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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1051218-1
COMMISSIONER HAMPTON
C2014/730
s.739 - Application to deal with a dispute
Maritime Union of Australia, The
and
Qube Ports Pty Ltd
(C2014/730)
Qube Ports Pty Ltd and Maritime Union of Australia Enterprise Agreement 2011 (the Port of Adelaide)
(ODN AG2012/12078)
[AE898476 Print PR531810]
Adelaide
10.12AM, MONDAY, 8 DECEMBER 2014
PN1
THE COMMISSIONER: Yes, good morning all. Please be seated, and I'll take the appearances.
PN2
MR M. BURNS: Commissioner, Burns is my name, solicitor, initial M, seeking your permission to appear on behalf of the Maritime Union of Australia. With me is MR JAMIE NEWLYN, who is the branch secretary of the South Australian branch of the MUA.
PN3
THE COMMISSIONER: Very well. Thank you.
MS S. MILLEN: Good morning, Commissioner. My name is Millen, initial S, and I seek permission to appear on behalf of the respondent
in this matter, Qube Ports Pty Ltd. To my left is my colleague, MR B. MILNE.
PN4
THE COMMISSIONER: Very well. Thank you. I understand those in Sydney are either witnesses or at least observers but not otherwise appearing? All right. Well, look - - -
PN5
MR D. REID: Commissioner, my name is David Reid. I'm workplace relations manager with the company, Qube Ports.
PN6
THE COMMISSIONER: All right, thank you Mr Reid.
PN7
MR REID: Yes
PN8
THE COMMISSIONER: Yes.
PN9
MR REID: And we have two observers.
PN10
THE COMMISSIONER: Yes, that's fine. Thank you.
PN11
MR REID: Thank you, Commissioner.
PN12
THE COMMISSIONER: All right, firstly I indicate that if not already done so - and I think I have already done this - but nevertheless permission is granted fort the parties to be represented. The nature of this matter lends itself to legal representation. All right, Mr Burns?
PN13
MR BURNS: Thank you, Commissioner. This is an application under section 739 of the Fair Work Act for the resolution of a dispute under the Qube Ports Pty Ltd and Maritime Union of Australia Enterprise Agreement 2011 (the Port of Adelaide) Agreement. The agreement has in it part A and part B scenarios. Many of these maritime or stevedoring agreements do - - -
PN14
THE COMMISSIONER: Yes, I'm familiar with that.
PN15
MR BURNS: - - - have part As negotiated nationally, and part B is negotiated locally. The issue we have here today is a local issue and it relates to a dispute regarding what's called a closed port day. A closed port day is traditionally a day when port was closed. The concept of the closed port day has developed along the lines of a Picnic Day, effectively and there is an issue in this case of whether the closed port day that was taken by the members under the agreement on the third Sunday in March, I think that's 16 March 2014, which was not a public holiday was entitled to be treated in such a way that the full-time employees who have given evidence here, and the members of the union, the FSEs, what are called FSEs under the EBA, whether they were entitled to have their hours credited.
PN16
Essentially the dispute would seem to relate into the negotiate - what happened in relation to the part B and negotiations, and what really the deal was done there. The enterprise agreement was negotiated 2011 / 2012. Effectively the position seems to be that where - if a closed port day falls on a public holiday and then in circumstances where the - or the union's position is that if workers do not work on the public holiday they are still entitled to have their hours credited. In this case there was during the negotiations, as it will pan out in the evidence - it's not contested in relation to the fact that previously there had been - the closed port day had been on a public holiday, on a gazetted public holiday in South Australia, which was the Adelaide Cup Day.
PN17
Both during these EBA negotiations, the closed port day was moved from the Adelaide Cup Day to another day, and essentially the union's position is that the moving of the closed port day from the Adelaide Cup Day to another day, it only agreed to that on the basis that the public holiday provisions continued to apply to that. It would never have agreed to moving the day to another day if as a consequence of it they were going to be in a position where they were just going to be left with a day off and unpaid. There is mechanics in the agreement which we're going to have to deal with, because it does seem to be one of those enterprise agreements that has sort of been cobbled together over time. You've had - - -
PN18
THE COMMISSIONER: But that's not unusual though, is it?
PN19
MR BURNS: No, but - yes, and there's reliance on some provisions and some not. There's different terminology used in part A, part B. There are old awards coming and going and so - but essentially it's not - it doesn't appear to be - in relation to the day of 16 March 2004 I think as - - -
PN20
THE COMMISSIONER: 2014?
PN21
MR BURNS: Sorry, 2014, I think the evidence as to the position of the employees is not - it's not very controversial. What is controversial is just a matter of whether the employees were entitled to have their hours credited. So it is one of those cases where a lot of the evidence is just - it says what it says.
PN22
THE COMMISSIONER: Yes.
PN23
MR BURNS: And hence in discussions we don't really think today is going to take very long. I would expect we'd be able - - -
PN24
THE COMMISSIONER: No, that would be my assessment as well. Look, there's obviously some factual dispute but to be frank, it's around the margins. This is a classic construction dispute as I understand it.
PN25
MR BURNS: Well, yes and it's why we're here. There's a dispute because - unfortunately because the agreement has - the wording of the agreement would appear to be prone to this kind of dispute.
PN26
THE COMMISSIONER: Mr Burns, you will have seen the respondent's submissions.
PN27
MR BURNS: Yes.
PN28
THE COMMISSIONER: Which effectively say that to the extent to which the dispute concerns the March 2014 event - - -
PN29
MR BURNS: Yes.
PN30
THE COMMISSIONER: - - - it's within jurisdiction, but to the extent to which it is suggested that I should deal with the closed port day on 25 April, then it's not. What do you say to that?
PN31
MR BURNS: That's correct. Okay, that is correct however - and in my submissions I didn't ask you to make orders in relation to the 25 April - to the Anzac Day issue. But making an order is different from making a finding.
PN32
THE COMMISSIONER: But, I mean the 25 April, it is a public holiday isn't it?
PN33
MR BURNS: Yes, it is a public holiday so the same - in relation to - the only difference between the two days is that - yes, Anzac Day was obviously a public holiday, a gazetted public holiday. But the same behaviour by the employees of not initially declining nor accepting work on that particular day, the two forms of response to the particular day are the same. But I'm not pressing that it's within the jurisdiction to make an order in relation to that day. But I think it was relevant to - well, I only became aware of that information as I was obtaining evidence, and given the history of this dispute just in the short period where I've become re-involved in it, the nature of attempting or initially expanding up to Queensland and going national and paring it back to just being this dispute here before you, which was - again, I'm not seeking to have another fight about jurisdiction however that evidence is before you.
PN34
I don't think that evidence is contested but I'm not seeking that you make an order in relation to that particular issue. However if the Commission wishes to make a finding in relation to it I would be grateful - well, I would submit that that would be appropriate. But again, there's a difference between a finding and making an order which the Commission may make. The central issue here is the issue of 16 March and how the sort of labyrinth of this EBA really applies to it. Ironically it's just the same situation but the same thing has happened. So whether or not the public service - you know, the public holiday provisions really need to have any difference is - I think it's also evidence that they don't. But in - - -
PN35
THE COMMISSIONER: Well, look, obviously I'll hear what Ms Millen says about that in due course.
PN36
MR BURNS: Yes. In short, I'm not seeking an order in relation to that but I have put it up there.
PN37
THE COMMISSIONER: Yes.
PN38
MR BURNS: And I would seek a finding.
PN39
THE COMMISSIONER: Well, look, at the very least it may be appropriate for the Commission to be mindful of the fact that in trying to construct - decide what the construction of the provisions is, the Commission needs to be mindful that the 25 April event occurred. So to that extent at least it might be relevant even if it's not within jurisdiction. But, look, I'll hear what the respondent says about that in due course.
PN40
MR BURNS: Thank you, and the witnesses that we'll be calling is Mr Newlyn, Mr Mark Scutella, Mr Robert Russo and Mr Mark Egel. I understand it is Egel, we pronounce it Egel?
PN41
MR M. EGEL: Correct.
PN42
MR BURNS: It's spelt for the transcript's purposes E-g-e-l but it's pronounced Egel. We're not relying on the statement of Mr Louras, who is not available today, and his statement is just really an eight-liner. It doesn't do anything that would really take the matter further than in relation to the issue we are pressing that is already before the Commission. So my friend may wish to outline her understanding or the way we want to phrase today, but I would like to just direct everything that - obviously the respondent - there is a history and you're going back many EBAs and through the awards so I suppose we do need to be careful how much pressure we put on the accelerator to just cross-examine people, you know, for weeks, you know. But I think that we will try to contain ourselves to move this and to be out of here as soon as we can. Thank you.
PN43
THE COMMISSIONER: All right. Very well. Ms Millen?
PN44
MS MILLEN: Thank you, Commissioner. I'll hold off my opening submissions until the close of the applicant's evidence, if that's okay. Just I think that might be an expeditious arbitration. Just addressing my friend's issue in terms of he has asked you to make a finding or a determination, not an order, and that is something which is available to you. I accept, Commissioner, there is a difference between the making of a determination or finding and the making of an order. However both are arbitral functions and in order to do either one of those two things there needs to be the jurisdiction of the Commission appropriately enlivened, and we say that's not the case, and in fact that seems to be conceded in this case, Commissioner.
PN45
As to what may or may not have occurred on 25 April 2014 we say that that is not relevant to what occurred on 16 March 2014 and indeed cannot be relevant to the construction of a clause which predates that event. So on that basis, Commissioner, we would seek that any of the statements referring to the Anzac Day event, for want of a better expression, that they just be struck from the record for the purposes of today's proceeding, given that we say that they have no relevance to the matter before you.
PN46
THE COMMISSIONER: Why do you say they have no relevance to the construction dispute associated with the March event?
PN47
MS MILLEN: Well, it's a question of what occurred in March and ultimately that's a factual situation.
PN48
THE COMMISSIONER: Yes. Yes.
PN49
MS MILLEN: You are then charged essentially - and I accept your position here today, Commissioner, that this is ultimately a construction case. There is limited dispute on the facts.
PN50
THE COMMISSIONER: Yes.
PN51
MS MILLEN: There's some dispute, but limited dispute. But ultimately what occurred on 16 March in terms of the crediting or non-crediting is not relevant to the question of construction in terms of the clause.
PN52
THE COMMISSIONER: Right, but don't I need to have - in deciding the construction of the agreement don't I need to also have regard to the circumstances, other circumstances within which the clauses might be applied? I mean, isn't the sort of reality check associated with the construction, doesn't that mean that the - - -
PN53
MS MILLEN: In the sense, Commissioner, that you are considering how the clause might be applied to other scenarios, we accept that that might be relevant in the context of surrounding circumstances. But actually what occurred - - -
PN54
THE COMMISSIONER: Right.
PN55
MS MILLEN: - - - on 25 April 2014 cannot be relevant to the construction. But I accept that you can consider how the clause might then operate more broadly in respect of public holidays and - - -
PN56
THE COMMISSIONER: Yes, I say that because one of the fundamental differences between you is whether or not the fact that the March event wasn't a public holiday makes no difference. So in that context I need to consider on face value how would it apply if it was a public holiday, how would it not. So by implication I think the issue arises, but look, I understand what you're saying in terms of the jurisdictional matter. Look, it is not my view that I will strike the evidence but I understand precisely what you say about the jurisdictional matter. In my view it is relevant but only - my preliminary view is only to the extent to which I have just articulated.
PN57
MS MILLEN: On that basis, Commissioner, we won't cross-examine on those events on the basis of my submission before. There will remain a question in relation to that event about, for example, clause 30.1(b) of part A refers to being available to work, and obviously if that remains an issue, the Anzac Day following the determination of this dispute, there will still be a live issue about availability to work in that context. So as long as my friend is happy that my decision not to cross-examine on the witnesses' evidence in relation to 25 April is not taken to be acceptance of that evidence more generally, I'm content with that course, Commissioner.
PN58
THE COMMISSIONER: All right. Thank you. Mr Burns?
PN59
MR BURNS: It's one of those areas where I don't even think it's denied by the respondent that the workers weren't credited their hours on those days. So I'd be pressing for findings in relation to that. The Anzac Day issue is part of the factual matrix of this. You are correct in relation to whether the public holiday - whether it's a public holiday makes any difference to the employer's prosecution of this clause against its workers. It doesn't seem to, so I don't mind if she wants to cross-examine the witnesses. I'm not going to say that that evidence isn't relevant.
PN60
I just don't understand what there is to actually cross-examine about. I mean, because it's essentially like our evidence, I mean our witnesses have said that they did not volunteer nor decline to work on this particular day, and it's just the same in relation to both days. So there's an issue of whether they volunteered or declined on both days and whether they were credited their hours on both days. That's just a matter of fact and it is or it isn't. She can cross-examine. I don't mind if she cross-examines but I can't really accept that her non-cross-examination of that is going to make that evidence disappear in its weight.
PN61
THE COMMISSIONER: All right. Well, Ms Millen, I think in that context, given that I'm not ruling the material inadmissible, the ball will be in your court.
PN62
MR BURNS: Thank you.
PN63
THE COMMISSIONER: Very well. All right.
PN64
MR BURNS: I call Mr Newlyn.
PN65
THE COMMISSIONER: Yes, just before we do that.
PN66
MR BURNS: Sorry.
PN67
THE COMMISSIONER: The parties - look, I only state this because it's important, that the parties would be aware that in a sense some of the witnesses for both parties, including Mr Newlyn, which is why I raise it now, are known to me in the context of a proceedings of this Commission and other bodies that I've sat on over the years. I can't recall that I've ever made any findings adverse or otherwise about Mr Newlyn or the employer's witnesses. I don't propose - I don't think it raises a disqualification issue but I just raise it for the record. Yes, so have Mr Newlyn sworn please.
<JAMIE NEWLYN, AFFIRMED [10.32AM]
<EXAMINATION-IN-CHIEF BY MR BURNS [10.33AM]
MR BURNS: Just for the purposes of any transcript, I just would prefer to proceed on the basis that any address details be removed from the transcript.
PN69
THE COMMISSIONER: Yes. Look, I think that happens as a matter of course.
PN70
MR BURNS: Thank you, Commissioner.
PN71
Mr Newlyn, you're the South Australian branch secretary of the Maritime Union of Australia?---The South Australian branch, yes.
PN72
And you have a made a statement here in the Commission which is dated 20 October 2014?---Correct.
PN73
And do you have a copy of that statement with you now?---Yes.
PN74
And the contents of that statement are true and correct?---Yes.
PN75
I think I will just leave it like that. My friend, Ms Millen, is going to ask you a few questions about your statement.
PN76
Commissioner, I tender Mr Newlyn's statement.
PN77
MS MILLEN: Commissioner, I raised this with my friend earlier this morning. Just before tendering Mr Newlyn's statement, paragraphs 22 and 23 we object to their admission. Paragraph 22 as you'll see, Commissioner, is clearly hearsay evidence. Mr Newlyn is referring to meetings which he acknowledges he wasn't present at and is relying on a summary of what occurred from Mr Mark Scutella, who is giving evidence today. On that basis we would say that they should be removed from the statement. It's clearly hearsay. 23 suffers a similar issue, Commissioner. It is not evidence of a fact. It's conclusionary evidence about meetings which Mr Newlyn admits that he wasn't even present at. Again it should be struck on the basis that neither paragraph 22 nor paragraph 23 provide any direct evidence on the part of Mr Newlyn.
**** JAMIE NEWLYN XN MR BURNS
PN78
THE COMMISSIONER: Mr Burns?
PN79
MR BURNS: Commissioner, I'll obviously press the statements. Mr Newlyn is a union official, a branch secretary. He can't be at all meetings at all times. Matters are reported to him. If you'd like I could ask him some questions about how he knows the information that's conveyed in those paragraphs.
PN80
THE COMMISSIONER: But in terms of paragraph 22 isn't it the reality that the person can give direct evidence about that? Isn't that person being called?
PN81
MR BURNS: Has been called?
PN82
THE COMMISSIONER: No, will be called.
PN83
MR BURNS: Yes.
PN84
THE COMMISSIONER: Yes. So in that context is there any concern with the deletion of 22? It's only linking - it can't be evidence of the primary fact. It can only be evidence of Mr Newlyn's understanding at best.
PN85
MR BURNS: Well, but that's - I would have - I would - well, that's really the only basis that it can go in but it's still evidence that - to that effect that these matters were discussed by Mr Newlyn with Mr Scutella. It just wasn't Mr Scutella standing alone.
PN86
THE COMMISSIONER: And 23?
PN87
MR BURNS: Further on that basis that this is a matter of Mr Newlyn as branch secretary of the MUA's understanding on the basis of what was being communicated with him, and again to the effect that this was - although Mr Scutella was in the meeting, participating in the negotiations, the true nature of Mr Scutella's position in those meetings was to communicate what was going on in them, and that's these clauses, both of them, reflect Mr Newlyn's understandings as these meetings were being reported to him.
**** JAMIE NEWLYN XN MR BURNS
PN88
THE COMMISSIONER: Anything further, Ms Millen?
PN89
MS MILLEN: Well, I press my objection, Commissioner. The only thing I'd say in relation to paragraph 23, if you weren't minded to strike out the entire paragraph, in particular on the fourth line from the comma, that that is not how the matter was represented to us during the negotiations. It's a clear conclusionary statement in relation to discussions that Mr Newlyn wasn't even present at. It goes beyond just - one step removed hearsay, Commissioner.
PN90
THE COMMISSIONER: All right. Well, look, the Commission is not bound by the rules of evidence but is obviously mindful of them for good reasons. I don't propose to strike the two paragraphs but what I would say is this. Firstly, they do not stand as evidence of the primary proposition. I'm only leaving them in there because they provide the context in which Mr Newlyn has reached an understanding. So in that context they're relevant but they don't stand for primary evidence of things that Mr Newlyn hasn't seen or done. They only stand for the limited proposition that I've indicated, but I will allow it on that basis, and in that context I will admit Mr Newlyn's statement and mark that as MUA 1.
EXHIBIT #MUA1 WITNESS STATEMENT OF JAMIE NEWLYN DATED 20/10/2014
MR BURNS: Thank you, that's tendered then. Thank you, that's all.
PN92
THE COMMISSIONER: Very well, thank you. Ms Millen?
<CROSS-EXAMINATION BY MS MILLEN [10.38AM]
MS MILLEN: Thank you, Commissioner.
PN94
I understand, Mr Newlyn, that you've been the branch secretary for more than 11 years?---Yes.
**** JAMIE NEWLYN XXN MS MILLEN
PN95
And you've been actively involved in part A and part B negotiations in 2005, 2008 and 2011?---Yes.
PN96
And when I refer to part B, sometimes I think it was part C. I'm referring to the part of the agreement that is specific to the Port of Adelaide?---Yes.
PN97
And it's a role which you've taken very seriously?---Yes.
PN98
Out of interest tell me about Picnic Day. It must be something that the members and employees enjoy?---Yes, it is.
PN99
It's about everyone getting together, including their families, on one particular day?---Yes, it is.
PN100
Is there anything else you'd like to add about Picnic Day?---Well, the Qube employees have generally organised a Picnic Day to predecessor companies, POAGS and P&O for the purposes of a Picnic Day for the children and families of those workers, and the only thing I could add is this year they didn't do it because they were unaware if they had to be obliged to work or there were some circumstances they weren't aware of.
PN101
So it has traditionally been a day where everyone has got together, had a picnic, and it has been an organised event?---Yes.
PN102
Thank you. Now could I just take you back a few years, the 2005 EA negotiations, and I think that that was the first negotiations that you were actively involved in, or at least in your capacity as branch secretary, is that correct?---Yes.
PN103
And just dealing with FSEs, because that is the dispute that we're dealing with today, under the 2005 enterprise agreement it's - and I'm dealing again with the Port of Adelaide - it's correct, isn't it, that if you didn't work a public holiday you got your normal annual salary but you didn't get your hours deducted?---Well, that's a position of contention. In Adelaide I was of the impression that people did get their hours credited or debited, however you want to record it.
**** JAMIE NEWLYN XXN MS MILLEN
PN104
You're under the impression but you don't know directly?---No, I don't know directly. There's always been an assumption that hours would be credited, and if there wasn't, or they weren't, there would've been a dispute well - earlier.
PN105
And the fact that - - -
PN106
THE COMMISSIONER: Sorry, just to - sorry to interrupt but just so there's no misunderstanding, I think deducted and credited has actually been used in the same context?---Yes.
PN107
So when you say credited do you mean credited towards the hours that are - - -?
---The hour - annual - - -
PN108
- - - necessarily worked - - -?---- - - accumulated hours.
PN109
- - - through in the salary?---Yes.
PN110
Yes and when the question was about being deducted, it was effectively being deducted as if the hours had been worked. Is that a correct understanding, Ms Millen?
PN111
MS MILLEN: Yes.
PN112
THE COMMISSIONER: Good.
PN113
MS MILLEN: I will probably use deducted and credited interchangeably.
PN114
THE COMMISSIONER: That's fine so long as we understand they're the same thing.
**** JAMIE NEWLYN XXN MS MILLEN
PN115
MS MILLEN: Thank you, Commissioner.
PN116
And when you didn't work a public holiday you got your salary, you didn't get your hours deducted, and this was the case even if you volunteered to work. That's correct isn't it?---Sorry, say the question again? I'm - - -
PN117
If you volunteered to work a public holiday?---Yes.
PN118
But you didn't work the public holiday, you still didn't get your hours deducted, did you? This is - I'm only talking about 2005?---In 2005? Without having the agreement in front of me I don't quite recall.
PN119
And it's the case because it wasn't a work day?---And you - sorry, are you referring to the closed port day, because they're the ones where you have the voluntary - - -
PN120
No, I'm talking about a public holiday?---Well, public holiday you can be allocated to work.
PN121
But if you don't work - so I'm just talking about public holidays now under the 2005 enterprise agreement. On a public holiday if you didn't work you got your salary but you didn't get your hours deducted. That's correct isn't it?---I'm not sure, without looking at the document.
PN122
I can take you to the document, Mr Newlyn. Do you have your statement there, Mr Newlyn?---I do, yes.
PN123
I think that's the one agreement you haven't annexed. I'll hand up, if I could, just a copy of Mr Sousa's statement because there is - - -
**** JAMIE NEWLYN XXN MS MILLEN
PN124
THE COMMISSIONER: Yes.
PN125
THE WITNESS: Which annexure is it?
PN126
MS MILLEN: If you could turn to MS6, that's the 2005 agreement?---Yes. I'm sorry.
PN127
I'll just give you a chance to have a look at that agreement, Mr Newlyn?---So it's still clause 30?
PN128
I believe it's clause 14?---Fourteen. Yes, 14.1.1, "When working on a public holiday specified within the Stevedoring Award as part of ordinary hours shall be paid at the salary rate".
PN129
I accept, Mr Newlyn, about working but I'm dealing when you - I'm talking about when you didn't work the public holiday. The proposition that I put to you is when you didn't work a public holiday you got your salary but you didn't get hours deducted?---Well, it doesn't specify other than the closed port days.
PN130
It doesn't specify in relation to closed port days either, does it, Mr Newlyn?
---Well, are you asking me the question about public holidays or?
PN131
Well let's just deal with public holidays. There's nothing in the agreement that provides that you get your hours deducted if you don't work a public holiday. That's correct?---That's what it says, yes.
PN132
So the only way in which you get your hours deducted on a public holiday is when you work that day. That's correct isn't it, Mr Newlyn?---In this 2005 agreement, yes.
**** JAMIE NEWLYN XXN MS MILLEN
PN133
Thank you. And you got your hours deducted because it was a work day for that individual?---Sorry, if I can go back and - - -
PN134
They worked the day?---Sorry, if I can just clarify. It doesn't say hours will be deducted even if they're worked either, "A permanent employee when working on a public holiday specified within the Stevedoring Award as part of ordinary hours shall be paid at the salary rate".
PN135
If I could take you, Mr Newlyn, to page 33 of that agreement in particular - this is part C, Commissioner - clause 1.1.3. That's the provision, Mr Newlyn, isn't it, that provides for the deduction of hours when it's a work period?---Work period, yes.
PN136
So when you work on a public holiday it becomes a work period and by operation of clause 1.1.3 of part C that provided for the deduction of hours. That's correct isn't it, Mr Newlyn?---For time worked, yes.
PN137
Thank you, and the same situation applied for closed port day, that's correct? And again we're only dealing at the moment for the 2005 enterprise agreement?---Yes, it would if they worked.
PN138
And the same applied if they didn't work?---They get the salary, is that what you're saying? Well, if they work they get something else, but yes.
PN139
Yes. Thank you, and during the life of the 2005 enterprise agreement, Mr Newlyn, all closed port days fell on a public holiday, didn't they?---Yes, they would have.
PN140
And the same situation that I've just taken you through in respect of the 2005 enterprise agreement applied under the 2002 enterprise agreement. That's correct isn't it?---Most probably.
**** JAMIE NEWLYN XXN MS MILLEN
PN141
If you'd like a moment you can also go to the 2002 agreement, which is annexure MS5. So just the previous annexure in that bundle of documents you have?---Yes, that's pretty much the same clause.
PN142
Thank you Mr Newlyn. But the situation did change under the 2008 enterprise agreement. That's correct isn't it?---Yes.
PN143
And it was the case, and again in relation to FSEs only, employees wanted to have their hours deducted if they were not required to
work on a public holiday. That was a specific claim raised by the MUA in the context of those negotiations?
---Yes.
PN144
And Qube was initially resistant to that claim, weren't they Mr Newlyn?---They're resistant to every public holiday claim.
PN145
But it was ultimately agreed, again in relation to public holidays, on the basis that employees paid for it through a lower wage increase?---I don't recall that being the case.
PN146
You don't recall?---Well, no, there was not a lower wage increase. We received - we've received over several enterprise agreements a relatively - the same type of wage increases.
PN147
You accept that there was an offset for the fact that Qube had ultimately agreed to this claim?---No, I accept there's an offset against a whole host of claims, not necessarily one particular claim for a result of a percentage increase.
PN148
I put it to you, Mr Newlyn, that it was the case that it was agreed to by Qube on the basis that ultimately the employees agreed to a lower wage increase?---I'm not sure if that's how Qube understand it. That's - you're putting that to me. I don't know.
**** JAMIE NEWLYN XXN MS MILLEN
PN149
But at that stage employees were concerned that a clause which referred to only public holidays could be taken to only apply to public holidays that weren't closed port days. That was a concern raised in those negotiations, wasn't it?---Well, to put it in context the concern is that your salary is based on an average of 35 hours a week, meaning Monday to Friday, seven hours a day and over 52 weeks of the year. So if I'm working - if I don't work a public holiday then essentially I'm not being - and I don't get my hours credited or debited, however you want to describe it, I'm effectively not being able to average that 35 hours a week.
PN150
I'm talking about though in relation to this claim for employees, FSEs - - -?---If that was - my answer was because the concern was because if I don't get my hours credited on a public holiday Monday, for instance, or for example, then in that week I'm only going to earn - or work or have the possibility to work 28 hours in the week instead of 35- - -
PN151
But - - -?---- - - and therefore over the course of the 52 weeks I'm not going to do my 1820 hours.
PN152
But there was a concern, Mr Newlyn, that if it was taken just to apply to public holidays that would exclude closed port days that
fell on a public holiday.
So - - -?---A closed port - other than what this dispute's about, closed port days are public holidays.
PN153
And that's why the words "including closed port days" were included in the 2008 EA. That's correct isn't it, Mr Newlyn?---Yes, because they were public holidays.
PN154
And the employees were worried that if those words weren't included, that that clause would be taken to only apply to public holidays that weren't closed port days. So there were four closed port days?---Yes, because Qube or POAGS at the time, refused to accept that those closed port days were public holidays. That's why there was a concern.
**** JAMIE NEWLYN XXN MS MILLEN
PN155
And so the words "including closed port days" was designed to address the scenario of public holidays that were also closed
port days. That's correct isn't it?
---Yes.
PN156
Okay, and in 2011, so the most recent enterprise agreement negotiations, the situation changed again. That's correct isn't it?---Well, there was the inclusion of agreed day between the parties.
PN157
Well, if I could take you first to part A negotiations, and you were heavily involved in those negotiations in your role as branch secretary. That's correct isn't it?---Yes.
PN158
And during those negotiations Michael Sousa, who was one of the key negotiators on behalf of Qube, made it clear to the union that Qube was not going to deduct or credit - deduct hours when employees didn't make themselves available to work. That was a key matter that he put forward in the negotiations, wasn't it?---I don't quite recall that but yes, I - it wouldn't surprise me.
PN159
That is, he wasn't going to pay people who weren't at work and who had not made themselves available to work?---That's possibly the case.
PN160
And that's why the words "available to work" were inserted in clause 30.1(b) of the 2011 enterprise agreement. That's correct isn't it, Mr Newlyn?---31 - 30.1(b)?
PN161
Yes?---"Where an FSE is available to work but not allocated to work". That's correct. So in most cases they're available to work as you illustrated when you took me back through the previous agreements about being available, and work within the salary. So essentially all FSEs are available to work on those public holidays, so they would be paid and credited the hours.
**** JAMIE NEWLYN XXN MS MILLEN
PN162
No, I just put to you, Mr Newlyn, before that Mr Sousa in the 2011 negotiations made it clear that he wasn't going to credit hours when employees didn't make themselves available to work and you accepted that proposition?---Well, I'm accepting the proposition that our FSEs in 30.1(b) are always available on public holidays other than closed port days as part of their salary, and they can be allocated and are required to work.
PN163
And then moving to part B, so part A was negotiated and indeed there had to be a vote of members to endorse part A before you progressed
to part B negotiations?
---No, incorrect.
PN164
So there wasn't even an informal vote of members asking whether they endorsed part A?---No, we vote as a package. We report on how things are travelling but there's no vote until the package is finalised.
PN165
But as a matter of negotiation timeline the part A agreement, part A of the agreement is negotiated first. That's correct?---Yes, it starts first and then there is some concurrent negotiations going on.
PN166
And part B as it related to Port of Adelaide, there were negotiated changes to the closed port day, what constituted a closed port day. That's correct?---Well, one closed port day.
PN167
And it changed from Adelaide Cup to the third Sunday in March. That's correct?
---That's correct.
PN168
And the benefit of this is it gave employees the opportunity for an additional day off?---Yes.
PN169
Particularly given the changes to 30.1(b) about employees making themselves available to work. It was a win win for employees. They could make themselves available on the Adelaide Cup, which was a public holiday, and get the benefit of the deduction clause in 30.1(b), and then they could still have their Picnic Day as a separate day off, a day which you have acknowledged is important for everyone to get together. That's correct isn't it?---I don't think they looked at it as a - in that context at the time but they certainly looked at it in the context that another day separate to a public holiday would be beneficial.
**** JAMIE NEWLYN XXN MS MILLEN
PN170
And it didn't deprive employees of the number of public holidays. They got the opportunity for one additional day off as compared with prior agreements which provided for all closed port days - where all closed port days fell on a public holiday?---I don't understand your question.
PN171
Let's - the number I think is 10, but let's assume there are 10 public holidays. There were four closed port days. Prior to 2011 the four closed port days fell on a public holiday so there were six public holidays that weren't closed port days and then there were four public holidays that were also closed port days, bringing the total to 10?---Correct.
PN172
Moving to 2011 the closed port day changed from Adelaide Cup to the third Sunday in March and you accept that the third Sunday in March wasn't a public holiday and isn't a public holiday?---Yes.
PN173
For the Port of Adelaide?---Yes.
PN174
So in effect that meant that there were now seven public holidays that weren't closed port days. Do you accept that?---Not technically but - because you've got Christmas Day and Christmas Eve that are characterised in another way where no one can be compelled to work, so 30.3 of the current agreement. But there is other days that - so let's say there's five perhaps.
PN175
But in - I'll put it this way. Instead of four closed port days coinciding with a public holiday there was now three and then an additional day off?---Yes.
PN176
So there was capacity for an additional day off for employees?---Unless they were required to work.
PN177
And indeed if you wanted to work the closed port day on the third Sunday in March you could volunteer to do so?---You could.
**** JAMIE NEWLYN XXN MS MILLEN
PN178
And if you had the day off you got your salary, which was consistent with the historical treatment of closed port days?---Yes, you got your salary.
PN179
Nothing further, Commissioner.
PN180
THE COMMISSIONER: Any re-examination, Mr Burns?
<RE-EXAMINATION BY MR BURNS [11.00AM]
MR BURNS: Yes, I was just a little confused about the way that you were giving your evidence in relation to your acceptance that the change of the closed port day from Adelaide Cup Day to the third Sunday in March gave the members an additional day off. What type of additional day off did you think it meant?---I think it meant it gave employees an opportunity to exercise another opportunity to perhaps have a day off. It doesn't never guarantee them a day off in the context of a closed port conditions.
PN182
But when the day was moved it was your understanding that it would be a credited day?---Yes, in the context of the closed public holiday arrangements. Yes.
PN183
So you've just given your evidence on the basis that the additional day off was effectively with the same benefits as if the closed port day had remained on the 16th of - - -?---Yes, I was asked the question - - -
PN184
MS MILLEN: I think my friend is leading the witness - - -
PN185
THE WITNESS: - - - about whether - - -
PN186
THE COMMISSIONER: Hang on.
**** JAMIE NEWLYN RXN MR BURNS
PN187
THE WITNESS: I was asked the question - - -
PN188
THE COMMISSIONER: Hang on, hang on, Mr Newlyn?---Yes.
PN189
MS MILLEN: I am very supportive of this matter going as expeditiously as possible, but my friend I think is now delving into leading the witness quite conclusively, Commissioner.
PN190
MR BURNS: Well, Commissioner, I don't really think it's controversial. I'm just not wanting, you know, for you to be in the position where you think that Mr Newlyn's evidence is anything other than - - -
PN191
THE COMMISSIONER: Well, look, I understand but there is some controversy about that because that in a sense is a little prism into what may in fact lie at the heart of the dispute. So I'd ask you to be very careful about the questions you're asking in that context.
PN192
MR BURNS: Has anything Ms Millen asked you in any way changed your evidence that you've given in your statement?---No, it hasn't. In actual fact the question was when they work on that third Sunday do they get their salary. Yes they do.
PN193
Do you have anything else to say about that?---But our view would be that they would attract a credit or a debit, however we're referring to it, from their annual accumulated hours if they didn't work regardless. And I could probably accept if people are - have made themselves unavailable in the context of, "I cannot work that day" as opposed to neither initially declining or volunteering, those people would and could still be engaged or allocated to work, and if they weren't then they should attract the seven hours deduction or credit.
**** JAMIE NEWLYN RXN MR BURNS
PN194
Thank you.
PN195
THE COMMISSIONER: Very well, Mr Newlyn, you're concluded. You can stand down and you're released from your affirmation?---Thank you.
PN196
Thank you.
<THE WITNESS WITHDREW [11.02AM]
MR BURNS: Commissioner, the next witness will be Mark Scutella.
PN198
THE COMMISSIONER: Yes, have Mr Scutella called and sworn. Yes.
PN199
MS MILLEN: You might - I'm just wondering if you want to deal with the notes issue first, before Mr Scutella comes in?
PN200
MR BURNS: Commissioner, attached to Mr Scutella's statement there is a set of notes. Last night at approximately 6 pm we received a request to produce the originals of those notes, or just to produce the notes. I've made inquiries of Mr Scutella. He has - he can give evidence about this. The position with these notes is they are notes of committee meetings of the union committee. There's a locker at Qube where these notes are located. It's not a locked locker. It's open access to this locker and this locker contains all the minutes et cetera. After making his statement, the folder containing the minutes in relation to the part B negotiations vanished from the locker.
PN201
The part A minutes are still there. The minutes from previous negotiations and otherwise meetings of the committee are still there. Just for some reason these notes have gone since - I understand since after the evidence has been served. Now Ms Millen can cross-examine to her heart's content about that. I'll be insisting on these notes coming through. They've never - there has never been any contention or issue about them until 6 o'clock last night. I haven't been able to do a forensic inquiry given the lateness of the request, as to what actually happened about them.
PN202
I understand that Mr Scutella did report, although the nature of the report, Mr Scutella can give evidence himself when they occurred. But we have our own suspicions as to the disappearing act of these minutes. But at the time that the statement was made the originals as far as I'm instructed were in existence and they were the ones which a copy was made and annexed to the statement. So I'm not really sure where we go in relation to this. I'll be insisting that - I mean, Mr Scutella can give evidence on oath that the statements are a true copy of what he took during the meetings. But the fact of these minutes, the originals, not being produced, I really don't think that having a dispute over this is really going to do anything.
PN203
THE COMMISSIONER: Ms Millen?
PN204
MS MILLEN: Thank you, Commissioner. What I was most interested in seeing the original of was annexure MS1, but what might be the most expedient course is that if my friend is going to press for the admission of these notes as a copy, a genuine copy, of the original notes, I can ask Mr Scutella about that in the witness box and he can explain as to where the originals have gone, in his view.
PN205
THE COMMISSIONER: Very well. Yes?
PN206
MR BURNS: Again, it's one issue at this stage of the proceeding to tell people, "Well, you know" - about reporting requirements et cetera, but this is about a matter that just occurred in a temporal space and we'll just have to deal with what actually happened. But he can give his evidence about it.
PN207
THE COMMISSIONER: Very well.
<MARK ANTHONY SCUTELLA, SWORN [11.07AM]
<EXAMINATION-IN-CHIEF BY MR BURNS [11.08AM]
MR BURNS: Thank you. So your name is Mark Scutella?---Yes.
PN209
You are employed by Qube Ports Pty Ltd at Port of Adelaide?---Yes.
PN210
And you're a stevedore there employed as a full-time salaried employee?---Yes, I am.
PN211
Yes, called an FSE under your enterprise agreement. You've made a statement dated 20 October 2014?---Yes.
PN212
Do you have a copy of that with you?---I do.
PN213
The statement is of four pages and four annexures, taking it to a total of 12 pages. Can you see that?---Yes.
PN214
There are a number of documents annexed to that statement. First of all is your annexure MS1, can you go to that please on page 5?---Yes.
PN215
And that's referred at paragraph 12 of your statement as your notes taken during the part B negotiations on 4 June 2012?---Yes.
PN216
Now in relation - or I just - is that a true copy of those notes?---Correct.
PN217
Do you have a copy of those notes with you today, an original copy?---No, I don't.
PN218
Are you able to explain what happened to the originals?---Original copies of the part - the EBA agreement, minutes that I've taken, were basically posted inside our amenities room at work. You can call it an ERC locker. In previous years EBA documentation has always been left inside this locker. Approximately around three to four months ago I was requested to give those documents on to the MUA (indistinct) and with it I grabbed the folder, as such, and the part B of the negotiation folder was missing.
**** MARK ANTHONY SCUTELLA XN MR BURNS
PN219
Was that after you had made your statement?---Yes.
PN220
But at the time you made this statement you did have the originals of those?
---Yes.
PN221
And that was true and correct - and like you said just - if I could just withdraw that. Now going to MS2 on the next page, that's notes of your meeting of the ERC with members on 23 July 2012, yes?---Yes.
PN222
And MS3 is notes of a meeting on 24 July 2013. Do you see that?---Yes.
PN223
And annexure MS4, which is a copy of an amended draft clause - well, various - it's a copy of an amended draft. What would you call MS4?---MS4 is obviously just a - yes, it's an amended draft of the part B negotiations.
PN224
And all of those documents are true copies of those particular documents as they were at the date you've referred to in your statement?---Yes, to the best of my knowledge they seem to be. Yes.
PN225
And did you used to have original copies of those documents as well?---They were all inside the same folder.
PN226
They were all inside the same - - -?---In the same folder, a vanilla folder, yes - manilla folder, sorry. Yes.
PN227
So are there any - is there anything you would like to change in relation to your statement?---No, not at all. As far as I'm concerned everything that I've - inside my statement is a true factual - - -
PN228
True and correct?---Yes.
**** MARK ANTHONY SCUTELLA XN MR BURNS
PN229
I seek to tender the statement of Mark Scutella dated 20 October 2014. Scutella is spelt S-c-u-t-e-l-l-a.
PN230
THE COMMISSIONER: Very well. Ms Millen, how do you propose that I deal with the admission of the document given what you've put me on notice about?
PN231
MS MILLEN: I'm comfortable for you to tender them, Commissioner.
PN232
THE COMMISSIONER: Very well, Mr Scutella's statement with attachments will be admitted and marked as exhibit MUA 2.
EXHIBIT #MUA2 WITNESS STATEMENT OF MARK SCUTELLA DATED 20/10/2014
MR BURNS: Thank you. No questions.
PN234
THE COMMISSIONER: Thank you. Yes Ms Millen?
<CROSS-EXAMINATION BY MS MILLEN [11.15AM]
MS MILLEN: Thank you, Commissioner.
PN236
Mr Scutella, can you tell me the last time you looked at the original of your meeting notes, and I'm referring specifically to MS1?---It would've been prior to being asked to give a statement towards obviously our case at hand. The exact date I couldn't tell you, but I did have those notes at that point of time, then brought those - that folder to the MUA offices to where we made duplicate copies.
PN237
And then what did you do to the folder after the duplicate copies were made?
---The folder returned back to our ERC locker, back in Port of Adelaide.
PN238
Do you remember when that occurred?---It would've probably been about a couple of days after I'd done my first initial document.
**** MARK ANTHONY SCUTELLA XXN MS MILLEN
PN239
So about five weeks ago? I think your statement's dated 20 October?---Yes, I'm thinking it's like probably a little bit longer. There was two initial times I made statements. There was two initial statements from what I recall.
PN240
Do you recall when the first statement was made?---No.
PN241
Was it in relation to a different matter than this one?---It was in regards to the closed port day, the Picnic Day.
PN242
So the statement that has been tendered in evidence, is that the first or the second statement, Mr Scutella?---Well, this statement is the - to this court - this case is - this would have to be the first - or the second, actually. I think this was the second statement. But the first statement was identical I think at the point, but I don't know if this is actually really the case, because I think there was another lawyer involved at one certain time through the MUA, on the initial statement that was made.
PN243
Do you know what happened to the first statement?
PN244
MR BURNS: I could give evidence for that.
PN245
MS MILLEN: Please don't interrupt the question.
PN246
MR BURNS: Sorry.
PN247
MS MILLEN: So you returned the manilla folder that contained the originals of the notes to the ERC area?---It's called an ERC locker and it's basically posted inside our amenities room at Port of Adelaide where we work. It's like a confinement area basically, a employees like myself or management have the access to this area. So yes, basically it's been put back into an ERC locker which has all the information that's relevant to EBAs previous, these ones and any other union stuff that we obviously deal with during the course of the year and so forth.
**** MARK ANTHONY SCUTELLA XXN MS MILLEN
PN248
And how often do you look at those notes?---Well, only when it's called upon, yes.
PN249
And were you at work yesterday?---No, I had a walk up yesterday.
PN250
So you didn't attend site yesterday?---No, I was walked up. The vessel finished - I was actually allocated but the vessel finished.
PN251
When did you discover that these notes were stolen?---I reckon it would've at least been a couple of months ago.
PN252
Can you give me a timeframe, Mr Scutella?---Geez, let me think. Look, the best recollection, like I say it'd have to be a minimum of at least about two months, two and a half months ago when I first realised that the notes were missing, the actual folder was missing. Because one of the union guys spoke to me. He called me up in regards to taking some more information and then obviously I went to work to get the folder out and the folder wasn't there.
PN253
But you had taken a copy of these notes you said when you gave your first witness statement, before you gave your first witness statement?---Sorry, repeat the question?
PN254
You indicated that you had delivered the original notes for copying - - -?---Yes.
PN255
- - -prior to giving your first statement, not your second statement, Mr Scutella?
---Yes. They obviously wanted to further investigate the folder to see if there was anything that they'd missed.
PN256
Who is they?---Campbell Duncan of the MUA.
**** MARK ANTHONY SCUTELLA XXN MS MILLEN
PN257
And do you remember what issues were wanting to be explored?---No, he just wanted to revise the notes. Basically he wanted to have a revise through the notes. That's all it was.
PN258
So when a request was made for the copies - the originals of the notes to be provided yesterday, you didn't go back to the ERC area?---No. No. No, it was late yesterday afternoon. I think it was approximately around 5 o'clock when I received a text message from Jamie to - - -
PN259
Just take me back, Mr Scutella. You said that you took the original manilla folder to the MUA offices, that was copied prior to giving your first statement. Someone else - then an individual asked you to go and retrieve the manilla folder another time?---No, sorry, let me rephrase that. I brought the - the original time I brought the manilla folder to the actual union office is when I made this statement here. The first statement I didn't actually bring the manilla folder.
PN260
But I thought you just gave evidence to say that after you'd given the first statement and you'd given the originals, someone actually wanted to inquire for further information in terms of the manilla folder. That doesn't now accord with your statement, Mr Scutella, that you only - - -?---No - - -
PN261
- - - delivered the original with your second statement?---No, what I said was - is that on the first statement I made, the manilla folder wasn't asked for. It wasn't present. On the second statement, which is this one here that I made, it was requested and I brought it forward, and then some (indistinct) due time after I made this statement I was called by the MUA again and asked to bring the manilla folder again so they could further investigate the file.
PN262
So you accept that your second statement was given around 20 October, Mr Scutella? That's its date?---Yes, that's what it says.
**** MARK ANTHONY SCUTELLA XXN MS MILLEN
PN263
And you have given evidence earlier that the manilla folder - you're aware that the manilla folder went missing some two and a half months ago, that's correct? That's evidence you gave before, Mr Scutella?---Maybe it wasn't that long ago then. Maybe it was only about a month ago or so then. Maybe I'm a bit confused with the timeframe. That's - like I say, the folder has been missing for quite a few weeks. I thought it was a couple of months at least. Maybe my timeframe's out.
PN264
I put it to you, Mr Scutella, that the meeting notes have not gone missing. That's correct isn't it?---No, it's wrong. The minutes are missing.
PN265
Commissioner, on the grounds that there is no reasonable explanation for why the originals cannot be delivered to the Commission today we would ask that parts of the witness statement referring to those minutes and reliance on MS1 is struck out for Mr Scutella's witness statement.
PN266
MR BURNS: I find that outrageous. These documents have been in an open locker at Qube. We get asked at 6 o'clock last night to produce them and now she's seeking to say that they're not admissible. Now these are notes that - I mean, this is a matter that has been prepared quite a while. There have been a few months passed since the matter even was initially before you, and this matter was initially listed for hearing some month ago and it was re-adjourned till today. So a number of months have actually passed and given - even with the repetitive that this matter was initially prepared in an effort to comply with the timetable in September, we're still within the timeframe of a couple of months - it's December now - that Mr Scutella has given evidence about.
PN267
MS MILLEN: If it assists the Commission to move this along, Commissioner, I'm just prepared to make submissions at the end of the day as to the weight, if any, you should give to the meeting notes.
**** MARK ANTHONY SCUTELLA XXN MS MILLEN
PN268
THE COMMISSIONER: All right. Well, look, I think that's not only a prudent concession but I think largely it's the way I would have ended up in any event, given - as to the status of the evidence and - - -
PN269
MR BURNS: Yes.
PN270
THE COMMISSIONER: - - - some of the issues that flow from that. Yes?
PN271
MS MILLEN: Thank you.
PN272
Now Mr Scutella I understand that you were actively involved in both the part A and the part B negotiations for the 2011 enterprise agreement - - -?---And - - -
PN273
- - - applying to the Port of Adelaide?---Yes, most parts. Yes.
PN274
And in that capacity, in your capacity as a delegate and also being actively involved, you were well aware of the change to clause 30.1(b) of part A of the 2011 EA?---I was aware of it.
PN275
And the amendment was in relation to the availability, that's correct? 30.1(b), Mr Scutella, was amended to include the expression "is available to work". That's correct isn't it, as part of the part A negotiations?---Yes, I don't sort of read it that way. I don't take it that way, no.
PN276
I'm just - if you could refer - do you have the two thousand- - -?---No, I don't have a copy of that in front of me. No.
PN277
If we could hand it up?---Thanks.
PN278
Now the 2011 one is if you refer to annexure MS1, Mr Scutella. That's the 2011 enterprise agreement. It's page 24 of part A. Do you see that there?---Sorry, did you say page 21?
**** MARK ANTHONY SCUTELLA XXN MS MILLEN
PN279
Page 24?---24?
PN280
Yes, of MS1?---MS1, okay 30.2?
PN281
30.1?---Yes.
PN282
B?---B? Yes, and your question again was?
PN283
The words "is available to work" was inserted in that clause as a consequence of the 2011 negotiations, that's correct?---"Where an FSE is available to work when not allocated"? That's what you're referring to?
PN284
Yes?---Yes.
PN285
If you'd like to refresh your memory, attachment MS7 in that bundle of documents contains the 2008 agreement, clause 14, page 15. Do you see 14.1.2 of the 2008 agreement, Mr Scutella?---Okay. So, sorry, that was 14 point?
PN286
14.1.2 on page 15?---Page 15. I must be in the wrong agreement, sorry. MS7, did you say? Was it MS7 you were - - -
PN287
Yes, that's the 2008 agreement?---Okay. Okay, yes.
PN288
You've got that, 14.1.2?---Yes.
PN289
It's on page 15, and have you also - can you flip to at the same time MS1, 30.1(b) that I referred you to? Do you have both of those provisions, Mr Scutella?---I'm getting there, yes.
PN290
Okay?---Getting there. And your question is?
**** MARK ANTHONY SCUTELLA XXN MS MILLEN
PN291
You see that there's a difference between clause 14.1.2 of the 2008 enterprise agreement in part A and clause 30.1.(b)[sic]?---Yes.
PN292
It's the same - the clause is dealing with the same subject matter?---Yes.
PN293
But there's a change at the start of the paragraph - at the start of the clause, I should say, in 30.1(b), that's correct?---There is. There is, yes, there's a change. Yes.
PN294
And it changes from, "Where a permanent employee is not allocated or required to work" , it changes to, "Where an FSE is available to work but not allocated to work". That's correct isn't it?---Yes, that's a change. Yes.
PN295
And the reason for that change was to ensure that employees had to make themselves available to work on these days in order to enjoy a deduction or credit from their guaranteed hours?---No, that's not my interpretation.
PN296
Do you recall that clause being negotiated?---I maybe wasn't there on the day that that clause was negotiated, but I understand the clause that you're referring to.
PN297
So you can't recall any discussions around that - - -?---I may not have been available on that day during those discussions. I didn't attend every part A meeting.
PN298
That's okay. If you can't recall that discussion - - -?---Yes.
PN299
- - - that's fine. You can't recall a discussion about the change?---No.
PN300
That aspect of part A was concluded before you commenced negotiating on part B, that's correct isn't it?---I'm not a hundred per cent certain on that because it was a fairly long process. I couldn't give you the exact date of completion of each one without going through documentation.
**** MARK ANTHONY SCUTELLA XXN MS MILLEN
PN301
But in relation to part B there was a change, wasn't there, in terms of the days which constituted a closed port day?---There was a discussion around a date, yes, of change of a date for a holiday. Yes.
PN302
And indeed it was changing one of the four closed port days from Adelaide Cup Day to the third Sunday in March. That's correct isn't it?---That's correct, yes.
PN303
And that didn't take away from the number of public holidays that employees had available to them. That's correct isn't it? It gave them the added benefit of a potential additional day off?---No. No, it was actually just changing one closed port day to another day. That was the understanding of that clause
PN304
And the effect of that was that you still maintained the same number of public holidays and then you got the potential for an additional day off, being the closed port day on the third Sunday in March. That's correct isn't it?---Public holidays for us are just normal working days. Normal public holidays are just normal working days. Closed port days are days in which we can't be compelled to work, and there's a differential.
PN305
But do you accept the proposition that the consequence of the change of the closed port day from Adelaide Cup - Adelaide Cup was still recognised as a public holiday under the 2011 enterprise agreement. That's correct isn't it?---Yes, and it still is.
PN306
And the change from the closed port day, one of the four closed port days being identified on Adelaide Cup Day to the third Sunday in March, was to provide the capacity for an additional - the potential for an additional day off?---No, the understanding of that clause was to change it to a day where it could be suited - better needed towards family - or we can use that day - we changed the day according to the cause of the day, basically, being - making it a Picnic Day. So basically any other day that we chose, which was on a Sunday, the third Sunday in March, so it could be utilised towards having a family environment for our - - -
**** MARK ANTHONY SCUTELLA XXN MS MILLEN
PN307
So everyone gets together with their families and enjoys a day off?---That's correct.
PN308
And you knew if the closed port day, the Adelaide Cup Day, that remained a closed port day?---No, that wasn't the understanding. The closed port day was going to be moved to the third Sunday of March. That was the understanding.
PN309
To maximise the opportunities for families to get together?---It was just a day chosen between both parties to move the closed port day off the Adelaide Cup Day to better suit the initial environment for the family for the Picnic Day. That's what it was based upon.
PN310
Just earlier I think you said, Mr Scutella, that employees can't be compelled to work a closed port day?---No, that's not what I said. I said they can be compelled to work a closed port day.
PN311
Taking you now to 16 March 2014?---Yes.
PN312
Which I understand was the third Sunday in March of this year. If I could take you to, again in the bundle of documents, the final bundle?---Number 8?
PN313
Do you have a tab SCE2?---SC?
PN314
We'll hand it up for ease?---Yes, there isn't. No. Thank you.
PN315
If you could go to SCE2; do you recall that memorandum?---Yes, I do recall the memorandum. Yes.
PN316
You didn't respond to that memorandum at all, did you?---I didn't respond but I didn't make myself unavailable either.
**** MARK ANTHONY SCUTELLA XXN MS MILLEN
PN317
But you didn't - - -?---I was available to work.
PN318
You didn't tell anyone in the organisation that you were available to work, did you?---But I didn't tell no one in the organisation that I was unavailable to work either.
PN319
And that was the same for Anzac Day as well, wasn't it, Mr Scutella?---Correct. If there was a memorandum put up two weeks prior, that was the same.
PN320
Just on the notes issue, did you report them missing?---Yes, I did actually.
PN321
Who did you report them missing to?---I reported it to my operations manager in Adelaide SA, Matthew Rantanen. I mentioned it in passing to him.
PN322
Would you be surprised if Mr Egel gave evidence today to say that he has contacted Matthew who indicates that he has never received such a report?---No, well that wouldn't surprise me at all.
PN323
No further questions, Commissioner. I understand that there is a technical issue, Commissioner, with Melbourne.
PN324
THE COMMISSIONER: Yes.
PN325
MR……….: Sorry, in Sydney.
PN326
MS MILLEN: Sydney.
PN327
THE COMMISSIONER: Sydney. Yes, Mr Reid and colleagues, can you still hear us? No. All right, well assuming they're not asleep, which I think is a reasonable assumption, we'll need to adjourn and fix the link up. So do you have any re-examination, because if you do, we'll adjourn. If not, I'll just let this witness go, that's all.
**** MARK ANTHONY SCUTELLA XXN MS MILLEN
PN328
MR BURNS: Yes, I do have a question.
PN329
THE COMMISSIONER: You do? We'll adjourn briefly to re-establish the link.
<SHORT ADJOURNMENT [11.39AM]
<RESUMED [11.49AM]
PN330
THE COMMISSIONER: Yes. Please be seated. All right. Welcome back, Sydney. All right. Yes, Mr Burns.
<RE-EXAMINATION BY MR BURNS [11.49AM]
MR BURNS: Could I just have Mr Sousa’s statement again. I think – do you have a copy of Mr Sousa’s there? If it’s not there we’ll - - -?---No. I don’t think so. No.
PN332
Thanks. If you can just go to MS2, clause 30.1 on page 24. Do you see that? And if I can refer you to paragraph 23 of your statement. Yes?---Yes.
PN333
Now, Ms Millen has asked you some questions about 30.1 and the words “available to work.” At paragraph 23 of your statement
are you effectively referring to your understanding of the interplay between 30.1(b) and 30.2(b)?
---Yes. That’s correct.
PN334
And, just to confirm, in the negotiations for part B with the movement of the closed port day from Adelaide Cup Day to the third Sunday in March were you ever under the impression that - - -
PN335
MS MILLEN: Commissioner, I allow the first question but this is, again, very heavily leading the witness.
PN336
**** MARK ANTHONY SCUTELLA RXN MR BURNS
THE COMMISSIONER: I suspect where that’s going, Mr Burns.
PN337
MR BURNS: Well, she has put a contest to these notes. Well, I’ll just say then if you can refer to annexure MS1 – your MS1 on page 5 of your statement?---Yes.
PN338
The lines down at the bottom of that page. Can you read that out?---Yes:
PN339
Remove Adelaide Cup Day and choose another day for a closed port day to be used and paid for.
PN340
And what’s the next word after that?---“Agreed.”
PN341
And is that what was agreed?---That was my interpretation of what was agreed, yes, on the day.
PN342
No further questions.
PN343
THE COMMISSIONER: Very well.
PN344
Mr Scutella, you’re concluded. You can stand down and you’re released from your affirmation. You’re free to go?---Thank you.
<THE WITNESS WITHDREW [11.53AM]
MR BURNS: Next witness will be Robert Russo. Thank you.
<ROBERT PETER RUSSO, SWORN [11.54AM]
<EXAMINATION-IN-CHIEF BY MR BURNS [11.55AM]
THE ASSOCIATE: State your full name, please?---Robert Peter Russo.
PN347
Your address?---(address supplied).
**** ROBERT PETER RUSSO XN MR BURNS
PN348
And your occupation?---Waterside worker. Stevedore.
PN349
MR BURNS: Mr Russo?---Yes.
PN350
You’re employed by Qube Ports Pty Ltd at Port Adelaide?---That’s correct.
PN351
You are an FSE working for Qube?---That’s correct.
PN352
You’ve made a statement dated 20 October 2014 in these proceedings?---That’s correct.
PN353
Have you got a copy of that statement with you?---Yes. I have.
PN354
Is everything in that statement true and correct as far as you’re aware?---Yes. I agree.
PN355
I tender that statement, please, Commissioner.
PN356
THE COMMISSIONER: Very well. Mr Russo’s statement will be admitted and marked as MUA3.
EXHIBIT #MUA3 STATEMENT OF MR ROBERT PETER RUSSO DATED 20/10/2014
MR BURNS: No questions, sir.
PN358
THE COMMISSIONER: Very well. Yes, Ms Millen.
PN359
MS MILLEN: Thank you, Commissioner.
<CROSS-EXAMINATION BY MS MILLEN [11.55AM]
PN360
**** ROBERT PETER RUSSO XXN MS MILLEN
MS MILLEN: Mr Russo, you didn’t volunteer to work on 16 March 2014, did you?---No.
PN361
And you didn’t volunteer to work on Anzac Day this year, did you?---No.
PN362
And you didn’t inform the company in any other way that you were available to work, did you?---I think – but when the - - -
PN363
Yes or no question, Mr Russo?---No.
PN364
Can I take you to paragraph 7 of your statement, Mr Russo?---Yes.
PN365
Do you see that? Have you had a chance to read that?---Yes. I’ve got that here. Yes. What would you like to know?
PN366
That’s not correct, is it?---Why do you say that?
PN367
Prior to 2008 you didn’t have hours credited for public holidays or closed port days not worked. That’s correct, isn’t it?---Sorry? Say again?
PN368
Prior to 2008 - - -?---Yes.
PN369
- - - if you didn’t work a public holiday you didn’t have hours credited, did you?
---If we weren’t allocated you got seven hours on a public holiday.
PN370
Prior to 2008?---That’s correct. On a public holiday.
PN371
You didn’t on a closed port day, did you?---No. You did. You got seven hours.
PN372
Can I take you to the 2008 agreement, Mr Russo. Is that still up there or - - -
**** ROBERT PETER RUSSO XXN MS MILLEN
PN373
MR BURNS: Yes. It is. Sorry?---Yes.
PN374
MS MILLEN: Could you have a look at that folder in front of you?---Mm’hm.
PN375
And in particular annexure MS7?---Where is that? Seven.
PN376
Page 15, Mr Russo?---Right.
PN377
Can you tell me where in that clause – this is clause 14, that you get hours credited for not working a public holiday or not
working a closed port day?
---Well, I haven’t read this before but if you do not work – if you - - -
PN378
Sorry. I withdraw that statement. You’ve got the 2008 agreement?---I suppose.
PN379
In front of you?---I guess. Yes.
PN380
Sorry. I’ll take you to the 2005 agreement which is the annexure beforehand, MS6. Do you see that one as well?---Hang on. What page?
PN381
You’ve got MS6?---Yes.
PN382
Page 16. Same clause. Clause 14, in terms of same number?---Hang on. What page are you referring to?
PN383
The clause 14 headed “Public holidays”?---Yes.
PN384
Where in that provision, Mr Russo, does it say that you get hours deducted where you don’t work – this is FSEs. Where you don’t work a public holiday or a closed port day?---I’m not sure. I just – if you – all I know is if we did not work on a public holiday – if we weren’t – sorry. If we weren’t – if we didn’t have to work a public holiday you got seven hours.
**** ROBERT PETER RUSSO XXN MS MILLEN
PN385
And closed port day?---That was automatic. You got – if you – you weren’t asked to volunteer and you got seven hours.
PN386
And you say that that existed in 2005 under the two thousand - - -?---I don’t know where existed in writing. I know that that’s what we got.
PN387
But you say that that was the situation under the 2005 enterprise agreement?---I can’t say that under any agreement. I just know that’s what we got.
PN388
Was it the situation in 2005?---Yes. Would have been the same.
PN389
Was it the situation in 2006?---Again, I don’t know anything in writing but that’s what we used to get paid and I’ve been paid that ever since.
PN390
Can I take you to annexure MS7. So the one I took you to initially?---Yes.
PN391
And can you have a look at clause 14 again on page 15?---Right. Yes.
PN392
And do you see clause 14.1.2?---Yes:
PN393
Where a permanent employee is not allocated or required to work on a public holiday including (indistinct)
PN394
Yes. What about it?
PN395
So that clause - - -?---Mm’hm.
PN396
- - - gave FSEs - - -?---Yes.
PN397
**** ROBERT PETER RUSSO XXN MS MILLEN
- - - who were not allocated or required to work on a public holiday - - -?---Yes.
PN398
- - - entitlement to be credited seven hours?---Yes.
And if a closed port day fell on a public holiday the same situation applied. That’s correct, isn’t it?---If a closed
– well, a closed port day was a standalone day, as far as I knew. That was never to do with a public holiday.
PN399
Can you go back to MS6 and that clause I referred you to again, clause 14?
---What page was that?
PN400
Page 16?---Yes.
PN401
Have you got both? Can you, sort of, look at both at the one time?---Not really but go on.
PN402
Can you flip between the two pages? I can give you another book if that would assist?---Yes. What’s your point? Yes. I’ve got them here.
PN403
You’ve got them?---Yes.
PN404
And do you see that clause 14.1.2 in the 2008 agreement - - -?---Yes.
PN405
- - - is a new clause? It doesn’t appear in clause 14 of the 2005 agreement?---Yes. Go ahead.
PN406
You accept that?---Yes. Well, yes, I assume – yes. I agree what you’re saying.
PN407
You accept that that’s a new clause? That that was the first time - - -?---Well, to be honest, I haven’t read these good enough so I’m not going to accept anything because I – I know it’s here in this black and white but I didn’t know that, as far as knowing the EBA. I didn’t study the EBA so I wasn’t sure it was on – in here.
**** ROBERT PETER RUSSO XXN MS MILLEN
PN408
The situation under 14.1.2 of the 2008 agreement - - -?---Yes.
PN409
- - - you say was the situation prior to the 2008 agreement, don’t you, Mr Russo?
---I would have to work this out because – I still don’t understand the question you’re giving me. All I know is
if it was a public holiday and we didn’t work you got seven hours. If it was a closed port day you got seven hours automatically
and you didn’t have to volunteer or – that was it, you know? You still got seven hours on a closed port day.
PN410
That’s not correct, is it, Mr Russo?---Yes. It is correct. What do you mean?
PN411
Because - - -?---Yes. I’m not sure what the writing is. I can’t understand this. I’m not clever enough to work out what’s going on here. I’m telling you what happened and what was always to happen.
PN412
You accept as a proposition though, don’t you, Mr Russo, that - - -?---What do you mean “a proposition”?
PN413
You accept that if that was the situation in 2005 - - -?---Yes.
PN414
- - - then there was no need for the addition of clause 14.1. - - -?---I didn’t write this EBA so I’m not sure what was in this EBA.
PN415
No further questions, Commissioner.
PN416
THE COMMISSIONER: Very well. Any re-examination, Mr Burns?
PN417
MR BURNS: Let me just have a second. No, Commissioner.
PN418
**** ROBERT PETER RUSSO XXN MS MILLEN
THE COMMISSIONER: Very well.
PN419
Mr Russo, you’ve finished. You can stand down. You’re released and you’re free to go as you wish?---Thank you.
PN420
Thank you?---Thank you.
<THE WITNESS WITHDREW [12.05PM]
MR BURNS: The next witness is Mark Egel.
PN422
THE COMMISSIONER: Yes. Have Mr Egel called and sworn.
<MARK EGEL, SWORN [12.06PM]
<EXAMINATION-IN-CHIEF BY MR BURNS [12.07PM]
MR BURNS: Mr Egel, you’re a Stevedore employed by Qube Ports Pty Ltd at Port Adelaide in South Australia?---That’s correct.
PN424
You’re a permanent full-time salary employee there?---That’s correct. That’s what I am.
PN425
Called an FSE under your EBA. You’ve made a statement dated 20 October 2014. Do you have a copy of that statement with you?---I do. Yes.
PN426
Is that statement true and correct?---Yes. I think so.
PN427
Any edits you want to make?---Sorry, mate?
PN428
Are there any changes you want to make to it?---No. I’m fine with that. Yes.
PN429
I tender that statement, please, Commissioner.
**** MARK EGEL XN MR BURNS
PN430
THE COMMISSIONER: Very well. Mr Egel’s statement will be admitted and marked as MUA4.
EXHIBIT #MUA4 STATEMENT OF MR MARK EGEL DATED 20/10/2014
MR BURNS: Ms Millen will ask you a few questions.
PN432
THE COMMISSIONER: Yes. Thank you, Ms Millen.
PN433
MS MILLEN: Thank you, Commissioner.
<CROSS-EXAMINATION BY MS MILLEN [12.07PM]
MS MILLEN: Thank you, Mr Egel. You’re aware that Qube called for volunteers to work on 16 March 2014, aren’t you?---I think there was a form put up on the board at the time. Yes.
PN435
And you didn’t respond to that memorandum, did you?---No. I didn’t. No.
PN436
And you didn’t otherwise make it known to the company that you were available to work on that day?---Well, I had no discussion with the company. So – about it.
PN437
And the same situation applied for Anzac Day this year?---I don’t recall, to be honest.
PN438
You didn’t work Anzac Day?---I can’t recall.
PN439
You didn’t - - -?---Actually, I may have – I may have been on annual leave but I’m not a hundred percent sure.
PN440
**** MARK EGEL XXN MS MILLEN
No further questions, Commissioner.
PN441
THE COMMISSIONER: Very well. Mr Burns?
<RE-EXAMINATION BY MR BURNS [12.08PM]
MR BURNS: I’ll just refer you to clause 17 of your statement. Have you got your statement with you?---I have that. Yes.
PN443
If you can just read – do you still – the - - -?---Clause what, was it?
PN444
Clause 14 of your statement. The last clause?---Yes.
PN445
The last paragraph?---You want me to read it, do you?
PN446
If you can read it and just say whether or not that statement remains true and correct in your – following my friend’s questioning of you?---Yes. I believe that’s true. Yes.
PN447
Thank you. No further - - -
PN448
THE COMMISSIONER: Very well. Thank you.
PN449
Mr Egel, you’re concluded. You can stand down and you’re free to go. Thank you?---Thank you very much.
<THE WITNESS WITHDREW [12.09PM]
MR BURNS: Thank you, Commissioner. There’s no further witnesses from the applicant’s perspective. All the documents that we submit are annexed to the evidence.
PN451
THE COMMISSIONER: Very well.
PN452
MR BURNS: That’s the applicant’s case.
PN453
THE COMMISSIONER: Yes. Thank you, Mr Burns. Ms Millen.
PN454
MS MILLEN: I’m in your hands, Commissioner. I’m prepared and ready to press on now but it’s, as a matter of convenience, whether you prefer to take an early lunch or you prefer to take a normal lunch juncture at 1 o’clock.
PN455
THE COMMISSIONER: Look, I think at this stage we’ll press on and see how we go.
PN456
MS MILLEN: I call Mr Egel to the witness stand.
PN457
THE COMMISSIONER: Thank you.
<STEVEN CHARLES EGEL, SWORN [12.10PM]
<EXAMINATION-IN-CHIEF BY MS MILLEN [12.11PM]
MS MILLEN: Mr Egel, could you state your name and address for the transcript, please?---Steven Charles Egel (address supplied).
PN459
Mr Egel, have you prepared a witness statement in these proceedings?---I have. Yes.
PN460
Have you had a chance to review that witness statement recently?---Yes. I have.
PN461
If I could hand Mr Egel a copy of his witness statement. If you could have a quick look at that witness statement. Is that the statement that you prepared for these proceedings, Mr Egel?---Yes. It is.
PN462
Is that a statement comprising some 25 paragraphs over six pages?---That is correct.
PN463
With two annexures?---That’s correct.
PN464
And I understand, Mr Egel, there’s two matters that you would like to raise at paragraph 23 of your statement?---Yes.
PN465
I understand there’s a point of clarification that you wish to make?---Yes. There’s – that was – the hours were credited in an agreement to a disputed agreement. We gave – brought back the seven hours for that date.
PN466
That’s the 2008 agreement?---Paragraph 23?
PN467
Yes?---Are you talking about (indistinct) response to paragraph 7 of Rob Russo’s statement?
PN468
**** STEVEN CHARLES EGEL XN MS MILLEN
Sorry?---It was around the 2008 agreement. Yes.
PN469
Mr Egel, did you put in a call to – and I apologise for my pronunciation. Matthew Rantanen this morning?---It’s Matthew Rantanen. Yes. I did.
PN470
And did you have a conversation with him about the meeting notes that were the subject of some cross-examination between myself and Mr Scutella this morning?---Yes. That is correct.
PN471
And can you tell the commission the conversation that you had with Matthew this morning?---I asked Matthew whether he had received any incident report or a report about some missing notes that were taken out of that locker and he said he had no conversation with Mr Mark Scutella, at all, regarding that.
PN472
No further questions, Commissioner. If I could tender that statement, Commissioner.
PN473
THE COMMISSIONER: Yes. The statement of Mr Egel will be admitted and marked as exhibit Q1.
EXHIBIT #Q1 STATEMENT OF MR STEVEN EGEL
<CROSS-EXAMINATION BY MR BURNS [12.14PM]
MR BURNS: Mr Egel, you’ve been working in stevedoring since 1999 or prior?
---1999. That is correct.
PN475
Now, have you previously had industrial relations experience?---2008 part B negotiations for Adelaide, Portland and Darwin. I was the presiding state manager who negotiated the part B of those.
PN476
If I might have a copy of Mr Sousa’s statement, please, for the witness.
**** STEVEN CHARLES EGEL XXN MR BURNS
PN477
THE COMMISSIONER: Luke.
PN478
MR BURNS: Just before I start taking you through things, you would be familiar enough with industrial relations to be able to say that this EBA is a little difficult to interpret?---From my experience, since 1999 every EA has been difficult to interpret.
PN479
And it’s one of those EBAs that has been cobbled together on the backs of pre-existing EBAs?---There’s a number of changes.
PN480
Now, you say at paragraph 5 of your statement – you refer to a conversation between Mr Sousa and Mr Smith that Qube was not going to pay employees to sit around and do nothing and that’s why the words “available to work” were inserted in the clause. You see that?---I do see that.
PN481
If you could look at Mr Sousa’s statement at annexure MS1. In particular paragraph 30 on page 24?---Are you talking about the agreement - - -
PN482
Yes. The agreement?---Or Mr Sousa’s statement?
PN483
I’m talking about Mr Sousa’s agreement. Annexure MS1?---This is the Qube agreement. It’s not Mr Sousa’s agreement, is it?
PN484
No. There’s Mr Sousa’s statement. Okay?---Right.
PN485
Have you got Mr Sousa’s statement?---Yes. But that’s not MS1, is it?
PN486
Well, go to tab 1, please?---Okay. Yes.
PN487
**** STEVEN CHARLES EGEL XXN MR BURNS
Okay. If you go to tab 1?---Clause 30?
PN488
Yes. Not of the statement but of the agreement. At tab 1 of the – so it has got tabs there. So you can see tab 1?---Yes.
PN489
Okay. So in your statement you say that the words “available to work” were inserted in clause 30.1(b) of the agreement. They’re the words at 30.1(b), are they? Where - - -?---Yes. That’s correct. Yes.
PN490
Okay. Now, if an effort was made to add additional work to 30.1(b) why wasn’t anything done about 30.2(b)?---I can’t answer that. I have no idea.
PN491
Do you understand why there would be some confusion if there was a clause that says:
PN492
Nothing prevents an employee from initially declining or volunteering to work on close port days
PN493
?---Absolutely agree. Because there was a heated debate around this exact thing for quite a lengthy period throughout the part A negotiations.
PN494
Yet that clause stays in the agreement?---It stayed in the agreement on the provision that the “an FSE is available” was included.
PN495
And at all times if you want any of your employees to work you can command them to work?---According to that clause. Yes.
PN496
And except on, according to clause 30.3, Christmas Day and Christmas Eve?
---According to that clause. Yes.
PN497
**** STEVEN CHARLES EGEL XXN MR BURNS
Now, at paragraph 9 and 10 of your statement you refer to the negotiations for the 2011 Adelaide agreement and at paragraph 10 you say:
PN498
The parties discussed whether the picnic day should be changed to another day.
PN499
Do you see that?---That’s correct.
PN500
And you give some rationale for the discussions, at 10(a), under the P&O Automotive and General Stevedore Pty Ltd and Maritime Union of Australia Collective Agreement 2008. That’s referred to as the 2008 agreement:
PN501
Picnic day was to be on a date agreed by Qube and the MUA.
PN502
And then at (b) you say:
PN503
Qube and the MUA had usually agreed to schedule the picnic day on Adelaide Cup Day which is a gazetted public holiday.
PN504
So under those circumstances if the closed port day was taken on the Adelaide Cup Day the workers would have their hours credited to them, in the circumstances of your 10(a) and (b)?---Under the 2008 agreement. Yes.
PN505
Yes. And even under the two thousand and – it would have remained that way, would it, under the 2011 agreement if the picnic day had remained on Adelaide Cup Day?---No. Incorrect. 2011 agreement specifically states that they need to be available to work to be paid. That’s why it was inserted in the agreement.
PN506
But the agreement also says the employees may neither decline or volunteer?---It also states they have to make themselves available and they need to communicate that. How do they do that?
**** STEVEN CHARLES EGEL XXN MR BURNS
PN507
You say at paragraph 10(c):
PN508
The employees were effectively exhausting an entitlement to have a day off.
PN509
What do you mean by that?---This is around the original request - or the ambit claim in part B was to have an additional day apart from the closed port day on Adelaide Cup Day. They thought that they were entitled to – and it was raised by the one of the delegates that they were entitled to a day of their choice. And I actually clearly stated to them that the day of their choice was the Adelaide Cup Day. They thought they were entitled to another day, which is incorrect.
PN510
But they had previously chosen Adelaide Cup Day?---Correct.
PN511
And the - - -?---It’s agreed to at the part B negotiations of each agreement, from what I understand. And I did 2008 and 2011.
PN512
So why did you suggest to them that they should move it to another day?---I never suggested that. They requested it as an ambit claim.
PN513
And whereabouts is it put as an ambit claim in your material?---It was part of their list of claims that they submitted to me in the part B negotiations. Which isn’t listed here, obviously.
PN514
So if you go to SE1 of your statement. Your first annexure. And you go to the last – or item 31 of that claim – top claim. “Log” I believe it’s called. In paragraph 11 you say:
PN515
A copy of the updated log of claims is annexed and marked SE1.
PN516
**** STEVEN CHARLES EGEL XXN MR BURNS
In item 31 of that log there’s the words:
PN517
Change MUA picnic day from the March public holiday to the third Sunday to allow family picnic day to occur.
PN518
And it says “POAGS agree to change.” You see that?---That’s correct.
PN519
So that’s the ambit claim, is it?---Yes.
PN520
And are you saying at no time did you ever have any discussions about whether or not if that CPD was to be moved that the FSEs would not have their hours credited?---I don’t recall any conversation regarding that.
PN521
So if I provide you with a copy of a statement of Mark Scutella. Okay?---Yes.
PN522
Now, I’ll just take you – at the back of Mr Scutella’s statements there are some annexures. There’s, in particular, MS1, which is at page 5. On the bottom right-hand side of the page is a number. So at page 5 of the bundle of pages, annexure MS1, there’s a reference to a picnic day. Can you see that?---Yes.
PN523
And this document is titled “Part B EBA 4 June 2012.” Now, underneath the heading “Picnic day” it says:
PN524
Remove from Adelaide Cup Day and choose another day for closed port day to be used and paid for. Agreed.
PN525
Now, do you agree that that’s a correct reflection of what was said and agreed in that meeting?---I can agree that it’s a correct reflection of what Mark Scutella wrote down here. I can’t say it’s a correct reflection of what I said.
PN526
**** STEVEN CHARLES EGEL XXN MR BURNS
Because ever since this EBA has been negotiated the parties have been in dispute. Do you agree to that?---Correct.
PN527
About this clause?---Correct.
PN528
About what was agreed or not agreed by you?---Incorrect.
PN529
So I put it to you that you did agree that during this meeting – well, I withdraw that. I put it to you that it was your suggestion to move the day from Adelaide Cup Day to another day?---Absolutely incorrect.
PN530
And it was an agreement that FSEs would continue to be paid?---Incorrect.
PN531
There was no mention of any change in the way that the workers would be remunerated between – if the picnic day or the close port day was to change from Adelaide Cup Day to the other day?---Can you repeat that again?
PN532
There’s no reference by you to the fact that this change would result in a loss of crediting of hours?---We’ve never had that conversation.
PN533
THE COMMISSIONER: So, just so I understand that, you’re agreeing that there was no discussion?---There was no discussion. No.
PN534
MR BURNS: You say in paragraph 12 that you did not have an issue with the claim and agreed to it without any substantial discussion about the meaning or purpose of the claim. So that reflects what you just said?---I can clarify that in the fact that it was always my intention that FSEs would be paid under clause at part A of the agreement. That hasn’t changed. What was changed in part B does not change part A, as far as payment goes. They had to be available to be paid.
PN535
**** STEVEN CHARLES EGEL XXN MR BURNS
So part A stays strong?---Well, the part A clause you’re referring to does not change. The clause 30.1(b) of part A. Part B can actually change part A but in this case it doesn’t.
PN536
How does it change clause 30.1 – or 30.2 part A?---It doesn’t.
PN537
So that just remains in there hanging around as another clause that’s confusing?
---That’s correct. Qube actually attempted to get rid of that clause at a couple of times but it was refuted by the MUA who
were the bargaining agents for our employees. There was discussion around that. Now, what the discussion was I can’t recall
but there was a lot of discussion around that clause.
PN538
And hence at paragraph 6 of your statement you refer to Warren Smith saying that full-time salaried employees are always available to work - - -?---That’s correct.
PN539
- - - because of clause 30.2(b)?---That’s correct.
PN540
And the clause remains in?
PN541
THE COMMISSIONER: Is there a response to that?---Well, the clause – yes. It’s in part A. Yes.
PN542
Now, you say, at your clause 12:
PN543
I remember distinctly thinking to myself that it was a win/win situation for both Qube and the employees
PN544
?---Correct.
PN545
This was because the employees were likely to get another day off? Yes?---Yes.
**** STEVEN CHARLES EGEL XXN MR BURNS
PN546
MR BURNS: :
PN547
And Qube could more easily require the employees to work on Adelaide Cup Day.
PN548
Right?---Correct.
PN549
So if the employees are in a situation where they’re working Adelaide Cup Day and the closed port day is on that day and they don’t work what is it about – I’ll just withdraw that. Sorry. What is it about getting another day off, that’s it’s a win/win?---To me it was more about employee satisfaction about getting something out of an enterprise agreement.
PN550
But doesn’t it mean that then the employees have to work another day? I mean, if the workers are just getting a day off - - -?---No. That’s not correct.
PN551
- - -they’re not getting their hours credited?---That’s not correct. They don’t have to work another day. They still have to work 1645 hours a year regardless of how many days they have off.
PN552
And then they have to work another day at the end of the hours – at the end of the year to accumulate their 1640 hours?---I don’t understand your question.
PN553
Well, they’re missing seven hours credit?---If they are available to work they would have got the seven hours.
PN554
Well, obviously there’s a contention here about whether they’re available to work or not. You’re saying they weren’t available to work, were you?---That’s exactly what I was saying.
**** STEVEN CHARLES EGEL XXN MR BURNS
PN555
That’s why I said - - -?---That’s what this dispute is about, isn’t it?
PN556
Exactly?---Right.
PN557
So they just get a day off but they don’t get any benefit, apart from just having a day off?---Pardon? I don’t know what - - -
PN558
They’re not getting the hours credited?---If they are - - -
PN559
I just can’t understand why it’s a win/win?---If they made - - -
PN560
Explain why it’s a win/win?---If they made themselves available they would have got credited the hours. But they didn’t make themselves available. They didn’t have a family picnic. They didn’t have anything.
PN561
So people do make themselves – did people make themselves available - - -?
---When they make themselves available they are paid.
PN562
And for those people that do make themselves available but are not required to work what happens then?---An FSE?
PN563
Yes?---They would – as per the agreement they are paid.
PN564
So what’s - - -?---For their credited hours - to their annual accumulated hours.
PN565
So they do get the benefit of your interpretation of the agreement in their favour?
---It’s not a – it’s pretty clear cut.
PN566
Well, we’ve been in dispute with this matter ever since this agreement has been negotiated. So I wouldn’t say it was clear cut. If workers do volunteer to work and they’re not required to work - - -?---That’s correct.
**** STEVEN CHARLES EGEL XXN MR BURNS
PN567
- - - they get paid and they get their hours credited?---That’s what it says in the EA.
PN568
Okay. Despite not having to work?---That’s what it says in the EA.
PN569
But it also says in the EA that an employee may neither decline nor volunteer?---It certainly does.
PN570
That’s also what it says in the EA?---Correct.
PN571
But the employer ignores that?---Pardon?
PN572
The employer doesn’t read that section of the agreement because it doesn’t agree with that?---Of course we read that part of the section.
PN573
Yes. But you don’t apply - - -?---But the negotiated clause of 30.1(b) was put in there to make FSEs available and to let us know their availability.
PN574
So are you saying that when you negotiate an agreement you just leave redundant clauses in it that you can just ignore - - -?---No. Well, it’s a two party negotiation.
PN575
But you understand the legal consequences of having a clause in an agreement that you just choose to ignore?---Absolutely, we can. That’s why we’re sitting here, pal. And I don’t know why – why don’t you just dump the clause, MUA? That will be good.
PN576
Because you agreed to it?---Both parties agreed.
PN577
Yes?---Both parties agreed to 30.1(b) as well.
PN578
**** STEVEN CHARLES EGEL XXN MR BURNS
Well, no-one is ignoring 30.1(b). The clause that has been ignored is 30.2(b)?
---What is being ignored in this entire case is 30.1(b). The employees in question today did not make themselves available. So they
were not credited hours. That’s the dispute.
PN579
THE COMMISSIONER: Mr Egel, when you say that what do you mean by the employees would have to have effectively made themselves available?---Well, we have to be able to determine their availability. By their silence we effectively took it that they were unavailable. And, in fact, we worked on Sunday 16 March and we had to work with VSEs, GWEs and supplementaries, despite the fact our permanents being substantially behind in their hours – or at the time. Sorry. In March they weren’t.
PN580
Okay. So you say that “available” in the context of 30.1(b) requires a, sort of, positive and expressed statement - - -?---Correct.
PN581
- - - of some description?---Correct.
PN582
Is there a difference between that and volunteering and if so what is the difference?---I don’t see the difference between volunteering and making themselves available. They volunteer to work. They’re available to work. If they volunteer then they would be paid, whether they work or they don’t work – or they be credited the seven hours.
PN583
Right?---In this case they didn’t do that. And traditionally there’s a lot of those FSE employees do not volunteer, habitually. Over the 15 years that I’ve been here very rarely does an FSE actually volunteer. The only exception that I do know of is Robert Russo who did actually work on Anzac Day.
PN584
Thank you.
**** STEVEN CHARLES EGEL XXN MR BURNS
PN585
MR BURNS: So when you say, at paragraph 12(b), in your win/win scenario, that:
PN586
Qube could more easily require employees to work on Adelaide Cup Day - - -
PN587
?---Mm’hm.
PN588
That’s because it’s a public holiday. The CPD doesn’t apply to it. It’s just a public holiday?---Correct.
PN589
So on that day you can compel the workers to work and - - -?---It’s not a matter of compelling need. They will be allocated to - - -
PN590
They will be allocated - - -?---(indistinct) not a closed port day.
PN591
And it’s more easily because you can still allocate them, if you wanted to, on – you could have allocated them on 16 March, couldn’t you?---We could have done. Yes.
PN592
Yes?---But the - - -
PN593
And, if I might put to you, in less, though, of sick or on annual leave?---On the Sunday?
PN594
Yes?---That’s correct.
PN595
But unless they are actually (indistinct) off – okay?---Mm’hm.
PN596
You could have been in a situation, when you’re short of VSEs when – and you don’t have the required skills. Where you can actually say to one of the FSEs, “You are required to work” and they have to work under the EBA?---Correct.
**** STEVEN CHARLES EGEL XXN MR BURNS
PN597
Now, at paragraph 15 of your statement you say:
PN598
The third Sunday of March this year was 16 March 2014. This was not a gazetted public holiday.
PN599
What are you referring to as “a gazetted public holiday”?---A gazetted public holiday. Gazetted published by the Government (indistinct) a public holiday.
PN600
Adelaide Cup Day is a gazetted public holiday in South Australia?---Correct. In South Australia it is. Yes.
PN601
And you say, at paragraph 17, to the best of your knowledge:
PN602
No full-time salary employees nominated that they were available to work - - -
PN603
?---Correct.
PN604
Yes. On 16 March 2014. And because of that the full-time salaried employees at Qube Adelaide facility do not accrue hours to be deducted from their annual accumulated hours. Right?---Correct.
PN605
And no FSE received any payment for being absent on that day?---Correct.
PN606
What if an FSE was on sick leave that day? Did they - - -?---Yes. That’s a different scenario. If he’s on sick leave – for the Sunday? For the 16th?
PN607
Yes?---He would have – the only way he could have been on sick leave is if he was allocated and went sick.
PN608
**** STEVEN CHARLES EGEL XXN MR BURNS
What if - - -?---Unless he had a doctor’s certificate which covered him the Friday and the Monday.
PN609
Yes?---Then the weekend obviously covers that sick period.
PN610
Yes. Or if he was on annual leave?---On annual leave is the same scenario.
PN611
And these people continue to get paid because – they don’t get extra payment, do they? They just get paid because the sick leave and annual leave are factored into their annual salary?---What do you - - -
PN612
These FSEs get an annual salary. Right?---They get an annual salary of 1820 hours inclusive of all leave, including personal leave.
PN613
The difference between the 1640 and the 1820 is the additional leave - - -?
---That’s correct.
PN614
- - - that’s in their built-in – mostly for sick and annual. And if they take sick leave or if they take annual leave the hours are deducted?---If they have annual leave and sick leave they get accumulated hours. Yes. Or accrued hours. Yes. If they don’t have accrued sick leave they don’t get paid. They don’t get credited seven hours. And that has been the case.
PN615
Thank you. And this is consistent, you say, with the way picnic days have been treated by Qube at Adelaide and all other ports in Australia?---As far as I’m aware. Yes.
PN616
Since the introduction of the 2011 enterprise agreement?---Correct.
PN617
Is that right? And except for one incidence which related to the settlement of an industrial dispute. Now, the industrial dispute you’re referring to, is that the industrial that related to last year? For the payment of - - -?---Which? Rob Russo?
**** STEVEN CHARLES EGEL XXN MR BURNS
PN618
- - - closed port days. Last year. This industrial dispute. What industrial dispute was that?---I can’t recall. What clause? Where did I put that in?
PN619
Paragraph 18?---That was around the public holiday payment, as far as I know.
PN620
But wasn’t it the same issue as this?---No.
PN621
So you don’t recall that there was a dispute filed in the commission last year, the same as this?---The dispute was arisen with the ERC Committee. Last year?
PN622
Yes?---When was this – last year it was filed?
PN623
Yes?---With the commission? Yes. It probably was. After it went through the ERC Committee. How long ago was that?
PN624
And it was this exact matter that we’re here before the commission today, that was (indistinct) in relation to last year. You don’t remember that?---2013?
PN625
Yes?---I wasn’t a part of the hearings or anything.
PN626
You had nothing to do with it? No-one asked you any questions about it?---Yes. They probably did but I don’t recall what they asked me at this stage.
PN627
I put it to you that’s just not true. Haven’t you been a significant player in this dispute?---This one.
PN628
Yes?---The one prior – previously, probably not so much.
PN629
But if both disputes related to the same thing, that was whether or not you agreed to that – well, you were parts of – well, what happened in negotiations, where you were, in which it was agreed that the close port day would move from Adelaide Cup Day to the third Sunday in March. It’s the same dispute?---If you put it in that context it probably is.
**** STEVEN CHARLES EGEL XXN MR BURNS
PN630
Arising out of the same confusion about what was agreed?---I know what was agreed. I’ve already stated that.
PN631
So when you negotiate with the MUA do you agree on your sets of terms and then the MUA agrees on its sets of terms and just whatever ends up in the EBA you don’t worry about it?---It was agreed by both parties around the table. Part A you’re referring to, I assume?
PN632
Yes?---Yes. It was agreed to by both parties around the table. It was agreed to include that in the clause 30.1(b).
PN633
Now, at paragraph 21 of your statement you refer to Mark Scutella’s statement?
---Mm’hm.
PN634
It’s fairly straightforward, what you say. I think you’ve got Mr Scutella’s statement anyway, if you need to refer to that. You say, in response to paragraph 9 and 10 of the Scutella statement:
PN635
It was agreed that the day would remain paid in the same way it had always been. That is if it fell on a public holiday it be treated as such.
PN636
That’s just a complete fabrication, isn’t it?---Well, why would I fabricate anything?
PN637
You’ve just inserted the words “that is if it fell on a public holiday it would be treated as such.” That wasn’t what was agreed, was it?---Absolutely it’s what was agreed.
PN638
It was agreed that there would be no difference in the way these FSEs were paid all of the hours credited whether the - by moving the CPD to the third Sunday in March. No indication that there be any change?---As my statement says, it was agreed the day would remain paid in the same way as it always had done.
**** STEVEN CHARLES EGEL XXN MR BURNS
PN639
So you cannot say anything yourself in an EBA negotiation and we just are supposed to accept that. Yet if employees don’t say anything about whether they decline or volunteer, even though it appears in the EBA that they can neither decline or volunteer, that makes a difference?---I don’t know what the meaning – what question – what are you alluding to here?
PN640
You’re relying on your silence here. And I’m telling you you’re not telling the truth?---Well, I dispute that. I refute that.
PN641
So you can rely on your silence?---Well, what question do you want answered here? That’s what I’m trying to allude to. What do you want answered?
PN642
I’m saying here - - -?---I’ve – yes. I’ve got a statement here in clause 21 and you’re saying it’s
a lie? Is that what you’re saying?
Ever since you’ve been involved in these negotiations your company has been in dispute nationally with the MUA?---Correct.
PN643
And it’s your negotiations, that you were in on behalf of your company?
---Mm’hm.
PN644
So it all focuses on you?---On me? Okay. So I must - according to- - -
PN645
And you’re saying - - -?---According to you it’s all my fault. I - - -
PN646
But you just say, “Oh, well, no. Nothing happened.” There was an agreement. There’s no explanation of the consequences of that - - -?---Can I just make – say something? There was an agreement made to change the closed port day. There was never an agreement to change anything around the way they were paid, apart from what was said in part A. There was never an agreement about anything about the way that they made themselves available. Part A clearly states that they have to make themselves available to be paid.
**** STEVEN CHARLES EGEL XXN MR BURNS
PN647
And part A also says that they can neither decline nor volunteer?---Well, isn’t that the dispute? So why are we going around in circles about who said what?
PN648
Well, you just seem to be interpreting the EBA in your favour?---I’m not interpreting the EA in my favour. I’m interpreting the facts. What it actually says and the reason why the clause was actually put in the EA in the first place.
PN649
Don’t you agree that you could have been a little bit more proactive about this whole thing to save your company two years of dispute?---We both probably could have been.
PN650
I mean, you know, if you’re so adamant about this is the way it’s going to be why couldn’t you get some words together to actually reflect what the agreement was?
PN651
MS MILLEN: Commissioner, I must object now. This is getting incredibly argumentative. I’m not sure how this witness is - - -
PN652
THE COMMISSIONER: Yes. It sounds like we’re negotiating an EA, actually. All right. Mr Burns, I don’t think this is going to help me resolve the matter but can I - - -
PN653
MR BURNS: All right.
PN654
THE COMMISSIONER: Mr Egel, can I clear – in paragraph 21 where it says, “That is” – the words that follow after that. Am I correct in understanding that that is your understanding of the effect of what was agreed rather than that there was any sort of expressed discussion about that?---That’s correct.
PN655
Okay?---Yes.
**** STEVEN CHARLES EGEL XXN MR BURNS
PN656
Fine. Thank you.
PN657
MR BURNS: Yes, Commissioner, I think you get the gist of the context of the dispute. I don’t intend to, sort of, grabble along every other statement except to say, with global effect – just refer Mr Egel to 25(a) where it refers to Mr Newlyn’s statement – but he makes a broader statement, in that in response he says:
PN658
PN659
Now, Mr Egel, I’m just putting to you that this is not true. It was agreed during that negotiations with you that the closed port day would be moved to another day and that the workers would be paid - which meant paid and credited their hours. Are you going to agree with that or not?---I disagree with that, in that context.
PN660
No further questions.
PN661
THE COMMISSIONER: Very well. Any re-examination, Ms Millen?
PN662
MS MILLEN: Very brief, Commissioner.
<RE-EXAMINATION BY MS MILLEN [12.54PM]
MS MILLEN: Mr Egel, I just want for you to explain to the commission the difference between – there has been concepts of paid and hours credited and deducted?---Yes.
PN664
As I understand it, FSEs are paid a guaranteed salary each week based on an annualised salary?---That’s correct.
**** STEVEN CHARLES EGEL RXN MS MILLEN
PN665
So irrespective of whether they turn up for work or not they are paid that salary per week?---Correct.
PN666
And so when you talk about paid in the context of not attending work either on a public holiday or a closed port day you’re talking about the fact that they continue to receive their salary?---That is correct. Yes.
PN667
But then the hours being credited or deducted is a different concept, isn’t it?
---That is correct. Yes.
PN668
You can be paid but not have hours credited or deducted. So - - -?---Yes. That is absolutely correct. Yes.
PN669
And, indeed, public holidays and closed port days are examples of that, aren’t they?---That’s correct. Yes.
PN670
And if I could take you to MS1. So that’s the 2011 EA?---Yes.
PN671
And appendix – or part B, clause 4, page 2?---Yes.
PN672
Clause 4.1.3?---That’s – yes.
PN673
That’s the position, isn’t it, Mr Egel?---That’s it. That’s correct.
PN674
You have to work in order to have your hours deducted from your annual accumulated hours?---That’s actually correct.
PN675
And the only change to that was in 2008 when there was the change to the public holiday clause?---Yes.
**** STEVEN CHARLES EGEL RXN MS MILLEN
PN676
And that that was further amended by the availability to work requirement in 2011?---That is correct.
PN677
And it’s not correct, is it, to say that you haven’t set out a procedure to determine availability for work?---No. That’s incorrect. There is a procedure.
PN678
And can you explain to the commission what that procedure is?---Of our calling for volunteers? It’s quite clear in the enterprise agreement that two weeks prior to any closed port day we have to request volunteers to work – and that’s all categories including casuals. To try to determine who is available to work. Two weeks – two days prior to the closed port day we actually do a final determination of it from – of allocation from those that have actually volunteered and allocate those persons.
PN679
And that’s the process for determining availability?---That is correct. Yes.
PN680
And that has been made very clear to your workforce?---Very clear.
PN681
And not one FSE volunteered to work, in response to that memo, on 16 March, did they?---Correct.
PN682
No further questions, Commissioner.
PN683
THE COMMISSIONER: Just before you finish, I take it you don’t adopt the same approach for a public holiday that’s not a port closure day?---No. Public holidays, they – apart from Christmas Day, Christmas Eve and New Year’s Eve, they are required to work public holidays. The 1820 hours per annum includes all public – all forms of leave. The 1645 are actually work days – and that can be any day of the week, any shift, any day.
PN684
**** STEVEN CHARLES EGEL RXN MS MILLEN
Okay. Anything arising?
PN685
MR BURNS: No, Commissioner.
PN686
MS MILLEN: Just on the public holiday, Commissioner.
PN687
In relation to public holidays, if you have insufficient number of individuals rostered to work you will call for volunteers, won’t you?---For public holidays? Public holidays will - - -
PN688
I’ll put it another way. Could you explain to the commission how you determine whether FSEs are available to work public holidays or not?---All FSEs are required to work all public holidays if they’re not a closed port. If they’re a closed port day they volunteer. We will actually – if we haven’t got sufficient skill or appropriate coverage then we can force people to work – which we’ve never done.
PN689
Thank you, Commissioner.
PN690
THE COMMISSIONER: Mr Egel, you’re concluded. You can stand down?
---Thank you.
PN691
Thank you. And you’re released from your oath?---Thank you.
<THE WITNESS WITHDREW [12.59PM]
THE COMMISSIONER: Right. We’ll adjourn till 2.15.
<LUNCHEON ADJOURNMENT [1.00PM]
<RESUMED [2.18PM ]
<MICHAEL SOUSA, SWORN [2.19PM]
<EXAMINATION-IN-CHIEF BY MS MILLEN [2.19PM]
MS MILLEN: Mr Sousa, have you prepared a witness statement for this proceeding?---I have.
**** MICHAEL SOUSA XN MS MILLEN
PN694
Is that in front of you now?---Yes, it is.
PN695
Is that a witness statement comprising 46 paragraphs and eight annexures?---Yes, it is.
PN696
Have you had the opportunity to read your statement recently?---I have.
PN697
Is it true and correct in every particular?---Yes, it is.
PN698
I tender that statement.
EXHIBIT #Q2 STATEMENT OF MICHAEL SOUSA
THE COMMISSIONER: Any additional questions, Ms Millen?
PN700
MS MILLEN: No, Commissioner.
<CROSS-EXAMINATION BY MR BURNS [2.20PM]
MR BURNS: If I can take you to your statement, Mr Sousa, you initially outline in the first four paragraphs your experience with Qube and its predecessors. I understand that during that period you were involved in the negotiation of the predecessor enterprise agreements in relation to those entities?---That's correct.
PN702
Were you involved in the negotiation of all the enterprise agreements that were annexed to your statement?---Yes, that's correct.
PN703
This enterprise agreement - at issue today is the Qube Ports Pty Ltd and Maritime Union of Australia Enterprise Agreement 2011, the Port of Adelaide Agreement, which we'll just refer to as the Adelaide Agreement. That Adelaide Agreement is similar in respect of - it's part A to the other Qube agreements that apply to the ports around the country?---The part As are, yes.
**** MICHAEL SOUSA XXN MR BURNS
PN704
Yes, and part Bs are negotiated locally?---Some are, yes.
PN705
If I can take you to your paragraph 11, please - - -?---Yes.
PN706
- - - you refer to clause 30, which you understand is at issue in these proceedings?---That's correct.
PN707
You would accept, wouldn't you, that clause 30 effectively exists as a hybrid clause that has been edited over time until this current agreement? It's been changed over time, and this is the current version of this clause?---The current clause is the current version of the existing agreement, yes.
PN708
Yes, and similar clauses have existed previously under previous agreements. For example, going back to 2008 agreement; there's a
2002 agreement; a 2005 agreement. The current clause reflects what's been negotiated under the current agreement in relation to
public holidays and closed port days under part A?
---Sorry, Mr Burns, what are you asking me - - -
PN709
I'm asking you - effectively that this clause 30 is a cobbled-together clause that's been derived from previous clauses under pre-existing EBAs?---The current clause is the current negotiated clause in the 2011 agreement, correct.
PN710
Okay. You say at your clause 12 that clause 30.1 of this Adelaide Agreement defines public holidays by reference to the Stevedoring
Award. Do you see that?
---Yes.
PN711
You say that Sunday, 16 March 2014 was not a gazetted public holiday in South Australia, nor was it designated as such in the modern
award. Do you see that?
---Yes.
**** MICHAEL SOUSA XXN MR BURNS
PN712
Then you say, "The modern award is annexed to this statement." Do you see that?---Yes.
PN713
Then you annex the award at your MS2. That's the current award, the 2010 award?---Yes.
PN714
Then at your MS4 you've annexed the previous award, the predecessor award, which - so the current award is the Stevedoring Industry Award 2010 and the predecessor award is the Stevedoring Industry Award 1999. Do you see that? You accept that?---Yes. I'm just checking that I'm referring to the same documents as you are.
PN715
Just your MS2 and your MS4?---Yes.
PN716
If I can take you to your paragraph 40, you refer to the negotiations of the 2008 agreement?---Yes.
PN717
Do you remember those negotiations?---Yes, I do.
PN718
The 2008 agreement is included in your materials at MS7. The closed port day clause in that agreement - sorry, the public holidays clause in that agreement is clause 14. Is that correct?---The closed port day clause?
PN719
Yes?---Yes, that's correct. That's the public holidays, 14.1 and 14.2, closed port days?
PN720
That's right. If I can take you to clause 14 of the 2008 EBA - - -?---Sure.
PN721
- - - you can see there at clause 14.1, "Public holidays other than closed port days." It says, "A permanent employee, when working on a public holiday specified within the Stevedoring Award" - okay? Do you see that?---Yes.
**** MICHAEL SOUSA XXN MR BURNS
PN722
The award that refers there is the 1999 award, not the 2010 award?---Yes.
PN723
You accept that? And there's a reference in 14.1.2 of the 2008 agreement that, "Where a permanent employee is not allocated or required to work on a public holiday, including closed port days as specified in the Stevedoring Award, that employee will be credited with seven hours to be deducted from their accumulated hours." So that's the position that you negotiated under the 2008 agreement. Is that correct?---Yes.
PN724
You say in your statement at paragraph 40 on pages 7 and 8 - in particular, at paragraph 40(a) - P&O, the predecessor - that you initially opposed the claim to deduct seven hours from an FSE's accumulated hours when the FSE was not required to work on a public holiday. At 40(b) you say, "A deal was made between P&O and the MUA whereby P&O agreed to the public holiday claim in exchange for the MUA agreeing to endorse a reduced pay increase," and then you say, "The public holiday claim was effectively bought by the MUA." Do you see that?---Yes.
PN725
What was bought? Was it the nature of, there was a reduced pay; that was consideration for this crediting of hours for the public holidays under that situation in 2008?---What was bought was that prior to 2008 FSEs working on a public holiday did not attract - so hours were not deducted from their accumulated hours. In 2008, as part of that negotiation, there was - in return for a pay increase, we agreed that on a public holiday, where an FSE didn't work, he or she would attract hours of their accumulated hours.
PN726
Okay, and so that was an agreement that was made under the 2008 agreement and which - the next agreement following that was the 2011 agreement. Is that correct?---Yes.
PN727
**** MICHAEL SOUSA XXN MR BURNS
However, under the 2011 agreement, the award is the Stevedoring Award 2010. Is that correct?---Yes, I believe that's correct.
PN728
And a difference between those two agreements - tell me if you're not aware, but a difference between those two agreements is that, under the 2010 agreements, Picnic Day is not a public holiday for the purpose of the award?---The reference is in relation, in terms of the award - - -
PN729
Yes?--- - - - to public holidays?
PN730
Yes?---The public holidays are basically allowed for as per the NES.
PN731
Yes?---And an employee who works on a public holiday, it basically outlines - it just outlines the rates of pay for the public holiday and then it says that on - it nominates the public holidays: Christmas Day, Good Friday, Anzac Day, Labour Day.
PN732
Yes. If you go to your MS4 and you have a look at - I think it's page 28 of that - sorry, clause 28 of that award?---Yes.
PN733
And 28 prescribes public holidays; 28.1.1 prescribes particular public holidays, being News Year's Day, Good Friday, Easter Saturday, Easter Monday, Christmas Day and Boxing Day, and you'll see that 28.1.3 prescribes a Picnic Day. Do you see that?---Yes.
PN734
Also 28.1.4 prescribes South Australia's Proclamation Day. Do you see that?
---Yes, I do.
PN735
Are you aware of the shifting of the South Australian Proclamation Day to the Adelaide Cup Day?---In the Adelaide Agreement?
**** MICHAEL SOUSA XXN MR BURNS
PN736
No, as far as a gazetted public holiday goes in South Australia?---Yes.
PN737
THE COMMISSIONER: Mr Burns, look, I'm not sure that's right. I think the Proclamation Day holiday was actually moved to Boxing Day so that it followed the rest of Australia; that is, the 26th rather than the 28th.
PN738
MR BURNS: All right.
PN739
THE COMMISSIONER: I don't know if it has any bearing at all, but - - -
PN740
MR BURNS: I don't think it has any bearing in relation to this, because the point is really in relation to the Picnic Day issue here.
PN741
My point is that under the - you say at your clause 40(b) that a deal was made whereby the MUA agreed to the public holiday claim exchange for a reduced pay increase. Now, for the purposes of people in South Australia, the public holiday would have included the Picnic Day under the 2008 agreement, would it not?---It included Picnic Day in relation to the public holiday portion of the agreement. Is that what you're saying?
PN742
Yes, because that's what - - -?---Yes, so it included - - -
PN743
Sorry, because that was what was in the award?---It included Picnic Day where it falls on a public holiday, which is the reference to 28.1.3.
PN744
So that was something that there'd been consideration for and effectively bought by a reduced pay increase, which in time, if each pay increase is a step going up the ladder, that was a shorter step for that particular year they've agreed to, and the following year they would just continue with their normal pay increases, would they?---I'm sorry, I don't understand the question.
**** MICHAEL SOUSA XXN MR BURNS
PN745
I'm just saying they're paid for the credited hours by agreeing to a reduced pay increase?---In 2008?
PN746
Yes?---Yes.
PN747
That's something that's been paid for forever?---Yes.
PN748
Because that happened, that was paid for, and so that's not - so the issue of a crediting of hours in this enterprise agreement for work on public holidays - closed port days on public holidays - is an important issue for the parties, because it's something that's been previously the subject of negotiations and it's been bought and paid for by the union members?---Sorry, is that a question?
PN749
Yes, it's a question?---Sorry.
PN750
It's an important elements that needs to be factored into negotiations about - this is something that's been bought in previous negotiations, so it can't just be dropped off in current or future negotiations?---Just two things. Sorry, Commissioner, I can't see Mr Burns.
PN751
Where's the camera?---Thank you, yes.
PN752
I'm saying that it was an entitlement that has previously been bought, as you've said in your statement, so it's therefore not something that should be treated lightly going forward into future negotiations; that is, it's not something that should just be dropped off the table?---If we agree something, then it's agreed, but the EA says what it is, and that is a Picnic Day which falls on a - a Picnic Day which falls on a public holiday is a public holiday.
PN753
**** MICHAEL SOUSA XXN MR BURNS
Yes?---A Picnic Day which does not fall on a public holiday is a closed port day.
PN754
And there's - - -?---Does that answer your question?
PN755
It's close enough?---Okay.
PN756
If I can take you back to paragraph 13 of your statement, you say that "Generally it is expected that all employees make themselves available within reason to work on public holidays which are not closed port days." What do you mean by "within reason"?---They're reasonably available.
PN757
So what - - -?---That's what we refer - you'll see that referred to throughout the agreement. So it's reasonably and practicably so.
PN758
And you can compel your members to work - your employees to work on public holidays?---Yes.
PN759
If you could compel your employees to work, do you consider them available or unavailable?---They have to be available. So they either have to make themselves available or unavailable. It's up to them to make themselves available.
PN760
But you can compel them. Yes?---We have a provision that if they don't make themselves available, they can be compelled, but the first objective is they have to make themselves available.
PN761
If I can take you to the 2011 agreement, back to clause 30?---Yes.
PN762
And in particular taking you to clause 30.2(b), you will see that it says, "Nothing prevents an employee from initially declining all volunteering work on closed port days." Do you see that?---Yes.
PN763
**** Michael sousa Xxn mr burns
So are you saying that despite - are you saying that even though you can compel your employees to work, they don't have an entitlement
to rely on clause 30.2(b)?
---Yes, they do have a - they have an obligation under the agreement to volunteer, so in 30.2(c) they have to volunteer, ie nominate
whether they are available to work, and they can do that through either declining or volunteering. Then if we don't have enough
people volunteer, then we have the opportunity, subject to skills, to compel people to work.
PN764
But 30 - - -?---After we put - yes. After we've gone through that process.
PN765
30.2(b) says, "Nothing prevents an employee from initially declining or volunteering to work on closed port days, provided that employees rostered to work on closed port days will be required to work where insufficient employees with the necessary skills as required to meet the customer requirements volunteer to work on the day." Doesn't that mean that if you don't have the employees with the skills on the day, you can compel people to work under that clause?---Yes.
PN766
There's evidence been given in your statement about the wording in clause 30.1(b), the words "is available to work". Can you see that?---30.1(b). Yes.
PN767
And you've said that you've been involved in negotiations of a lot of EBAs for Qube and its predecessors. Do you understand that - well, I put it to you that there is inconsistency between 30.1(b) and 30.2(b). Do you agree with that?---No.
PN768
30.1(b) does not say that employees have to advise the company, does it?---Sorry, is that a question?
PN769
That is a question?---Sorry. So 30.1(b), are you saying, does not require them to make themselves available?
PN770
**** MICHAEL SOUSA XXN MR BURNS
No, I'm saying that 30.1(b) does not place an obligation on the employees to proactively advise Qube that they are available. They
just have to be available?
---No, they are available.
PN771
And they can be compelled to work?---On which day?
PN772
On a public holiday and on a closed port day?---No. On a public holiday - - -
PN773
Yes?---Public holiday for us is a normal working day.
PN774
On - - -?---(indistinct) it's not - a public holiday for us is as if it's a normal - any other day in the year.
PN775
On a closed port day where - - -?---No, on a public holiday.
PN776
Thank you. And on a closed port day where there's not enough skills available, employees can be compelled then. Yes?---That's where they've either made themselves available or unavailable, so after going through the process of employees nominating whether they're available or unavailable, once we - - -
PN777
Where is that in the EBA?---If I could finish, please. So once we go through the process of the rostering and we run the rosters - so we would, one month out, ask for availability from permanents, so FSEs, VSEs, GWEs and supplementaries. After we get the required people, if there is not enough people having made themselves available, we would then compel FSEs to work.
PN778
The only time employees can't be compelled to work is set out in clause 30.3 of the agreement, and that is on Christmas Eve and Christmas Day. Do you agree with that?---Yes.
PN779
**** MICHAEL SOUSA XXN MR BURNS
On any other day employees can be compelled?---On any other day employees - yes.
PN780
And that's why, if I take you to paragraph 16, you say, "On closed port days employees are usually released from the expectation
that they must be able to work, although Qube can require them to work," because that's true, isn't it?
---Sorry, is what true?
PN781
Your first sentence of paragraph 16 of your statement?---"Employees are usually released from the expectation". On closed port days they're not available till they make themselves available. That's what that means.
PN782
But that's not what the EBA says?---Yes, it is. Yes, it does.
PN783
So where does it say that?---That they're not available?
PN784
Yes?---In 30.2(b) - sorry, 30.2(c). We call for volunteers because they're not available. If they were available we wouldn't call for volunteers. After calling for volunteers and they're not - after calling for volunteers and them not volunteering, if we're short we then go to 30.2(b) which allows us to compel people to work, but if they were available we wouldn't do 30.2(c).
PN785
So clause 30.2(b) doesn't mean anything?---Yes, it does. It means that after we have called for volunteers and people have made themselves available to work and we're still short of skills, we have the opportunity to compel FSEs to work on that day.
PN786
Can I put it to you that that's just not how this clause reads?---I negotiated it, so that's what it means. That's what we've done certainly since 2008 - and 5.
PN787
And ever since this clause has been active you've been in dispute about it. Do you agree with that?---No. No, we haven't.
**** Michael sousa Xxn mr burns
PN788
No?---No. No.
PN789
Not in relation to Adelaide?---In dispute in what regard? A dispute certainly since the MUA raised it six months ago roughly.
PN790
Six months ago, so - - -?---12 months. I can't remember the exact date.
PN791
But each time it's been in relation to this closed port day?---It's in relation to a closed port day that is not a public holiday.
PN792
Yes?---So effectively, Mr Burns, the union requires us to pay an employee when he or she has not made themselves available and we do not require them to work.
PN793
What if an employee puts up his hand to work and is not required to work?
---Where he or she volunteers?
PN794
Yes?---So where he or she makes themselves available four days out, we would then advise employees whether they're required to work or not work. If four days out they're not required to work, they don't accrue accumulated hours, and that's 30.2(d). If they are required to work, then they do accrue hours.
PN795
So isn't it the case that if the volunteer, they're not required, they get paid? They get - their hours are credited?---Sorry, can you ask that again?
PN796
Isn't it the case that if they volunteer but they're not required, they get their hours credited?---If they make themselves available and they volunteer, and after the four days' notice or the allocation time, then they would be entitled to it.
PN797
Has that ever - - -?---But just because - just because you volunteer a month out does not mean you're entitled to either pay if you're a suppo or a GWE or a VSE, or hours if you are an FSE.
**** MICHAEL SOUSA XXN MR BURNS
PN798
And where is that in the EBA?---Where is what?
PN799
Is that in the EBA - about volunteer, you're not required, you won't get your hours credited?---30.2(c). We call for volunteers to be on a to-be-confirmed basis, so at that point they're to be confirmed whether we require them or not.
PN800
So how - - -?---30 - yes.
PN801
So how does that then match up with clause 30.1(b)?---How does that match up with 30.1 - - -
PN802
(b), which just says simply, "Where an FSE is available to work but not allocated to work on a public holiday, including closed port days, as specified in the award that employee will be credited with seven hours to be deducted from their accumulated hours." That doesn't say "except if four days out we decide they don't have to work"?---Sorry, are you talking about public holidays or closed port days?
PN803
Both?---Well, they're not one and the same.
PN804
In that clause they are?---No, they're not.
PN805
You've inserted a phrase in that clause, yourself I assume, that has brought it in. 30.1(b), "Where any FSE" - this is public holidays other than closed port days, so it's a little bit confusing because at the start it says, 30.1, "Public holidays - other than closed port days", then (b), "Where an FSE is available to work", so we've got an FSE has said they're available to work, (2) "but they are not allocated to work on a public holiday, including closed port days" - right, tick - "as specified in the award that employee will be credited with seven hours to be deducted from their accumulated hours". That's just tick, tick, tick, but there are other considerations, are there, that get brought into place so that these people - - -?
**** MICHAEL SOUSA XXN MR BURNS
---I'm happy to run you through that if you just give me one second, please. So - - -
PN806
If you'd just stop there. Has this ever actually happened before? This isn't just an academic exercise, Mr Sousa, is it?---Sorry, has what happened?
PN807
Has this scenario we're talking about actually ever happened?---Sorry, which scenario?
PN808
Of actually having a situation on a closed port day where you've had too many people or not enough people - - -?---Yes, it can - - -
PN809
- - - so you've actually had to make a decision like this?---If you're asking me to remember a day in history when that occurred, I can't give you that date. Has it happened? Yes, it has happened. I can - - -
PN810
Do you know if it's happened - - -?---I'm happy to clarify your question in relation to the inclusion of closed port days in 30.1(b).
PN811
Yes?---So 30.1, public holidays other than closed port days, that clause is just for public holidays, hence it says "other than closed port days" because for closed port days you go to 30.2(b). The reason that in 30.1(b) we have "including closed port days" is where a closed port day falls on a public holiday then the FSE is entitled to the accrued hours. However, if it is a closed port day that is not on a public holiday, you go to 30.2. You call for volunteers under 30.2(c), so you ask whether people are available or not available, and then if they're not available and four days out we say, "We've run the rosters. We're still short of people. There's a whole lot of FSEs not available to work," we can compel under 30.2(b). However, if it's a closed port day on a public holiday, because it's a public holiday then that's where they get their hours. Now, the reason those words were included in there was, when we negotiated this clause - and I negotiated it with Mr Rick Newlyn - when we negotiated that clause, there was the issue that if we didn't include those words then we as a company would say, "It's a closed port day, not a public holiday, and hence the company won't accrue the hours."
**** MICHAEL SOUSA XXN MR BURNS
PN812
The company won't - - -?---So we agreed.
PN813
Yes?---Because there was a fear from the union that we would use that clause without those words and not pay the hours on closed port days if they volunteered.
PN814
So you don't accept that this clause is unclear at all?---No.
PN815
So you don't accept that the fact that you've been in dispute with the union about this clause for a year now is of concern?---I don't think it's a dispute. I think it's the union trying to buy back something that they gave - halfway into an agreement they want to claw back. As far as I'm concerned, it's not a dispute. It's clear. In fact, that's how our rosters are set up in Microster.
PN816
You say at paragraph 18 of your statement that in March 2014 it became apparent at Qube that some employees were abusing the closed port day system. What are you referring to?---That's employees were not making themselves available and then, when we were short of skills, we would go to compel them - they would refuse to work but still demand that they get their hours, and that's when this clause was then put into dispute.
PN817
Did you ever write to any employees compelling them to work and have them refuse in writing?---I can't recall.
PN818
Have you got any evidence to support what you just said?---Right here?
PN819
In this statement that attaches a lot of material?---The only evidence I can give is the one I'm giving on a sworn Bible that that's why it occurred.
PN820
In clause 19 you say throughout your experience at Qube it's been your understanding that an FSE who doesn't make themself available for work on a closed port day that is not a public holiday does not receive an additional payment or deduction of accumulated hours. Is there any circumstance where people receive additional payment?---On a closed port day?
**** MICHAEL SOUSA XXN MR BURNS
PN821
Yes?---If they work, they do.
PN822
If they work on a public holiday? So they get overtime?---No, no, on a closed port day. On a public holiday you don't get overtime.
PN823
But you've got a package salary. These are full-time salaried employees. So how do they get extra pay? They're going to get paid whether they work or not, aren't they?---On a normal day, you mean?
PN824
Yes?---No. They're on a composite rate.
PN825
But they get paid a weekly composite rate, that's right, yes?---They get paid a fortnightly rate, which is a composite rate.
PN826
Yes?---Which, regardless of whether they work day shift, evening shift, night shift, Monday to Sunday, public holidays, is the same rate.
PN827
That's right. So in what circumstance would they get paid above their normal salary?---On a closed port day where they make themselves available to work and they work on a closed port day, then they would be entitled to the additional amount, whatever it is.
PN828
I'll just move on. We've got to really get out of here, I suppose. Just bringing you to Adelaide, here in Adelaide there were negotiations - part B. It's been put that there was an agreement in the negotiations here in Adelaide where - to move the closed port day from Adelaide Cup Day to the third Sunday in March. You're aware of that?---Yes.
PN829
There's conflicting evidence as to what was agreed. You're aware the union's view is that there was an agreement made that there would be a shift of the closed port day from Adelaide Cup Day to the third Sunday in March, but there was never any understanding from the union that that would involve a removal of - - -
**** MICHAEL SOUSA XXN MR BURNS
PN830
MS MILLEN: Commissioner, I'm not sure how the witness can give evidence of the MUA's understanding.
PN831
MR BURNS: You're aware of an allegation that an agreement was reached that - I withdraw that. Have you seen Mr Egel's evidence?---I have, yes.
PN832
And you've seen the evidence of the MUA witnesses?---I have, yes.
PN833
What authority did Mr Egel have during those negotiations?---All the state managers, which Mr Egel is one of, were negotiating part B agreements, with direction and final approval from myself and the IR manager at the time.
PN834
Was there any controversy at your end about the removal of the Adelaide Picnic Day from Adelaide Cup Day to the third Sunday in March day?---Was there anything unusual, do you mean?
PN835
Was there any controversy about it?---I wasn't at the meeting, so I don't know.
PN836
You've signed off on it, haven't it?---On the agreement?
PN837
Yes?---Yes. There was nothing controversial in the sense that employees elected to nominate a date, but that can happen in any site. It's actually not unusual for sites to want to move the Picnic Day and not have it on a fixed day - right around the country.
PN838
But you can't give evidence as to the - were you first aware during - sorry, I withdraw that. Was it during these proceedings where you saw evidence to the effect that the MUA believed an agreement had been reached that the - might I say the public holiday conditions would carry over to the third Sunday in March date?---I was made aware, obviously, when this was raised as a dispute.
**** MICHAEL SOUSA XXN MR BURNS
PN839
But you're not actually aware of what was actually negotiated in those meetings, apart from what Mr Egel has told you?---I didn't sit in on the meetings. What I know is that the Adelaide employees elected to nominate a date in their agreement, but it was not to supersede what was agreed in part A in relation to public holidays and closed port days, because that is a national - that's a national agreement which - all our policies, procedures, our labour allocation system is all based on part A. So no-one had a right to go and vary those underlying conditions.
PN840
You accept that the agreement has in it that a closed port day, there may be another day agreed between the parties?---For a closed port day?
PN841
Yes?---Yes.
PN842
And it doesn't refer to public holidays at 30.2(a)(iv)?---Sorry, I don't understand the question, Mr Burns.
PN843
It was within the ambit of negotiations, wasn't it, under 30.2(a)(iv) for the parties to negotiate another day agreed?---Under 30.2 employees can generally nominate another day.
PN844
Yes?---In the case of Adelaide they decide to embed in their EA a day a day, but that doesn't change the fact that it's still a closed port day and you have to make yourself available to work.
PN845
That's right. So the contention is that firstly the agreement that was reached with the Adelaide branch under the Adelaide agreement
was that the closed port day on 16 March would be one which the crediting of hours applied to. Agree with that?
---Sorry, could I ask you to take me to the clause in the Adelaide - yes. So 4.8.4.
PN846
**** MICHAEL SOUSA XXN MR BURNS
In relation to - - -?---So 4.8.4 nominates - - -
PN847
The third Sunday in March?---Yes.
PN848
That was - - -?---As a - - -
PN849
Yes, yes?---Yes. So that's the Picnic Day that they nominated as their closed port day.
PN850
Yes?---Yes.
PN851
And the evidence is from the employees that they would never have agreed to moving that day if they were aware that the company was not going to credit their hours if they did not work that day?---In terms of that's what their evidence is here, sorry?
PN852
Yes?---Yes. That's what they have stated.
PN853
But you disagree with that position?---I do. Well, if you go to 40.8.1, why would we call for volunteers if they're available and entitled to be paid?
PN854
But on the closed port day on 16 March the employees - you're saying that they were not entitled to rely on clause 30.2(b) and simply
neither decline or volunteer for work, and the consequences of them not doing that is that they weren't paid?
---If they didn't - - -
PN855
Their hours weren't credited?---If they didn't make themselves available?
PN856
Yes?---Yes.
PN857
**** MICHAEL SOUSA XXN MR BURNS
I'm putting to you that's not in - - -?---Can I - - -
Yes?---Can I clarify, Mr Burns? I'm not from Adelaide. Is that date a public holiday?
No?---No. Okay. I only ask that in the context that if it's not a public holiday and it's a closed port day, then the process is
the same that I mentioned before.
PN858
I've got no further questions.
PN859
THE COMMISSIONER: Very well. Thank you. Any re-examination?
PN860
MS MILLEN: Nothing arises, Commissioner.
PN861
THE COMMISSIONER: Thank you. Mr Sousa, you're completed. Stand down. You're released from the oath and you're free to go if you wish to?---Thank you. Can I say, Commissioner?
PN862
Indeed, yes?---Thank you.
<THE WITNESS WITHDREW [3.15PM]
MS MILLEN: That concludes the respondent's evidentiary case, Commissioner.
PN864
THE COMMISSIONER: Very well. Who's going to lead off with submissions?
PN865
MR BURNS: I will, Commissioner. How long do we have?
PN866
THE COMMISSIONER: I have as long as you do.
PN867
MR BURNS: I don't really think I'll be long, Commissioner. I think you get the gist of the MUA's case.
PN868
THE COMMISSIONER: I do.
PN869
MR BURNS: There are written submissions from both sides that are quite comprehensive and there's obviously competition on the main element, which is essentially to the fact that it was the understanding of the South Australian branch of the MUA that negotiated the part B of this agreement, that if they were to move the closed port day on the Adelaide Cup Day to the third Sunday in March that it would be treated as a public holiday.
PN870
Unfortunately for both sides, the agreement is not drafted in the clarity that Mr Sousa would think. It is an EBA clause that's been cobbled together over many iterations of this agreement and for the purpose of clarity many other words should be either deleted from it or clarified, in particular, the wording of the clause in clause 30.1(b) "Where an FSE is available to work".
PN871
All of the applicant witnesses or the worker witnesses have said that they are available to work. They're all under the understanding that they could be compelled to work and the evidence of the employer, both employer witnesses, is they could be compelled to work. In those circumstances there is a capacity to rely on clause 30.2(b). "Nothing" has to mean something:
PN872
Nothing prevents an employee from initially declining or volunteering to work on closed port days.
PN873
The evidence is that they have initially neither declined nor volunteered, that it's within the scope of the EBA then to say that the following paragraphs have precedence over that. Well, that's all that these employees have done. It seems a strange system whereby you can volunteer - I mean, the employer has to draw the line somewhere.
PN874
Mr Egel, as far as I interpret his evidence, gave evidence to the effect that employees could volunteer and if they weren't required they got paid. Mr Sousa says that's not happening, that that doesn't occur, there have been situations where employees have been advised that they weren't required and they weren't paid, but there's no evidence of that before us and it's quite a significant issue in the circumstances of this case.
PN875
Ultimately - I mean, we've seen the same scenario has applied in relation to the Anzac Day as to the way this public holiday, this closed port day on 16 March, has occurred and that is just the fact that the days don't seem to be treated any differently. There's nothing more remarkable about that, and that seems to be accepted, but essentially, Commissioner, the unfortunate job is for you to actually make a finding as to what the deal was, you know, when this EBA was negotiated, this arrangement was made in part B.
PN876
Now, we've been called for these notes at the last minute last night at 6 o'clock, so as much of a fuss wants to be made about that and those notes, it is a signal that those notes may or may not - may actually be important. It obviously would have been preferable for us if we had them. There's nothing that assists us by not having them here.
PN877
If they existed, they existed, but their non-existence I don't think takes anything in relation to this case either way, because sworn evidence has been given as to, those notes did reflect what was in an agreement and, if you had an original version here or you didn't, you'd still have just a handwritten copy of the paper and still the same issue would be that the MUA's witnesses say that what was agreed was that the closed port day would be shifted from Adelaide Cup Day to the third Sunday in March, being the agreed date, and it be paid. The word "paid" is reflected in those notes. For all purposes in these proceedings, "paid" encompasses the issue of - the nature of this agreement, "paid" meaning paid as normal, and in this issue there's this crediting of hours, which is what this dispute is about.
PN878
Ever since this EBA has been in operation and has had operation in respect of these closed port days, it's been in dispute. So it's not satisfactory for the employer to say, "Oh, well, this is what it is because I wrote it." It doesn't work and it needs clarification. We would submit, Commissioner, that you should make a finding that it was - that as far as the members are concerned, they agreed to the movement of the closed port day from Adelaide Cup to the third Sunday in March, and that should have no effect on whether hours should be credited or not and, secondly, that this issue of availability to work is - the employer is not in a position where he can just choose to apply certain clauses to its benefit and choose not to apply clauses that the employees may rely on, which is in particular clause 30.2(b), in circumstances where they can be compelled to work.
PN879
There's been evidence in the statement of the consequence of the confusion about this. There was no Picnic Day this year anyway, because the employees didn't know whether or not they would be called to work or not, and that was that evidence about - that is given by Mr Russo, who was responsible for actually - I think Mr Russo gave the evidence of actually organising the Picnic Day.
PN880
Just bear with me. It was Mr Egel, at paragraph 10. "For our 2013 Picnic Day we'd organised a traditional union picnic at Bonython Park. A picnic could not be organised this year, 2014, because I and my fellow Qube employees were not sure whether we'd be required by Qube management to work on Sunday, 16 March 2014." So the whole picnic aspect of the Picnic Day, which they were supposed to enjoy, has now gone because of the employer's reliance on this clause to the detriment - or the confusion of this clause to the detriment of the employees.
PN881
Now, I made the point about this crediting of hours being bought under a previous EBA, because that's been bought permanently. So this is not a condition that should just be treated lightly by the employer and, you know, in order to reach a solution it can put in self-serving words that have no effect. "Where an FSE is available to work but not allocated to work on a public holiday" - if that really means when an FSE proactively states that they are unable to work - there's got to be more positivism in there.
PN882
There's got to be something more concrete to work. Availability to work is something that is subjective to the employee. It's not an objective issue for the employer to just make a decision on whether the employee is or isn't, and until an employee has actually said, "I'm not available to work because of X," then at all times under this agreement and these employees - are effectively available to work.
PN883
So the agreement should operate that in the circumstances these employees - an order should be made that there has been a breach; that the hours for all employees who are at Qube who were - for whom on 16 March 2014 who were not paid - their hours do be credited to them, and as per my submissions - I'll just refer to - just getting back to the submissions, the conclusion - the findings and orders that we would seek are that each of the FSEs who have provided statements in these proceedings are entitled under clause 31(b) to be credited with seven hours for the closed port day on 16 March 2014 and entitled under clause 27.5(a) to be paid seven hours overtime for the seven hours required to be worked, because the above hours were not credited.
PN884
I would submit that in relation to Scutella and Russo - that similar findings be made in relation to the Anzac Day issue. However, I have regard to the commission's previous thoughts about that. However, I'd press for an order - for a finding at least in relation to that. And also all FSEs employed under the 2011 EBA who were not on leave on 16 March 2014 and who did not work are entitled under clause 30.1(b) to be credited with seven hours for the closed port day on 16 March 2014 and entitled under clause 27.5(a) to be paid seven hours overtime for the seven hours required to be worked because the above hours were not credited.
PN885
Otherwise, Commissioner, I just rely on my written submissions and thank you for your time.
PN886
THE COMMISSIONER: Mr Burns, just in terms of those orders, wouldn't there be a bit of double-dipping if they were both, in a sense, recredited and paid overtime?
PN887
MR BURNS: Well, the fact is that they had to work. I don't believe so, because we're now in another year. So what happened last year - - -
PN888
THE COMMISSIONER: So what's the effect of the recredited - - -
PN889
MR BURNS: Well, the recrediting is - last year they had to work an extra week in order to get their hours up to the extra limit.
PN890
THE COMMISSIONER: Yes. So if they were wrong about that, then they worked longer than they had to.
PN891
MR BURNS: Yes.
PN892
THE COMMISSIONER: Hence, over time.
PN893
MR BURNS: Yes.
PN894
THE COMMISSIONER: What's the practical effect or the legal effect of crediting those hours from the last financial year then?
PN895
MR BURNS: Well, they've started - because they've missed out on - you've got a point, Commissioner. My instructions are to press for either/or. So it may be a crediting of hours for this year, because we do have this difficulty of crossing over years. So either the payment of the overtime or the seven hours at the overtime rate, or alternatively the crediting of the seven hours.
PN896
THE COMMISSIONER: Just on the construction itself, under the MUA's approach to clause 30.1(b) what work does the expression "is available to work" have to do? That phrase was introduced into the agreement. If all employees are available for every public holiday, what work does the caveat "is available to work" have to do?
PN897
MR BURNS: Employees that refuse to work, that are not actually available to work - because some employees aren't actually available to work, so if you are available to work, then - the words that are added don't do what Mr Sousa and the respondent say that they do. They don't change anything, so they actually do no work, because the employees are already available. If they think that these words mean something different, then you've got to understand that these people negotiate their enterprise agreements - you know, they've got good lawyers. These things go in quite hard. Those words are soft words that do nothing and they don't - - -
PN898
THE COMMISSIONER: Because you appreciate, the normal rules of construction would be not to throw away words, not to say, "Well, that doesn't mean anything."
PN899
MR BURNS: But in the circumstances of the evidence the employees said they were available to work, because in the circumstances where they can be compelled to work the employees say, even with those words there, they were available to work. Notwithstanding that, they were still entitled to rely on clause 30.2(b) to neither decline nor volunteer, but that didn't mean they weren't available.
PN900
They're only not available if they're on holidays or on sick leave or have otherwise actually said, "I'm not available to work." A proactive negative response to a request would be a sign of lack of availability, but without that the employees at all times can be compelled, and hence on the actual Picnic Day it didn't happen because no-one was sure whether they were going to be compelled to walk in or not, because they were confused about the status of this.
PN901
THE COMMISSIONER: Is my understanding correct that in the same subclause - that is, 30.1(b) - where it says in brackets "including closed port days", do I understand the MUA's position is that that means that for this purpose there is no difference between a public holiday and a closed port day?
PN902
MR BURNS: That's right. It's an add-in.
PN903
THE COMMISSIONER: Why wouldn't that be read as meaning closed port days that are also public holidays?
PN904
MR BURNS: That means both.
PN905
THE COMMISSIONER: Yes, but they're not all the same, otherwise we wouldn't be here this afternoon. We've found an example. There is a closed port day that isn't a public holiday, so - - -
PN906
MR BURNS: For the union's purposes for this dispute, we are talking about - the dispute is arising because we are saying that the closed port day provisions are covered by - well, the closed port days that are dealt with are the Good Friday, Anzac Day, Labour or another day agreed between the parties - are dealt with by that clause.
PN907
THE COMMISSIONER: But as I understand it you say, "Well, look, 'including closed port days' means if it's a closed port day, even if it's not a public holiday, it's included by 30.1(b)."
PN908
MR BURNS: Yes.
PN909
THE COMMISSIONER: That's the union's primary proposition?
PN910
MR BURNS: Yes, because the words "will be credited with seven hours" we say attracts closed port days, and public holiday, that definition of "including public holidays" there in brackets, means that the closed port days, whether it's a public holiday or not, capture the credit facility of that clause, so to speak. That's again another - I mean, if those words - - -
PN911
THE COMMISSIONER: But it's not ideal, if that's the point you're making. I think that's right. The wording is not ideal.
PN912
MR BURNS: I think the first time we ever spoke about this clause, it was like, "Well, it can go either way," because it is interpreted from different point of view. Just the words "available to work": as I've said, objective, subjective. In whose mind? The mind of the actual employee: "I'm available to work. You've just got to tell me I have to work and I will work"? This is a situation where, as it appears, the union has brought a condition of these credited hours in the past, so it wants these conditions to be treated seriously.
PN913
If it is as simple as a line in the sand that proactively everyone needs to now - going forward, a recommendation that everyone writes to Qube and says, "Well, we're all available," they're going to be paying everyone. That's probably why it's been just introduced today that "Well, no, they don't if they don't need them." That's inconsistent with - there's no evidence or there's no construction of this EBA whatsoever that allows employees to volunteer, get into the pool so to speak, and then be in a situation where they're not credited with the hours. That's just manufacture.
PN914
I'm just trying to deal with the actual clauses here, which are hard enough to actually deal with in the circumstances where there have been negotiations, where employees are trying to reach an agreement in Adelaide where they were under the impression in reaching the agreement that hours would continue to be credited like they were before. So something has been lost here and as a consequence these employees have lost credited hours. It's not an easy set of - well, at least in this case most of the facts are actually agreed. What is difficult is the actual writing of these EBA clauses and what was agreed, but I think it comes just down to two points: the availability point and what was actually agreed in Adelaide.
PN915
THE COMMISSIONER: I suppose just two things. I appreciate - and this is obviously for both counsel - you've not been on notice about this, so if this means that either or both of you want to put in some brief written supplementary submissions, I am open to that suggestion.
PN916
Firstly, a full bench of the commission recently, as in on 27 November, handed down a decision I suspect clarifying at least, if not confirming, the principles of construction of agreements. This is the AMIEU v Golden Cockerel Pty Ltd [2014] FWCFB 7447. It's obviously a very comprehensive review of the principles of construction and they have, as I said, provided some clarity about the task that faces me, so if there are any implications of that in terms of your submissions, of course I'd be interested to hear about that.
PN917
Secondly, to the extent to which I need to consider the implications for the clause as it affects a public holiday, I am interested in the impact of the National Employment Standards, in particular section 114 and section 116, and what effect that has on how these provisions might be applied.
PN918
MR BURNS: Just on the latter point, Commissioner, the current award refers to the NES, so - - -
PN919
THE COMMISSIONER: The NES applies anyway, including to the agreement.
PN920
MR BURNS: Yes, but the 1999 award had a list of days, including Picnic Days and Proclamation Day. The 2010 award defers to the NES and the NES has got Christmas Day and Boxing Day are the days that you would - - -
PN921
THE COMMISSIONER: Yes, but it's not so much the specification of the days but the fact that section 114 basically says - this is a gross summary, but employees don't have to work a public holiday unless - or they can't be required to work on a public holiday unless it's reasonable, and there's a series of factors as to what's reasonable or not. Secondly, 116 says in effect a full-time employee, or at least a weekly hired employee, must be paid their base rate for a public holiday that they don't work. That last concept causes a little - there's a little bit of work to be applied in the context of a global salary and assumed hours, but to the extent to which it casts any light on here, the NES is a minimum standard. It applies to employees under the agreement. I'm just interested if there are any - there may not be. I'm just interested if there are any implications.
PN922
MR BURNS: I don't think in this case it's in dispute about actually working on public holidays. It's just the mechanics of the - I mean, I can talk to somebody about, you know, what we want to do about this. I mean, we're out of line here, but I'm not really sure how you want us to deal with - - -
PN923
THE COMMISSIONER: Well, that depends. If you're in a position to deal with it now, fine. If not, then I'll give you some liberty to apply some supplementary written submissions.
PN924
MR BURNS: I'm happy to deal with it now. We're not pressing for the NES to make any - to have any impact on this. These are agreements that have been flowing backwards - well, it is a little difficult to just sort of think about it from the bar table, but it's not our case that the NES impacts on this in relation to the AMOU case.
PN925
I mean, I understood that that - I had gone into it thoroughly, but that went into the use of extrinsic materials in the interpretation of enterprise agreements, and to the extent that - I suppose in one flavour you could look at this, there's a tonne of that, because, you know, there's all these previous EBAs which we've been looking at in relation to how we interpret this EBA.
PN926
THE COMMISSIONER: I don't think any of that is controversial or has been - - -
PN927
MR BURNS: Yes. There's nothing else.
PN928
THE COMMISSIONER: Well, the full bench does say something about the intention of the parties. It certainly says that the Acts Interpretation Act, for instance, isn't relevant, which has sometimes been argued in the context of collective agreements. So there may be nothing in it as affects this, but I just thought I would alert both parties to that and give you an opportunity - - -
PN929
MR BURNS: I think that in this case we are left with the situation where the agreement is imperfect. So the intention of the parties may or may not actually help, you know, depending on which party. I mean, if it had been the intention of a party to add words into this to fix it and it didn't, then that doesn't assist the commission.
PN930
THE COMMISSIONER: No, I don't think there's any doubt that both before and after the full bench decision it was the objective intention rather than a subjective one. Nothing has changed as far as that's concerned.
PN931
MR BURNS: Yes. So what would you like us to do? I'm not - - -
PN932
THE COMMISSIONER: Look, it's up to you.
PN933
MR BURNS: I can only say what I've said in relation - without going and looking at - unless you wanted to reach a point when you're making a decision to say, "Listen, I've reached a point where I really do need a submission on A and B," and then we'll come back to you on that, but - - -
PN934
THE COMMISSIONER: Look, I'd prefer to wrap it up entirely.
PN935
MS MILLEN: I'm happy to deal with it today, Commissioner.
PN936
THE COMMISSIONER: All right. Thank you, Mr Burns.
PN937
MR BURNS: Thank you.
PN938
MS MILLEN: On the principles of construction point that you raised, Commissioner, we've addressed that at paragraphs 11, 12 and also paragraph 25 in our submissions. We do rely on our submissions, Commissioner, but I don't propose to take you through them in detail.
PN939
THE COMMISSIONER: No, you don't need to, that's for sure. I take it from that then, you're comfortable that the principles that you say apply remain appropriate in the light of the full bench decision.
PN940
MS MILLEN: And to the extent regard can be had to extrinsic material, the identification of an ambiguity, I think this case probably bears out that there is perhaps some potential argument for ambiguity on this clause, Commissioner. But in terms of paragraph 25, is also relevant to the extent that the principle that you can't take into account conduct post the creation of the clause is set out in paragraph 25 as well, Commissioner.
PN941
If there was any other matter that arose as a result of that recent full bench case, I'm happy to address you on that now.
PN942
THE COMMISSIONER: No. To be frank, I think the main point of clarification - well, I think it does emphasise the objective nature. In my view, that's always been the ratio in any event, but secondly - and I don't think it has a particular impact here, but I think clearly the full bench has said that the Acts Interpretation Act isn't relevant, as I understand it, essentially because, while an agreement is a document created by the parties, it might be endorsed by the commission, but it's not a product of the commission. So in that context you shouldn't apply those rules. I must say I'm - - -
PN943
MS MILLEN: It's not made by the commission - - -
PN944
THE COMMISSIONER: Yes.
PN945
MS MILLEN: - - - which is the language used in the Acts Interpretation Act.
PN946
THE COMMISSIONER: Yes. So, look, I must say I've always considered agreements to be the product of the parties, so I'm not exactly with the full bench, not that that matters.
PN947
MS MILLEN: I do appreciate being given the opportunity to address you on that, Commissioner. That leads me - and I think I'll deal primarily with my friend's submissions first up, so excuse me if I jump around a little bit.
PN948
The union's case quite clearly is predicated on you accepting the subjective understanding of the MUA's position of the purpose of the clause, and the authority is very clear. As recently as you have identified, Commissioner - the recent full bench case - the subjective understanding of one party as to the meaning of a clause is irrelevant.
PN949
This is the position that we find ourselves with the MUA's case. They have not engaged in any substantive way or real way in relation to the evidence going to the history of negotiations, the surrounding circumstances that led to these various changes to the relevant clauses. They have just asserted a position based on their subjective understanding.
PN950
The closest they get to evidence that could potentially - and I'm not accepting that it's admissible - potentially admissible evidence is the evidence of Mr Scutella. He is the only witness in the MUA's case that attempts to deal with actually what occurred in the negotiations rather than the MUA's understanding or belief as to what occurred or what interpretation they took from discussions. I would submit, Commissioner, that you should not accept any evidence of Mr Scutella. He presented as a particularly unreliable witness; I would say inherently unreliable witness.
PN951
It's very clear that the MUA seek to rely on notes annexed to MS1. We called for the original of those notes, and my friend says, "Well, that was called very late in the piece last night." That's irrelevant, because Mr Scutella's evidence is, they were taken. So on Mr Scutella's evidence, irrespective of whether we asked for them two weeks ago or yesterday, his evidence presumably would be the same, but what became apparent in Mr Scutella's evidence, Commissioner, is that he couldn't tell us when these alleged notes disappeared. We had multiple versions of when these notes disappeared, and when one proposition was demonstrated to be flawed, he changed his position. We would say, Commissioner, that it is clear from his demeanour in the witness box, the conflicting evidence which he gave on one simple issue, that his evidence should not be accepted on any level.
PN952
My friend I think also made a submission, basically we come to the commission to clarify the position, because the clause is all just very bad and the commission needs to clarify it. With respect, that is not the role of the commission. The role of the commission is to interpret the clauses from an objective framework of facts and they do that primarily based on the words but having regard to appropriate surrounding context, and we've taken you to the relevant authorities in our submissions, Commissioner.
PN953
Another issue with the union's case is that they conflate quite clearly very important concepts which are very distinct concepts, and I'll draw two in particular. They conflate the concept of payment and deduction or crediting. It's all used very fluidly in the MUA's case. It is very clear from the evidence today, Commissioner, that they are very - and the clauses themselves - that they are very distinct concepts. Payment is that; payment. For FSEs it's the payment of the guaranteed annual salary. Deduction and crediting is a different concept. It's about applying hours to the requirement to work a certain amount of hours and having certain hours removed, so you basically - you're getting closer to the number of hours that you need to work. They're not one and the same, they're very different, and to conflate them, Commissioner, is to ignore the clear text of this agreement and ignore very different concepts that are very entrenched within the stevedoring industry.
PN954
The second two terms that the union conflates is the concept of public holiday and closed port day. I think, Commissioner, that Mr Sousa put this very clearly today. They are very different concepts. Yes, quite often closed port days will coincide with a public holiday, but that doesn't make them one and the same.
PN955
My friend relies on the evidence of Mr Russo in saying that the 2011 agreement and the changes in relation to availability of work and closed port days and calling for volunteers made it so uncertain that the Picnic Day could not be convened this year. They didn't know if they were required to work. With respect, Commissioner, distilling that proposition based on the union's case is a nonsense because, in effect, if you accept the union's case - that is that every FSE can be compelled to work regardless of whether it is a public holiday or a closed port day - creates the inherent uncertainty that Mr Russo talks about. So it's not the changes that have caused this perceived uncertainty. In fact, the union's case is what creates the uncertainty, not the respondent's case.
PN956
Another concept that the MUA have pressed is that this condition - the concept of hours being credited in respect of public holidays that came in in the 2008 agreement - is something that was bargained for and so it's a condition which, in effect, should be enshrined permanently. That's the gravamen of the union's case on this point, Commissioner.
PN957
With respect to the union, I don't know why we have nominal expiry dates. I don't know why we're bargaining for new agreements every three or four years, because if you accept the union's case, you can't change conditions that you've agreed to from one agreement to the next. That is not the position of enterprise bargaining, and it's very clear from the evidence of Mr Egel - Mr Steve Egel; you'll note, Commissioner, there were two Egels - - -
PN958
THE COMMISSIONER: I did notice that, yes.
PN959
MS MILLEN: - - - and Mr Sousa that there were specific negotiations in 2011 that, in effect, pulled back the entitlement in 2008, and it was the subject of very considered negotiations, lengthy negotiations, for a very specific purpose.
PN960
The union's case would have you ignore that and say, "Well, what happened in 2008 should just be enshrined permanently. Just ignore the changes that happened in 2011 in relation to availability to work." With respect, Commissioner, that ignores the concept of enterprise bargaining over three or four, or however long the nominal expiry date of agreements is, but consistent enterprise bargaining.
PN961
My friend made another point about this concept of availability: it's really quite subjective; really it's only something that's within the knowledge of employees. Well, that's the very point about requiring them to identify availability to work in the case of public holidays or the very point of having - particularly in this case, Commissioner - the volunteering system in closed port days. We do not know if employees are available to work until they tell us so, and to accept the union's case that they can somehow keep it within themselves and not tell us and we should assume that they are available to work gives absolutely no work to the words "available to work", particularly in light of the discussions that were had in relation to those words and what led to their inclusion in 2011.
PN962
I was going to address you later on this, but it seems an appropriate time, Commissioner. The union's case in relation to this particular closed port day, being a closed port date which is clearly not a public holiday, is this: we shouldn't have to tell you if we're available to work or not. If we don't tell you that we're not available, you should assume that we're available and you should just give us the additional benefit. That effectively seems to be the gravamen of their case.
PN963
There is absolutely no explanation in the union's evidence as to why it is so difficult for employees to identify whether they are available to work or not available to work in the context of a closed port day, and that's what the procedure provides for in respect of closed port days. The union's case is essentially, "Just ignore that. You don't have to worry about that. They're available unless they tell you otherwise." It again gives little work to provisions which have clearly been negotiated over a period of time.
PN964
As for the orders, Commissioner, my friend would - part of his case was, "Well, you make findings of breach," and I won't deal with that in any specific detail, save to say that that is not the objective of this proceeding, Commissioner. The objective is to resolve the dispute.
PN965
I think it's important, Commissioner, to go back to the actual history of the clauses, because they provide very relevant context. The 1991 award, Commissioner, which you've been taken to today in the course of this proceeding and which is attached as MS4 to the witness statement of Michael Sousa - public holidays are dealt with in clause 8, and it's very clear that there is no concept of closed port days in that award. Indeed, closed port day, as that concept is used, is a creature of the enterprise agreements, and we first see that in the 2002 enterprise agreement at MS5.
PN966
If we look at clause 14, Commissioner, dealing with public holidays - and Mr Newlyn didn't cavil with this proposition and this has been the position of our witnesses - if you worked a public holiday under clause 14 of the 2002 EA, you got your salary, because that's the feature of the guaranteed salary - nothing extra - and then you got the hours' deduction if you worked the public holiday. Why did you get those two things, Commissioner? Because clause 14.1.1 - I'll take you to that now. Clause 14.1.1 on page 13 makes clear that if you work on a public holiday you're paid at the salary rate.
PN967
Dealing then with what was then part C - it dropped off part C in later iterations, Commissioner - - -
PN968
THE COMMISSIONER: Yes.
PN969
MS MILLEN: - - - but part C on page 30, at 1.1.3 it's work periods. It's the performance of work that will count towards annual accumulated hours, other than where specified in the agreement. So it's the co-existence of those two clauses, Commissioner, that give the entitlement to employees under that agreement to get ordinary salary and an hours' deduction if you work on a public holiday.
PN970
If you don't work a public holiday, what is the scenario? Going again back to part C, clause 2.1, Commissioner, that provides for the salaries and throughout the agreement it's very clear for FSEs it's a guaranteed salary per week regardless of the hours worked.
PN971
There's nothing there that provides for extra. Indeed, it's very clear that the salaries and composite hourly rates set out in this agreement are in full and final settlement of all award and non-award allowances, leave loading, public holiday rates, shift premiums, meal money and any application of the irregular part of any roster where roster applies.
PN972
You don't get the hours' deduction and why don't you get the hours' deduction, Commissioner? Because again clause 1.1.3 of part C kicks in. Sorry. I took you then to 2 of part B which deals with Victoria, South Australia and Tasmania, but also remuneration is dealt with in clause 2 of part C as well, just for completeness. But again why don't you get the hours' deduction if not worked a public holiday? Because part C, 1.1.3 kicks in. It's not a work period. This was the case irrespective of whether you volunteered or not.
PN973
So under the 2002 enterprise agreement what is a public holiday? A public holiday is a day off without loss of pay and if you work the public holiday you get the hours' deduction. Under this agreement because closed port days, Commissioner, were the same as public holidays, the same analysis carries through. We didn't have the situation that we do here where we have a closed port day that's not a public holiday.
PN974
This analysis is carried through in the 2005 enterprise agreement at MS6, with essentially the same clauses, but what we do have in 2005 different from 2002 is the closed port day dispute procedure comes into play in part C, where they have a procedure for calling for volunteers and locking employees into work. That's part C, clause 1.10. It's important that it sits in the context of an hours of work clause. It's not in the context of payment, and that is, it's a day off, not a work period, unless you volunteer or you are required to work in accordance with clause 1.10 of part C and if you're required to work, Commissioner, under clause 1.10 of part C, clause 14.1 as well of part A of that agreement kicks in, because remembering here, like 2002 and 2005, closed port days were always on a public holiday under this agreement.
PN975
That then leads us to 2008 and that's the 2008 agreement, which is annexure MS7. We essentially have the same position as the 2002 EA and the 2005 EA, including a procedure for calling for volunteers on closed port day, save that we have the addition of clause 14.1.12 and we've gone to that clause at some number, Commissioner, throughout the course of today. It's 14.1.2, not 14.12.
PN976
THE COMMISSIONER: Yes.
PN977
MS MILLEN: That is to say, for FSEs if you are not allocated or required to work on a public holiday, you get seven hours deducted, ie you're credited. The evidence is clear, we would submit, Commissioner, as to why the words "including closed port days" are inserted in 14.1.2: because there was a concern that Qube, if it just referred to public holidays, could treat that entitlement only in respect of those days which were public holidays and not closed port days. So it was intended to define what constituted a public holiday for the purposes of that clause. It was public holidays, including public holidays that fell on a closed port day.
PN978
It wasn't about making the definition expansive. It wasn't about saying "public holidays and closed port days, irrespective of whether a closed port day falls on a public holiday or not", and the evidence we would submit, Commissioner, is very clear on that. Michael Sousa should be standing here making the submissions instead of me. His evidence was crystal clear on why those words were inserted and from my friend's submissions and the evidence of the MUA, they have not engaged with that. There is no evidence from the MUA grappling with that issue. Again, like the 2002 and the 2005 enterprise agreements, the 2008 enterprise agreement, all of the closed port days fell on a public holiday, so we don't have the scenario that we are faced with today.
PN979
There was some - and I think Mr Russo was the only MUA witness that sought to give this evidence, Commissioner. He said, "We were always credited if we didn't work a public holiday or a closed port day." With respect, Commissioner, that evidence cannot be accepted. The evidence of Mr Sousa, the evidence of Mr Egel, the evidence of Mr Newlyn, accepts that the crediting-of-hours concept for public holidays not worked was something that was introduced in 2007.
PN980
If it was already being provided, there was no need to negotiate and include clause 14.1.2. I think I said 2007. I meant the 2008 EA. There is no clearer recognition, we would submit, Commissioner, that employees were not previously entitled to have hours credited for days not worked on either a public holiday or a closed port day. It's also a recognition that public holidays and closed port days are very different things, creating very different rights and obligations, again because otherwise there would be no need to include the words "including closed port days", because if the MUA's position is accepted, they are one and the same, and that you effectively just strike through the words. You render them redundant.
PN981
That then brings us to the 2011 EA, the EA which gives rise to the dispute settlement procedure that leads us here, Commissioner, and the clauses that we are currently grappling with. That's at MS1. Again, in all material respects it's the same as the two thousand and EA, but we have the insertion of the words in clause 30.1(b), which is the new iteration of clause 14.1.2 in the 2008 EA, "is available to work". We also have part B, clause 4.8, a procedure for closed port day which is specific to Adelaide, because you will recall initially some of the evidence was going to the procedure in part A. That was then clarified in respect of there is a specific procedure in part B dealing with the Port of Adelaide.
PN982
In relation to the purpose of clause 30.1(b) and in particular the changed words and the availability-to-work concept, Mr Sousa's evidence was very clear at to why that was included. Again the MUA's case would have you ignore those words, Commissioner, and you've raised the point which I would have submitted to you: principles of construction; you should avoid giving no work to words. We say the words are very important and the reason for their inclusion is very clear. Employees were not to be paid for periods in which they weren't available to work.
PN983
Coming back to closed port days and why we're here - actually, I might at this juncture, Commissioner: you will recall from our submissions that essentially our case is put in two propositions. There is whether 30.1(b) has any work to do in relation to 16 March, given that it was a closed port day but not one which fell on a public holiday, and that's our primary submission. The second proposition is that if you find against us on that point and 30.1(b) does have work to do in relation to 16 March, then to give work to the availability for work in the context of this particular day, there must be an objective mechanism to find out whether an employee is available to work or not, and read in the context of part B, where there is a clear procedure for identifying volunteers to work a closed port day, we say it's very clear and the clauses coexist very comfortably that in order to determine availability for work, you go through the calling-for-volunteer process.
PN984
Coming back to our primary submission, Commissioner, if you are with us on the position that clause 30.1(b) has no work to do in relation to this particular day, it is then just - not "just" but it is a closed port day which is also not a public holiday and there is a procedure in part B for how availability is identified, and that's through the calling of volunteers.
PN985
THE COMMISSIONER: So if that's right and they don't work, do they get any credit for the - - -
PN986
MS MILLEN: They get paid.
PN987
THE COMMISSIONER: They get paid. The salary is paid.
PN988
MS MILLEN: But they don't get any hours' deduction. That actually makes sense, Commissioner, in light of the historical context, because when the 2008 agreement was negotiated the closed port days fell on public holidays, so in a sense 10 might not be the right number but there was clearly a fixed number of days to which the then 14.1.2 could apply.
PN989
Taking out Adelaide Cup Day as a closed port day, and identifying another day agreed to the parties, didn't remove any days from the operation of 30.1(b). The same number of days still relate, or clause 30.1(b) still has application to the same number of days. There's nothing taken away from the employees. There's something actually given to the employees and this is the acknowledgment of a separate day, being specifically a closed port day.
PN990
What is one of the features of a closed port day? Michael Sousa gave evidence about that. It's about employees being generally released from the expectation that they will be required to work, which is different from the concept of public holiday days. So it actually gives them something. The notion that employees have been unfairly disadvantaged by this change, with respect, is just not borne out by the facts, Commissioner. They get an extra day. They get the potential for an extra day off and it's enshrined as a closed port day that is not a public holiday, so it gets special treatment that is for the benefit of the employees.
PN991
I took the union's witnesses to the issue about a Picnic Day, Commissioner, and it was very clear that Picnic Days were important to them as a day off - not a day that they would work; as a day off to spend time with their families. I'm not cavilling with that proposition, but that again sits comfortably with this notion that this day sits apart from clause 30.1(b) and it sits apart in a very fair quid pro quo type arrangement for both the union and Qube. No-one is disadvantaged by the construction that I put. No-one is treated unfairly in the construction that I put.
PN992
But the union's case is all one way. It is all in favour of the employees. It doesn't recognise that there is an additional day off potentially, and most likely for most employees, and you'll recall the evidence very late of Mr Steve Egel, Commissioner, that historically FSEs are never compelled to work closed port days. That was one of the last pieces of evidence that he gave, and that's relevant historical context that bears upon the submission that I put in relation to this being a benefit quite clearly for the employees because it's in light of that historical context which makes this day quite unique and quite advantageous to employees.
PN993
If I could summarise in terms of the historical context, it's very clear, Commissioner, that we're dealing with two distinct concepts: public holidays on one hand, closed port days on the other hand. The history of the clause is very clear. Neither day, whether it be a public holiday or a closed port day, attracted a deduction of hours if not worked up until 2008. Closed port days were generally speaking a day off and Mr Egel's evidence is historically that's in fact what it was; it was a day off. No FSEs were compelled to work. But they - yes - and everyone accepts that they could be required to work if an insufficient number of volunteers made themselves available, but historically that's not been the position and the employees are taken to have understood that historical position when negotiating this clause, we would say.
PN994
There was no right in relation to closed port days to have hours credited unless it was a work day, and if they had the day off they were paid their normal salary. That's the history of the clause, and in fact closed port days, FSEs were very much more likely not to be required to work, whereas public holidays, FSEs were much more likely to work and be rostered. The position has not changed.
PN995
Just dealing too with - and I touched on this in the earlier submission, Commissioner - the relevance of the MUA's evidence, the MUA's evidence to assist you to actually interpret the clause, we would submit, is largely irrelevant. Newlyn's evidence supports Qube's case, particularly the evidence given under cross-examination. I've dealt with Scutella and what we submit you should do in relation to Scutella's evidence. Russo's evidence, I've addressed that issue, and all of the MUA's witnesses, there is essentially no evidence to assist you in the interpretation of these clauses. Indeed, largely their evidence goes to what's occurred after the enterprise agreement has been made, and when I talk about the enterprise agreement, the 2011 enterprise agreement, and we've addressed that issue in paragraph 25 of our submissions, about your capacity or otherwise to rely on such evidence as an aid to interpretation.
PN996
We have also got the factual situation in relation to the closed port day on 16 March that the company positively went out, put a memorandum on the board and asked people whether or not they wanted to volunteer, whether they were volunteering to work on the closed port day, and every single FSE chose not to respond to that memorandum. They chose not to make themselves available, we would say, for work.
PN997
I've had cases described to me before, Commissioner, as a bit of a Seinfeld case, where it's a case about nothing. I'm not saying that that's what this case is about, but it seems quite strange that the union, seemingly through the position that they put, cavil with the notion that employees should be able to positively identify whether or not they're available to work on a closed port day, whether or not they're volunteering.
PN998
There's been no submission that that's not an appropriate way to determine availability to work and we say that that is indeed the purpose of the whole part B process in terms of, actually - and Mr Sousa put this very clearly - why have a volunteer process if employees can choose to ignore it and then basically say after the fact, "Oh, I was available," if you're not called up? "I was available. The hours should be credited." It makes a mockery, with respect, of the various changes and negotiations that have gone on in 2008 and 2011.
PN999
The union hasn't explained why employees shouldn't identify positively whether to volunteer or not; not engaged with that at all. Indeed, Commissioner, on the evidence before you, we submit that the only inference reasonably available to you is that FSEs don't want to work on 16 March or the every third Sunday. They don't want to work that particular closed port day.
PN1000
The evidence is actually really clear that they value that day as a day off, and again we don't take issue with that proposition, but to come here now and say, "Actually, we didn't volunteer, but that's okay because deep down inside we knew we were available. The fact that you didn't push us on that, we should still get hours credited," is a nonsense, particularly in light of the fact that it's very clear they don't want to work it. Indeed, again historically they haven't been required to work it.
PN1001
Finally, Commissioner, there's been some conjecture about the redundancy of clause 30.2. Indeed, I think Mr Sousa put it more clearly than anyone. They clearly coexist. Clause 30.1(b), clause 30.2, part B of the agreement, quite comfortably and fairly coexist. It's not redundant at all. What 30.2 does is make clear that at the start employees have the option of initially declining or volunteering to work, and in the case of FSEs historically they are not compelled to work, so it's really a very good choice for them. "I can either discount myself out completely, and historically speaking it will generally be the case that I won't need to work." So I can provide that certainty that the likes of Mr Russo crave. It's a certainty that the MUA's case doesn't provide. And, yes, ultimately there can be some compulsion to work, but historically that's not been the case and I would submit it's unlikely to be the case for all FSEs in any event.
PN1002
The final issue, Commissioner, is to address you - so I've addressed you, I think on the issue of the recent full bench case and the principles of interpretation and the issue of the National Employment Standards. The point that you are raising is the entitlement to be absent without loss of pay and, yes, there are some provisions dealing with you can be requested to work and you can't unreasonably refuse to work, but I understand that what you're dealing with is the requirement for a day off without loss of pay.
PN1003
THE COMMISSIONER: Well, it was both matters potentially.
PN1004
MS MILLEN: In respect of the closed port day, being the third Sunday in March, the NES doesn't arise.
PN1005
THE COMMISSIONER: That's not a public holiday, no.
PN1006
MS MILLEN: No. But in respect of public holidays what's very clear is, if you have the day off you don't lose pay. The approach of the organisation is on all fours with the NES. There's no issue of inconsistency with the NES. Indeed, if you work on the public holiday you are paid your ordinary salary, but that is already a salary which is designed and has factored in the idea that you might be required to work public holidays, but you will recall, Commissioner, in terms of the NES, that doesn't prescribe an overtime payment in respect of hours worked on a public holiday.
PN1007
Indeed, without unpicking the composite rate, it appears that loadings for working public holidays is something which is built into the composite rate, so again no issue of unfairness, no issue of noncompliance with the NES arises, we would submit. I think you raised an important point in the context of the stevedoring industry and this notion of the annualised salary building in these types of loadings and these types of allowances, and hours being credited or deducted for actual workdays is not something unique to Qube. Unless you have any other questions, Commissioner?
PN1008
THE COMMISSIONER: No. I think you had the benefit of hearing the questions that I raised with Mr Burns and you've been able to deal with them as we went through, so thank you very much. Any reply, Mr Burns?
PN1009
MR BURNS: I'll just be brief again. I rely on my initial submissions, the written submissions.
PN1010
THE COMMISSIONER: Certainly.
PN1011
MR BURNS: But I just find it quite belittling, the entire employer's case in this. This is a dispute that's really been going in two iterations now for a long, long, long time, so it's not a Seinfeld scenario where this is a dispute about nothing. These employees believe that they have negotiated something and the employer has not given it.
PN1012
These clauses work in different ways. The addition of these words in inverted commas is confusing and unfortunately I am not clear. I didn't think Mr Sousa's evidence was clear or in any event believable in relation to the way that - particularly his anecdote about employees volunteering and not being paid, et cetera. There doesn't seem to be any mechanism for that in the EBA. All that the employees have done in this situation is actually comply with the EBA, so it's not about inventing situations.
PN1013
Our guys have actually complied with the enterprise agreement and there's been a closed port day, there's been - and so therefore clause 30.2 has applied to them. There's been a 30.1(b) situation where they say - okay, it's in contention, but they say they're available to work, but they haven't been allocated, so they say that they're entitled to be credited with seven hours. If you look at clause 30.1(e):
PN1014
A VSE will be paid seven ordinary hours at the clause 11, grade 2 rate for any
public holiday (including closed port day) not worked.
PN1015
Does that imply some time or not? Are those VSEs to a certain extent being criticised because they may or may not work? That clause is fully operational and the effect of those words "including closed port day" in 30.1(e) - and it's the same clause as 30.1(b) - activates that clause, 30.1(e), to include the payment of ordinary hours for variable salary employees on closed port days, hence the brackets in 30.1(b) activate clause 30.1(b) to provide for accreditation of hours to be deducted from accumulated hours in circumstances of public holidays but including closed port days, which is the nature of the day of the dispute which we are dealing with today.
PN1016
We can look at another clause in this agreement just to show how, if the company wanted, it could be quite specific about particular arrangements. There's a clause 9.1.2 about planned time off which says - and I understand that in this roster of hours, workers can say, well, they can plan for particular - and essentially take leave, but it's not annual leave, it's basically just taking days out. It says:
PN1017
A non-rostered FSE may apply for up to 42 days planned time off in a 12-month period. Planned time off is non-accruable and will not contribute towards annual accumulated hours.
PN1018
That is a positive affirmation of the non-crediting of accumulated hours and that has been articulated in that clause. Here you've got wobble words that don't clarify the situation and they don't help, and all that's happened here is our members have complied with the EBA and, as a consequence, they haven't been picked up and they haven't been credited.
PN1019
If the employer runs out of VSEs, then they will call their employees and command them to work. That is going to happen if there's no skilled - and this is just pure reading of this EBA. As we have heard, traditionally FSEs can be compelled to work but they're not, so that should not go against our members, the MUA's members, who are just following their entitlement in the EBA, and unfortunately in this situation they have relied on an entitlement under an EBA - not to nothing. I mean, nothing is pretty all-encompassing: "prevents an employee from initially declining or volunteering work". As a consequence of relying on that EBA clause there's been a detriment of the non-crediting of hours.
PN1020
So the behaviour of the employer has had an effect, and to just say that after two years and two versions of this dispute being negotiated that this is a dispute about nothing, it makes me think that I really hope you make a decision one way or another, Commissioner, because in March next year we're just going to be back before you again.
PN1021
THE COMMISSIONER: I think you can be assured I'll make a decision one way or another.
PN1022
MR BURNS: Thank you.
PN1023
THE COMMISSIONER: Very well. Anything further? Very well then. Firstly - not surprisingly, I'm sure, to the parties - I will reserve a decision. I will consider the evidence and the law in the context of your agreement and give you a decision in writing at the earliest opportunity.
PN1024
Secondly, I would like to thank both representatives for their useful and instructive submissions, and thirdly, on the basis that it's unlikely that I will see you again in person this year, I wish you the compliments of the season. The tribunal will be adjourned.
<ADJOURNED INDEFINITELY [4.33PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
JAMIE NEWLYN, AFFIRMED PN68 ABOVE
EXAMINATION-IN-CHIEF BY MR BURNS PN68
EXHIBIT #MUA1 WITNESS STATEMENT OF JAMIE NEWLYN DATED 20/10/2014 PN91
CROSS-EXAMINATION BY MS MILLEN PN93
RE-EXAMINATION BY MR BURNS PN181
THE WITNESS WITHDREW PN197
MARK ANTHONY SCUTELLA, SWORN PN208
EXAMINATION-IN-CHIEF BY MR BURNS PN208
EXHIBIT #MUA2 WITNESS STATEMENT OF MARK SCUTELLA DATED 20/10/2014 PN233
CROSS-EXAMINATION BY MS MILLEN PN235
RE-EXAMINATION BY MR BURNS PN331
THE WITNESS WITHDREW PN345
ROBERT PETER RUSSO, SWORN PN346
EXAMINATION-IN-CHIEF BY MR BURNS PN346
EXHIBIT #MUA3 STATEMENT OF MR ROBERT PETER RUSSO DATED 20/10/2014 PN357
CROSS-EXAMINATION BY MS MILLEN PN360
THE WITNESS WITHDREW PN421
MARK EGEL, SWORN PN423
EXAMINATION-IN-CHIEF BY MR BURNS PN423
EXHIBIT #MUA4 STATEMENT OF MR MARK EGEL DATED 20/10/2014 PN431
CROSS-EXAMINATION BY MS MILLEN PN434
RE-EXAMINATION BY MR BURNS PN442
THE WITNESS WITHDREW PN450
STEVEN CHARLES EGEL, SWORN PN458
EXAMINATION-IN-CHIEF BY MS MILLEN PN458
EXHIBIT #Q1 STATEMENT OF MR STEVEN EGEL PN474
CROSS-EXAMINATION BY MR BURNS PN474
RE-EXAMINATION BY MS MILLEN PN663
THE WITNESS WITHDREW PN692
MICHAEL SOUSA, SWORN PN693
EXAMINATION-IN-CHIEF BY MS MILLEN PN693
EXHIBIT #Q2 STATEMENT OF MICHAEL SOUSA PN699
CROSS-EXAMINATION BY MR BURNS PN701
THE WITNESS WITHDREW PN863
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