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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052258
DEPUTY PRESIDENT KOVACIC
AG2015/1419 AG2015/1420 AG2015/1430
s.225 - Application for termination of an enterprise agreement after its nominal expiry date
Application by Phillip Arcidiacono
(AG2015/1419)
ROSE CLEANING SERVICE AND LHMU CLEAN START UNION COLLECTIVE AGREEMENT 2008
Canberra
2.14 PM, WEDNESDAY, 29 JULY 2015
PN1
THE DEPUTY PRESIDENT: Good afternoon. Could I take appearances, please.
PN2
MR S RUSSELL-UREN: Stefan Russell‑Uren, for the respondents in the first three matters and the applicant in the fourth.
PN3
THE DEPUTY PRESIDENT: Thank you, Mr Russell‑Uren.
PN4
MR A DI DIO: Angelo Di Dio, director of Phillips Cleaning Service.
PN5
THE DEPUTY PRESIDENT: Welcome, Mr Di Dio.
PN6
MR D OLSEN: Daniel Olsen, manager for Rose Cleaning Service trading as - or Phillip Arcidiacono, trading as Rose Cleaning Service.
PN7
THE DEPUTY PRESIDENT: Welcome, Mr Olsen and Mr Arcidiacono. I know there was the urgent section 739 application that United Voice filed yesterday afternoon, Mr Russell‑Uren, and then we had the three applications to terminate the various agreements. The issues are very much intertwined, which is why I thought they were matters that could be dealt with together. The question for you, Mr Russell‑Uren, is whether in the first instance there is anything you want to say around your application that might be an important consideration in the context of the three applications to terminate.
PN8
MR RUSSELL-UREN: Yes, of course. I'm sorry, is there any way you could repeat the latter half of that question?
PN9
THE DEPUTY PRESIDENT: I just wonder whether there's anything you wish to say in respect of the section 739 application that you made - that United Voice filed yesterday that you wish to say which might be, for want of a better description, a relevant consideration in the context of the three applications to terminate the respect agreements.
PN10
MR RUSSELL-UREN: Yes, there is. This is the point I would make and it pertains to the witness Louisa Rodriguez. This came to our attention today and it's sort of an extension of the issues we raised in that application. You will recall that the application sought to discourage, as it were, the applicant in the third matter - that is 2015/1430 - from contacting workers and getting them to sign away rights and sign things for which they had, we believed, an inadequate explanation.
PN11
The applicant certainly understands the reasoning behind scheduling these matters together, but what I would wish to address is what occurred last night after that application was pressed and after the evidence was filed. It bears on the main proceeding. If I could hand up a statement. I might do the Commission the courtesy of reading it out. It's unclear. This might go to Mr Olsen. The statement was taken today by Erin Creso, a legal practitioner admitted to the High Court of Australia, who witnessed it. The statement makes clear at paragraph 3 from Louisa Rodriguez:
PN12
I signed a witness statement on 27 July 2015 for United Voice to use in the Fair Work Commission. On 28 July 2015 -
PN13
that would be last night -
PN14
Daniel, who is the area manager for Rose Cleaning, came to my work and showed me a copy of my witness statement, and asked why I signed it. I told them I signed it because didn't want to go off the agreement. Daniel asked me if the union had come to the workplace. I said, "No, they came to my home." Daniel told me that he had seen me sitting on my phone during my shift and if he catches me sitting down again, he will terminate my employment.
PN15
THE DEPUTY PRESIDENT: I understand Ms Rodriguez is going to come along later this afternoon to give evidence.
PN16
MR RUSSELL-UREN: We hadn't appreciated that she would be cross‑examined today. We have attempted to contact her and encourage her to be available. The difficulty we see is that she's scheduled to work during these proceedings and has not been released, so we're making attempts at the moment to call her having just been informed she'll be required for cross‑examination.
PN17
It's problematic, to say the least. The union is evaluating all of its options, up to and including reporting it to the AFP. I cannot, with the words that I have, express the union's evaluation of this conduct. It's beyond me.
PN18
THE DEPUTY PRESIDENT: Mr Olsen, anything you want to say?
PN19
MR OLSEN: Yes, I did speak to Louisa last night. We had concerns. The document that Stefan sent us yesterday with their response which contained the witness statements, the signature is barely viable. Given one of the other statements that is in here, it's from somebody that does not work for our company. I wanted to confirm with her if she had in fact made the statement. She said to me that she had and I asked her, in regards to one of the points that she has made the statement against - I did ask her one of the questions that she said she has not been asked.
PN20
She then did tell me that she signed the witness statement because she didn't want the agreement terminated. I said, "That's okay." No, I did not say that I would terminate her employment. I just said that it was against company policy for her to be on a mobile phone during work hours and that may have repercussions if she continued to do that.
PN21
THE DEPUTY PRESIDENT: Clearly some of these issues will need to be tested under cross‑examination, so we'll wait and see if and when Ms Rodriguez can - whether she's in a position to join us later today or whenever that might occur. I would just make the observation that in circumstances where people make witness statements, it's not entirely appropriate that they're questioned outside that.
PN22
I mean, the arrangements are that, you know, people can provide statements to the Commission and to the extent that they do so, the appropriate place for them to be questioned around the issues in their statements is in here when they're in the witness box under cross‑examination, not outside, so it just might be something that you bear in mind for future reference.
PN23
What I'm going to do in respect of the three applications to terminate the respective agreements, I'm going to give you each an opportunity to talk to your applications. I'm not sure whether one of you is going to be spokesperson for each of the applications or whether you're each going to speak to the application that you might be responsible for, but who wants to kick off in respect of - Mr Olsen?
PN24
MR OLSEN: I'll be speaking largely on behalf of Rose Cleaning and Phillip. Partially I believe it does apply to Phillips Cleaning Service, as well. We're party to two agreements.
PN25
THE DEPUTY PRESIDENT: Yes.
PN26
MR OLSEN: The 2008 Clean Start Agreement and the 2010 Clean Start Agreement, both which have an expiry date of 1 July 2013. The reason for us wanting to get out of these agreements is that we were unaware that we were still bound them. Our assumption was that the expiry dates listed in the agreements were the termination of the agreement. This was brought to our attention in the last six months or so when United Voice has listed contraventions that they believe we've made.
PN27
The contraventions have only come since we refused to sign the latest EBA, which is the 2013 Clean Start Agreement. We were taken to the Commission on two occasions last year and Gregory C advised that - well, the decision made was that we did not have to sign the agreement because it was not in our interests to do so. Since then, we've felt that we've been targeted unfairly by the union and, as such, as felt it's in our best interests to break all ties with them in regard to EBAs.
PN28
The federal government revoked the Commonwealth Cleaning Service Guidelines in its repeal day in March 2014. Under the Cleaning Service Guidelines was the Clean Start Agreements. The Clean Start Agreements have higher wages for the employees. Since it has been revoked, the Commonwealth government will not pay the Clean Start rates of pay to companies, so for any new contracts that are signed from 1 July 2014, they will be paid at the modern awards as set by the Fair Work Commission.
PN29
We are currently paying the correct rate as per the EBA. In fact we're paying above the EBA rate for the contracts that we were in prior to 1 July 2014, but, from recent media coverage, we believe that if we were to obtain any new contracts from now, we would be prosecuted by the union for not paying the wages as per the EBA even if we paid the lower rate by the Commonwealth government. So, we feel we're not on a level playing field with other companies and that is our reason for wishing to terminate the expired EBAs.
PN30
THE DEPUTY PRESIDENT: Can I just a question and I don't have copies of the agreements in front of me, but in terms of the - do they apply generally or just solely in respect of ACT government schools?
PN31
MR OLSEN: The 2010 agreement is for ACT government schools, which the ACT government currently does support.
PN32
THE DEPUTY PRESIDENT: Yes.
PN33
MR OLSEN: We are happy to continue paying their pays as they fall due while the ACT government supports that. The 2008 agreement is a Commonwealth agreement, so all government buildings in what the union says is the CBD, which covers the city Civic area, Woden. I believe it now covers the Tuggeranong town centre area and the Belconnen town centre area. Also jobs over a certain size - I think it's 5000 square metres. So that one, yes, does cover all jobs.
PN34
THE DEPUTY PRESIDENT: All right. In terms of the provisions of the Act, section 226 of the Act deals with when the Commission must terminate an enterprise agreement.
PN35
MR OLSEN: Yes.
PN36
THE DEPUTY PRESIDENT: And it is in circumstances where an application is made under section 225. In essence, section 226 says the Commission must terminate the agreement if (a) the Commission
PN37
is satisfied that it is not contrary to the public interest to do so
PN38
and (b) the Commission
PN39
considers that it is appropriate to terminate the agreement taking into account all the circumstances, including: (i) the views of the employees, each employer and each employee organisation, if any, covered by the agreement; (ii) the circumstances of those employees, employers and organisations, including the likely effect that the termination will have on each of them.
PN40
MR OLSEN: Yes.
PN41
THE DEPUTY PRESIDENT: What do you want to say around those statutory considerations?
PN42
MR OLSEN: Okay. In regard to public interest, I suppose it doesn't - well, from my point of view, it doesn't affect the general public because it's to do with employees of the company. The views of the employees have been sought. We did provide statements. Now, what was said to each employee was that we would like their support for us to terminate these agreements.
PN43
Each employee was advised that we do not intend to cut any conditions or wages from their current position in the current job that they are in. We are only looking to cancel this agreement for the benefit of the company in the future, so that we can gain more work. It's also noted that if we apply for a job and don't get it because we have to quote at a higher rate than another company, another company will get it that is not a signatory to the EBA and the cleaner will be on the modern award regardless.
PN44
So, whether they're working for us or they're working for another company, basically because the government doesn't support the wage any more, then the cleaner will be disadvantaged, I suppose - - -
PN45
THE DEPUTY PRESIDENT: So how might an employee in those circumstances enforce the rates of pay that they currently receive?
PN46
MR OLSEN: Sorry?
PN47
THE DEPUTY PRESIDENT: How might an employee enforce the rates of pay if the agreement is terminated?
PN48
MR OLSEN: I suppose if the agreement is terminated, we make a commitment - and we're happy to make a commitment - that we will not change anything while the current contract stands for any of our current employees. I don't know if there's a formal way to make that commitment, but, if there is, we are prepared to do it.
PN49
THE DEPUTY PRESIDENT: I think you added some words in there that you hadn't mentioned before, whilst the current contract - - -
PN50
MR OLSEN: So once the contract comes up for renewal - normally a contract lasts for approximately three years and then they go out to tender again. When they tender again, because it's after the government has terminated the Cleaning Services Guidelines, they would be looking for a cheaper option. If we were in the current job that we have now, the current contract, and that contract expires, we would no longer be competitive in the next - - -
PN51
THE DEPUTY PRESIDENT: So when do your contracts expire?
PN52
MR OLSEN: They vary. Our latest contract, we still have about 20 months remaining. Some of our smaller contracts, I believe we still have at least one year.
PN53
THE DEPUTY PRESIDENT: So what the minimum period before the first contract expires?
PN54
MR OLSEN: 12 months.
PN55
THE DEPUTY PRESIDENT: 12 months. Okay.
PN56
MR OLSEN: I think that's all.
PN57
THE DEPUTY PRESIDENT: Mr Di Dio or Mr Arcidiacono, do you want to say anything at all?
PN58
MR DI DIO: No. I agree with everything Daniel said.
PN59
THE DEPUTY PRESIDENT: Mr Russell‑Uren?
PN60
MR RUSSELL-UREN: Deputy President, in relation to the substance of the matter, I broadly refer to and repeat our written submissions. There is little that Mr Olsen has said that I think alters the force of them. I suppose our observation I would make - perhaps in the form of a submission - is that while the Commission has and should have a flexible procedure, it is appropriate that any decision of the Commission - by and large, you know, it relates to the rights and liabilities of people who have fought hard for them - should be based on the evidence and, in the circumstances, that evidence should be tested and should be able to be discussed and evaluated according to ordinary principles of law.
PN61
It's unclear to me, given the correspondence with the Commission to date and taking into account the Commission's flexible procedure, whether Mr Olsen's statement and the questions asked were put by way of submissions or, if they're going to form a factual basis upon which the Commission rests its decision, whether or not the applicant might have a chance to test and examine them; or whether the various applicants in those three matters will call witnesses to permit us to evaluate them.
PN62
I would also stress that at least in our view - and I'm more than happy to be corrected, as I often am - the three applicants bear the onus of establishing the facts to support their case. In the event that the facts aren't present, I think it would be open to the Commission to determine that the case hasn't been made out and to provide its reasons, extempore or at a later date. I put those views by way of general observation. I don't want to labour the point or to be overly technical - - -
PN63
THE DEPUTY PRESIDENT: I'll come back to you on a couple of issues. I interpreted Mr Olsen's comments as submissions, not evidence.
PN64
MR RUSSELL-UREN: Yes.
PN65
THE DEPUTY PRESIDENT: To the best of my knowledge - and correct me if I'm wrong, Mr Olsen - none of the applicants propose to lead any witness evidence to support the applications. Is that correct?
PN66
MR OLSEN: That's correct.
PN67
THE DEPUTY PRESIDENT: I just make it clear that evidence carries much greater weight in the eyes of the Commission than do submissions from the bar table. That's a general principle in terms of how the Commission operates. So everyone is clear, I've interpreted Mr Olsen's comments as submissions, not evidence.
PN68
MR RUSSELL-UREN: I wonder, your Honour, and I'm terribly afraid that I do get the two rules mixed, whether or not - I think it's the rule in Browne v Dunn, should be explained to the applicants and whether there should be an explanation about some of the procedural rules in the event that they don't lead evidence. I have in mind the interests of natural justice when dealing with unrepresented parties.
PN69
THE DEPUTY PRESIDENT: I can't be more explicit than I have been.
PN70
MR RUSSELL-UREN: Yes.
PN71
THE DEPUTY PRESIDENT: Evidence in the eyes of the Commission carries much greater weight than does submissions. Mr Olsen has confirmed that the applicants don't intend to lead any evidentiary material. That's a decision they've made. I will, you know, clearly give due weight to the evidence that's led by all the parties in these proceedings and to the submissions, and end up with a view, but at the end of the day I need to make a decision based against the statutory criteria. There is some evidence that will be led solely by United Voice.
PN72
MR RUSSELL-UREN: Of course. Well, if the applicants will not call evidence, the respondent certainly will. We call our first witness, Lyndal Ryan.
PN73
THE ASSOCIATE: Please state your full name and address.
MS RYAN: Lyndal Ryan, (address supplied).
<LYNDAL RYAN, SWORN [2.37 PM]
EXAMINATION-IN-CHIEF BY MR RUSSELL-UREN [2.37 PM]
PN75
MR RUSSELL-UREN: If I could pass a statement up to Ms Ryan?‑‑‑Thank you.
PN76
This is annexed to our submissions and witness statements. It's the same statement. If the respondents can confirm that they don't have a copy, I'll happily provide a spare copy.
*** LYNDAL RYAN XN MR RUSSELL-UREN
PN77
Ms Ryan, could you just cast your eye across that statement and once you've reviewed it, can you just confirm that that's the statement you've written?‑‑‑It is.
PN78
Is it true and correct?‑‑‑It is.
PN79
I'd seek to tender that evidence, Deputy President. If I could ask some supplementary questions, very briefly.
PN80
THE DEPUTY PRESIDENT: Sure. I'll mark the witness statement of Ms Ryan, which is dated 27 July, four pages and 22 paragraphs - is that an attachment to the witness statement?
PN81
MR RUSSELL-UREN: Yes.
THE DEPUTY PRESIDENT: And one attachment. I'll mark it as exhibit RU1.
EXHIBIT #RU1 WITNESS STATEMENT OF MS RYAN DATED 27 JULY PLUS ATTACHMENT
PN83
MR RUSSELL-UREN: How many years have you been involved in the union movement?‑‑‑At least 25.
PN84
In the course of those years, have you had cause to negotiate enterprise agreements?‑‑‑Many.
PN85
What is the extent of your familiarity with the Clean State Agreement?‑‑‑I'm deeply familiar with it, would probably be the easiest way to explain it.
PN86
When you say completely familiar, would you be referring to the various clauses and conditions contained within it?‑‑‑Yes, and particularly the work in the campaign that led to the development of the agreement. I negotiated the agreement at the heart of the matter today and many others around the country - around a hundred or so - and have also been involved in drafting and developing the School Cleaning Agreement and negotiating and developing the contracting system that would underpin both agreements; so both at the Commonwealth level and at the ACT government level. I think I would have as thorough knowledge of the agreements and the contracting processes around them as probably anyone in the country.
*** LYNDAL RYAN XN MR RUSSELL-UREN
PN87
Would you have a familiarity with the wages and conditions afforded to cleaners in the ACT?‑‑‑Yes.
PN88
Can you describe that familiarity in very brief terms?‑‑‑We obviously had an interest in the modern award national wage case increases that apply to that over time. We also provide rates of pay that are contained in both Clean Start Agreements, whether applying at the schools or in office cleaning - provide higher rates of pay than the award minimums.
PN89
Based on your experience as a union official on the matters you've stated, do you believe that cleaners are better off under the award or the agreement?‑‑‑Under the agreement.
PN90
In terms of the terms and conditions that they afford - - -Absolutely.
*** LYNDAL RYAN XN MR RUSSELL-UREN
PN91
You mentioned an ACT scheme that underpins - - -?‑‑‑Sorry, to give some clarity to that, in previous years under the previous ACT common rule award prior to the event of the modern award, there was a school cleaning allowance so that cleaners would actually get a higher allowance for school cleaning. However, they could be stood down without pay. When the modern award was constructed, that provision was no longer available. Both the allowance disappeared and the ability to stand down. I wrote to the ACT government and said, "Look, you're going to have a range of employers in a difficult situation unless we look at your contracting system." They understood the problem and we re‑drafted the specifications of the contract to ensure that the work that had been done over school holidays - that work could be provided over school holidays periods so that people could be provided with 52 weeks of work a year, less the period of time that they're on annual leave of course and less any public holidays. That's how that work was done. After we had re‑negotiated the specifications, the ACT government also agreed to establish a pre‑qualification system for companies. At that time, there were around a hundred schools requiring school contracts. It was very difficult for the government to monitor it. We had lots of cash in hand payments and other problems, so we thought it would be good to create a list of pre‑qualified companies that went onto a panel that would meet certain criteria, so that then the government would be able to allocate contracts to those people with some guarantee that those companies were, for example, solvent, were, for example, signed up to a collective agreement or at least capable of meeting the same terms of the collective agreement. The other thing that was negotiated with the government at that time was they were sick of getting quotes that were insufficient to pay the minimum entitlements and so the government said, "Well, from now on, we're going to tell you what the price is." They've taken a very advanced method of saying in fact, "We will tell you what the hourly rate will be so that we can be confident that there is enough money in there to meet all employment obligations and provide some amount for administration costs, and a further amount for profit," so companies no longer have to tender in the similar way that they - the whole thing was negotiated as a package, if you like.
PN92
THE DEPUTY PRESIDENT: Mr Russell‑Uren, I should have asked this question before. I take it that Ms Gill is not in the hearing room.
PN93
MR RUSSELL-UREN: No.
PN94
THE DEPUTY PRESIDENT: That's fine.
PN95
MR RUSSELL-UREN: I suspect I only have one copy of this. If I could pass this to the witness momentarily and then allow Mr Olsen to review it, and tender it afterwards.
PN96
THE DEPUTY PRESIDENT: Yes.
PN97
MR RUSSELL-UREN: Could you just review that document?‑‑‑Yes.
PN98
Could you please turn your attention to - - -?‑‑‑Would it be - - -
PN99
THE DEPUTY PRESIDENT: Could I just make a suggestion. It might actually be useful if my associate managed to get copies of the document so that the respondents could have copies, (1) because it would give them an opportunity to digest the document, which they may wish to ask some questions about as much as anything - so we'll just wait a couple of moments.
PN100
MR RUSSELL-UREN: Yes.
PN101
THE DEPUTY PRESIDENT: Mr Russell‑Uren, while we're waiting, can I just ask a few - what might be some procedural questions.
PN102
MR RUSSELL-UREN: Yes, of course.
PN103
THE DEPUTY PRESIDENT: Clearly Ms Rodriguez and Ms Gill are required for cross‑examination, but in terms of the number of other witness statements that were appended to the material you forwarded to the Commission yesterday, I presume you intend to tender those documents.
*** LYNDAL RYAN XN MR RUSSELL-UREN
PN104
MR RUSSELL-UREN: Absolutely.
PN105
THE DEPUTY PRESIDENT: We'll need to do that at some stage this afternoon.
PN106
MR RUSSELL-UREN: Yes. We will call those witnesses who are still around. If I can very briefly be excused to ask - - -
PN107
THE DEPUTY PRESIDENT: Sure.
PN108
MR RUSSELL-UREN: I had my back turned as a number of people had left.
PN109
THE DEPUTY PRESIDENT: A mass exodus, I think would be the term.
PN110
MR RUSSELL-UREN: A mass exodus. Did that just occur?
PN111
THE DEPUTY PRESIDENT: I don't mean that in a derogatory sense.
PN112
MR RUSSELL-UREN: I've been instructed that almost all our witnesses have left to attend work for, substantially, Mr Di Dio. If he could excuse them from work, I can have them back here and available for cross‑examination; but, on the other hand, I understand that Mr Di Dio doesn't propose to.
PN113
THE DEPUTY PRESIDENT: That's my understanding, as well. I think the only witnesses that are required for cross‑examination are Ms Rodriguez and Ms Gill. That's the advice that was given to my associate, so in those circumstances I think it's just a process of tendering the other witness statements?‑‑‑Yes.
PN114
MR RUSSELL-UREN: Of course.
PN115
THE DEPUTY PRESIDENT: And producing them into evidence.
PN116
MR RUSSELL-UREN: Yes. I have one, so perhaps Daniel might need one.
PN117
Could you just cast your eyes on the front page of that?‑‑‑Yes.
*** LYNDAL RYAN XN MR RUSSELL-UREN
PN118
If you could not read ahead, Ms Ryan. If you could cast your eye to the front page of that document?‑‑‑Yes.
PN119
Do you recognise that document?‑‑‑Not this particular document, not this particular Phillips Cleaning Services, but it does look like a template document that was used for other contracts. So all the contracts were the same. I presume it's the same as the template document but I am not completely familiar with this, you know, this particular contract.
PN120
But you do say that it is a template document?‑‑‑It looks very - it looks to be the template document that we use for schools, yes.
PN121
When you say, "We use for schools"?‑‑‑I should say it is the one that was developed for use by the ACT Government. I guess I say "we" because I feel some ownership over that experience.
PN122
Would you please turn your attention to page 11 of that document?‑‑‑Yes.
PN123
You will see there in the top left-hand corner it says, "Item 4, contract price"?‑‑‑Yes.
PN124
You will also see next to item 4, rather to the right, there is a sequence of numbers going 1, 2, 3, 4 in one, term one?‑‑‑Yes.
PN125
Could you cast your attention to the second one, that is next to personal pay rate?‑‑‑Yes, yes.
PN126
Could you please explain to the Commission what personal pay rate is?‑‑‑That's the pay rate paid to the workers for each hour of work who work under that contract.
PN127
What do you mean the amount paid to each worker who works under the contract? Does the Territory set the price?‑‑‑The Territory effectively adopts the wages that were contained in the Clean Start schools agreement and then, just a little above that, sets out what the government actually pays the contractor.
PN128
So is that where it says, "The hourly rate paid by the Territory to panel members has been set at 39.59"?‑‑‑Yes, that's correct.
*** LYNDAL RYAN XN MR RUSSELL-UREN
PN129
That's paid across each hour?‑‑‑That's right.
PN130
That's close to double the amount of a personal pay rate?‑‑‑That's right, well that is so that in addition to the 21.32 hourly rate, that allows for superannuation to be paid, insurances to be paid, long service leave payments to be made, annual leave provisions to be made and so on. So that includes a component that takes the - that covers other employment entitlements which are above the hourly rate or are based on the hourly rate of pay. And it also includes, it is to cover administration costs and profit.
PN131
So it includes profit?‑‑‑It does.
PN132
And does every - rather, let me put it this way. Is every contractor for the ACT Government schools paid the same rate?‑‑‑Yes.
PN133
I might just move forward, if I could. Are you aware of - rather, let me ask it this way, do you have any awareness of either Rose Cleaning or Phillips Cleaning applications for tenders? Do you monitor tenders at all?‑‑‑Yes, well, yes, we do monitor tenders. And in relation to the establishment of the panel, United's views were sought in relation to industrial relations matters prior to people being appointed to the panel, but that is some years ago. And I am hoping I'm - - -
PN134
What about more generally, for example Commonwealth sites?‑‑‑Yes, well we - it's very important to our members because often our members - there's two ways that we get information around contract changes and our members contact us often when they suspect the contractor they're working for is up for tender. They often become aware of that because there will be a site inspection or some sort of activity around their job that makes them think that the contract is changing. The other thing is that there's and AusTender website at the Commonwealth level that allows you to monitor contracts. And at the ACT Government level there's Shared Services, who also notify interested persons when contracts are due. Business opportunities I think they might call it.
PN135
Are you aware of any Clean Start company having lost the tender due to signing that agreement?‑‑‑At ACT Government? Which level?
*** LYNDAL RYAN XN MR RUSSELL-UREN
PN136
At a federal level?‑‑‑Well I am not - we certainly have had contracts change over recently that - where people's wages dropped as a result of the change of contract. So we certainly - I think the most dramatic drop in wages occurred recently at Foreign Affairs and Trade, or whatever it is called now, it's changed its name, but the DFAT building. That's where a contractor ISS lost part of the contract to a company that hadn't signed the agreement, at Broadlex, and as a result the wages dropped.
PN137
Could you please cast your eye across this document, there are two pages, and I have a second copy. If you could cast your eye to the back page?‑‑‑Yes.
PN138
I am missing the back page. I am sorry, I extend my deepest apologies.
PN139
THE DEPUTY PRESIDENT: Do you want to tender this document?
PN140
MR RUSSELL-UREN: Yes.
I will mark it exhibit RU2.
EXHIBIT #RU2 LETTER
PN142
MR RUSSELL-UREN: if I might continue to ask some questions just to keep things going.
PN143
THE DEPUTY PRESIDENT: Certainly.
PN144
MR RUSSELL-UREN: I will return to that letter. The ACT branch - rather, how would you describe the ACT branch as compliance activity for Clean Start?‑‑‑Well- - -
PN145
Generally?‑‑‑Generally we want our members to be paid the correct rates of pay and we want the agreement to be complied with. And for a long time we tried very hard to obtain compliance through education, conciliation very often before the Commission, we had tried over many years to get the industry to walk a high road with us, if we can put it that way, and make some improvements. But the underpayments and the problems just continued to persist and so most recently where we've had matters of systematic underpayment, we have tended to take those things to the federal circuit court or take other action rather than simply fixing up one underpayment matter and ignoring the other underpayments occurring, you know. So we have been a little, in recent times, we have had to take a firmer approach with the industry because the industry, despite our best efforts, has really not improved very much at all.
PN146
Have the union recently undertaken compliance activities against any of the applicants today?‑‑‑Yes, we have.
*** LYNDAL RYAN XN MR RUSSELL-UREN
PN147
What is the reason for that?‑‑‑Well, I became aware that the agreement wasn t being applied to all sites within its scope. I became aware that some insurances that the companies were supposed to be taking out hadn t been taken out and I became aware of issues around minimum engagements and that information came via our members via phone calls and other inquiries that we had. Mr Uren, as our industrial officer for the branch, brought them to our attention and we decided to make applications to the Federal Court and commenced investigations around those. Part of our investigations was to seek the provision of information from one of today s applicants. They didn t comply with that so I ve instructed our legal officer to take further action in relation to that matter as well.
PN148
What was the company s response to the compliance activity? Let me restate that question?‑‑‑Yes.
PN149
What was the response of Mr Arcidiacono to the compliance activity?‑‑‑Well, I think that - I don t know. It may have led them to drive to this application. I think that that s certainly part of it; maybe a reaction, given the timeframe, to actually making sure people got what they were entitled to under their agreement.
PN150
Yes. I m conscious of the time. This will be our last line of inquiry. Does the union - what benefits does the union gain from the enterprise agreement?‑‑‑None. Well, the benefits for our members are that our members have got something that s enforceable and clear.
PN151
Yes, but - - -?‑‑‑What do you mean?
PN152
Sorry?‑‑‑I m not clear on - - -
PN153
Let me restate the question. Does the union get anything as a result of the agreement existing from the employer?‑‑‑From the employer? No, we don t get anything from the employer. What workers get - - -
PN154
That s not the question?‑‑‑That s not the question, okay, sorry.
PN155
Sorry, there was the letter - terribly sorry, I do have one last line of inquiry. Before you is a letter that s marked from Senator Eric Abetz. Could you cast your eye to the second page?‑‑‑Yes.
PN156
Do you recognise the letter?‑‑‑Yes.
*** LYNDAL RYAN XN MR RUSSELL-UREN
PN157
Can you just read the first line of that middle paragraph of the second page?‑‑‑ Cessation, the one that commences - - -
PN158
The first line, yes, the one commencing - - -?‑‑‑ Cessation of the guidelines will not preclude employers from continuing to pay employees above award pay rates and negotiating other terms and conditions through enterprise agreements, something which had happened prior to the guidelines.
PN159
Yes, and how did you come to recognise this document?‑‑‑We had approached the local archbishop for support of workers who were concerned about the loss of the Commonwealth cleaner guidelines and what that might mean to them. I understand that the archbishop wrote to Mr Abetz or Mr Abetz might have made some comments, actually - some media comments - or was asked a question about the archbishop s support for the Commonwealth cleaning guidelines on a television program and I understand that this is his response to being asked that question that went to the archbishop, who then forwarded it to me. SO that s the history of it.
PN160
Do you understand it reflects the senator s official capacity?‑‑‑I do understand it and it s something that s been mentioned again in media reports, that Senator Abetz says that we should negotiate without the guidelines.
PN161
Thank you. I do wish to tender that.
THE DEPUTY PRESIDENT: I ll mark it exhibit RU3.
EXHIBIT #RU3 LETTER FROM SENATOR ERIC ABETZ RE COMMONWEALTH CLEANING GUIDELINES
PN163
MR RUSSELL-UREN: Thank you, Deputy President.
PN164
THE DEPUTY PRESIDENT: Mr Olsen, do you have any questions of Ms Ryan?
PN165
MR OLSEN: I apologise if I ve done this the wrong way but I do have some information that was provided to us at a recent tender that was - does state the change to the tender documents and I have copies here that I can - for reference.
PN166
THE DEPUTY PRESIDENT: Do you wish to cross-examine Ms Ryan about that particular document?
*** LYNDAL RYAN XN MR RUSSELL-UREN
MR OLSEN: Yes, I do.
CROSS-EXAMINATION BY MR OLSEN [3.05 PM]
PN168
MR OLSEN: I have handed you an addendum to a tender for a cleaning contract which was for the Australian National Audit Office. In that tender in the first paragraph it says that: The ANA has replaced all references to the Fair Work principles which we understand as being the cleaning services guidelines and the EBA, which we are signatory to, and said that, The tenderers will not be required to comply with these requirements in their submissions. To us this clearly states that they will be going for a company who is tendering under a modern award because - - -
PN169
THE DEPUTY PRESIDENT: Are you going to ask a question of Ms Ryan?
PN170
MR OLSEN: Okay.
PN171
THE DEPUTY PRESIDENT: If you want to make submissions about this that s open to you but you do that at the end - after - it s not something that you - - -
PN172
MR OLSEN: Okay, I just want to ask the interpretation you have of the first paragraph, that the Fair Work principles have been repealed; is your understanding that this is the Clean Start agreement, effectively?‑‑‑Well, it s the guidelines that would underpin the Fair Work principles, so not necessarily the Clean Start agreement but certainly wage rates that were contained in the guidelines. That would be - that is the effect of that.
PN173
THE DEPUTY PRESIDENT: Do you wish to tender this document, Mr Olsen?
PN174
MR OLSEN: Yes, I do.
THE DEPUTY PRESIDENT: I ll mark it exhibit R1.
EXHIBIT #R1 CLEAN START GUIDELINES
PN176
MR OLSEN: Sorry, I did have one other document I d like to bring to your attention. I did have copies of each one.
PN177
MR RUSSELL-UREN: Sorry, just examining the audit office.
*** LYNDAL RYAN XXN MR OLSEN
PN178
MR OLSEN: Okay, so I ve passed you an article out of Inclean Magazine, which has the BSCAA s Barbara Connelly that s made a statement on here. On the second page at the third paragraph it states that: From 1 July 2014 contractors will be able to submit tenders based on the award on federal government cleaning contracts. SO my question is what is the reason that a company that has signed the agreements should be disadvantaged to this effect; why an agreement which states we must pay a higher rate than what the modern award is?‑‑‑I think - - -
PN179
MR RUSSELL-UREN: I m sorry, Deputy President - it s not - I m not keen to interrupt Mr Olsen, bearing in account his inexperience but that question contains a foundation which hasn t been established and that is that the cleaning contractor would be disadvantaged. If Mr Olsen wants to set out that foundation, fine, but I don t think it s right Ms Ryan should have to concede that point unless it s been made clear to her that it s made.
PN180
THE DEPUTY PRESIDENT: You might want to rephrase your question, Mr Olsen.
PN181
MR OLSEN: Okay, so the paragraph says that from 1 July 2014 contractors will be able to submit tenders based on an award on federal government cleaning contracts, which is a big step forward for us and a huge win for the industry in its efforts to return to a level playing field. So I suppose the level playing field for us is that we are not on a level playing field because we cannot compete with those that are not at pay to the agreement.
PN182
THE DEPUTY PRESIDENT: Is that a question or a statement?
PN183
MR OLSEN: I guess it s more of a statement. Sorry, I just wanted to bring it to the attention. I apologise I am very inexperienced and this is my first time before the Commission.
PN184
THE DEPUTY PRESIDENT: That s all right. I just - just so you re aware it s quite often that people cross the line between submissions and questions in cross-examination - - -
PN185
MR OLSEN: Yes, okay. I would like to make this as a submission, please.
PN186
THE DEPUTY PRESIDENT: You can make it a submission when you come back to submissions later.
*** LYNDAL RYAN XXN MR OLSEN
PN187
MR OLSEN: Okay, thank you; no further questions.
PN188
THE DEPUTY PRESIDENT: Do you want to tender the document?
PN189
MR OLSEN: Yes, please.
THE DEPUTY PRESIDENT: I ll make it exhibit R2.
EXHIBIT #R2 ARTICLE FROM INCLEAN MAGAZINE
PN191
THE DEPUTY PRESIDENT: Do you have any further questions of Ms Ryan?
PN192
MR OLSEN: No, thank you.
PN193
THE DEPUTY PRESIDENT: Look, I m going to ask Ms Ryan a question and I m going to give you an opportunity if you wish to ask some further questions, Mr Olsen, and Mr Russel-Uren will have an opportunity to ask any questions arising out of your cross-examination of Ms Ryan. So that s the way that it normally happens. But you ll also have the opportunity to ask any question you might want to ask as a result of the question I m going to ask. Ms Ryan, in terms of the statutory considerations that I need to take into account, in terms of whether or not to terminate the agreement, one of them is that the Commission needs to be satisfied that termination of the agreement is not contrary to the public interest. Is there anything that you wish to say in terms of that issue of public interest?‑‑‑We have a difficult situation in terms of change in government policy but I don t believe that that should diminish workers rights to be covered by a collective agreement. It will cause enormous problems, not just in ACT, where government work predominates, but elsewhere in CBD areas where government s policies have less of an impact on the overall agreement. So I think that the public interest would not be served by allowing this application because of the implications, not just given the nature of the agreement but the implications more broadly. I think it s very difficult situation that our workers are in. We have had some success in some buildings to encourage the clients to retain Clean Start agreements and there has been some contracts that have been met where clearly the agencies involved have decided to hold them over to prevent a reassessment that would drop wages. We are vigorously campaigning on this issue. We want our members to have a living wage. We don t think it s in the public interest to remove it this way.
PN194
THE DEPUTY PRESIDENT: Mr Olsen, is there a question that you want to ask about Ms Ryan s response?
*** LYNDAL RYAN XXN MR OLSEN
PN195
MR OLSEN: I just fail to see how the public would be affected by the termination of an agreement by two companies in the ACT when there s probably 80 per cent of companies in Australia do not currently have this EBA.
PN196
THE DEPUTY PRESIDENT: I m going to say is that a question or - it s more like a submission.
PN197
MR OLSEN: Yes, it s a statement so I would like to ask why the termination of our agreement would affect the public when there is numerous companies out there that don t have the agreement? Why is ours separate?‑‑‑Okay. One of the difficulties that I have had in understanding these particular matters is that there are applications to remove a school cleaning agreement which has been acknowledged in earlier submissions is still fully funded and that has got mixed up in an issue around Commonwealth cleaning - the removal of Commonwealth cleaning guidelines. So the removal of the Commonwealth cleaning guidelines has no effect in relation to the schools cleaning agreements, which as - the company Rose Cleaning Services and the company trading as Phillips Cleaning Services - are bound to and yet we have identical applications and identical arguments for the removal of the school cleaning contracts, as we do for the other application. So that is one of - that has made it difficult to address those concerns. I m not sure that I got to your question in that.
PN198
I still fail to see how a company with only 80 employees would affect the public in terminating a single agreement - two agreements in our case.
PN199
THE DEPUTY PRESIDENT: Again, that sounds like a submission.
PN200
MR OLSEN: I fail to see that so if she - I guess I ll question again how it is going to affect the public because I don t believe you answered my question?‑‑‑I feel that I did in relation to the removal of the Commonwealth cleaning guidelines and the application in relation to the agreement that you say has 80 people engaged under it. The ramifications for workers losing their rights extends beyond your company. I am not an expert on what should all be encompassed in the term, public interest, but given that there are other ways of resolving these issues, they are the avenues that should be explored, rather than removing rights, existing rights for workers. That is not in the public interest.
PN201
MR OLSEN: No further questions.
THE DEPUTY PRESIDENT: Mr Russell-Uren?
RE-EXAMINATION BY MR RUSSELL-UREN [3.18 PM]
*** LYNDAL RYAN RXN MR RUSSELL-UREN
PN203
MR RUSSELL-UREN: Yes. Mr Olsen asked you a question about the Fair Work principles. Is that a reference to the Commonwealth cleaning guidelines or are those things different?‑‑‑One was wrapped up in the other so they are different but - - -
PN204
Within the ACT, do you think - within the ACT, with your knowledge of the cleaning industry, would the majority of Commonwealth contracts be held by Clean Start companies or award companies?‑‑‑They re still held by Clean Start companies.
PN205
How many of the original Clean Start companies were there? The companies who effected the trigger of the Clean Start agreement?
PN206
THE DEPUTY PRESIDENT: Can I just ask a question? How does this arise from Mr Olsen's cross-examination?
PN207
MR RUSSELL-UREN: It doesn't arise from Mr Olsen's, it does arise from yours. You asked Ms Ryan what - - -
PN208
THE DEPUTY PRESIDENT: I asked a question around public interest.
PN209
MR RUSSELL-UREN: That's correct, and public interest has been interpreted as there are two views; one follows - was recently adopted by - in the Full Bench in (indistinct) which, adopting another case other than Sullivan and Farrer, held that within the context of termination of enterprise agreements, the words "public interest" incorporates the maintenance of industrial standards, the prevalence of enterprise agreements linked in the way that they are under Clean Start could form an industrial standard - could form an industrial standard which should be complied with. Now, we would seek to say that that affects the public interest and therefore follow immediately from your question.
PN210
THE DEPUTY PRESIDENT: I will indulge you on this occasion.
PN211
MR RUSSELL-UREN: My apologies?
PN212
THE DEPUTY PRESIDENT: I will indulge you on this occasion.
PN213
MR RUSSELL-UREN: Thank you, Deputy President. At this point I think I've forgotten my question.
*** LYNDAL RYAN RXN MR RUSSELL-UREN
PN214
Which were the companies - let me ask this, which were the companies who were required for Clean Start to trigger?‑‑‑To the best of my recollection - - -
PN215
THE DEPUTY PRESIDENT: I just don't think that's a relevant question, sorry. I do not think that's a relevant question.
PN216
MR RUSSELL-UREN: Nothing further at this stage.
THE DEPUTY PRESIDENT: Thank you. Thank you, Ms Ryan. You are excused.
<THE WITNESS WITHDREW [3.22 PM]
PN218
THE DEPUTY PRESIDENT: Are other Ms Rodriguez or Ms Gill here?
PN219
MR RUSSELL-UREN: If I could?
PN220
THE DEPUTY PRESIDENT: Sure.
PN221
MR RUSSELL-UREN: The applicant withdraws Ms Gill's - rather the respondent withdraws Ms Gill's statement. Ms Rodriguez cannot be contacted. We understand she is at work for the first applicant, I believe at Narrabundah College. If she can be released from work, which is within the power of that entity, we can call her. Alice can contact her and have her here shortly. I did make that point earlier.
PN222
THE DEPUTY PRESIDENT: Mr Arcidiacono or Mr Olsen, any assistance you can provide in that regard?
PN223
MR OLSEN: Unfortunately, we are stuck with staff at the moment and to do so would jeopardise our job over there.
PN224
THE DEPUTY PRESIDENT: Well, in those circumstances, what I suggest we do is if you wish to tender the other witness statements that aren't - where the witnesses aren't required for cross-examination and then I will just need to adjourn the proceedings and reschedule it for a time when Ms Rodriguez is available for cross-examination.
*** LYNDAL RYAN RXN MR RUSSELL-UREN
PN225
MR RUSSELL-UREN: If I may, very briefly, Deputy President, we would seek to tender all of those witness statements other than Ms Gill's.
PN226
THE DEPUTY PRESIDENT: Yes.
PN227
MR RUSSELL-UREN: And certainly we agree with that process. I would - I had this thought halfway through Ms Ryan's evidence when she was being questioned by Mr Olsen, and again I'm conscious of the need for the applicant to be able to put its case in a way that can be dealt with. The respondent would have no objection if, for example, Mr Arcidiacono wanted to take the witness box, give evidence-in-chief in a discursive, narrative way, expressing his views on the various contracting issue. We would raise no objection at any state in that. It wouldn't necessarily require a great degree of legal expertise from Mr Olsen, and we could then cross-examine him on the various issues.
PN228
I raise that only because I'm conscious - desperately conscious of the need that non -represented parties be accorded as much fairness as they can. Now, I've made that submission in respect of Mr Arcidiacono because he is challenging evidence that we seek to tender. Mr Di Dio is in a slightly different boat in that he has elected not to, as is his perfect right, but - - -
PN229
THE DEPUTY PRESIDENT: Mr Arcidiacono is not open to that?
PN230
MR RUSSELL-UREN: I've made the submission. I think - - -
PN231
THE DEPUTY PRESIDENT: You can't do more than what you've done.
PN232
MR RUSSELL-UREN: No. Well, in - - -
PN233
THE DEPUTY PRESIDENT: So can we go through the process of tendering the other witness statement?
PN234
MR RUSSELL-UREN: Of course. If I could tender all of those statements.
PN235
THE DEPUTY PRESIDENT: Let's do them one by one.
PN236
MR RUSSELL-UREN: Of course.
PN237
THE DEPUTY PRESIDENT: So the first one - the next one I have is Ms Julia Dah. I apologise if I get the pronunciation wrong for anybody.
PN238
MR RUSSELL-UREN: I do seek to tender that.
PN239
THE DEPUTY PRESIDENT: Any objections?
PN240
MR OLSEN: No.
THE DEPUTY PRESIDENT: Mark that exhibit RU4. That's a two-page witness statement dated 24 July comprising 10 paragraphs.
EXHIBIT #RU4 STATEMENT OF JULIA DAH DATED 24/07
PN242
THE DEPUTY PRESIDENT: The next one I have is Jiraya Maneesirawong.
PN243
MR RUSSELL-UREN: Yes, I tender that.
THE DEPUTY PRESIDENT: Any objections? I'll mark that as exhibit RU5. That's a witness statement of seven paragraphs, one page, dated 24 July.
EXHIBIT #RU5 STATEMENT OF JIRAYA MANEESIRAWONG DATED 24/07
PN245
THE DEPUTY PRESIDENT: The next one is from Bo Ra Khay Yu.
PN246
MR RUSSELL-UREN: Yes.
PN247
THE DEPUTY PRESIDENT: A witness statement of four paragraphs dated 24 July. Any objections?
PN248
MR RUSSELL-UREN: I seek to tender that.
THE DEPUTY PRESIDENT: Mark that as exhibit RU6.
EXHIBIT #RU6 STATEMENT OF BO RA KHAY YU DATED 24/07
PN250
THE DEPUTY PRESIDENT: The next one is from Tar War. It's a witness statement of five paragraphs, dated 24 July. Any objections?
PN251
MR OLSEN: No.
THE DEPUTY PRESIDENT: I will mark that as exhibit RU7.
EXHIBIT #RU7 STATEMENT OF TAR WAR DATED 25/07
PN253
MR RUSSELL-UREN: If you could excuse me very briefly, Deputy President.
PN254
THE DEPUTY PRESIDENT: Certainly.
PN255
MR RUSSELL-UREN: After Tar War's - I seek to tender Tar War's statement dated 24 July 2015.
PN256
THE DEPUTY PRESIDENT: Yes, I've marked that exhibit RU7. The next one is Ryvaa Marie Caddie. Any objections? it's a witness statement of five paragraphs dated 27 July.
PN257
MR OLSEN: No objections.
THE DEPUTY PRESIDENT: I will mark that as exhibit RU8.
EXHIBIT #RU8 STATEMENT OF RYVAA MARIE CADDIE DATED 27/07
PN259
The next one I have is a witness statement from Sukyana Beckman. It's a witness statement of six paragraphs dated 27 July. Any objections?
PN260
MR OLSEN: No.
THE DEPUTY PRESIDENT: I will mark that as exhibit RU9.
EXHIBIT #RU9 STATEMENT OF SUKYANA BECKMAN DATED 27/07
PN262
THE DEPUTY PRESIDENT: The next one is Louisa Rodriguez, which we will need to deal with when the matter is relisted. The next one I have is a witness statement from Allexinho Caldeira, four paragraphs dated 24 July. Any objections?
PN263
MR OLSEN: No.
THE DEPUTY PRESIDENT: I will mark that as exhibit RU10.
EXHIBIT #RU10 STATEMENT OF ALLEXINHO CALDEIRA DATED 24/07
PN265
THE DEPUTY PRESIDENT: That's it, I think.
PN266
MR RUSSELL-UREN: Yes.
PN267
THE DEPUTY PRESIDENT: All right. Well, I don't think we can take it any further today. I need to adjourn the proceedings and was I will look to do is reconvene a hearing.
PN268
MR DI DIO: Could I make a submission of evidence?
PN269
THE DEPUTY PRESIDENT: You wish to give evidence?
PN270
MR DI DIO: Yes.
PN271
THE DEPUTY PRESIDENT: Do you have you - do you wish to get into the witness box or how do you wish to do it?
PN272
MR DI DIO: No, it's just a submission of some signatures.
PN273
THE DEPUTY PRESIDENT: Well, submissions - I'll tell you how it plays out from here, just so that you have a sense of how it plays out from here, just so that you have a sense of it. You will have an opportunity to, but the normal course of events is any opening remarks and in this case we had a little bit of that.
PN274
Then because none of the applicants in terms of termination of the agreements are looking to lead any witness evidence and we are not having any cross-examination, Mr Russell-Uren on behalf of United Voice has led evidence from Ms Ryan, but also tendered a number of witness statements which are not contested as evidence into this proceedings.
PN275
We still have Ms Rodriguez to give her evidence and that will occur when the hearing reconvenes. So you will have an opportunity to cross-examine Ms Rodriguez in respect of her evidence and then once the evidence is concluded, the - we go into what's called closing submissions.
PN276
So there's an opportunity for Mr Olsen to make some closing submissions around why I should grant the applications that are made. Mr Russell‑Uren will make submissions presumably as to why I shouldn't grant those applications as well as potentially around his application under section 739. There's a question I'll come to around that in a moment.
PN277
And then Mr Olson will have an opportunity to reply to anything coming out of the closing submissions that Mr Russell‑Uren had made in respect of your applications, you know just that narrow confine. So it kind of depends in terms of I presume there are additional signatures for the petitions that are attached to the applications. I think probably the best way of doing that is submitting those at the time of closing submissions.
PN278
Now, the question that came out of that is in terms of the 739 application, is there anything you wish to say beyond what you've already said, Mr Russell-Uren?
PN279
MR RUSSELL-UREN: No. I question whether Ms Rodriguez could give evidence in relation to both issues or whether - it's unclear to me at this stage whether we are dealing with the 739 by way of hearing or by way of a very formal conciliation.
PN280
THE DEPUTY PRESIDENT: Well, I've co-joined the application so it's listed for hearing together with the applications for termination of the agreement. If your intention is for Ms Rodriguez to give evidence in respect of not only the applications to terminate, but also the 739 application that United Voice has made, we can certainly do that, and as long as that's clear to the respondent in respect of the dispute notification
PN281
MR RUSSELL-UREN: If you could bear with me for half a second to get some instructions?
PN282
THE DEPUTY PRESIDENT: Sure.
PN283
MR RUSSELL-UREN: We would propose to have Ms Rodriguez give evidence on the next available date. What I would stress generally and request perhaps for some guidance on is that I expressed my view of the allegations at the outset, but it may be for the respondents to the 739's benefit if it was made explicitly clear to them that between now and the next hearing date when Ms Rodriguez gives evidence she is to be left absolutely alone. I put that view as best I can.
PN284
THE DEPUTY PRESIDENT: And to reiterate what I said before, in terms of the evidence that Ms Rodriguez will give to this Commission, I don't - I think it would be entirely improper were the respondents in that dispute matter to seek to discuss her evidence with her or in any way to do with - I will choose my words very deliberately - to, in essence, raise concerns about that evidence before she gives it. So you get the drift of what I'm talking about in terms of, you know, there's legitimate work issues there, but any sense that Ms Rodriguez is being targeted because she going to give evidence before this Commission, I think, would be entirely improper and so just be very mindful of that.
PN285
MR OLSEN: I understand. Can I also just say the application of 739, I believe, is against Phillips Cleaning Service and Di Dio, which is (indistinct) and not against Rose Cleaning Service.
PN286
THE DEPUTY PRESIDENT: Yes.
PN287
MR OLSEN: I do understand what you have said and it will be strictly work matters only if they are in contact, but she does not work for Phillips Cleaning Service. So an application has been made - - -
PN288
THE DEPUTY PRESIDENT: Well, I'm looking very much at you, Mr Olsen, in the sense that you'd acknowledged that you had a conversation with Ms Rodriguez yesterday evening and I take the point that you are making, but I think the point has been made anyway, and you have acknowledged the point, I think, in the circumstances. Look, just in terms of - - -
PN289
MR RUSSELL-UREN: I'm terribly sorry, Deputy President, lest the point be missed in light of Mr Olsen's comment, the union's view - and it's uncontroversial, pretty conventional, is that any adverse effect or any adverse action against a person who has given evidence today will be taken extremely seriously by the union and I say that generally with respect to Mr Di Dio as well as in respect of the 739 which you've dealt with quite comprehensively.
PN290
THE DEPUTY PRESIDENT: I think that's acknowledged by everyone sitting on the right - my right-hand side of the Bar Table. Look, in terms of when I can reconvene, I am not next in Canberra until the week beginning 10 August, but I have time on 11 August for us to reconvene. How does that suit the parties?
PN291
MR RUSSELL-UREN: Yes.
PN292
MR OLSEN: That's good for me.
PN293
THE DEPUTY PRESIDENT: Ms Creswell, you may be able to assist the Commission in this regard. Is there a particular time that suits in terms of availability for Ms Rodriguez? I presume that in terms of her cleaning shift, it probably states that it starts after school hours.
PN294
MS CRESWELL: Yes, Deputy President, and I think about 11 o'clock in the day is the preferable time. 11.00 until 1.00.
PN295
THE DEPUTY PRESIDENT: Perfect. So if we list the matter for 11 am on 11 August, we will get a notice of listing out to everyone in the next day or so to that effect. Can I also just make the point, Mr Olsen, if you reconsider in terms of the applicants wishing to lead any evidence, I think you may wish to advise the Commission and Mr Russell‑Uren sooner rather than later in that regard.
PN296
MR DI DIO: Yes.
PN297
THE DEPUTY PRESIDENT: I just make that point, because one, from a matter of courtesy, but also from a matter of scheduling, because it might mean that Mr Russell-Uren may then need to contemplate how he responds to that, in terms of whether he wishes to recall any of the evidence of the witnesses he has called today. At this stage it's only Ms Ryan, but it's a matter of procedural fairness, if I can put it that way.
PN298
MR DI DIO: Yes.
PN299
THE DEPUTY PRESIDENT: But if you want to think about that and you change your mind, by all means let the Commission know as well as Mr Russell-Uren.
PN300
MR DI DIO: Thank you.
PN301
THE DEPUTY PRESIDENT: In the circumstances, I don't think we can take it any further this afternoon. So we will adjourn until 11 am on 11 August. Thank you.
ADJOURNED UNTIL TUESDAY, 11 AUGUST 2015 [3.39 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
LYNDAL RYAN, SWORN.................................................................................... PN74
EXAMINATION-IN-CHIEF BY MR RUSSELL-UREN.................................. PN74
EXHIBIT #RU1 WITNESS STATEMENT OF MS RYAN DATED 27 JULY PLUS ATTACHMENT...................................................................................................... PN82
EXHIBIT #RU2 LETTER................................................................................... PN141
EXHIBIT #RU3 LETTER FROM SENATOR ERIC ABETZ RE COMMONWEALTH CLEANING GUIDELINES................................................................................ PN162
CROSS-EXAMINATION BY MR OLSEN....................................................... PN167
EXHIBIT #R1 CLEAN START GUIDELINES............................................... PN175
EXHIBIT #R2 ARTICLE FROM INCLEAN MAGAZINE........................... PN190
RE-EXAMINATION BY MR RUSSELL-UREN............................................. PN202
THE WITNESS WITHDREW............................................................................ PN217
EXHIBIT #RU4 STATEMENT OF JULIA DAH DATED 24/07................... PN241
EXHIBIT #RU5 STATEMENT OF JIRAYA MANEESIRAWONG DATED 24/07 PN244
EXHIBIT #RU6 STATEMENT OF BO RA KHAY YU DATED 24/07........ PN249
EXHIBIT #RU7 STATEMENT OF TAR WAR DATED 25/07...................... PN252
EXHIBIT #RU8 STATEMENT OF RYVAA MARIE CADDIE DATED 27/07 PN258
EXHIBIT #RU9 STATEMENT OF SUKYANA BECKMAN DATED 27/07 PN261
EXHIBIT #RU10 STATEMENT OF ALLEXINHO CALDEIRA DATED 24/07 PN264
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