating?‑‑‑No.
PN639
MS DOUST: I object. Commissioner, I'm really not sure where this goes, but again if it starts to traverse the period subsequent to the making of the interim order and it tends to trip over into those sorts of matters, then - - -
PN640
THE COMMISSIONER: I don't think it's going there. It's going back historically in time, I think. I don't think I should stop the except that it's probably of marginal assistance in terms of the matter.
PN641
MS DOUST: I'm sorry, I wasn't sure that I understood my friend's question correctly. I thought the follow‑up questions about speaking with Mr Keating was in the period - - -
PN642
THE COMMISSIONER: Apparently don't speak.
PN643
MS DOUST: The recent period.
PN644
THE COMMISSIONER: That was the end of that.
PN645
MR PERRY: So you don't speak to Mr Keating?‑‑‑No. It's a known fact.
*** MICHAEL SCOTT STEWART XXN MR PERRY
PN646
And you haven't spoken to any of your fellow PIRs about volunteering for overtime?‑‑‑No. I've had three meetings where it has been brought up, because the company can't achieve their target number of people to reach overtime; but, no, I've had no meetings, conciliations, conversations with any of my fellow workmates regarding overtime.
PN647
So you haven't no conversations with Mr Keating?‑‑‑No.
PN648
You've had no conversations with any other individual PIR about volunteering for overtime?‑‑‑No. I have not approached any person.
PN649
And you're the workplace delegate who represents those people. Is that what you're saying?‑‑‑One of.
PN650
One of two?‑‑‑One of two, yes.
PN651
You've had no conversations whatsoever?‑‑‑No, because no‑one has come up to me with I don't know how many other ways of saying no - - -
PN652
You're not in a position, are you, Mr Stewart, to say anything at all about what those other employees think about working overtime?‑‑‑Personally, no, I can't make any comment on anyone's personal situation, but, yes, I've been elected to represent them, so, yes, I am allowed to make a statement; but, no, I will not make a personal statement on anyone's personal circumstances, because doing overtime is voluntary depending on your personal circumstance.
PN653
So you have no knowledge of what any of the other many PIR employees who have made themselves unavailable to work overtime think about the matter?‑‑‑No. To tell you the truth, no, I haven't asked them.
PN654
You haven't spoken to them?‑‑‑No.
PN655
But you're seeking to be elected to represent those people?‑‑‑Yes.
PN656
And you haven't spoken to the union either.
PN657
MS DOUST: I object to that?‑‑‑Am I getting challenged by the union?
*** MICHAEL SCOTT STEWART XXN MR PERRY
PN658
I just think that the question should be - - -?‑‑‑I haven't spoken to anyone about overtime.
PN659
When I'm making an objection just wait for a moment. The question, "You haven't spoken to the union at all," I mean, I just think is so broad that it's unfair. If my friend wants to ask about a particular period, then I think that's fair.
PN660
MR PERRY: I can rephrase the question, Commissioner. I thought the context within which I was putting it was relatively clear.
PN661
Mr Stewart, you were saying you've had no conversations with Mr Keating about the PIRs volunteering for overtime?‑‑‑No. Me and Paul don't speak.
PN662
None with anyone else in the union?‑‑‑I've had - - -
PN663
MS DOUST: I object?‑‑‑I've been part of meetings - - -
PN664
I object?‑‑‑ - - - which Mick O'Leary has been part of, so - the minutes are kept.
PN665
Again, if this tends to stray into the period subsequent to - - -
PN666
MR PERRY: Commissioner, I'm seeking to demonstrate that - - -
PN667
MS DOUST: If I might finish my sentence.
PN668
MR PERRY: Yes.
PN669
MS DOUST: If it's going to stray into the period subsequent to the making of the orders, the witness has a privilege and the witness is entitled to assert it. Privilege such as that is one which isn't overridden by Mr Perry's argument about some sort of forensic need to question. It is a privilege that just adheres to the witness in respect of those matters.
PN670
Really, in fairness, he should not be asked questions of such width that they might tend to take him into that territory without him having the option of taking advice and claiming the privilege.
*** MICHAEL SCOTT STEWART XXN MR PERRY
PN671
THE COMMISSIONER: I didn't see the questions being framed in terms of post‑issuing of the interim order.
PN672
MS DOUST: If it's so limited, I'm content to leave the objection, but, in my submission, it should be so limited.
PN673
THE COMMISSIONER: Well, that's how I understood it, anyway, but it has been asked and answered a couple of times already. Mr Perry, this is proving to be very time‑consuming and somewhat difficult. As I keep saying, I think it's of marginal relevance in terms of the determination of the matter.
PN674
MR PERRY: If that's the view you take, Commissioner, I'll move on. I'm seeking to demonstrate well, I can make some submissions about it.
PN675
Mr Stewart, can I just suggest this to you then: as you have not spoken to your fellow PIR employees about the topic, you are unable to say what their views are about working for overtime currently?‑‑‑Individually, yes, I can't comment. I'm sorry, no, I can't comment.
PN676
And you're unable to say what the union's position is, as well, given you don't talk to the union about this?‑‑‑I told you, I didn't speak to Paul. I don't think the union has a position on it, because they haven't come and enforced or told anyone not to do or to do anything, so I can't speak - - -
PN677
The fact is Mr Keating came on site on - - -
PN678
MS DOUST: Might the witness be allowed to complete his answer before my friend speaks over the top of him.
PN679
MR PERRY: Is there something you wanted to say, Mr Stewart? My friend can re‑examine, Commissioner?‑‑‑Well, as I said, the union hasn't instructed anyone to do anything, so the union doesn't have a position on the overtime as far as I know. I'm not Paul Keating, but I don't speak to Paul Keating.
PN680
You give that evidence, which I didn't ask you about whether the union had instructed anyone, but you've just gone out of your way to say that the union hasn't in circumstances where you don't speak to the union about this matter. How can you possibly - - -?‑‑‑Because I work there. I'm at the workplace. If they came to the workplace to give an order, I'd hear it.
*** MICHAEL SCOTT STEWART XXN MR PERRY
PN681
Mr Keating did that on 8 May, didn't he?‑‑‑No, he did not.
PN682
Were you at work on 8 May?‑‑‑He read a transcript yes, I was there, because Steve Lusi, the on‑site manager, was there and reported it. I was there and he read a paragraph from the EBA. He read it word for word.
PN683
Why do you think he did that?
PN684
MS DOUST: Object?‑‑‑Do I answer or - - -
PN685
I object.
PN686
MR PERRY: I withdraw it. Since Mr Keating coming on site on 8 May, employees have begun to make themselves unavailable for overtime - - -?‑‑‑I wouldn't say that at all. It was happening before that, if that's what you no, I would not say that at all.
PN687
You say that with certainty?‑‑‑Pardon?
PN688
You reckon that's a confident answer you give?‑‑‑Yes, I'm confident in myself. I haven't seen figures or paperwork.
PN689
Even though you don't talk to employees about this topic. That has been your consistent evidence?‑‑‑Well, considering it's constantly reported back to us by management, yes, I'm quite aware of what's going on. I don't have to speak to Paul or the union to find out.
PN690
The fact is, Mr Stewart, the union is dissatisfied with automation and the reduction in employee head count, isn't it?‑‑‑We have a challenge of employee yes, but, as I said, the union hasn't made any solid position on what they're dissatisfied with, you know. Obviously they fight for the - - -
PN691
The union has said nothing about it?‑‑‑What, automation?
PN692
Yes?‑‑‑To me?
PN693
No, to the company?‑‑‑I don't know.
*** MICHAEL SCOTT STEWART XXN MR PERRY
PN694
You don't know?‑‑‑In my presence? In my presence, no, all right? I'll answer from my presence, no.
PN695
There seem to be a lot of things you don't know anything about, Mr Stewart.
PN696
MS DOUST: I object to that?‑‑‑That's a good assumption, mate. You're asking me things - places where I can't be or possibly haven't been. You're making assumptions that I should be talking to my members out of your assumption on how the union operates, so we're both throwing a lot of assumptions.
PN697
MR PERRY: The union has a position that the company should have a larger permanent workforce, does it not?‑‑‑We're in agreement with the company at the moment that the company is lacking numbers. The specific figure, no‑one has got to yet. Company and union are in agreement that the work site is lacking numbers.
PN698
And the company's position is that numbers are lacking because there is a lack of volunteers to work overtime?‑‑‑That's their position.
PN699
The fact is that the union is trying to put pressure on the company, isn't it - - -?‑‑‑No.
PN700
- - - to agree to its demands?‑‑‑No. Mis‑management has got us to where we are today. We've done 12 months of work in an 11‑month period. It has got nothing to do with us or the union. The union didn't implement or enforce the roster.
PN701
Is it your evidence, Mr Stewart, that the fact every single PIR is unavailable to perform overtime is a coincidence?
PN702
MS DOUST: I object to that question.
PN703
MR PERRY: What could possibly be objectionable about that question?
PN704
MS DOUST: Commissioner, it's unhelpful. It's inviting the witness to speculate. This witness's view as to why things might have got to the point they have isn't, in my submission, going to assist the Commission.
*** MICHAEL SCOTT STEWART XXN MR PERRY
PN705
THE COMMISSIONER: Many of the questions haven't assisted, but that's not a reason to rule them out, I don't think.
PN706
MS DOUST: Well, it really is you're saying you know, you express an opinion. You sort of juggle the balls in the air and engage in some speculation about what are the motivating factors for individuals to make a particular decision.
PN707
THE COMMISSIONER: The fact that the question might be speculative isn't a reason to rule it out.
PN708
MS DOUST: In my submission, it would be, but - - -
PN709
THE COMMISSIONER: Mr Perry, do you want to press the question or do you want to move on?
PN710
MR PERRY: I think the witness indicated an answer of sorts, anyway, Commissioner.
PN711
Do you accept, Mr Stewart, that almost every EA employee at the terminal is an MUA member?‑‑‑I'm pretty certain that is yes.
PN712
And there are a large number of delegates on site?‑‑‑I couldn't tell you a figure, but there are a number of us.
PN713
There are regular site visits by officials of the union?‑‑‑I wouldn't call them regular. We've had periods where we haven't seen them for six months, so whatever you want to define as regular.
PN714
Well, if I can put to you that an MUA official is on site at least once a week, would you accept that?‑‑‑To tell you the truth, me seeing them - I'm not going to accept it, because I don't see them there once a week; so I'm not going to answer yes or no.
PN715
The delegates on site meet regularly?‑‑‑At the moment, because we're in Part B negotiations, we're meeting once a week. That's on hold at the moment obviously, because of this. Apart from that, no, I don't participate in any meetings.
PN716
Would you accept that there's a high degree of cohesion between employees on the site?‑‑‑Cohesion?
*** MICHAEL SCOTT STEWART XXN MR PERRY
PN717
Or solidarity, if I could put it that way?‑‑‑No, it's like any workforce, you know. People get on, people don't. We're not one big happy family, if that's what you're trying to - - -
PN718
Would you accept this: the employees on the site are accustomed to supporting the union's position with management?‑‑‑No.
PN719
Is your evidence that the employees on site regularly don't support the union's position with management?‑‑‑The employees on site make their own decisions.
PN720
When they make those decisions, they stick together, don't they?‑‑‑No, not necessarily. If you give me an example, I can probably get a bit more - - -
PN721
I understand what you've said. What I'm going to put to you, Mr Stewart, is and I'm asking you about the question of PIRs volunteering to work more than 1820 hours. That's what I'm asking you about. You don't know the position of the other individual PIRs on that topic, do you, and your evidence is you don't know the union's position on that topic either?‑‑‑No.
PN722
There's nothing further, Commissioner.
PN723
THE COMMISSIONER: Any re‑examination?
PN724
MS DOUST: Nothing, Commissioner.
THE COMMISSIONER: You're released and discharged. Thank you for giving your evidence?‑‑‑Thank you.
<THE WITNESS WITHDREW [5.21 PM]
PN726
THE COMMISSIONER: Is there any further evidence for the respondent?
PN727
MS DOUST: It is, Commissioner.
PN728
THE COMMISSIONER: There is further evidence?
*** MICHAEL SCOTT STEWART XXN MR PERRY
PN729
MS DOUST: No. I'm sorry, I thought you'd asked is that the evidence for the respondent.
PN730
THE COMMISSIONER: All right. So we have all the evidence. How long do the parties think they'll be with their submissions in the matter? Would it be more convenient to take the submissions at 9.15 tomorrow morning?
PN731
MR PERRY: Yes, that's convenient to the applicant. I am conscious of the time of day and I will be I'll need to take you through the material properly.
PN732
THE COMMISSIONER: You're going to say a few things and so is Ms Doust, I would think.
PN733
MR PERRY: Yes. Fortunately, she can't object while I'm in submissions, so I'll be a little bit quicker than I was with the witness.
PN734
MS DOUST: I don't think there's any basis for Mr Perry thinking that that wouldn't occur. I don't expect that the matter would take long and it's my view that the matter should proceed now having regard to the provisions of the legislation about the way in which these matters should be resolved.
PN735
THE COMMISSIONER: Yes.
PN736
MS DOUST: I would have thought the matters are fairly closely focused now and the parties don't need to be heard for any great length. My submission certainly would probably be in the order of 10 or 15 minutes.
PN737
THE COMMISSIONER: Yes. I think we'll resume again at 9.15 in the morning. The proceedings are adjourned accordingly.
ADJOURNED UNTIL FRIDAY, 29 MAY 2015 [5.23 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
MICHAEL O'LEARY, AFFIRMED.................................................................... PN24
EXAMINATION-IN-CHIEF BY MR PERRY.................................................... PN24
CROSS-EXAMINATION BY MS DOUST.......................................................... PN77
EXHIBIT #2 EXTRACTS OF TRANSCRIPT OF PROCEEDINGS IN MATTER NUMBER C2013/6390............................................................................................................... PN96
EXHIBIT #3 EMPLOYEES HOURS LIST DATED 17/06/2014..................... PN132
RE-EXAMINATION BY MR PERRY.............................................................. PN277
THE WITNESS WITHDREW............................................................................ PN333
TREVOR JOHN WOODWARD, SWORN........................................................ PN336
EXAMINATION-IN-CHIEF BY MR PERRY.................................................. PN336
EXHIBIT #4 WITNESS STATEMENT OF TREVOR WOODWARD DATED 27/05/2015 PN347
CROSS-EXAMINATION BY MS DOUST........................................................ PN347
RE-EXAMINATION BY MR PERRY.............................................................. PN384
THE WITNESS WITHDREW............................................................................ PN389
MICHAEL SCOTT STEWART, SWORN........................................................ PN397
EXAMINATION-IN-CHIEF BY MS DOUST................................................... PN397
CROSS-EXAMINATION BY MR PERRY....................................................... PN467
THE WITNESS WITHDREW............................................................................ PN571
MICHAEL SCOTT STEWART, RECALLED ON FORMER OATH.......... PN615
CROSS-EXAMINATION BY MR PERRY, CONTINUING.......................... PN615
THE WITNESS WITHDREW............................................................................ PN725
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