AG2015/1419, Transcript of Proceedings [2015] FWCTrans 497 (26 August 2015)

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PN1

THE DEPUTY PRESIDENT: Good morning, everybody. Mr Russell-Uren, nice to see you. I hope you have recovered from your appendix operation.

PN2

MR RUSSELL-UREN: Yes, I have. News travels far in this town.

PN3

THE DEPUTY PRESIDENT: It's a small place.

PN4

MR RUSSELL-UREN: Yes.

PN5

THE DEPUTY PRESIDENT: I must admit, just by way of background, I think later on the day that we were last here before the Commission there was an unfair dismissal matter where I pressed Mr Russell-Uren to make closing submissions that afternoon and I later learnt that he went straight to the hospital because he wasn't feeling well and that he had been diagnosed with a burst appendix and - - -

PN6

MR RUSSELL-UREN: Not burst.

PN7

THE DEPUTY PRESIDENT: Appendicitis.

PN8

MR RUSSELL-UREN: Yes.

PN9

THE DEPUTY PRESIDENT: So I did feel bad about - - -

PN10

MR RUSSELL-UREN: Never one to gild the lily. I understand we have a translator on line. If I could make a very brief - raise a brief point before we enter into Ms Rodrigues' evidence because it will have some baring on that evidence. Immediately prior to the hearing of the matter brought by the various applicants - I'll refer to them as the 226 applications - the union raised a section 739 application. That application was made as against Phillips Cleaning Pty Ltd which is the third applicant in the 226 applications. Immediately after Phillips Cleaning was put on notice as to our view about contacting workers, Ms Rodrigues, was say, was essentially threatened or that there was some form of retaliation.

PN11

Now, that is a matter for her evidence, but an issue which arose or, rather, which has been appreciated after last hearing and, indeed, after my return to work is that - and I think it was apparent in the proceedings that Ms Rodrigues works for Rose Cleaning Service, not Phillips Cleaning. That, on any view, is fatal to the section 739 application.

PN12

With that said, you will recall, Deputy President, that the allegations underpinning the section 739 application were the first matter raised by United Voice at the opening of these proceedings. We say that Rose Cleaning Service has been completely aware of the nature of the allegations and that in the circumstances there is no real prejudice to the substitution of Rose Cleaning Service for Phillips Cleaning. That is that the applicant essentially discontinues the application against Phillips Cleaning Service, commences the same against Rose Cleaning Service and proceeds on that basis. If that course is attractive to the Commission, we say it could be done on oral application on an informal basis.

PN13

With that said, the alternative is to dismiss the 739 application which dispenses with the need for two decisions and consider Ms Rodrigues' evidence only in the context of the applications to terminate. It may well traverse the same content and, indeed, we say that what was relevant in the 739 is nonetheless relevant to the general applications, only that different inferences could be taken from the evidence. I felt that it was appropriate to make that point before the evidence was given and to give Mr Olsen an opportunity to press his views.

PN14

THE DEPUTY PRESIDENT: Before I give Mr Olsen an opportunity to respond, there was a further conference of the parties and Ms Creswell on behalf of United Voice. I think it was the Friday before last, from memory. Mr Olsen was there from the respondent and clarified - well, the Commission clarified the comments that I made at the tail end of the last hearing that we had in respect of the applications before the Commission. In terms of clarifying it was the nature of the communication, if I can use that word advisedly, between the applicants in this case or the respondent in terms of the 739 and conversations with its employees. So I suppose the question I have for you, Mr Russell-Uren, have there been any sort of - subsequent to either the hearing and/or that conference on the Friday before last, any suggestions that there has been any sort of further what the United Voice might consider inappropriate contact from the employee, Ms Rodrigues, or other employees regarding the applications to terminate the agreements?

PN15

MR RUSSELL-UREN: Not to my knowledge, but if I could be granted a very brief moment - - -

PN16

THE DEPUTY PRESIDENT: Sure. Mr Olsen, you can sit down. I will give you a chance in a minute to respond.

PN17

MR RUSSELL-UREN: The union is unable to specify any occasion upon which that has occurred, and we have grounds to say that has occurred, in the timeframe that you are referring to.

PN18

THE DEPUTY PRESIDENT: All right. I will give Mr Olsen the opportunity to respond to the application to change the respondents cited in the section 739 application. Mr Olsen?

PN19

MR OLSEN: I don't believe that that application has any bearing on our current application to the agreements terminated that would influence the evidence given.

PN20

THE DEPUTY PRESIDENT: Mr Russell-Uren, in circumstances where I suppose - again, you might take your seat, Mr Olsen. In circumstances where the issues that were of concern that underpinned the section 739 application don't appear to have recurred, you just may wish to consider whether you wish to press the application at all. I acknowledge the point you're making that Ms Rodrigues' evidence may be relevant in terms of the applications to terminate the agreements and certainly there is no impediment to that evidence being put to the Commission, but it just strikes me in the circumstances where the issue that led to the 739 application has not recurred whether, indeed, you want to press the application at all and, indeed, the application to amend the respondents cited in that application.

PN21

MR RUSSELL-UREN: If I could take instructions?

PN22

THE DEPUTY PRESIDENT: Certainly.

PN23

MR RUSSELL-UREN: Thank you for excusing me briefly. Yes, the union would like to discontinue its application on the 739 front, noting of course in the event that it is raised by the Bench or by the respondents or applicants that many of the issues cross over.

PN24

THE DEPUTY PRESIDENT: Sure. Well, thank you for that, Mr Russell-Uren. All right. So I will take that oral advice as advice of discontinuation of the 739 application. So that's done and dusted, to put it in the vernacular. We will now proceed with Ms Rodrigues' evidence. Do you wish to call Ms Rodrigues?

PN25

MR RUSSELL-UREN: Yes, if I could.

<LUISA RODRIGUES, SWORN [11.12 AM]

ISABEL ALVAREZ, affirmed to interpret [11.13 AM]

PN26

THE DEPUTY PRESIDENT: Welcome, Ms Alvarez. Can you hear me? It's Deputy President Kovacic here.

PN27

INTERPRETER: I'm sorry, I can't hear well.

PN28

THE DEPUTY PRESIDENT: All right. I might actually come down to the Bar table - to the Associate's table. We might just also - Mr Russell-Uren, if you can do a - if we can do a sound check just to make sure that everybody can hear.

PN29

MR RUSSELL-UREN: Yes, Ms Alvarez, are you able to hear me?

PN30

INTERPRETER: A bit better now.

PN31

MR RUSSELL-UREN: Just bear with me one second. Are you able to hear me better now?

PN32

INTERPRETER: Yes, it is a bit better now.

PN33

MR RUSSELL-UREN: How about now? Can you hear me better now?

PN34

INTERPRETER: Well, it is more or less the same.

PN35

THE DEPUTY PRESIDENT: It's Deputy President Kovacic here. Can you hear me well, Ms Alvarez?

PN36

INTERPRETER: Yes, I can hear you.

PN37

THE DEPUTY PRESIDENT: Okay. Mr Olsen, do you want to have a - - -

*** LUISA RODRIGUES XN MR RUSSELL-UREN

PN38

MR OLSEN: Yes. Ms Alvarez, can you hear me?

PN39

INTERPRETER: (No audible reply)

PN40

THE DEPUTY PRESIDENT: You might need to come up this end of the table when you (indistinct). Yes, that's all right. Ms Rodrigues, would you mind just speaking into the phone just so that we can make sure that Ms Alvarez can hear you as well?

PN41

THE WITNESS: (Speaks in foreign language)

PN42

INTERPRETER: (Speaks in foreign language)

PN43

THE WITNESS: Okay, she can hear.

PN44

THE DEPUTY PRESIDENT: Good. Mr Russell-Uren?

PN45

MR RUSSELL-UREN: Thank you, Deputy President. Ms Rodrigues, I am just going to ask you a few questions. If you want me to stop or don't understand the question, just let me know.

PN46

INTERPRETER: I'm sorry, I can't hear.

PN47

THE WITNESS: (Indistinct) please.

PN48

THE DEPUTY PRESIDENT: I think that microphone's (indistinct).

PN49

MR RUSSELL-UREN: Right, okay.

PN50

THE DEPUTY PRESIDENT: It's like the old television aerial.

PN51

MR RUSSELL-UREN: Yes.

EXAMINATION-IN-CHIEF BY MR RUSSELL-UREN [11.16 AM]

*** LUISA RODRIGUES XN MR RUSSELL-UREN

PN52

Ms Rodrigues, how long have you worked for Rose Cleaning?‑‑‑(Direct) (Indistinct) but I think 2011 January. Something like that. (Through interpreter) I don't remember well, but something like January 2011.

PN53

In the course of that time have you ever been warned about your performance at work?‑‑‑Like what?

PN54

Have you ever been told you work too slowly?‑‑‑I think that I work well and I do things quite well.

PN55

Has the company ever told you you don't do things quite well?‑‑‑Not that I remember now.

PN56

Has the company every told you - sorry, bear with me one second. Has the company every told you you are not allowed to sit down before July 2015?‑‑‑No, I was never told that, but it is common sense that if I am in at work I cannot do that. I only work four hours. It is part time.

PN57

In around 28 July 2015 you were warned by Daniel about sitting down and using your phone. Is that correct?‑‑‑That is true.

PN58

What were the circumstances in which you were sitting down?‑‑‑I was dusting. I went looking for a duster. It was not there, so I went to the other building in front looking for it. At that moment the phone rang and it was to tell me something about the dog. I know it is not a big thing but they told me the dog was sick. It shocked me and I sat down and it was not five or 10 minutes. It was for less than two seconds.

PN59

Then did you stand up and continuing working?‑‑‑Of course.

PN60

Did Mr Olsen see you when you were sitting down? I'm sorry, no I withdraw that question. Was Mr Olsen nearby when you were sitting down?‑‑‑I don't know. I didn't see him.

PN61

When Mr Olsen warned you about sitting down was that immediately after you sat down or later on?‑‑‑I think it happened on a Friday and he came to see me on Monday if I am not mistaken.

PN62

Days later?‑‑‑(Direct) Yes. Maybe it was Friday and then after he come Monday, I think.

*** LUISA RODRIGUES XN MR RUSSELL-UREN

PN63

Did you prepare a statement in connection with these proceedings?‑‑‑(Through interpreter) Yes, because he threaten me that I could lose the job and nowadays we need the job, you know, to eat and pay bills. I was scared, so I have never before rung the union but I rung them.

PN64

Thank you for that evidence, but if I may ask did you prepare a statement for these proceedings?‑‑‑Do you mean for now?

PN65

For now?‑‑‑(Direct) No. I answer your question.

PN66

I know. I don't mean to be rude. I am terribly sorry if I have offended you?‑‑‑No, no, no, it's okay, but I am really nervous.

PN67

That's okay and I understand the nerves. It's for everyone. (To interpreter) If you could translate that. (To witness) I would just like to give you a document for you to have a look at. Could you have a look - a very brief moment, I just need to check one thing.

PN68

THE DEPUTY PRESIDENT: Do you have a spare copy, Mr Russell-Uren?

PN69

MR RUSSELL-UREN: Yes, I do have one for you and I have one for the respondent. Only Rose Cleaning Service given that it's not relevant to the Phillips application, I don�t have one on hand but I do have one in the office and it wouldn't be necessary that I have one at the moment. (To witness) Can you confirm that you drafted that statement?‑‑‑Yes, I did.

PN70

Is it true and correct?‑‑‑Yes.

PN71

Sorry. Is it true and correct?‑‑‑Yes, it is.

PN72

Could you have a look at another document? I will give this one to you in just a moment. Could you have a look at that statement?‑‑‑Yes.

PN73

Could you have a look at the third page?‑‑‑Yes.

PN74

Can you see halfway down the page it says, "Signed Luisa Rodrigues"?‑‑‑Yes.

*** LUISA RODRIGUES XN MR RUSSELL-UREN

PN75

Immediately above that there is a signature. Can you see that?‑‑‑Yes.

PN76

And that is yours, yes?‑‑‑Yes, it is.

PN77

Is that statement true and correct?‑‑‑Yes, it is.

PN78

I tender both of those statements.

EXHIBIT #RU11 WITNESS STATEMENT OF LUISA RODRIGUES DATED 27/07/2015.

EXHIBIT #RU12 WITNESS STATEMENT OF LUISA RODRIGUES DATED 29/07/2015.

PN79

You will recall, Deputy President, that an earlier version of RU11 was tendered in the last hearing. This one contains a translation. How you wish to treat the numbering of the exhibits is a matter for you, of course.

PN80

THE DEPUTY PRESIDENT: I don't think we actually tendered Ms Rodrigues' statements, Mr Russell-Uren.

PN81

MR RUSSELL-UREN: Quite right.

PN82

THE DEPUTY PRESIDENT: Because the intention was for Ms Rodrigues to give oral evidence this morning.

PN83

MR RUSSELL-UREN: Of course.

PN84

THE DEPUTY PRESIDENT: So we dealt with all of the ones where witnesses weren't required for cross-examination but we left Ms Rodrigues' statement until today.

PN85

MR RUSSELL-UREN: I stand corrected. Ms Rodrigues, I have got no further questions for you for now. Thank you very much for answering them. I appreciate it.

PN86

THE DEPUTY PRESIDENT: It's Deputy President Kovacic here. Mr Olsen will now have the opportunity to ask Ms Rodrigues some questions?‑‑‑Okay.

*** LUISA RODRIGUES XN MR RUSSELL-UREN

CROSS-EXAMINATION BY MR OLSEN [11.28 AM]

PN87

MR OLSEN: Luisa, so you have prepared two statements in total. Is that correct?‑‑‑(Through interpreter) One statement in my hand.

PN88

Yes. The first statement that you prepared on 27 July with four paragraphs?‑‑‑Yes.

PN89

Point number 3, you state that you were not asked if you wanted the Clean Start agreement terminated or not.

PN90

INTERPRETER: Can you repeat that, please? I couldn't hear you clearly.

PN91

MR OLSEN: Luisa was asked if she did not - if she wanted the Clean Start agreement terminated or not?‑‑‑No, I was never asked whether I wanted that agreement to continue or not, but since last year when I work for Chisholm Club they withdrew the benefits and they gave me half an hour (indistinct) work but they never ask me whether I wanted the agreement to be finished.

PN92

Just first off I would like to point out that Phillip does not hold a contract for any - - -

PN93

THE DEPUTY PRESIDENT: This is a matter that you can make in submissions, Mr Olsen.

PN94

INTERPRETER: No, I couldn't hear.

PN95

THE DEPUTY PRESIDENT: That's all right, Ms Alvarez. There was just an exchange with Mr Olsen. He was wanting to make a point which I have just said that is more appropriately made by way of submission rather than cross-examination.

PN96

INTERPRETER: Okay.

PN97

MR OLSEN: Do you remember on about 11 June 2015 I approached you in the S block of Narrabundah College in front of the staffroom and had a discussion with you in regards to a petition?‑‑‑What people?

*** LUISA RODRIGUES XXN MR OLSEN

PN98

There was a petition that I brought around that had some signatures on it and I asked for your input and your support for Rose Cleaning to terminate an agreement that we had with United Voice.

PN99

INTERPRETER: I couldn't hear it well.

PN100

MR OLSEN: Sorry.

PN101

THE DEPUTY PRESIDENT: It's all right. Repeat it again.

PN102

MR OLSEN: There was a petition that I brought around that had some signatures on it where I asked for Luisa's support to terminate an agreement between Rose Cleaning and United Voice.

PN103

INTERPRETER: I couldn't hear the name of the firm.

PN104

MR OLSEN: Rose Cleaning and United Voice?‑‑‑I honestly don't remember that. (Direct) No, honestly no. (Through interpreter) I remember that he came to talk to me several times but I don't remember him ever mentioning if I wanted to terminate the agreement. Had he asked me, of course I would have said no, I didn't agree with it.

PN105

Do you recall telling me that - and I quote:

PN106

I do not trust Phillip and I do not trust the union, so I do not want to sign.

PN107

?‑‑‑(Direct) Yes, that's what I say. I say in this day we have to be very careful. It's I not trust the company and we talk about that. (Through interpreter) Yes, I said I don't trust the company because they withdrew all the - they took away some of the time and also I was referring to the union.

PN108

THE DEPUTY PRESIDENT: Could I perhaps ask a question there? Ms Alvarez, would you ask Ms Rodrigues the conversation that led up to Ms Rodrigues making that comment to Mr Olsen?‑‑‑Yes, I remember it was several times. He even showed me his phone and there was a video and he told me - I don't remember whether it was in Sydney. And I don�t' remember whether it was in Sydney or in Melbourne but some money had been taken by somebody and that sort of information is disturbing. It can really upset people.

*** LUISA RODRIGUES XXN MR OLSEN

PN109

Thank you.

PN110

MR OLSEN: So you don't recall me having the petition when you made that statement?‑‑‑What are we talking about now?

PN111

Sorry. The statement that you made that you did not trust Phillip or the union?‑‑‑Of course, I am saying that.

PN112

Can I just go back to the second statement that she has made on 29 July?

PN113

INTERPRETER: What's the date?

PN114

MR OLSEN: The statement made on 29 July. Do you remember when you started work at Narrabundah College?‑‑‑If I remember well, it was this year after the holidays.

PN115

You have made a statement that you work - and again, this may be for submission later, but that you work for Rose Cleaning Services at both the Vikings Club and Narrabundah College?‑‑‑Yes, I work for the club in the mornings and in the afternoons for the school.

PN116

Are you aware that the company that holds the club and the company that holds the contract at the school is two separate companies?‑‑‑Yes, I think so.

PN117

So how come you have put that you work for Rose Cleaning Services at both jobs?‑‑‑I don't know. Probably I - well, honestly, I don't know what happened. Probably I was very nervous because I was told that I would lose the job and I made a mistake.

PN118

Had you known that - sorry, I'll rephrase that question. When you commenced your employment with Rose Cleaning Service did you know that we had an enterprise agreement with the union?‑‑‑What do you mean an agreement?

PN119

The Clean Start agreement. Did you know that Rose Cleaning Service was a party to it when you commenced work with us?‑‑‑Do you mean the extra money they pay? Yes?

PN120

Yes?‑‑‑(Direct) Yes, I know. I know.

*** LUISA RODRIGUES XXN MR OLSEN

PN121

If you knew - sorry. If Rose Cleaning were not a part of the agreement, would you still have applied for the job?‑‑‑(Through interpreter) Honestly, I don't know. Honestly, I don't know because when I started working there (indistinct).

PN122

No further questions.

PN123

THE DEPUTY PRESIDENT: Mr Russell-Uren, do you have any further questions?

PN124

MR RUSSELL-UREN: Yes, I do.

RE-EXAMINATION BY MR RUSSELL-UREN [11.41 AM]

PN125

Do you still work at the club in Chisholm?‑‑‑(Direct) Yes, I do.

PN126

How many payslips do you get each week?

PN127

INTERPRETER: Can you repeat that?

PN128

MR RUSSELL-UREN: How many payslips do you get each fortnight?

PN129

INTERPRETER: How many?

PN130

MR RUSSELL-UREN: How many payslips do you get each fortnight?‑‑‑(Through interpreter) One.

PN131

Mr Olsen asked you about a couple of conversations you had with him. Were those questions asked in English or in Portuguese?‑‑‑(Direct) I don't speak Portuguese.

PN132

I realized the error of that question as I asked it.

PN133

THE DEPUTY PRESIDENT: You're going to start World War 3 here in a minute.

PN134

THE WITNESS: It's Spanish.

*** LUISA RODRIGUES RXN MR RUSSELL-UREN

PN135

MR RUSSELL-UREN: I apologise, I do. Or Spanish?‑‑‑In English.

PN136

When Mr Olsen gave you documents were they translated into Spanish?‑‑‑No.

PN137

In the course of answering Mr Olsen's question you said he showed you a video on his phone that money was taken?‑‑‑(Through interpreter) Yes, I remember I told him - well, he showed me a video on his phone and saying that some money had been taken and I remember that at that time there was a lot on the news about the unions that there were problems. I don't know if it was in Melbourne or in Sydney, but yes, anyway I heard about those conversations.

PN138

Was the video about a union official?‑‑‑No, it was in the news. They were talking - they were saying something about that.

PN139

Was the video that Mr Olsen showed you - rather, did - no, one second, Ms Alvarez, I will ask that question again. Did the video shown to you by Mr Olsen relate to those topics in the news?‑‑‑Of course, because at the time we were talking quite friendly. I always thought that Daniel was a very nice person, very approachable until he told me that they were going to dismiss me, but it is an attitude that was - was not what I expected of him.

PN140

THE DEPUTY PRESIDENT: Ms Alvarez, it's Deputy President Kovacic here. Can I ask a question? Why does Ms Rodrigues think that Mr Olsen showed her the video?

PN141

THE WITNESS: That's a very good question. I think really that people - he was trying to convince me want to be on his side. Of course people always want their job.

PN142

THE DEPUTY PRESIDENT: (To interpreter) Why does Ms Rodrigues think that Mr Olsen was trying to convince people to be on his side?

PN143

THE WITNESS: I think there is an easy answer to that. If they withdraw the agreement, who wins? Us? No. We have been fighting for this for three years and I consider that when you get something you have to keep it. You have to fight for it.

*** LUISA RODRIGUES RXN MR RUSSELL-UREN

PN144

THE DEPUTY PRESIDENT: So can I ask the question again? Why does Ms Rodrigues think that Mr Olsen showed her the video? I understood what the answer was there, but it didn't quite answer the question that I asked.

PN145

THE WITNESS: I already answered that question. I said it before. It is that he wanted to be friendly because he wanted to gain my friendship and I know these comments are not going to go against me in my job.

PN146

MR RUSSELL-UREN: They are not. I assure you they are not?‑‑‑(Direct) Okay, thank you.

PN147

THE DEPUTY PRESIDENT: There is protections in the Act if they do.

PN148

MR RUSSELL-UREN: I would like to ask one question following off the back of those you have asked. Then I will need to get some further instructions from the branch secretary on one topic relating to a note that I have been handed.

PN149

THE DEPUTY PRESIDENT: I might just - Mr Olsen, given that I asked some questions, if you have some questions coming out of those questions, I think it only fair to give you the opportunity to ask that.

PN150

MR OLSEN: Yes, I do.

PN151

THE DEPUTY PRESIDENT: So I will give you that opportunity in a moment.

PN152

MR OLSEN: Thank you.

PN153

THE DEPUTY PRESIDENT: You finish the two questions, take instructions and while you're taking instructions, I might just get Mr Olsen to ask any questions arising out of the questions that I asked. I know it's complicated, but - - -

PN154

MR RUSSELL-UREN: Yes, I should be able to handle it. Do you think Mr Olsen wanted you to leave the union?

PN155

INTERPRETER: Can you repeat the question?

PN156

MR RUSSELL-UREN: Do you think Mr Olsen wanted you to leave the union?‑‑‑I don't think it was only him. There were other people as well because that way the people would be easier to handle.

PN157

THE DEPUTY PRESIDENT: Mr Olsen, do you want to ask - - -

*** LUISA RODRIGUES RXN MR RUSSELL-UREN

FURTHER CROSS-EXAMINATION BY MR OLSEN [11.49 AM]

PN158

MR OLSEN: Luisa, up until recently, how would you describe our working relationship?‑‑‑As I said before, I think that you are a very good person but you were working under a lot of pressure.

PN159

Do you recall when I did show you the video I explained to you that there are some companies that are doing the wrong thing and that our company is trying to do the right thing, but just to be wary of what agreements you support. The video I had was in relation to a company in Melbourne which had an agreement with a union to underpay its staff and cut out conditions.

PN160

THE DEPUTY PRESIDENT: You might - - -

PN161

MR OLSEN: I know that, yes, this is not relevant.

PN162

THE DEPUTY PRESIDENT: It's a submission, if you want to make it later on.

PN163

MR OLSEN: Okay.

PN164

THE DEPUTY PRESIDENT: You might just want to restate the question so that Ms Alvarez can ask it.

PN165

MR OLSEN: Do you recall the conversation that we had before I showed you the video?‑‑‑As I said before, I am not sure because it wasn't just on one occasion. It was several times. (Direct) Many times.

PN166

Have I ever asked you to leave the union?‑‑‑(Through interpreter) Not (indistinct) no.

PN167

Have I always maintained that it is your free choice to be a union member?‑‑‑Yes, that's true.

PN168

So what gives you the impression that I have tried to make you leave the union?‑‑‑How would you feel if things were the other way around that I would come to see you every day and always talk about the same thing?

*** LUISA RODRIGUES FXXN MR OLSEN

PN169

So you're saying that I came every day to talk to you about the union?‑‑‑I know that you are not in charge of Narrabundah College. It is the other person, but after these problems it's not every day. Every other day you would come to talk to me. (Direct) Or three times a week.

PN170

Do you remember what questions I asked you when I came to see you?

PN171

MR RUSSELL-UREN: I'm sorry, if I could interject? We are straying from the questions that you asked Ms Rodrigues and we are returning to the questions which have been previously asked of Ms Rodrigues by Mr Olsen in his cross-examination. We stray and we enter into banter and argument.

PN172

THE DEPUTY PRESIDENT: It is really about issues that I raised in my questions and I suppose if you can just try and stick to that. So just bear that in mind, Mr Olsen.

PN173

MR OLSEN: If that's the case, I don't have any further questions at this time.

PN174

THE DEPUTY PRESIDENT: Thank you, Mr Olsen. Mr Russell-Uren?

PN175

MR RUSSELL-UREN: Nothing further, Deputy President.

PN176

THE DEPUTY PRESIDENT: Thank you very much, Ms Rodrigues, for your evidence this morning. You are excused. You may stand down, thank you?‑‑‑Thank you.

<THE WITNESS WITHDREW [11.54 AM]

PN177

Thank you, Ms Alvarez.

PN178

INTERPRETER: Okay.

PN179

THE DEPUTY PRESIDENT: We will hang up now and I will take my normal seat. So thank you.

PN180

INTERPRETER: Okay, yes. Bye.

*** LUISA RODRIGUES FXXN MR OLSEN

PN181

THE DEPUTY PRESIDENT: Mr Russell-Uren, I noted that there were a couple of supplementary witness statements that were provided by Mr Cresswell on Friday last week. I suppose the question I have, Mr Olsen, is do you wish to cross-examine any of the witnesses in respect of those additional statements and the supplementary statement by Ms Ryan?

PN182

MR OLSEN: Both of the statements that were submitted - neither of those people work for Phillip.

PN183

THE DEPUTY PRESIDENT: So that's Mr Ashcroft and - - -

PN184

MR OLSEN: (Indistinct).

PN185

THE DEPUTY PRESIDENT: Yes. Both of them state that they work for Rose Cleaning.

PN186

MR OLSEN: They do not work for Phillip under Rose Cleaning Service. It does not hold the contract and the jobs that they work at.

PN187

THE DEPUTY PRESIDENT: So is it that either of the people who made the statements may have worked for any other businesses that are subject of the application?

PN188

MR OLSEN: No. There is another company with a similar name and I believe there may be some confusion.

PN189

THE DEPUTY PRESIDENT: Mr Russell-Uren?

PN190

MR RUSSELL-UREN: The union withdraws both statements and does not seek to tender them. Mr Olsen is quite right. There are various entities with similar names, various ABNs, various trusts and workers rotate between them with such regularity that they are quite hard to keep track of and the lawyer who took those statements with nearly 20 years' experience would have been as confused as the workers themselves as to the true nature of their employer in any event.

PN191

THE DEPUTY PRESIDENT: All right. We then have the supplementary witness statement of Ms Ryan which, in essence, seeks to correct some of the material in a previous witness' evidence. I take it, Mr Olsen, that you don't object to that particular statement or wish to cross-examine Ms Ryan?

PN192

MR OLSEN: No.

PN193

THE DEPUTY PRESIDENT: So you wish to tender that?

PN194

MR RUSSELL-UREN: We wish to tender that, yes.

EXHIBIT #RU13 WITNESS STATEMENT OF LYNDAL RYAN

PN195

THE DEPUTY PRESIDENT: Mr Olsen, just confirming that the applicants in this case don't intend to lead any witness evidence?

PN196

MR OLSEN: No, we have no witnesses.

PN197

THE DEPUTY PRESIDENT: All right. We now get to the stage of closing submissions and Mr Olsen, as the applicant, in terms of the batting order, that means that you go first, then Mr Russell-Uren has the opportunity to make his closing submissions and then you have an opportunity to respond to any issues that you may wish to arising from Mr Russell-Uren's submissions.

PN198

UNIDENTIFIED SPEAKER: Deputy President, could I enter in some signatures that I have obtained as evidence?

PN199

THE DEPUTY PRESIDENT: Well, you can - difficulty is sort of for the evidence to be entered it, in essence, needs to be entered by way of the person providing it as witness evidence. Without knowing - I presume it's copies of sort of petitions?

PN200

UNIDENTIFIED SPEAKER: Yes.

PN201

THE DEPUTY PRESIDENT: They're certainly - if they're any different to those that are appended to the applications, I think - I have some reservations in the absence of them not being tendered as evidence in circumstance where they're not tendered by way of a witness because there is not an opportunity to cross-examine as to the voracity.

PN202

UNIDENTIFIED SPEAKER: Okay.

PN203

THE DEPUTY PRESIDENT: If you wish to provide them to the Commission, that's up to you, but just in terms of evidence, it's just - unless there is an opportunity for them to be tendered by way of a witness, I have reservations.

PN204

UNIDENTIFIED SPEAKER: Okay.

PN205

MR OLSEN: So both Phillip of Rose Cleaning Service and Angelo of Phillips Cleaning Service voluntarily signed the respective agreements at a time when the agreements were supported by the government. They did so as they believed that it was the right thing to do and showed support for its employees. Since that time the agreements have passed their nominal expiry dates and the government has withdrawn its support. This has left both companies with an uncertain future. To remain in these agreements would likely see the end of a local company of nearly 40 years.

PN206

Since abolishment of the Cleaning Services Guidelines, Rose Cleaning Service alone has missed out on tendering for four large jobs. This is because of the award rates of pay which have been tendered by other companies that are not party to the agreement and the rates at which Rose Cleaning will need to tender as it is party to this agreement. Both companies are currently paying rates which are higher than the EBAs.

PN207

The companies do not gain any advantage from being part of this - the EBAs. There is no incentive for any agency to take on a company that is a party to this EBA, therefore the only people we can that are gaining anything out this are the union.

PN208

We have a total of 94 - Rose Cleaning Services has a total of 94 employees of which 62 were approached in regard to the termination of this agreement, do 62 signatures were obtained in the support to terminate the agreements. This is 66 per cent of our employees. The other 32 employees, or 33 cent either declined to sign or were not asked as we felt that we already had a majority. If these agreements can't be terminated now then when can they? When the companies go into receivership or does the owner need to pass away before they can be terminated?

PN209

To place us in a situation that was voluntarily entered into and to bind us to it for life, I feel is unjust. Phillip was the first person or as far as I'm aware, he was the first person to sign the 2008 Clean Start Agreement in Australia. This shows that he is committed to his staff and to fair work for all his employees. We don't feel that it is fair that that he should be sent to his deathbed under this agreement. That's it.

PN210

THE DEPUTY PRESIDENT: Thank you, Mr Olsen. Mr Russell-Uren.

PN211

MR RUSSELL-UREN: Thank you, Deputy President. I am missing one document from my pile. As is often the case, it is the one you put away that turns to be the one you need.

PN212

A section 226 application has a particular gravity. It removes the enforceability of the terms and condition of employment for some of the most vulnerable workers in this territory and nationally, whose vulnerability is routinely and notoriously taken advantage of by contractors.

PN213

Judicial notice can be taken of the repeated Fair Work Ombudsman reports into noncompliance in this industry. The no‑payments, the coercion of workers to quit unions, the pay slip contraventions, the entities, the lack of consultation, the health and safety and it goes on. The enforceability of our members' rights and that of their colleagues is all they have to protect them from contractors who are, admittedly, caught in a difficult position.

PN214

The Act is designed to protect workers and to provide them with the minimum safety net. Section 226 takes its place within that purpose. I will return to the proper construction of section 226, but I wish first to press one submission, and that is that there is no case of the Commission to determine.

PN215

The only case advanced was the case advanced by the first and second applicant, or rather the first applicant, in respect of two agreements; that is, those applications brought by Phillip Arcidiacano trading as Rose Cleaning Services.

PN216

In support of that case, three documents or classes of documents were put forward. The ANAO document, the exhibit number of which I do not have at hand, the ANAO document is of - could only be described as being of uncertain provenance. I read over it last night and I considered it and the following questions arose. What is the authors identity? What is the context of its creation? Who was it provided to? When was it written? How did it affect Rose and what was the decision ultimately made? It's completely unclear.

PN217

Is this page 1 of 1 or page 1 of 15? This document was put to a witness who could say nothing about it, who knew nothing of it. It was put in support of this broad submission the contractors, who had signed the enterprise agreement, losing contracts.

PN218

Now, even if it could be considered as having that effect, the final question I have of this document is what can be made of the second bullet point in the third paragraph, which states, and I will quote:

PN219

The existing tender will not be adversely affected if the tender responds to the Fair Work Principles criteria.

PN220

"The existing tender will not be adversely affected if the tender responds to the Fair Work Principles criteria." We don't know if this was a tendering that Rose Cleaning Services put something into or whether this document was provided to any other number of the contractors in the ACT who have signed the agreement. There are dozens of them.

PN221

How is the respondent to address this? But even if this document was to be considered, what is meant by that assurance? It's as unclear as the rest of it. The next document put forward was a newspaper article from an industry magazine. That document borrows tracts from another article which takes quotes from various other people. The author of neither article has been called and the maker of the statement has not been called. Vast majority, it's opinion. What do we make of this?

PN222

It's uncertain, untested, its contents are unverified, and this was given again to a witness who could say nothing to it to prove this broad point that the repeal of the Fair Work Principles would result in the doom of every Clean Start Contractor in the ACT, none of whom are called.

PN223

But even if this document can be considered in such a way that it meets this higher principle, well, it's still difficult to understand the applicant's point when this is considered against the assurance that is contained in the ANAO document. If you then turn to page 2 of the In Clean article and you look to the third paragraph, it contains a quote from the BSCAA and the quote reads, in part:

PN224

From 1 July -

PN225

I'm sorry, I'll quote it in full:

PN226

BSCAA knows that this will come as enormous news, not only to BSCAA members, but to non-members as well. From 1 July 2014 contractors will be able to submit tenders based on the award and on Federal government cleaning contracts, which is a big step forward for us and a huge win in the industry in its efforts for a return to a level playing field.

PN227

Now, all that can be taken from that, given that the Fair Work Principles haven't been tendered, nor have the cleaning services guidelines, nor have any statements which verify the effect of those documents. The effect of that statement, if this article is to be considered, is the contractors have the ability to put in a tender - put in a bid for a tender at an award rate.

PN228

It doesn't say - it doesn't say that contractors who have signed Clean Start are doomed. It doesn't address the value for money principles by which Commonwealth procurement agencies operate. It's completely uncertain. And then we have the surveys. You'd heard the kind of pressure that was applied to Ms Rodriguez, and I can assure you the first thing we're going to be doing as we walk out of this building today is hanging a left on London Circuit and going straight to Maurice Blackburn. That's going to be our response.

PN229

The kind of pressure which has been applied to our members is unforgiveable. These are vulnerable workers and the bravery which Ms Rodriguez showed when giving her evidence to the very person who applied that pressure should serve as an inspiration to every worker nationally.

PN230

I use rhetoric selectively, but when I do I mean it. So what can be made of those surveys? It's patently clear on the face of them that half of the members aren't born Australians, they've got foreign names. What was the nature of the translation? What was the nature of the translation given to Ms Rodriguez? She gave the entirety of her evidence through a translator and although she understood one or two questions when asked slowly, what was the explanation given to her?

PN231

Let's turn to the survey. Let's examine that document. That document contained a statement to the following effect,

PN232

Please accept my signature below as full support for the application to terminate the Rose Cleaning Services and LHMU Clean Start Union Collective Agreement 2010 for ACT Government Schools. I have been assured by my employer that while the current contract remains in place at my current job, my rate of pay will not be affected. I understand that if successful, the modern award will apply.

PN233

Well, what happens to the workers' base rate of pay when they take annual leave? Is that explained? Because it's higher in Clean Start. What happens when there's a public holiday that falls on working day? Do they still get the base rate of pay? How about their minimum engagement entitlements, do they still get that?

PN234

These are conditions of employment, not wages. And if their rights are breached, how do they enforce them? How do they enforce them? What is said about that in this document? At its highest, this is utterly misleading. There is no translation. The explanation is wrong. There was no consultation for the workers. They were not given the opportunity to seek advice and vast tracts of workers were not even asked. This document is supposed to prove the views of the employees and the consequences that the termination may have on them.

PN235

The fatal difficulty, which the applicants as a whole face, is that there is no evidence for which this Commission can base a decision on. Phillips Cleaning has tendered nothing. Not a statement - a bald explanation in a form which is unsupported by anything. It's pressed no submissions, The extent to which Mr Olsen can speak on his behalf, at its highest unclear, and throughout this - I want to make this clear lest it be said that I am a lawyer taking advantage of the unrepresented.

PN236

I returned from the hearing the other day to the office and I was quizzed by the branch secretary and the security organiser on my conduct. They thought, to some extent, that I was putting it on. But I believe adamantly that particularly in an industry - in a Commission, not a tribunal, built for industry that people who are unrepresented should be able to have access to it, and should not be disadvantaged by reason of their failure to get representation, knowing full well that it's only in recent years that this has become the norm. And I have bent over backwards to give -to make it clear that the union would take no objection if evidence was given in a discursive and narrative form.

PN237

The managers could stand there and ramble for hours on diatribes about union corruption. I just stood back and heard it and then asked some questions which were relevant, but there's a reason they didn't give evidence. There's a reason. The same reason they didn't challenge the most critical aspects of our submissions or the most critical aspects of the witness statements. It's true, it's dead true.

PN238

These are companies which rotate entities, which switch workers from one to the other to avoid payroll tax, which don't tell them, which steal their money, which pressure them into leaving the union and then have the temerity to do everything in their power to take away the enforceability of these people's rights, merely because the union has insisted they comply with the agreement. Merely because of that. Merely because we went out and did right of entries to try and get some evidence, that's it.

PN239

What was the timing of the application? Two days after an entry? Just after they sacked their fourth round of solicitors? What -there is no evidence upon which this Commission can base its decision and there is a clear - a crystal clear reason for which none of our evidence which we did tender in the appropriate way has been challenged.

PN240

Now, on that point, I have some authorities which I need to refer the Commission to. If I can turn your Honour to the third case, which will be the Tramways decision and to paragraph 13 of Barwick J's judgment which contain those oft-quoted words about upon what an Industrial Commission and Commissions generally can base its decision.

PN241

Sorry, if I said paragraph 13 then, I should have said paragraph 33.

PN242

THE DEPUTY PRESIDENT: I'm glad you corrected that, because I was looking and I was struggling to find anything in paragraph 13 - - -

PN243

MR RUSSELL-UREN: It's 33 and it's on page 8 of 21. The page numbers appear in the bottom right-hand corner of each page noting that it's printed on both sides to save the Tamar Valley. I suspect somebody has my marked copy, but the effect of the paragraph, and I'll quote it:

PN244

The Commissioner was not disentitled to act upon the assertions of the union advocate merely because they were not made on oath or because he might not have been competent as a witness according to the ordinary rules of evidence taken; noting of course that the rules of evidence don't apply to this Commission.

PN245

He goes on to say that, in effect, the submissions of who was then the general secretary of the relevant union could be taken to support a Commission's decision about an award. Earlier on in the piece, Barwick CJ noted that the respondent to that application for the creation of an award had been given the opportunity to call evidence and to test it and had declined.

PN246

In those circumstances, the evidence or, rather, the submissions were uncontested. They could just - you know, Browne v Dunn had been complied with; there was no real unfairness in accepting them. This is a decision which has been applied for the better part of nearly 50 years since 64.

PN247

If I can take you to the next case which should be marked "Secretary to the Department of Human Services v Sanding." In the top left-hand corner it should have the words "Barnett J." If you turn to the fourth page, paragraph 133 - - -

PN248

THE DEPUTY PRESIDENT: Did you say 133?

PN249

MR RUSSELL-UREN: Paragraph 133, fourth page along.

PN250

Bell J of the Victorian Supreme Court describes the kind of evidence that might be received informally and considers the Tramways Board decision in the last sentence effectively, and there Bell J says:

PN251

The court or tribunal may act on written submissions containing assertions of fact, and statements made from the Bar Table by the parties or their legal representatives, but if the asserted facts are in serious dispute and concern important issues, it may be necessary to insist on much more.

PN252

MR RUSSELL-UREN: Now, two cases are cited in support of that statement of high principle, the first at footnote 63 is Wajnberg v Raynor and Metropolitan Board of Works [1971] VicRP 82; [1971] VR 655, 678-679.

PN253

That is actually a reference in that case to the 1914 Tramways decision, which actually concerns a matter of high constitutional law rather than the point raised by Barwick CJ.

PN254

MR OLSEN: Could I just ask what this has to do with the termination of two enterprise agreements which are happening in Canberra and we're referring to Tramways documents.

PN255

THE DEPUTY PRESIDENT: What Mr Russell-Uren is bringing to the Commission's attention is some authorities that he seeks to rely on which go to, I suppose, the considerations that the Commission needs to give to material that's being submitted by yourself on behalf of the applicants, in terms of in essence - my words - the weight that should be attached to submissions in the absence of evidence.

PN256

It's not uncommon for parties to rely on previous decisions to emphasise aspects of their submissions. So that's what Mr Russell-Uren is doing there.

PN257

MR RUSSELL-UREN: I was just discussing the footnote - the 63rd footnote in that decision beneath paragraph 133 on the fourth page of the authority to which I referred you. There - and contained within that case, Wajnberg v Raynor and Metropolitan Board of Works, it is a reference the much earlier Tramways decision on a different matter, but immediately above that is a good statement to which I believe this judge was actually referring, which dealt with evidence in that matter and I raise it - and I won't refer you to the precise paragraph, but it's a point that gave rise to some confusion earlier on.

PN258

If I could refer you to the third case, which is one of the Full Bench of Fair Work Australia, as it then was, Victorian Employers' Chamber of Commerce and Industry [2012], at paragraph 14 there, which is on the third page along marked page 56 in the bottom right-hand corner, Tramways has applied, specifically, Barwick CJ's decision - aspect of his judgment to which I just referred you is considered and applied. The Bench in that matter also referred to Menzies who I understand generally backs up Barwick CJ's judgment, but Barwick CJ's decision is the touchstone on this point and if you see in any of the other hundred odd cases which have used this principle, predominantly the Full Bench of this Commission, all of them have considered Barwick.

PN259

Now, there at paragraph 14 of this decision, halfway down the Bench said:

PN260

The Tribunal nevertheless requires evidence or uncontested submission sufficient to allow it to make any jurisdictional findings that condition the exercise of power sought in the originating application.

PN261

In this matter there is no evidence. There is no evidence. The onus at all times was on the applicants to put their case. I've gone through their case and there is none. In the case of Phillips Cleaning there is no reasonable basis, in fact, contained within these proceedings for seeing there has been any case at all. Nothing has been put forward and this is simply insufficient and the rights and liabilities of hundreds of workers across this territory are in question.

PN262

Now the submission I have put is that there is no case. We say, and I do not put this submission lightly that a decision on that front could be made today, but if you are minded not to make that decision I would like to address, very briefly, the operation of section 226 .

PN263

THE DEPUTY PRESIDENT: I will give you a heads-up, I am not going to make the decision today.

PN264

MR RUSSELL-UREN: Of course. Well, in that case, section 226 contains two separate considerations and this departs from the earlier equivalent provisions. The first is that the application must not be contrary to the public interest and the second is that it must be appropriate, taking into account broadly the parties to the agreements circumstances and views and so forth.

PN265

Now there is a bundle of decisions which I will hand up now. Now, if I could - just before I address section 226 I do want to put some flesh to the bone of the submission I've just pressed about there being no case to determine, which could be decided at a later date in any event.

PN266

The submissions pressed by the applicants - well, by the first applicant in short, was that that the employees supported the application. The employees would not be adversely affected, the employer would be adversely affected by the repeal of the guidelines, and by the failure to make the decision and that the application would not affect the public.

PN267

Now, admittedly Mr Olsen misunderstood the nature of the public interest test, but those were their submissions and on each front, other than the last, the union has contested them in some respects, for example, through the statements from Sukyana Beckman, Laure Marie Caddie, Alex Caldeira and other, with evidence that was completely uncontested. With Ryan and then there was the Ryan statement which was substantially accepted. It was only challenged in part, and the portions of it which were challenged ranged far and wide and didn't quite come near a section 226 consideration.

PN268

So we say in those circumstances that the matters which are in dispute or rather, the matters which were put in the opening submissions from Mr Olsen have been substantially disputed that they are serious matters and that they have grave consequences. We say, in those circumstances, they should not be relied upon by the Commission.

PN269

If I could now address this issue of the public interest, preferably with the notes that I need before me. Earlier on this year, indeed, in April the Full Bench arrived at a decision in Aurizon Operations Limited & Ors [2015] FWCFB 540 (22 April 2015), it's the second case in the bundle. In that decision, they gave detailed consideration to section 226. I don't invite your Honour to find that they were in error, but I do wish to give some clarity to the way an aspect of that decision works.

PN270

THE DEPUTY PRESIDENT: I'm all ears, Mr Russell-Uren.

PN271

MR RUSSELL-UREN: Yes, I adverted to it earlier on and this commences at paragraph 129, which is page 39 of 58 and should be about six pages long. That was paragraph 129.

PN272

At paragraph 129 the Full Bench gave detailed consideration - gave some consideration to Kellogg Brown, the full citation of which is fairly well-known, so I won't read it into the transcript, nor with the next couple of cases, unless required. That decision operated in the context of the Workplace Relations Act.

PN273

It is only necessary at the moment to note that it was the 2005 version of that piece of legislation and that the Act has since changed. That's all I need to note for the minute. T

PN274

heir Honours took from that the oft-quoted paragraphs, which have informed a number of termination applications made under the Fair Work Act, and discusses there the public interest.

PN275

If I can take you then to paragraph 130, the Full Bench said:

PN276

After considering the decision in Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia -

PN277

The Full Bench went on to give some articulation to the public interest. Now, the decision to which they refer, the Queensland Electricity Commission, is the third case I the bundle. You would only need to note for the minute that it was decided in 1987 and that O'Sullivan v Farrer, another High Court case was determined in 1989.

PN278

Now, when one looks at the decision in Kellogg Brown, there is no reference contained within it to O'Sullivan v Farrer, nor - and I may be incorrect in this, I did look but I may have been mistaken - is there any reference to O'Sullivan v Farrer contained within Aurizon.

PN279

Now, this is important because the decision in O'Sullivan v Farrer gives a direct interpretation of the words "in the public interest" in the context of a decision made by a junior court of tribunal conferring a discretion, to which I will go in a minute, whereas the Electricity Commission case actually broadly discusses a public interest, but does not give it a definition and to the extent that it mentions it, we would say it's in obiter and to the extent that we are incorrect, we say that it's overruled by the later case.

PN280

O'Sullivan v Farrer is the authoritative decision on the meeting of the public interest. Now, this does have import. I'd like to now come to O'Sullivan v Farrer.

PN281

This is important for two reasons, the first is that if you turn to O'Sullivan v Farrer and you look to paragraph 13 of the majorities decision, that should be on about page 4, which is the backside of the second page. The Full Court, rather the majority say:

PN282

Indeed the expression in the public interest when used in a statute classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only insofar as the subject matter and scope and purpose of the statutory enactments may enable.

PN283

Now, the importance of this is twofold. The first consequence of it is that if the definition or if the considerations contained within the public interest change by reference to the Act as a whole and its intent and purpose and those undefined value judgements, then would it not stand to reason that it changes with the amendments? Could they not have consequence?

PN284

Because the 2005 version of the Workplace Relations Act, the same as the 2007 version with the WorkChoices amendments differ greatly from the intent and purpose and the act as a whole in 2015. This was not considered in Kellogg Brown and it was not considered in Aurizon. That's the first consequence.

PN285

The second was this, that if you go forward to paragraph 15, which should be on the next page, in around the last four lines of that paragraph, their Honours give consideration to the relationship between subsection 57(4) of the Act in question and 45(2). Now, being somewhat conscious of the time and my longwinded submissions, I won't go through them in great detail.

PN286

It's sufficient - it's clear on the face of that paragraph though that the effect of their decision there or of that paragraph is that where a matter is contained in a co-located provision; that is, a provision - the broad decision or rather a provision setting out a consideration other than the public interest within the decision that must be made, contained within a statute. That consideration does not fall within the public interest, and this follows the matter in a simple and statutory interpretation, so that - and this is really the consequence of it - so that the employer's views, considerations and consequences of termination do not fall within the public interest consideration contained at section 226(1)(a).

PN287

To the extent that paragraph 15 of O'Sullivan v Farrer, the majority decision is unclear - and I won't go through it now, but further articulation of the principle that's there being discussed, it's being discussed there, this is contained within paragraph 18 of Toohey J's decision in the same case.

PN288

We say that this means that contained within - well, first that your Honour should give some consideration to how that aspect of Aurizon is followed; not that I am inviting to contradict the Full Bench and, second, how section 226(a) and (b) relate to each other.

PN289

There is - if I can take you back to the decision in Aurizon at paragraph 132 and this is at page 40 of 58 in the bottom-right corner. They are discussing the Energy Resources of Australia Pty Ltd v Liquor Hospitality and Miscellaneous Union, sub-paraphrasing, effectively, the decision in Kellogg Brown.

PN290

The learned Vice President there is discussing essentially the scope and effect of the Act as a whole. We say that that is relevant. One aspect in the decisions which follow from Kellogg Brown is that - and indeed in part in Tahmoor - contained within the public interest is that the maintenance of proper industrial standards should continue, and this has commonly been understood as referring to situations in which by reason of the termination the workers would be award of agreement-free.

PN291

We say that contained within the Act is an intent and purpose to make sure people continue to receive their lawful entitlements and in the circumstances of this matter, particularly the timing of Rose Cleaning Services' application and the loss of enforceability in Phillips Cleaning, together with the absence of any effect in respect of the schools contracts, goes immediately to that consideration.

PN292

Unless you have any question for me, I propose to leave it at that. Those are our submissions.

PN293

THE DEPUTY PRESIDENT: Thank you, Mr Russell-Uren. Mr Olsen, do you wish to respond to any of that?

PN294

MR OLSEN: Mr Russell-Uren stated that in relation to the ANAO evidence that's been tendered that there can be no sure effect (indistinct) business. If the union can enforce us to pay higher rates, can they enforce these agencies to take on companies that have to pay the higher rates? I don't believe that they can. If Rose Cleaning doesn't win a contract, another company that doesn't have this agreement will win it and the cleaners that are working there will go back under the modern award regardless.

PN295

Rose Cleaning Services only have two employees left working for us that were around when the agreement originated. Since then everybody - the remaining 92 employees have come on board when the agreement is already in effect. I also question how the agreement came into effect when I was at one of the meetings when they asked their employees for their votes, they basically told them, "Do you want more money? Sign this." While I can understand from an employee's point of view that it may be beneficial for them to get all these benefits, one thing that they don't understand is the impact that it has on the business and the costs associated with it.

PN296

I know that the union have said that they don't believe that we have asked them the right questions and informed them correctly (indistinct) cleaners and tell them that we were going to take their pay away. As stated before, we are committed to seeing out the conditions in this agreement in our current contracts with our current employees. If we can formalise that in some way with the Commission, we are happy to do that and, as stated before, this is going forward for our company. This is not about stripping our current employees of their rights which are protected by the Fair Work Act anyway and that's pretty much all I wanted to say.

PN297

THE DEPUTY PRESIDENT: Thank you. What I am going to do is I am actually going to reserve my decision which means I am going to go away and think about all of the submissions that have been made and the evidence that's been met in the proceedings, and I will look to hand down my decision as quickly as I can, but it's likely to be a few weeks before I do that. So I will adjourn these proceedings now and as I said, hand down my decision as quickly as I can. Thank you, everyone.

ADJOURNED INDEFINITELY [12.48 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

LUISA RODRIGUES, SWORN............................................................................ PN25

EXAMINATION-IN-CHIEF BY MR RUSSELL-UREN.................................. PN51

EXHIBIT #RU11 WITNESS STATEMENT OF LUISA RODRIGUES DATED 27/07/2015.................................................................................................................................... PN78

EXHIBIT #RU12 WITNESS STATEMENT OF LUISA RODRIGUES DATED 29/07/2015.................................................................................................................................... PN78

CROSS-EXAMINATION BY MR OLSEN......................................................... PN86

RE-EXAMINATION BY MR RUSSELL-UREN............................................. PN124

FURTHER CROSS-EXAMINATION BY MR OLSEN.................................. PN157

THE WITNESS WITHDREW............................................................................ PN176

EXHIBIT #RU13 WITNESS STATEMENT OF LYNDAL RYAN............... PN194

Fair Work Commission Transcripts

AG2015/1419, Transcript of Proceedings [2015] FWCTrans 497 (26 August 2015)